Beall v. Ditmore

• Decision Date: 13 October 1993
• Docket Number: No. 08-92-00312-CV,08-92-00312-CV
• Citation: 867 S.W.2d 791
• Parties: Kellie Rae BEALL, Appellant, v. Keith T. DITMORE, Appellee.
• Court: Texas Court of Appeals

Page 791

867 S.W.2d 791

Kellie Rae BEALL, Appellant, v. Keith T. DITMORE, Appellee.

No. 08-92-00312-CV.

Court of Appeals of Texas El Paso.

Oct. 13, 1993.

Rehearing Overruled Dec. 1, 1993.

Keith C. Gorman, Rosemary Morales Marin, Dudley, Dudley & Windle, El Paso, for appellant.

Evelina Ortega, Robert J. Perez, Caballero, Panetta & Ortega, El Paso, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from the trial court's judgment on the verdict entered against Kellie Rae Beall, Appellant, for $113,200 following the jury trial of an automobile accident case. In a single point of error, Appellant attacks the trial court's refusal to grant her motion for mistrial, motion for new trial, and motion to modify the judgment on the grounds that it was harmful error for the court to overrule a timely objection to the interjection of insurance into the trial of the case. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

In January 1989, Keith Ditmore, Appellee, was involved in an automobile accident when the vehicle he was driving collided with a vehicle driven by Kellie Rae Beall, Appellant, on Doniphan Drive in El Paso, Texas. Ditmore filed suit against Beall for his damages allegedly caused by her negligence. During the ensuing jury trial, Appellee was being cross-examined by Appellant's attorney when the following exchange occurred:

Q: You've also alleged in your petition that you think this accident has injured you to the amount of $500,000.00. Can you tell me how you come up with that figure?

A: We didn't know exactly what to go for at the time and that's what your policy stated, so we had just written that down. [Emphasis added].

Q: Where do you get your prescriptions filled?

A: Sometimes I'll do them here in El Paso if I'm visiting Mother, or Wal-Mart in Ruidoso.

Immediately thereafter, Appellant's counsel approached the bench and moved for mistrial based on Appellee's reference to the existence of insurance. The trial court overruled Appellant's motion for mistrial. The jury found that Appellant was 100 percent negligent in causing the accident, awarding Appellee $113,200 for damages proximately caused by her negligence. Appellant asserts error in the trial court's overruling of her objection to the interjection of insurance into the trial of the case.

II. DISCUSSION

Texas courts have adopted the general rule that an objection to improper testimony must be "timely" made, the specific grounds therefor stated, and the trial court's ruling obtained. TEX.R.APP.P. 52(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (objection waived when prematurely made); Top Value Enterprises, Inc. v. Carlson Mktg. Group, Inc., 703 S.W.2d 806, 811 (Tex.App.--El Paso 1986, writ ref'd n.r.e.) (objection waived when not made until subsequent recess, further waived by counsel's cross-examination and still further waived when objecting party permitted similar evidence to be introduced without objection); see also TEX.R.CIV.EVID. 103(a). There are several sound reasons for this rule. First, fairness to all parties requires a litigant to advance his complaints at a time when there is an opportunity to respond or cure them. Second, reversing a case for error not raised in a timely fashion permits the losing party to second guess its tactical decisions after they do not produce the desired result. Finally, judicial economy requires that issues be raised first in the trial court in order to spare the parties and the public the expense of a potentially unnecessary appeal. See Jones v. Martin K. Eby Const. Co., Inc., 841 S.W.2d 426, 428 (Tex.App.--Dallas 1992, writ denied); see also Young v. State, 826 S.W.2d 141, 149 (Tex.Crim.App.1991) (Campbell, J., dissenting).

The above rule is qualified in that to be "timely," an objection must be made prior to the witness responding to the question where it is reasonably obvious that the question calls for inadmissible evidence. See Juhasz v. State, 827 S.W.2d 397, 401 (Tex.App.--Corpus Christi 1992, pet. ref'd) (objection waived when defendant admits testimony which is substantially the same as that to which he objected or allows it to come in from another source without objection); Atlantic Richfield Co. v. Misty Prod., Inc., 820 S.W.2d 414, 421 (Tex.App.--Houston [14th Dist.] 1991, writ denied) (objection waived when not made until witness repeated objectionable statement three times); Morelos v. State, 772 S.W.2d 497, 507 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd) (objection not timely when made after prosecutor's second question regarding same subject matter); and Hernandez v. State, 808 S.W.2d 536, 544 (Tex.App.--Waco 1991, no pet.) (objection waived when not made before answer is given where it is in response to question regarding inadmissible extraneous offenses). However, this well-established standard for preservation of error for appellate review holds true if and only if Appellant in the instant case intended to object to her own question. That is to say, this standard applies only if Appellant undoubtedly knew of the insurance policy limits, and thus her question to Appellee invited the answer she received. ¹

