Court of Appeals of Texas, Texarkana.

WAL-MART STORES, INC., d/b/a Wal-Mart Discount Cities, Store 181, Appellant,

v.

Estate of Billy A. BERRY, Sr., Appellee.

No. 06-98-00181-CV.

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Submitted Sept. 21, 1999.

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Decided Oct. 6, 1999.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

CORNELIUS.

*1 Billy A. Berry, Sr. sued Wal-Mart on April 15, 1997, for damages, alleging that he was injured in February of 1997 when he slipped and fell because of water on the floor of the Wal-Mart store in New Boston. Berry died on April 16, 1998, from causes unrelated to the fall, and shortly thereafter Doris McDonald and Helen Elizabeth Burden, co-administrators of Berry’s estate, were substituted as plaintiffs. Wal-Mart answered the suit and raised affirmative defenses contending that Berry’s own negligence caused the accident.

The case was tried to a jury, which found Wal-Mart fifty-one percent negligent, Berry forty-nine percent negligent, and awarded Berry damages of $30,000.00, together with costs and interest. The trial court rendered judgment for Berry in the amount of $15,300.00, together with court costs of $562.00 and prejudgment interest at ten percent from June 1, 1997 to the date of judgment.

Wal-Mart does not challenge the sufficiency of the evidence supporting the jury’s findings of negligence and proximate cause, so it is not necessary to discuss the facts giving rise to Wal-Mart’s liability. On appeal, Wal-Mart raises only two points. It contends that: 1) the trial court erred in excluding evidence of a prior claim asserted by Berry against a third party offered as proof of Berry’s motive and for his impeachment; and 2) the trial court’s instruction on negligence was erroneous.

Wal-Mart first contends that the trial court erred in excluding evidence of a prior allegedly fraudulent claim by Berry in connection with a fall in an antique store. Wal-Mart argues that such evidence was admissible as proof of Berry’s motive, intent, and plan in connection with the claim involved here, and for impeachment purposes.

Berry argues that Wal-Mart failed to preserve this complaint for appellate review. To preserve error regarding the exclusion of evidence, an appellant must: 1) offer to introduce the evidence during the evidentiary portion of the trial; 2) if an objection is lodged, specify the purpose for which the evidence is offered; 3) obtain a ruling from the trial court; and 4) if the court rules the evidence inadmissible, make a bill of exceptions showing the evidence the party seeks to admit. Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 660 (Tex.App.-Houston [14th Dist.] 1998, no pet.).

Berry contends that the record does not show any attempt by Wal-Mart to introduce the testimony in dispute during the evidentiary portion of the trial and also contends that Wal-Mart made no formal objection to the trial court’s ruling. Berry states there is only a reference to the testimony in a motion in limine and a motion to restrict testimony, which are not part of the record.

Berry rested his case on October 6, 1998, and the jury was then released to return the next day. After the jury left, the trial court conducted a bench conference with counsel. Wal-Mart’s counsel indicated he wanted to offer portions of Berry’s deposition testimony, including a question to Berry whether, before the date of his fall in Wal-Mart’s store, he had been involved in any slip- or trip-and-fall incidents, to which question Berry answered “no.” The trial court refused to allow that evidence.

*2 Then, in its bill of exceptions, Wal-Mart produced the testimony of Hoyt Raney, who testified about a prior incident in his antique shop in which he said Berry “tried to fall” down some steps, as a result of which Raney paid Berry approximately $1,000.00 in settlement for alleged injuries. Raney believed that Berry’s claim in that instance was fraudulent. Wal-Mart’s counsel and the trial court discussed Wal-Mart’s reasons for introducing this evidence, and the court stated its reasons for not allowing it.

