Glenn v. Kinco Crane, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: PRICE
• Citation: Glenn v. Kinco Crane, Inc., 836 S.W.2d 646 (Tex. App. 1992)
• Decision Date: 11 June 1992
• Docket Number: No. 01-91-00079-CV,01-91-00079-CV
• Parties: Prod.Liab.Rep. (CCH) P 13,379 Roy L. GLENN and Anthony Joseph Liotta, Appellants, v. KINCO CRANE, INC., Rent-It Construction Services Company, and Grace Equipment Company, Appellees. (1st Dist.)

Page 646

836 S.W.2d 646

Prod.Liab.Rep. (CCH) P 13,379

Roy L. GLENN and Anthony Joseph Liotta, Appellants, v. KINCO CRANE, INC., Rent-It Construction Services Company and Grace Equipment Company, Appellees.

No. 01-91-00079-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 11, 1992.

Rehearing Denied Oct. 8, 1992.

R.M. Sharpe, Robert C. Oliver, Lynne Liberato, Jeffery T. Nobles, Houston, for appellants.

Brock C. Akers, Houston, for appellees.

Before BASS, COHEN and PRICE, ¹ JJ.

OPINION

PRICE, Justice (Assigned).

This is an appeal from an action for personal injuries. After the jury found appellants' injuries were caused solely by the conduct of Lift-A-Loft Manufacturing, Inc., the trial court entered a judgment that appellants take nothing against the remaining defendants, ² appellees.

On November 11, 1985, appellants were installing interior drywall sections at the Deauville Mall, then under construction in Kingwood, Harris County, Texas. They were injured when the scissors lift that they were working from collapsed and caused the two men to fall to the ground. At the time of the accident, appellants were employed by Hohle Drywall, the owner of the lift. Hohle is the successor-in-interest to Siptak Drywall Company, which purchased the lift from Smith Tool Company in 1979. Lift-A-Loft, one of the defendants in this suit, is the successor-in-interest to Smith Tool.

On the morning of trial, Lift-A-Loft settled with appellants. Under the terms of the agreement, appellants released Lift-A-Loft from potential liability in exchange for $400,000 and a guarantee that appellants would recover an additional $400,000 from appellees at trial. At the trial's conclusion, the jury found $1,232,956.50 would recompense appellants for the damages they had suffered and that Lift-A-Loft was solely liable.

In their first point of error, appellants contend the trial court erred in overruling their motion in limine which allowed appellees' counsel to refer improperly to a settlement agreement.

The motion in limine sought to exclude from the jury, knowledge about the settlement agreement between appellants and Lift-A-Loft. Appellants relied on this motion to preserve error, and consequently never objected when appellees' counsel made statements before the jury that the settlement agreement indicated Lift-A-Loft was 100 percent responsible for appellants' injuries, and the present lawsuit was just an effort by appellants to acquire extra money.

Appellees maintain the statements regarding the settlement agreement were invited when appellants' attorney mentioned during voir dire that appellants had settled with Lift-A-Loft. Appellees further claim that any error caused by mentioning the settlement agreement was waived because a motion in limine does not preserve error, and appellants never objected to any of appellees' statements at the time they were made. Additionally, appellees argue that even if a motion in limine did preserve error, it failed in the present case because appellants never obtained a ruling on the motion in limine.

A complaint is preserved for appellate review by timely presentation to the trial court of a request, objection, or motion stating the specific grounds for the ruling desired. TEX.R.APP.P. 52(a). A complaint is not preserved for appellate review by a motion in limine. Hartford Accident and Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). If a motion in limine is overruled, the judgment will not be reversed unless the evidence is offered and an objection is made at that time. Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984); McCardell, 369 S.W.2d at 335.

The only evidence in the record showing that the trial court ruled on the motion in limine is a post-trial affidavit made by appellants' trial counsel. Appellees dispute this fact in their brief. Because the record is silent, we assume the trial court did not rule on the motion. However, more compelling for our purposes in deciding this issue is appellants' failure to object on those occasions when appellees argued the significance of the settlement agreement to the jury. Because appellants failed to object, the error is not preserved for review. TEX.R.APP.P. 52(a).

Appellants' first point of error is overruled.

The remaining four points of error concern the factual sufficiency of the evidence to support the jury's findings. When an appellant challenges the factual sufficiency of the evidence to support an adverse finding, we consider and weigh all the evidence, both that in support of and contrary to the challenged finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). We must uphold the finding, unless we decide the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951); M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.--Houston [1st Dist.] 1987, no writ).

In points of error two and three, appellants contend the overwhelming weight of the evidence establishes appellees failed to warn, or take other action that might have prevented appellants' injuries. They argue appellees, as a supplier, are liable for the harm done by the lift because: (1) appellees placed the lift into the stream of commerce, and (2) the lift was unreasonably dangerous for its foreseeable use. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.1977).

In point of error four, appellants contend the jury's finding that Lift-A-Loft was 100 percent responsible for their injuries is against the overwhelming weight and preponderance of the evidence. In point of error five, appellants contend the jury's failure to find appellees grossly negligent is against the great weight and...