In the matter before us, Appellant's question propounded to the witness does not disclose, or in any manner suggest the character of the answer that was given. To the contrary, it effectively opened the door for the well-prepared witness to enter into an oral dissertation regarding each and every conceivable element of compensable damages, and then some. Therefore, it was not incumbent upon Appellant to make any objection until after the nonresponsive answer regarding "policy" limits was made. Under such circumstances as are shown in the instant case, it was incumbent upon Appellant, through counsel, to object as soon as was practicable, after the answer was given, and to go further and move that the objectional testimony be stricken. Johnson v. Hodges, 121 S.W.2d 371 (Tex.Civ.App.--Fort Worth 1938, writ dism'd). ²

Noting that Appellant was obligated to object after the unexpected answer regarding "policy" limits was made, the threshold question thus presented in the instant case is whether a "timely" objection, as envisioned by TEX.R.APP.P. 52(a), must be an "immediate" objection. ³

Examination of Texas case law reveals numerous interpretations of "timeliness" of objections, the vast majority of which are written in the context of waiver. The opinions of this Court, both civil and criminal, have been in concert with other Texas courts of appeals. See e.g. Oechsner v. Ameritrust, N.A., 840 S.W.2d 131, 135, 138 (Tex.App.--El Paso 1992, writ denied) (objection to jury charge waived due to variant complaint on appeal); Ortiz v. State, 825 S.W.2d 537, 541 (Tex.App.--El Paso 1992, no pet.) (objection untimely and thus waived when evidence offered and admitted without objection); Hernandez v. State, 825 S.W.2d 765, 770 (Tex.App.--El Paso 1992, no pet.) (objection untimely and thus waived when evidence offered and admitted without objection); and Dick Poe Motors, Inc. v. Dickey, 802 S.W.2d 739, 746 (Tex.App.--El Paso 1990, writ denied) (error waived for failure to seek relief in the trial court). While neither this Court nor any other Texas court has precisely defined the word "timely" in the Rule 52(a) context, it is clear from a simple reading of Texas law, that objections, in order to be considered timely, must be specific enough to enable the trial court to understand the precise nature of the error alleged and interposed at such a point in the proceedings so as to enable the trial court the opportunity to cure the error alleged, if any. "Timeliness" defies definition and generally the question of what is timely or otherwise must be left to the sound discretion of the trial judge, but such objection need not be immediate.

We find that Appellant, in asking one simple unrelated question and permitting its answer to pass prior to approaching the bench to interpose an objection to a clearly objectionable and inappropriate response, done in an effort so as not to draw the jury's attention to the word "policy," acted responsibly as it was possible her objection and motion for mistrial would be overruled. Appellate courts need not be wholly insensitive to the conflicting needs of the attorney who, in the midst of a complex jury trial, is charged with both the preservation of error and the presentation of the best case possible. We further find that the objection was indeed timely and that the trial court erred in not sustaining Appellant's objection to Appellee's testimonial reference to the existence of a "policy."

The trial court's error will only require a reversal if it amounted to such a denial of appellant's rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27, 33 (Tex.1965); Pride Transp. Co., Inc. v. Hughes, 591 S.W.2d 631, 634 (Tex.Civ.App.--Eastland 1979, writ ref'd n.r.e.); TEX.R.APP.P. 81(b). The mere mention of insurance during trial before a jury, though erroneous, does not result in an automatic mistrial or reversal. Gregory, 387 S.W.2d at 33; Pride, 591 S.W.2d at 634; TEX.R.CIV.EVID. 411.

To demonstrate the harmful effect of Appellee's reference to insurance, Appellant argues that the findings on negligence and damages by the jury were not supported by factually sufficient evidence and in the case of damages, were excessive. Although factual sufficiency of the evidence to support the damages awarded by the jury was not raised as a separate point of error, we will treat it as such.

When a factual sufficiency challenge is brought, this Court is required to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d...