Court of Appeals of Texas, Houston (14th Dist.).

Tonya CHANDLER, Appellant

v.

CONTROL SPECIALTIES, INC. and Erwin Dodson, Appellees

No. 14-94-00444-CV.

|

March 21, 1996.

OPINION

HUDSON, Judge.

*1 Appellant, Tonya Chandler, sued her employer, Control Specialties, Inc. (“CSI”), for invasion of privacy, intentional infliction of emotional distress, sexual harassment, negligence, and gross negligence. Chandler also sued her supervisor, Erwin Dodson, for invasion of privacy and intentional infliction of emotional distress. In four points of error, Chandler complains the trial court erred in: (1) failing to correct and clarify Instruction No. 3 in the jury charge; (2) overruling her objections to the jury charge; (3) admitting irrelevant and prejudicial testimony; and (4) dismissing her tort claims against CSI. We affirm the judgment of the trial court.

Chandler testified she was sexually harassed by Dodson almost daily from 1986 through December of 1990. The harassment included rude and suggestive comments directed at Chandler, tossing small objects at her breasts or down the front of her blouse, and moving to a position where he could watch her ascend the stairs. Chandler tolerated Dodson’s alleged behavior until she became convinced he was spying on her through a hole in the wall of the ladies’ room. When she became dissatisfied with CSI’s response to her complaint regarding the spying, Chandler resigned.

The plaintiff offered circumstantial evidence of Dodson’s alleged peeping and direct evidence of “routine” improprieties such as rude jokes, comments regarding Chandler’s figure, and explicit solicitation of sexual favors. Concluding that evidence of routine harassment should not be considered by the jury in determining whether Dodson spied on Chandler, the trial court instructed the jury:

You are instructed that the evidence concerning comments made or other conduct directed at plaintiff or other female employee [sic] by Erwin Dodson of a sexual nature, may be considered by you only in determining whether defendant CSI engaged in unlawful discrimination against plaintiff.¹ Such evidence may not be considered by you in determining whether Erwin Dodson looked at plaintiff through the holes in the bathroom wall.

After the jury retired to deliberate, the foreperson sent two notes to the judge suggesting they were confused about the meaning of the aforementioned instruction. Because he feared jurors would construe his charge to mean that they could not consider evidence of routine harassment when deciding Chandler’s claim of intentional infliction of emotional distress, the trial judge proposed submitting a corrective instruction. Dodson and CSI opposed this corrective measure. Dodson argued that Chandler’s claims for invasion of privacy and intentional infliction of emotional distress were based solely upon peeping. Because Chandler’s claims against Dodson were restricted to invasion of privacy and intentional infliction of emotional distress, Dodson’s counsel argued that he had offered no defense to the evidence of routine harassment. Dodson argued that a corrective instruction would devastate his defensive theory. The trial court, therefore, gave no corrective instruction.

*2 In her first point of error, appellant contends the trial judge erred in failing to give a corrective instruction informing the jury that it could consider evidence of routine harassment when deciding Chandler’s claims of invasion of privacy and intentional infliction of emotional distress. Although appellant’s counsel made objections to the court’s charge, she did not object on the same ground now alleged on appeal. It is well-established that objections not presented “before the charge is read to the jury … shall be considered as waived.” Tex.R. Civ. P. 272. However, the Rules of Civil Procedure also provide that a jury may receive additional instructions “from the court touching any matter of law.” Tex.R. Civ. P. 286. Appellant contends that where a jury note highlights error in a charge, and counsel then objects to the error and requests a corrective instruction, the trial court is obliged to give the corrective instruction.

The charge in this case is badly flawed. The plaintiff established by uncontroverted evidence that Dodson had the opportunity to peer through holes in the wall separating the men’s and ladies’ restrooms. Holes were discovered beneath the lavatory in the men’s room that were concealed by a sliding cover. Although he denied peeping through the holes, Dodson admitted that he positioned a mirror on the floor of the ladies room which leaned against the wall opposite the holes. As a result, anyone peeping through the holes beneath the lavatory in the men’s room could see a reflected image of the toilet area in the ladies’ room.