We find that Wal-Mart adequately preserved its complaint for appellate review. Wal-Mart clearly stated to the trial court why it wanted to introduce the evidence and presented the evidence in its bill of exceptions. The trial court stated why it was not going to admit the evidence. These proceedings were recorded and are part of the reporter’s record. See Pride Petroleum Servs., Inc. v. Criswell, 924 S.W.2d 720, 721 (Tex.App.-El Paso 1996, writ denied).

We conclude that the trial court did not abuse its discretion in excluding the evidence. Generally, evidence of other wrongs or acts is not admissible to prove the character of a person to show that he acted in conformity therewith on a particular occasion. Prior acts or transactions by one of the parties with other persons are irrelevant, immaterial, and may be highly prejudicial. Evidence of other acts or wrongs may be admissible, however, to show motive, intent, opportunity, preparation, plan, knowledge, identity, or the absence of mistake or accident. Tex.R.Evid. 403, 404(a), (b). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 956 (Tex.App.-Texarkana 1989, writ denied).

Wal-Mart cites Durbin v. Dal-Briar Corp., 871 S.W.2d 263 (Tex.App.-El Paso 1994, writ denied), where the court of appeals found reversible error in the trial court’s refusal to admit evidence that the defendant company had previously terminated a number of its employees when they filed workers’ compensation claims. The court of appeals found this to be evidence of the routine practice of an organization, relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. Durbin v. Dal-Briar Corp., 871 S.W.2d at 268, citing Tex.R.Evid. 406.¹ The incidents sought to be introduced involved the same supervisory personnel, the same workplace, and the same pattern of conduct that allegedly motivated plaintiff’s discharge. The court found that the specific incidents sought to be introduced by plaintiff were substantially similar to the plaintiff’s own termination. Durbin v. Dal-Briar Corp., 871 S.W.2d at 269. In this case, Wal-Mart sought to introduce one other incident, involving dissimilar circumstances, and which was by no means conclusively established to be a false claim.

*3 In First Southwest Lloyds Ins. Co. v. MacDowell, a case where an insurance company was seeking to avoid liability on its fire insurance policy by showing that the fire in question had been deliberately set, the insurance company sought to introduce evidence that the claimants had previously suffered a fire loss at their rental units in another city, occurring eight months before the fire at issue, and that the fire was of suspicious origin. They sought to show this by introducing testimony from an officer of the fire department who opined that the rental unit fire was of incendiary origin. This Court held this evidence inadmissible because the insurance company failed to show a sufficient nexus between the prior fire and the fire in question. The insurance company failed to establish any wrongdoing on the part of the claimants regarding the other fire. First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d at 957.

We will follow the principles we applied in First Southwest Lloyds Ins. Co. v. MacDowell. The evidence Wal-Mart sought to introduce does not establish that the prior incident was a false claim, much less that Berry was in the habit² of staging false slip-and-fall incidents to collect money from retail shop owners. The trial court acted within the proper bounds of its discretion in finding the lack of a sufficient nexus between the prior incident and the accident in question here.

We further find that such evidence was not admissible under Rule 404(b) as indicating a plan, scheme, or motive of Berry to defraud retail store owners of their money by taking deliberate falls and claiming damages from resulting injuries. In Lazcano v. State, 836 S.W.2d 654, 660 (Tex.App.-El Paso 1992, pet. ref’d), a criminal case, the El Paso Court of Appeals said:

The mere occurrence of numerous similar acts is insufficient to give rise to logical and legal relevance apart from showing a propensity to commit such acts. Even if the commission of a high number of generally similar offenses increases the potential relevance, the evidence tendered in the instant case illustrated only one analogous act. Without some indication that the acts constituted the necessary steps in the completion of a formed design, we expressly decline to hold that the occurrence of a single comparable act constitutes a common scheme or plan.

We find this reasoning to be persuasive and hold that evidence of the prior alleged incident was not admissible under Rule 404(b) as evidence of a plan or scheme.

