Cecil v. T.M.E. Investments, Inc.

• Decision Date: 29 December 1994
• Docket Number: No. 13-92-670-CV,13-92-670-CV
• Citation: 893 S.W.2d 38
• Parties: Norma M. CECIL, Appellant, v. T.M.E. INVESTMENTS, INC., Ernest Tuchscherer and Mary Tuchscherer, Each Individually and D/B/A the Executive Health Spa, and Francis Hamlin Company, Appellees.
• Court: Texas Court of Appeals

Page 38

893 S.W.2d 38

Norma M. CECIL, Appellant, v. T.M.E. INVESTMENTS, INC., Ernest Tuchscherer and Mary Tuchscherer, Each Individually and D/B/A the Executive Health Spa, and Francis Hamlin Company, Appellees.

No. 13-92-670-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 29, 1994.

Sidney R. Meadows, Freeland & Meadows, McAllen, for appellant.

J. Preston Wrotenbery, Tina Snelling, Hirsch, Glover, Robinson & Sheiness, Houston, Edmundo O. Ramirez, Ellis, Koeneke & Ramirez, McAllen, Clay Hollis, Hirsch, Glover, Robinson & Sheiness, Brownsville, for appellees.

Before KENNEDY, DORSEY, and GILBERTO HINOJOSA, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

This dispute rose after Norma Cecil fell while she was at the Executive Health Spa. Cecil appeals the trial court's take-nothing judgment, which was based partly on a jury verdict and partly on a verdict directed by the court.

In the trial below, Cecil sued T.M.E. Investments, Inc., Ernest and Mary Tuchscherer, both individually and as Executive Health Spa (collectively "T.M.E."), and Francis Hamlin Company. Cecil pleaded causes of action involving premises liability, negligence, breach of warranty, and various product-liability theories. The trial court directed a verdict in favor of the defendants on several claims and submitted the remainder of the case to the jury on negligence and design-defect theories. The jury absolved the defendants of all liability. We reverse and remand in part and affirm in part.

In her first point of error, Cecil contends that the cumulative effect of several errors throughout the trial prejudiced her ability to present her case. Cecil's second, third, and fourth points assert that the trial court erred in refusing admission of deposition testimony and photographic evidence. In her fifth and sixth points of error, Cecil argues that the defendants were improperly allowed to examine a party defendant by leading questions and to present inflammatory jury arguments. Cecil's seventh point complains of error in the trial court's admonishment of Cecil's counsel while in the presence of the jury. In her eighth and ninth points, Cecil maintains that the court erred by granting a directed verdict on several of her theories of recovery and by refusing to submit requested issues. Cecil's final point of error challenges the trial court's decision not to equalize jury strikes after allowing the defendants to coordinate their jury selection efforts.

I. BACKGROUND

Cecil joined Executive Health Spa in the spring of 1990. On her second day of membership, she fell as she was walking between the pool and hot tub. Cecil broke her hip. This accident, Cecil insists, did not result from her own negligence. Instead, she points to several aspects of the Executive Health Spa pool as likely causes of her injury.

Cecil argues that the coping-stone tiles around the border of the pool are too slippery. Even more critically, she contends, these coping stones were improperly installed on top of the preexisting tiles so that the rim of the pool is not flush with the surrounding concrete deck. Cecil claims this raised edge around the pool led to the unsafe accumulation of water on the deck and created an uneven surface that caused her to lose her balance as she walked along the pool side. Cecil further complains of the improper installation of the handrail at the steps into and out of the pool.

Cecil sued Hamlin Company, who manufactured the coping stones, and T.M.E., who designed and constructed the pool as the owner and operator of the Executive Health Spa. Cecil's original petition also named a third party of defendants, Joseph and Carol Gerlicki, who owned an interest in the Executive Health Spa property prior to Cecil's accident. The Gerlickis settled with Cecil before trial. Significantly, the most harmful error in this case resulted from the trial court's approach to a misjudgment of the Gerlickis' counsel.

II. CUMULATIVE ERROR

In her first point of error, Cecil asks that we consider the cumulative effect of several errors throughout the trial to determine whether the errors undermined the fairness of her trial. The record contains some indication that Cecil suffered from the compounding effect of more than one questionable ruling, but Cecil has not preserved the error, if any, underlying many complaints. In fact, Cecil has failed to preserve any complaint that might serve as the basis for reversing any aspect of the trial court's judgment in favor of Hamlin Company. Regarding Cecil's premises-liability claim against T.M.E., however, her point of error regarding the exclusion of Rodney Hamlin's deposition testimony is sufficient by itself to warrant reversal. Consequently, Cecil's appeal does not lend itself to analysis under the cumulative error doctrine. See Texas Health Enters. v. Krell, 828 S.W.2d 192, 210 (Tex.App.--Corpus Christi), vacated by agr., 830 S.W.2d 922 (Tex.1992) (cumulative error doctrine applies in cases where the harm from multiple errors may entitle appellant to greater relief than would result from separate consideration of each individual error).