Circumstantial evidence of Dodson’s peeping was established by the testimony of male employees who noticed that Dodson frequently entered the men’s room while Chandler was in the ladies’ room, and that on these occasions Dodson would, without turning on the light, confine himself in the men’s room and that no sound of running water could be discerned. This evidence merely established Dodson’s opportunity to spy on Chandler; the jury should have also been permitted to consider evidence of Dodson’s rude and demeaning behavior to establish his sexual interest in Chandler and his motive for peeping. While proof of unsavory character is not admissible simply to show that a person acted in conformity therewith, evidence of other wrongs or acts may be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex.R. Civ. Evid. 404(b). Evidence of Dodson’s perverse interest in Chandler should have been available to the jurors as proof of motive or intent to assist them in deciding whether he spied on her in the restroom. Further, evidence of Dodson’s demeaning comments and rude behavior should have been available to the jury in deciding Chandler’s claims of invasion of privacy and intentional infliction of emotional distress. In short, Instruction No. 3 of the court’s charge improperly restricted the jury’s consideration of this evidence and the instruction should have been entirely omitted.

*3 Appellant’s counsel candidly conceded in argument that none of her objections to the charge, made before it was read to the jury, preserved the error she now advances on appeal. The issue presented here is whether a party may predicate reversible error on an objection to the charge made after it has been read to the jury. Appellant invites this Court to follow Stacks v. Rushing, 518 S.W.2d 611, 614 (Tex.Civ.App.-Dallas 1974, no writ), which holds that an appellant has standing to raise charge error, notwithstanding the absence of any prior objection, when the jury sends out a note which manifests their confusion and highlights the error in the instruction. Stacks suggests this right was established in Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex.1973). The supreme court reversed the judgment in Cross, however, because the trial court erred when it attempted to correct a mistake in its written charge with a corrective oral instruction. We do not interpret Cross to hold or even suggest that a party can preserve error in the charge by objecting to it for the first time when the jury sends out a note indicating it is confused on the law.

Certainly, a trial court may, in the interest of justice, give a jury further instructions on the law, either at the request of the jury or on the court’s own motion. Tex.R. Civ. P. 286. However, we are persuaded that before a party can predicate reversible error on mistakes made in the jury charge, he must first present his complaint to the trial court prior to the reading of the charge. Tex.R. Civ. P. 272. We therefore decline appellant’s invitation to follow Stacks.

A trial should be a decisive and momentous event. Every effort must be made, therefore, to insure that it is as free of error as is humanly possible. The purpose of Rule 272 “is to enable the trial court to submit a proper charge to the jury and to have the prior benefit of counsel’s objections so as to correct any errors that might otherwise occur.” Cross, 501 S.W.2d at 873. While enforcement of Rule 272 may occasionally lead to harsh, even unjust, results, abandonment of the rule would lead to sloppy trials, myriad appeals, and interminable litigation. The spirit of the Texas Rules of Civil Procedure is to charge attorneys with the responsibility of preserving the legal rights of their respective clients in the process of litigation by timely action. Punch v. Gerlach, 263 S.W.2d 770, 771 (Tex.1954); Nealy v. Home Indem. Co., 770 S.W.2d 592, 593 (Tex.App.-Houston [14th Dist.] 1989, no writ). Even though an instruction may be erroneous, a party may waive error by not properly objecting. Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986). Because appellant failed to timely object as required by Tex.R. Civ. P. 272, her first point of error is waived.

In her second point of error, appellant contends the trial court erred in overruling a series of objections she made to the court’s charge before it was read to the jury. In a three-pronged point of error, appellant first asserts that Instruction No. 4 improperly restricted the jury’s consideration of the evidence found in Dodson’s possession. After observing Dodson leave the office without his briefcase, Chandler searched the upstairs area of the office and found his briefcase in a storage box. Chandler opened the briefcase and discovered it contained pornographic magazines and creams which were offensive to her.

