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

Raymond VILLARREAL, Appellant

v.

SOUTHWEST DISTRIBUTING COMPANY, INC., d/b/a/ Silver Eagles Distributors, Inc., Appellee

No. 14-95-00135-CV.

|

Aug. 15, 1996.

OPINION

ONEILL.

*1 This is an appeal from a jury verdict and judgment rendered in favor of Southwest Distributing Company, Inc., d/b/a Silver Eagle Distributors, Inc. (Southwest), appellee, in a suit brought by Raymond Villarreal, Sr. (Villarreal), appellant, for wrongful discharge in violation of the Texas Workers’ Compensation Act. Tex.Rev.Civ. Stat. Ann. art. 8307C.¹ In three points of error appellant alleges the trial court erred in: (1) failing to allow the admission of certain evidence; (2) failing to permit him to amend his petition; and (3) failing to properly set the trial. We affirm.

Background

Villarreal was employed by Southwest as a route driver. On January 25, 1990, Villarreal was injured while pulling a dolly loaded with beer up the steps of Toritos Lounge in Houston, Texas. Villarreal testified that he reported the injury to his district manager, Marty Garcia, that afternoon and again the next morning. On January 24, 1990, the day prior to his injury, two other Southwest employees were visiting customers served by Villarreal and found almost twenty-two cases of “out-of-code” product² located at six different accounts on his route. The out-of-code product was removed and the incident was reported to management.

On January 26, 1990, Villarreal reported for work and was informed that the company had found out-of-code beer on his route. Villarreal was suspended that day, and was terminated from his job on January 31, 1990.

Villarreal filed this action claiming that Southwest fired him for filing a worker’s compensation claim in violation of the Texas Workers’ Compensation Act. Villarreal argued that the out-of-code beer found on his route was a pretext for his dismissal. To support his claim of pretext, Villarreal cited examples of other employees who were not terminated for out-of-code product violations. Southwest responded that the examples cited preceded a change in its code date policy that occurred on July 24, 1989. The new policy required automatic termination where out-of-code beer was found on a driver’s route. If employees suspected that beer on their route was going to go out-of-code, they could protect themselves by filing a “20/5-Day Alert Form.” If the form was properly filled out, the driver would not be terminated for out-of-date beer on his route. Villarreal did not file a “20/5-Day Alert Form,” and out-of-date beer was found on his route. Therefore, Southwest claims, Villarreal was terminated pursuant to the new policy.

The case was called to trial before Judge Elizabeth Ray on October 10, 1994. On October 19, 1994, the case ended in a mistrial. The case was again called to trial on October 27, 1994, but appellant objected to the visiting judge assigned to the case. The case was called to trial for a third time on November 1, 1994, before Judge Larry Fuller. Neither party lodged any objections and both parties declared that they were ready to proceed. Judge Fuller sat for the first seven days of trial, and Judge Ray presided over the remaining two days of trial. The jury returned a verdict in favor of Southwest.

Point of Error One

*2 In his first point of error, appellant contends the trial court erred in excluding certain evidence. Specifically, appellant argues the trial court erroneously granted appellee’s motion in limine, which limited his proof regarding pretext to those employees who were not terminated for out-of-code product violations after July 24, 1989, the date the new code policy was changed.

We find that appellant waived this point of error. Appellant’s complaint concerns a ruling on a motion in limine. A motion in limine is a preliminary ruling and does not constitute a basis of error unless the appellant tried to introduce the excluded evidence. Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331 (Tex.1963); Tex.R.App. P. 52(b). Absent an offer of the evidence and an adverse ruling from the trial court, there is nothing for review. Estate of Veale v. Teledyne Industries, 899 S.W.2d 239, 242 n. 2 (Tex.App.-Houston [14th Dist.] 1995, writ denied); Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Union Carbide Corp. v. Burton, 618 S.W.2d 410 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.). To preserve error, appellant was required to: (1) attempt to introduce the evidence during trial; (2) if an objection is lodged, specify the purpose for which the evidence is offered and explain why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the judge rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party wants admitted. Estate of Veale, 899 S.W.2d at 242 (citations omitted).

Appellant argues that the trial court “granted the Defendant’s motions in limine and sustained objections to Plaintiff’s offer of such proof.” Appellant argues that he made a bill of exceptions through the testimony of Charles Viereck, an ex-employee of Southwest. There are two problems with this argument. First, appellant fails to cite us to where in the record the offer of proof was made. The failure to provide record cites is sufficient to waive the point of error. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); Elder v. Bro, 809 S.W.2d 799 (Tex.App.-Houston [14th Dist.] 1991, writ denied). Second, the purported bill of exceptions upon which appellant relies was made at the first trial, which ended in a mistrial, and not at the second trial which forms the basis of this appeal. “[A] trial judge cannot consider testimony taken at a previous trial in a subsequent trial unless it is admitted into evidence.” Traweek v. Larken, 708 S.W.2d 942, 947 (Tex.App.-Tyler 1986, writ ref’d n.r.e.) (citing Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex.App.-San Antonio 1985, writ ref’d n.r.e.); Federal Underwriters Exchange v. Hinkle, 187 S.W.2d 122, 124 (Tex.Civ.App.-Fort Worth 1945, writ ref’d n.r.e.)). More importantly, “[a]n appellate court cannot resort to the record of testimony taken in a different case, or on a former trial of the same case, to determine whether error has been committed in a later case.” Amco Mesh & Wire Co. v. Stewart, 474 S.W.2d 740, 741 (Tex.Civ.App.-Houston [1st. Dist.] 1971, no writ) (citing Federal Underwriters Exchange, 187 S.W.2d at 124; Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942)). To assign error based upon the bill of exceptions made in the first trial, appellant was required to re-offer the bill at the second trial.³ By failing to do so, appellant has waived error.