The trial court also ruled that Wal-Mart’s proffered evidence was not admissible because its probative value was substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403. Under Rule 403, the trial court is required to conduct a balancing test to determine whether or not the proffered evidence is admissible. The trial court has wide latitude to exclude evidence if it creates undue prejudice, distracts the jury from the main issues, consumes an undue amount of time, or unfairly surprises the proponent’s adversary. The trial court’s ruling will be upheld absent an abuse of discretion. TCA Bldg. Co. v. Northwestern Resources Co., 922 S.W.2d 629, 637 (Tex.App.-Waco 1996, no writ). Based on our previously stated findings as to the evidence offered by Wal-Mart, we find no abuse of discretion by the trial court. Permitting such evidence to be introduced would have been unfairly prejudicial to Berry, confused the issue for the jury, and would have necessarily led to a relitigation of the previous incident in Raney’s antique shop. See Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 826 (Tex.App.-Dallas 1993, no writ).

*4 Wal-Mart argues that the trial court did not conduct a balancing test to determine whether the prejudicial value of the excluded evidence outweighed its probative value. In sustaining a Rule 403 objection, the court is assumed to have conducted the required balancing test and determined that the evidence was inadmissible. Rule 403 does not require that the balancing test be performed on the record. See Poole v. State, 974 S.W.2d 892, 897 (Tex.App.-Austin 1998, no pet.); Yates v. State, 941 S.W.2d 357, 367 (Tex.App.-Waco 1997, pet. ref’d); Caballero v. State, 919 S.W.2d 919, 922 (Tex.App.-Houston [14th Dist.] 1996, pet. ref’d).

Wal-Mart also contends the trial court did not use the correct analysis in his balancing test because the court’s statement of his reasons for excluding the evidence did not use the exact words of the rule where it requires that the probative value of the evidence must be outweighed by the danger of unfair prejudice. We overrule this contention. The context of the trial court’s statement clearly shows he was applying the test set out in Rule 403.

The trial court also ruled that evidence of the prior incident constituted improper impeachment on a collateral matter. Wal-Mart failed to establish a sufficient nexus between the incident and the accident at its store to make such evidence relevant. Generally, a witness may not be questioned on cross-examination about immaterial matters as a predicate for impeachment. See Jones v. Southern Pac. R.R., 962 F.2d 447, 450 (5th Cir.1992); Porter v. Security State Bank of Hedley, 721 S.W.2d 556, 559 (Tex.App.-Amarillo 1986, no writ); Chagas v. West Bros., Inc., 589 S.W.2d 185, 186-87 (Tex.Civ.App.-Fort Worth 1979, no writ); Leyendecker v. Strange, 204 S.W.2d 845, 848 (Tex.Civ.App.-Galveston 1947, writ ref’d n.r.e.). Wal-Mart was attempting to impeach a deceased person’s deposition testimony, not about the accident on trial, but about whether he had ever been involved in another slip-and-fall claim, with testimony about a settled claim by the settling party who now thinks the other party might have been faking his injuries. Wal-Mart has not cited us to any authority that the trial court’s refusal to admit such evidence under these circumstances would constitute an abuse of discretion. To permit such testimony would undoubtedly result in a retrial of the settled matter between Raney and Berry. The trial court did not abuse its discretion by refusing to admit this testimony.

Wal-Mart cites Schlueter v. Schlueter, 929 S.W.2d 94 (Tex.App.-Austin 1996), aff’d in part, rev’d in part, 975 S.W.2d 584 (Tex.1998). Schlueter was a divorce case filed by a husband. The wife counterclaimed against the husband and the husband’s father for fraud, breach of fiduciary duty, and conspiracy. The wife alleged that her husband and his father engaged in transactions designed to defraud the community estate. Evidence was admitted that the father had engaged in the same type of activity in a 1984 divorce involving another of his sons. The court in the former case specifically found that the son illegally transferred property to the father to avoid paying the attorney ad litem. Schlueter v. Schlueter, 929 S.W.2d at 98-99. The Austin Court of Appeals found the evidence admissible under both Rules 403 and 404(b). In Schlueter, there was also other evidence of sham transactions between the son and father. The son had sold a business to the father for $1,000.00, despite the fact that the son had invested $3,250.00 in the business and that the son’s business partner said it was worth $10,000.00. The court found that the ultimate issue in the case was the determination of fraud and conspiracy of the father and husband against the community estate. The court found that evidence of the 1984 actions helped clarify the father’s motive and intent, stating that, “[t]here is a direct and logical connection between Hudson’s 1984 actions and his alleged fraudulent behavior in this case….” Schlueter v. Schlueter, 929 S.W.2d at 97.