*4 Although Dodson and CSI objected to the introduction of this evidence, appellant argued that the content of the briefcase was admissible to establish Dodson’s intent. The trial judge permitted Chandler to testify about the items she found in Dodson’s briefcase, but he gave the jury a limiting instruction restricting their consideration of the evidence solely to deciding the propriety of exemplary damages. Appellant contends the limiting instruction was improper because the pornographic magazines in Dodson’s briefcase were admissible to establish his intent. The admission or exclusion of evidence is a matter within the discretion of the trial court. Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 531 (Tex.App.-Tyler 1992, writ denied). The standard of review in determining whether a trial court erred in an evidentiary ruling is abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex.1983). A court abuses its discretion when it acts arbitrarily and without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

The magazines found in Dodson’s briefcase do nothing more than establish his interest in pornography. There is nothing in appellant’s description of the materials to show Dodson had a specific interest in Chandler. Neither is there anything in the record to demonstrate how Dodson’s undisclosed possession of pornography is probative of his intent to inflict emotional distress or invade appellant’s privacy. In light of the restriction on proof of “other acts” found in Tex.R. Civ. Evid. 404(b), we cannot say that the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles.

Appellant next complains the definition of “intentional” contained in Question No. 2 is improper. The trial court’s definition states in relevant part, “that the defendant knew such harm was substantially certain to occur as a result of such conduct.” (Emphasis added). Chandler asserts the court’s use of the term “knew” was improper because that term is overly restrictive and conflicts with the definition of intent applied in State Farm Fire & Casualty Co. v. S.S. & G.W., 858 S.W.2d 374, 378 (Tex.1993). The definition of intent used in that case said, “an insured intends to injure or harm another if he intends the consequences of his act, or believes that they are substantially certain to follow.” (Emphasis added). We cannot see any conceptual difference between use of the word “knew” and the word “believes.”² Even if the words are distinguishable in their connotation, no reversible error is presented here because Question No. 2 allowed the jury to impose liability even if it found that Dodson had only acted recklessly.

Finally, appellant contends Question No. 3 should not have been submitted to the jury because it deals with the course and scope of Dodson’s employment and the court had already found that Dodson was a vice principal of CSI. We cannot find reversible error here for two reasons. First, the submission of this question became harmless and immaterial after the jury found no liability on the part of Dodson. See Medina v. Lanabi Inc., 855 S.W.2d 161, 165 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Rankin v. Atwood Vacuum Mach. Co., 831 S.W.2d 463, 466 (Tex.App.-Houston [14th Dist.] ), writ denied per curiam, 841 S.W.2d 856 (Tex.1992); Dion v. Ford Motor Co., 804 S.W.2d 302, 309 (Tex.App.-Eastland 1991, writ denied). Second, appellant tendered a substantially identical question dealing with the course and scope of Dodson’s employment. A party cannot complain on appeal when the questions or instructions given the jury are substantially the same as those requested by the appellant. S & A Beverage Co. v. DeRouen, 753 S.W.2d 507, 510 (Tex.App.-Beaumont 1988, writ denied); Dailey v. Wheat, 681 S.W.2d 747, 757 (Tex.App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.). For these reasons, Appellant’s second point of error is overruled.

*5 Appellant’s third point of error is multifarious.³ She first contends that Dodson’s attorney injected reversible error into the trial when, on redirect examination, asked Randy Pennington if he had ever heard the phrase “innocent until proven guilty.” Appellant objected to the question on the ground it suggests Chandler must prove her case beyond a reasonable doubt as opposed to by a preponderance of the evidence. However, any error that may have been injected was cured by the court’s jury charge, which properly instructed the jury that the appropriate standard was a preponderance of the evidence.

