American General Fire and Cas. Co. v. McInnis Book Store, Inc., 13-92-062-CV

• Citation: 860 S.W.2d 484
• Decision Date: 10 June 1993
• Docket Number: No. 13-92-062-CV,13-92-062-CV
• Parties: AMERICAN GENERAL FIRE AND CASUALTY COMPANY, Appellant, v. McINNIS BOOK STORE, INC., et al., Appellees.
• Court: Court of Appeals of Texas

Page 484

860 S.W.2d 484

AMERICAN GENERAL FIRE AND CASUALTY COMPANY, Appellant, v. McINNIS BOOK STORE, INC., et al., Appellees.

No. 13-92-062-CV.

Court of Appeals of Texas,

Corpus Christi.

June 10, 1993.

Thomas F. Nye, David H. Crago, Brin & Brin, Corpus Christi, for appellant.

Paul G. Kratzig, Jo Ellen Hewins, Law Office of Paul G. Kratzig, John S. Warren, LeLaurin & Adams, P.C., Robert B. Weathers, Corpus Christi, Kurt Groten, Houston, for appellees.

Before FEDERICO G. HINOJOSA, Jr., SEERDEN, and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A fire damaged the McInnis Book Store, and appellees attempted to claim benefits under an insurance policy, but appellant refused to pay benefits, claiming that the store owner intentionally set the fire. Appellees originally sued appellant for breaching the insurance contract, breaching the duties of good faith and fair dealing, and violating the Insurance Code and the Deceptive Trade Practices-Consumer Protection Act (DTPA). The trial court ordered that all of appellees' claims against appellant, except the claim for damages under the insurance contract, be severed. Appellees, in this case, only sought recovery of payment under the insurance contract. A jury found the owner did not intentionally set the fire and found that the store suffered losses of $143,004.11. The trial court entered judgment for damages in the amount of $143,004.11, pre-judgment interest in the amount of $43,880.48, and attorneys' fees. By five points of error, appellant challenges the sufficiency of the evidence regarding damages, complains that the jury finding that the owner did not intentionally set the fire is against the great weight and preponderance of the evidence, and complains that the trial court erred in denying a motion for new trial urged on the ground that appellees failed to sanitize exhibits. By a sixth point of error, appellant complains that the trial court erred by awarding attorneys' fees. We affirm the trial court's judgment.

American General Fire and Casualty Company insured McInnis Book Store, Inc., for property and earnings lost to fire. McInnis Book Store, Inc., is a Texas corporation owned and controlled by Paul Lynam. In 1988, financial problems beset Lynam, causing him to be delinquent in paying taxes, promissory notes, and publishers, and causing his checks to be returned for insufficient funds. Lynam's personal income fell from $40,000 in 1985, to $9,000 in 1986, to $985 in 1987, to $0 in 1988. The store lost inventory as publishers refused to send books on credit, customers commented on the diminished inventory, and at least one employee questioned how the business could survive. Lynam was the last person to leave the store on April 2, 1988. That night, a fire damaged part of the store and some of its contents.

By its first three points of error, appellant complains that the trial court erred by denying its motion for new trial which alleged that the jury had received evidence that Lynam had been acquitted of arson. Appellant argues that appellees offered an exhibit which contained a reference to Lynam's acquittal, that the trial court admitted the exhibit on the condition that material about the criminal trial be removed from the exhibit, but that appellees failed to remove the prejudicial material from the exhibit.

A reviewing court will not disturb a trial court's ruling on a motion for new trial unless the trial court clearly abuses its discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Jackson v. Mares, 802 S.W.2d 48, 49 (Tex.App.--Corpus Christi 1990, writ denied). To hold that a trial court abused its discretion, we must find that it acted without regard for guiding rules and principles or that it acted arbitrarily and unreasonably. 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).

Reviewing courts indulge every reasonable presumption in favor of the trial court's ruling on a motion for new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex.1983); Texas Employers' Ins. Ass'n v. Ramirez, 770 S.W.2d 896, 902 (Tex.App.--Corpus Christi 1989, writ denied). When the trial court does not file findings of fact, a reviewing court will infer that the trial court found all facts to justify the trial court's ruling if there is any evidence of probative fact to support the judgment. Lewkowitz v. El Paso Apparel Co., 625 S.W.2d 301, 303 (Tex.1981).