III. EXCLUSION OF EVIDENCE

In her second, third, and fourth points of error, Cecil contends that the trial court should not have excluded certain deposition testimony and photographic evidence. The trial court must initially determine whether evidence should be admitted or excluded. Tex.R.Civ.Evid. 104(a); Alvarado v. City of Brownsville, 865 S.W.2d 148, 154 (Tex.App.--Corpus Christi 1993, writ granted). This decision lies within the discretion of the trial court and will not be disturbed absent a demonstration that the court abused its discretion. Alvarado, 865 S.W.2d at 154; Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex.App.--Dallas 1991, writ denied), cert. denied, 506 U.S. 831, 113 S.Ct. 97, 121 L.Ed.2d 58 (1992); see also 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) (discussing the abuse of discretion standard).

A. RODNEY HAMLIN'S DEPOSITION TESTIMONY

Of Cecil's arguments regarding the exclusion of evidence, her initial complaint involves the deposition of Rodney Hamlin, who was unavailable during trial. After Cecil read portions of the deposition into the record, T.M.E. objected that a nonlawyer had conducted the remainder of the questioning. Hamlin Company joined in this objection. In addition, Hamlin Company further objected that the disputed testimony should be excluded because it involved expert opinion and Rodney Hamlin was designated only as a fact witness. After listening to counsel's arguments outside the presence of the jury, the trial court excluded the disputed testimony, which Cecil presented in a bill of exception.

The testimony in question concerned the coping-stone tiles installed around the edge of the Executive Health Spa pool. Hamlin Company manufactured the coping stones; whether Hamlin Company also advised T.M.E. on how the tiles should be used was an issue contested at trial. In the course of a co-defendant's attempt to ascertain the scope of Hamlin Company's advisory participation in the redesign of the pool, the following exchange took place:

GERLICKI: [H]as, to your knowledge, Hamlin ever installed coping stone in this manner where it's not flush?

HAMLIN: No, sir.

GERLICKI: You have not?

HAMLIN: And in my previous answer I said, I thought the same thing, we had--we had never installed stone like that.

GERLICKI: Would you consider an installation such as this to be an unsafe installation?

HAMLIN: Hamlin would not recommend this kind of an installation if you came to me and wanted to install it that way.

GERLICKI: And why is that?

HAMLIN: Because any time--it's no different when we look at those pictures, and there appears to be like a raised patio area adjacent to the perimeter deck area here--any time there's any type of a step down, you create different elevation problems. People can, unknowingly, step off an edge backwards, because there's--you know, usually you're dealing with multitudes of people around here, and it just causes problems. So any type of a difference in elevation can be a problem, and we like to make people aware of that before we would go in and do that. And, generally, after the kind of explanation, in our experience with the pools we have built, they opted not to do something like that.

1. Participation of a Nonlawyer

T.M.E.'s only objection to the quoted testimony raises the issue of a nonlawyer's participation in the deposition. The record reflects that Cecil and Hamlin were represented by counsel at Rodney Hamlin's deposition. Joseph and Carol Gerlicki, co-defendants who settled before trial, were also represented at the proceeding.

John King and Steve Deck, both from King's law offices, attended the deposition on behalf of the Gerlickis; Deck and King were each entitled "esquire" where identified in the list of appearances. King was present throughout the questioning, but Deck asked the questions during a small part of the deposition. Rodney Hamlin offered the disputed testimony in response to a question propounded by Deck.

Before Cecil read the challenged portion of the deposition, T.M.E. objected that the court could not consider responses to the questions of a nonlawyer. During the ensuing discussion outside the presence of the jury, T.M.E. complained that it was common knowledge that Deck was not a lawyer. Cecil disagreed and offered to swear to her ignorance of this fact, but the court sustained T.M.E.'s objection and excluded the testimony quoted above.

As noted above, we cannot overrule the trial court's decision to exclude evidence unless we conclude that the court abused its discretion in making the initial admissibility determination. See Alvarado, 865 S.W.2d at 154; Steenbergen, 814 S.W.2d at 760. When considering whether the trial court abused its discretion, we should ascertain whether the trial court...