*5 We find Schlueter distinguishable from the situation here. One distinguishing fact is the quality of the proffered evidence. In Schlueter, the court had specifically ruled that the father’s actions in the 1984 case were illegal. In this case, we have only speculation from a settling party that he thought Berry’s claim may not have been valid. The jury would be, in effect, called to relitigate the settled claim of Berry against Raney. It should also be noted that Raney was involved in some kind of dispute with one of the women acting as an administrator for the Berry estate. Also, the issue in the Schlueter case was alleged fraudulent transactions designed to defraud the community estate in a divorce action. The issue on trial there directly related to the motive and intent of the father and husband. The 1984 case was certainly relevant to demonstrate the father’s motive and intent. In this case, the single issue is whether Berry slipped and fell and was entitled to damages due to Wal-Mart’s negligence.

Wal-Mart objected to the definition of negligence contained in the court’s charge and proposed this definition:

“NEGLIGENCE” when used with respect to the conduct of Wal-Mart Stores, Inc. as an owner or occupier of a premise, means failure to exercise ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that the owner or occupier knows about or in the exercise of ordinary care should know about, either by adequately warning Plaintiff of the condition or making that condition reasonably safe.

(Emphasis added.) Wal-Mart cited as its authority for this instruction State v. Williams, 940 S.W.2d 583 (Tex.1996). The trial court denied Wal-Mart’s requested instruction.

As to Wal-Mart, the jury was instructed as follows:

With respect to the condition of the premises, Walmart Stores, Inc. was negligent if-

a. the condition posed an unreasonable risk of harm, and

b. Walmart Stores, Inc. knew or reasonably should have known of the danger, and

c. Walmart Stores, Inc. failed to exercise ordinary care to protect Billy Berry from the danger, by both failing to adequately warn Billy Berry of the condition and failing to make that condition reasonably safe.

(Emphasis added.)

The Texas Supreme Court specifically approved, as part of the proper instruction in a premises liability case when the plaintiff is a licensee, the following definition:

d. defendant failed to exercise ordinary care to protect plaintiff from danger, by both failing to adequately warn plaintiff of the condition and failing to make that condition reasonably safe.

State v. Williams, 940 S.W.2d at 584 (emphasis added).

This Court, relying on State v. Williams, has specifically held this language to be the proper language for a jury charge in such a case. Knorpp v. Hale, 981 S.W.2d 469, 472 n. 2 (Tex.App.-Texarkana 1998, no pet.); Dabney v. Wexler-McCoy, Inc., 953 S.W.2d 533, 536 (Tex.App.-Texarkana 1997, pet. denied). The language employed in the trial court’s instruction is in conformity with the language in State v. Williams. Although Wal-Mart expresses dissatisfaction with the holding in State v. Williams, we, as an intermediate appellate court, are bound by the rule of stare decisis to follow the applicable holdings of the Texas Supreme Court. Honhorst v. University of North Texas, 983 S.W.2d 872, 875 (Tex.App.-Fort Worth 1998, no pet.).

*6 The judgment of the trial court is affirmed.

	Footnotes
1		“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Tex.R.Evid. 406.
2		Wal-Mart did not argue the applicability of Tex.R.Evid. 406 in its brief.