Appellant’s second complaint under this point relates to Pennington’s testimony concerning the effect of this lawsuit on Mrs. Dodson. Appellant argues that this testimony was highly inflammatory, prejudicial and designed solely to invoke sympathy for Dodson. The testimony was admitted over appellant’s objection on the theory that it would mitigate exemplary damages by demonstrating the degree of embarrassment and suffering already endured by Dodson. Appellant contends “family life” is not an issue to be considered in determining exemplary damages. As we have already observed, the admission or exclusion of evidence is a matter within the discretion of the trial court. Tracy, 840 S.W.2d at 531. Moreover, one of the factors to be considered in the determination of an award of exemplary damages is “the situation and sensibilities of the parties concerned.” Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981); Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 273 (Tex.App.-Houston [1st Dist.] 1991, writ denied). The trial court determined that the testimony reflected on Dodson’s “situation” relative to the issue of punitive damages, thus, the trial court did not act arbitrarily or without reference to any guiding principles. Downer, 701 S.W.2d at 241-42. Further, Pennington’s abbreviated testimony on this matter informed the jury only that the lawsuit had been a “very, very deep concern” to Dodson’s wife. This is not the sort of evidence reasonably calculated to cause or which probably would cause the rendition of an improper judgment. Appellant’s third point of error is overruled.

In her fourth point of error, Chandler claims the trial court erred in dismissing her claims against CSI for invasion of privacy and intentional infliction of emotional distress. As for these tort claims, appellant argues that since Dodson was found to be a vice-principal of CSI, his actions are to be deemed acts of CSI as well. Syndex Corp. v. Dean, 820 S.W.2d 869, 872 (Tex.App.-Austin 1991, writ denied). This statement of the law is entirely accurate, and CSI would have been liable for Dodson’s acts if the jury had found he committed any tortious acts. Before we are authorized to reverse a directed verdict, the record must contain some evidence upon which reasonable minds could differ. Ponder v. Texarkana Memorial Hosp., 840 S.W.2d 476, 479 (Tex.App.-Houston [14th Dist.] 1991, writ denied). In this case, there is no evidence in the record to support CSI’s liability apart from the acts of Dodson. Once the jury found no liability in Dodson, CSI was entitled to a directed verdict.

*6 Appellant also contends the trial court erred in refusing to submit questions regarding her claims against CSI for negligence and gross negligence. Appellant directs this Court to the case of Mitchell v. Aetna Casualty & Sur. Co., 722 S.W.2d 522, 524 (Tex.App.-Dallas 1986, writ ref’d n.r.e.) for the proposition that sexual harassment cases involving claims of negligence can be pursued independently of the Texas Workers Compensation Act. This case is not on point. The sexual harassment suit in that case involved a negligent hiring claim based upon federal statutory liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(c). Appellant’s claims were not based in federal law and were simply common law claims. Therefore, we follow Schauer v. Memorial Care Sys., 856 S.W.2d 437, 452 (Tex.App.-Houston [1st Dist.] 1993, no writ). The Texas Workers Compensation Act exempts employers from all common law liability based on negligence and gross negligence, except in death cases for exemplary damages. Id. Thus, the trial court properly refused to submit jury issues on CSI’s negligence and gross negligence. Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.

	Footnotes
1		Because sexual harassment lies within the penumbra of sexual discrimination, the “discrimination” referred to in the court’s charge is synonymous with sexual harassment. Vincent v. West Texas State Univ., 895 S.W.2d 469, 473 (Tex.App.-Amarillo 1995, writ denied) (motion for rehearing pending); Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 658 (Tex.App.-Corpus Christi 1994, writ denied); Syndex Corp. v. Dean, 820 S.W.2d 869, 870-71 (Tex.App.-Austin 1991, writ denied). Also Tex. Lab.Code Ann. § 21.051 (Vernon Supp.1996).
2		The words “know” and “believe” are listed as synonyms in Webster’s New Collegiate Dictionary 633 (1981)
3		The point of error violates Tex.R.App. P. 74(d). See General Resources Org., Inc. v. Deadman, 907 S.W.2d 22, 30 (Tex.App.-San Antonio 1995, n.w.h.); In re Marriage of Moore, 890 S.W.2d 821, 825 (Tex.App.-Amarillo 1994, n.w.h.).