To obtain a new trial based on jury misconduct, the moving party must show that 1) misconduct occurred, 2) it was material, and 3) the party suffered injury. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.1985); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 280 (Tex.App.--Houston [1st Dist.] 1991 writ denied). The movant bears the burden of presenting evidence substantiating fact claims necessary to entitle the movant to relief. Cocke v. Saks, 776 S.W.2d 788, 790 (Tex.App.--Corpus Christi 1989, writ denied). The rule covering new trials for jury misconduct includes motions alleging improper communications made to the jury. TEX.R.CIV.P. 327(a). Texas courts have suggested that tampering with evidence is an "outside influence" within the scope of TEX.R.CIV.P. 327(b) and TEX.R.CIV.EVID. 606(b). See Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204, 210 (Tex.App.--Corpus Christi 1990, no writ); see also Clancy v. Zale Corp., 705 S.W.2d 820, 829 (Tex.App.--Dallas 1987, writ ref'd n.r.e.).

An acquittal in a criminal action is not ordinarily admissible evidence in a subsequent civil prosecution involving common fact issues. State v. Benavidez, 365 S.W.2d 638, 641 (Tex.1963).

Appellant complains that the jury received evidence that Lynam was acquitted of arson in connection with the fire that damaged the McInnis Book Store. Appellees offered an exhibit which contained references to Lynam's indictment and acquittal, prompting a bench conference. The trial court anticipated that appellant would object to the criminal trial references when appellees sought admission of the exhibit before excising the objectionable parts.

COURT: Are you going to object to it?

APPELLANT: As long as Counsel will represent to me that, you know, it's not going to go to the jury without it being sanitized and having the objection, about the material about the criminal trial.

COURT: It's going to be admitted subject to it being sanitized.

* * * * * *

COURT: No objections subject to being sanitized before it's published to the jury, right?

APPELLANT: And also to my right to go through it, just like these others.

After closing arguments, the trial court recessed the jury until the following Friday morning to allow the parties to "get the evidence together, the Charge, and things of that nature." After the jury left the courtroom, the trial court stated:

Folks, you want to check the evidence to see what's in, or you can do it Friday. See if we got everything marked.

Counsel from both sides met to examine the exhibits and approve their publication to the jury. Neither party removed references to the criminal trial from appellees' exhibit.

Appellant contends that its motion for new trial alleged attorney misconduct, not jury misconduct. It argues that appellees accepted the duty to sanitize the exhibit, citing Texas General Indemnity Co. v. Ellis, 421 S.W.2d 467, 472-73 (Tex.Civ.App.--Tyler 1967, no writ). Appellees contend that both parties shared the duty to inspect the exhibits, citing City of Houston v. Simon, 580 S.W.2d 667, 668 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ). Appellees also argue that appellant failed to produce evidence that it was harmed by the failure to excise the references to the criminal trial.

We have found no cases discussing the deference a reviewing court should grant a trial court's determination of which party bears the burden of excising prejudicial information from an exhibit. Our research has also failed to find any Texas cases dealing with conditionally admitted documents. While we note that the rules of evidence explicitly provide for the admissibility of evidence for limited purposes, TEX.R.CIV.EVID. 105(a), and the admissibility of evidence only upon fulfillment of a condition of fact, TEX.R.CIV.EVID. 104(b), the rules do not contemplate admitting the inadmissible.

It is our opinion that the better practice would be for trial courts, upon proper objection, to refuse to admit any item of physical evidence which contains any inadmissible material. The party proffering the evidence would then be forced to remove the inadmissible portion and re-offer the evidence.

If the trial court had followed this procedure, we would not have this problem before us. We understand that in some cases, like the case at bar, this procedure might not allow for time constraints facing the court, counsel, and witnesses. ¹ We, therefore, address the question of who bears the burden of excising inadmissible material from evidence which has been conditionally admitted.

On the one hand, proffered evidence, objections thereto, and rulings thereon range infinite, suggesting that a trial court should assign burdens as it admits evidence, since the trial court best understands the parties' conflicting needs for admitting relevant evidence and for excising prejudicial evidence. The trial court also sits in the best position to determine whether the objecting party has clearly identified the material it wishes removed from the proffered evidence. The question of which party bears the burden of excising prejudicial information from an exhibit before publishing it to a jury is thus akin to a question of fact, requiring a reviewing court to presume the trial court found facts supporting its ruling; in this case, that appellant bore or shared the burden to an extent sufficient to warrant denying the motion for new trial. Such a finding has support in the evidence of this case. Appellant requested the...