Delaporte v. Preston Square, Inc., 05-83-00767-CV

• Decision Date: 01 October 1984
• Docket Number: No. 05-83-00767-CV,05-83-00767-CV
• Citation: 680 S.W.2d 561
• Parties: Jack DELAPORTE, Appellant, v. PRESTON SQUARE, INC., Irwin H. and Michelle Mittelman, Appellees.
• Court: Texas Court of Appeals

Page 561

680 S.W.2d 561

Jack DELAPORTE, Appellant, v. PRESTON SQUARE, INC., Irwin H. and Michelle Mittelman, Appellees.

No. 05-83-00767-CV.

Court of Appeals of Texas Dallas.

Oct. 1, 1984.

Rehearing Denied Oct. 31, 1984.

William C. Odeneal, Odeneal & Odeneal, Dallas, for appellant.

Jeff Joyce, Winstead, McGuire, Sechrest & Minick, Dallas, for appellee Preston Square, Inc.

Charles S. Fuquay, Moseley, Jones, Allen & Fuquay, Dallas, for appellees Mittelman.

Before AKIN, VANCE and ROWE, JJ.

ROWE, Justice.

Preston Square, Inc., the homeowner's association for the Preston Square townhome development, sued Jack Delaporte to require him to remove certain additions to his townhouse which were purportedly in violation of deed restrictions. Irwin and Michelle Mittelman, Delaporte's next-door neighbors, intervened as plaintiffs. They alleged, in addition to those matters alleged by Preston Square, that the additions in question constituted a common-law nuisance. After a jury trial, the trial judge ordered the improvements demolished. We affirm the trial court's judgment.

Delaporte and the Mittelmans owned adjacent residences in the Preston Square townhome development which were subject to certain restrictions outlined in a document called "Declaration of Covenants, Conditions and Restrictions for Preston Square Townhomes." Although the applicable restrictions prohibited townhome owners from making additions to their residences absent approval from the Preston Square Board of Directors, Delaporte built the wall in question and installed outdoor lighting without Board approval. This suit ensued. In answer to special issues, the jury found that the additions in question did not conform to the common scheme and architectural design of Preston Square, that the Board of Directors acted in good faith and in a reasonable manner in rejecting Delaporte's proposal for these additions, and that the Board did not waive its right to complain of the improvements. The jury also found that the privacy wall constituted a nuisance. Acting upon these findings, the trial judge ordered Delaporte to remove the unapproved additions from his property.

Delaporte first argues that he was unduly prejudiced in front of the jury by questions posed to him and to another witness by the trial judge concerning the possibility that this controversy might have been settled by arbitration. He asserts that these questions improperly suggested to the jury that he had somehow failed to do an act required of him and that these questions by the judge were a comment on the weight of evidence. We disagree. Although a trial judge should remain impartial and not act as an advocate for either party, Ex parte Joellen Finn, 615 S.W.2d 293, 296 (Tex.Civ.App.--Dallas 1981, no writ), it is well within his duty to elicit testimony from a witness in an attempt to clarify evidence adduced at trial. Henderson-Bridges, Inc. v. White, 647 S.W.2d 375 (Tex.App.--Corpus Christi 1983, no writ). Here, the record shows that the trial judge merely asked the witnesses if anyone had ever asked for arbitration of this or any other dispute under the arbitration provisions of the Declaration containing the restrictions. The testimony in response to these questions indicated that either party could have sought arbitration but chose not to do so. In our view, no harm is shown because the Declaration had been introduced into evidence and the trial judge was merely attempting to clarify some of its terms which otherwise might have presented problems for the jury. Thus, Delaporte's contention is without merit.

Delaporte next contends that the court should have granted his motion for mistrial based upon a question asked of him by opposing counsel. Specifically, Delaporte objected to an inquiry concerning whether he had been informed by his attorney that Preston Square had rejected his proposed additions before he began work on them. He says that this question improperly delved into matters protected by the attorney-client privilege. We do not agree that these circumstances mandated a mistrial. In this respect, Delaporte admits in his brief that he answered a question to the same effect during a deposition without objection. Consequently, his failure to assert the attorney-client privilege at the time of his deposition resulted in a waiver of the matter being protected by the attorney-client privilege. See, Eloise Bauer and Associates v. Electronic Realty Associates, Inc., 621 S.W.2d 200 (Tex.Civ.App.--Texarkana 1981, writ ref'd n.r.e.). Additionally, the trial court sustained Delaporte's objection to the question. Thus, he was not forced to testify concerning the allegedly privileged matter. Additionally, if any error existed in the asking of the question, it was cured by the court's instruction to the jury to disregard it.

Next, Delaporte asserts that the trial judge erred in failing to grant him leave to file a third-party action against three individual members of the Preston Square Board of Directors. A reading of this pleading reveals that Delaporte was attempting to recover damages for malicious prosecution by them. The trial judge correctly denied Delaporte leave to file the third-party action because an essential element for maintaining a suit for malicious prosecution is proof the suit upon which the action is predicated has been terminated in his favor. E.g. James v. Brown, 637 S.W.2d 914 (Tex.1982); RESTATEMENT TORTS 2d § 120 (4th ed. 1971). Obviously, this essential element could not exist since the suit from which this appeal has been taken was still in progress and a favorable termination of this suit in Delaporte's favor is a condition precedent to bringing a suit for malicious prosecution. Thus, Delaporte's cause of action, if any, was premature.

Delaporte also challenges the trial court's refusal to allow a proposed witness, Harry Groce, to testify. Delaporte's bill of exceptions shows that Groce, the owner of three Preston Square townhomes, did not believe that the wall added by Delaporte was violative of the general architectural scheme of the community. The record also reveals that this testimony was not admitted because the trial judge concluded that Groce would be testifying as an expert witness and that Delaporte had not before trial, as required by the rules, identified Groce as that type witness. Although we doubt the correctness of this ruling, we need not pass on whether Groce was an expert witness rather than a mere fact witness because error, if any, was harmless. In this respect, Delaporte was allowed to adduce other testimony to the effect that the wall in question conformed with the architectural scheme of Preston Square. Thus, Groce's testimony would have been cumulative and would not likely have caused the jury to answer the special issue in favor of Delaporte. See, Holloway v. Har-Con Engineering Company, Inc., 563 S.W.2d 695 (Tex.Civ.App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.).

We now turn to Delaporte's contention that the court erred in denying him leave to file a trial amendment seeking a declaratory judgment...