*3 Point of error number one is overruled.

Point of Error Two

In his second point of error, appellant argues the trial court erred in failing to permit him to amend his pleadings during trial.

Appellant’s original petition alleged that Southwest had wrongfully fired him for filing a worker’s compensation claim. During the first trial, appellant moved to amend his petition by adding the following paragraph:

Plaintiff would show that the habit of SOUTHWEST DISTRIBUTING COMPANY, INC. and their routine practice was to administer their 20/5 day policy in a discriminatory manner. The Defendant has alleged that Plaintiff was terminated because of violations of company policy. Plaintiff would show that the routine practice of SOUTHWEST DISTRIBUTING COMPANY, INC., beginning in 1988 up to the present, was to selectively apply the provisions of the package code date corporate policy. Plaintiff would show that employees who the company desired to terminate, either because of union affiliation, worker’s compensation claims, or other reasons, were set up and the excuse given for the termination was a violation of the company Code Date Policy, rather than the real reason for their termination. Employees who were in favor of management were only given warnings or, in many cases, promoted and not terminated. Plaintiff would show that he was terminated due to this excuse which was not uniformly applied and the real reason for his termination was his filing of a worker’s compensation claim.

Appellant failed to reurge his motion in the subsequent trial before Judge Fuller. In fact, appellant conceded that an amended petition was unnecessary:

THE COURT: … I’m going to hold to the original petition and not grant the amendment and give you any exceptions that you want …

MR. ARTHUR: Your Honor, just as I mentioned, I don’t think an amended petition is necessary. I think I have plead discrimination and what encompasses discrimination is that my man was treated differently than other employees.

As a result, appellant waived any complaint with respect to this point of error.

Even if appellant had preserved error, however, appellant concedes that his amended petition did not plead a new cause of action. Rather, it plead new facts that he intended to prove at trial regarding the discrimination claim. In other words, the proposed amended petition merely contained additional evidentiary matters and added nothing of substance to appellant’s discrimination claim. Therefore, the failure to allow the amended petition certainly was not arbitrary and could not have resulted in injury to appellant. See Box v. Associates Investment Co., 389 S.W.2d 687, 689 (Tex.Civ.App.-Dallas 1965, no writ). Point of error two is overruled.

Point of Error Three

In his third point of error, appellant contends the trial court erred in holding the case on the trial docket for thirteen days after the mistrial and then assigning the case for trial. Appellant claims that by doing so, the court reset the case without providing the proper fortyfive day notice required by Tex.R. Civ. P. 245. In support of his argument, appellant cites Harris County Local Rule 3.4.2, which states:

*4 Cases shall be set for trial for a date certain. If a case is not assigned to trial by the second Friday after the date it was set, whether because of a continuance or because it was not reached, the court shall reset the case to a date certain. Unless all parties agree otherwise, the new setting must comply with all requisites of Texas Rule of Civil Procedure 245.

Rule 245 of the Texas Rules of Civil Procedure provides:

[A] court may set contested cases for trial on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial … provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties.

This case first went to trial on October 10, 1994, and ended in a mistrial. Although the case was again called to trial on October 27, 1994, appellant objected to the visiting judge. The case was called to trial for a third time on November 1, 1994, before Judge Larry Fuller. The record reflects the following exchange when the case was called to trial before Judge Fuller.

THE COURT: Okay. Let me call the case. 90-034161, Raymond Villarreal v. Southwest Distributing Company, Inc. What say the Plaintiff?

MR. ARTHUR: We are ready, Your Honor.

MR. COOK: Defendant is ready, Your Honor.

The case then proceeded to trial.

Appellant appears to argue that when the two-week period from the original setting elapsed, the parties were entitled to forty-five days notice before the case was reset. Appellant claims the trial court intentionally thwarted this rule to prevent him from amending his pleadings. However, once the case was originally set for trial, the court was no longer required to provide forty-five days notice before the reset date. State Farm Fire and Cas. Co. v. Price, 845 S.W.2d 427, 431-32 (Tex.App.-Amarillo 1992, writ dism’d by agmt) (forty-five day notice applies only to the first setting of the trial). Moreover, nowhere in the record does appellant object to the case being reset for trial on November 1, 1994. To the contrary, when Judge Fuller called the case for trial, appellant announced ready, thereby waiving error. Tex.R.App. P. 52(a).

Point of error number three is overruled.

The judgment of the trial court is affirmed.

	Footnotes
1		Tex.Rev.Civ. Stat. Ann. art. 8307C is now codified as Tex. Lab.Code Ann. § 451.001, et. seq. (Vernon 1995).
2		In order to insure the quality of beer sold to its consumers, Anheuser-Busch’s contract with Southwest provided that over-age product would be destroyed by Southwest and replaced with fresh product at no cost to the retailer. The beer is stamped at the brewery with a “code” date that identifies the cut-off point after which beer becomes over-age. Once that date has passed, the product is considered “out of code.”
3		We note that Judge Fuller, prior to hearing evidence in the second trial, asked appellant if he wanted to introduce the testimony from the bill of exceptions made at the first trial. Appellant declined.