Leaird's Inc. v. Wrangler Inc.
| Decision Date | 11 October 2000 |
| Docket Number | No. 10-98-201-CV,10-98-201-CV |
| Citation | 31 S.W.3d 688 |
| Parties | (Tex.App.-Waco 2000) LEAIRD'S, INC., D/B/A LEAIRD'S WHITE ELEPHANT AND WHITE ELEPHANT STORE, Appellant v. WRANGLER, INC., Appellee |
| Court | Texas Court of Appeals |
From the 52nd District Court Coryell County, Texas Trial Court # 29,739
Before Chief Justice Davis, Justice Vance and Justice Gray.
Wrangler, Inc. filed suit on a sworn account against Leaird's, Inc., dba Leaird's White Elephant and White Elephant Store. Leaird's denied Wrangler's allegations and filed a counterclaim alleging among other things breach of contract. A jury found in Wrangler's favor on the sworn account and failed to find any breach of contract by Wrangler. The court rendered judgment in accordance with the verdict.
Leaird's claims in two issues that the court erred by admitting in evidence: (1) the testimony of a bank officer and a memorandum prepared by that witness because Wrangler failed to identify him in pretrial discovery as an expert witness; and (2) a Small Business Administration ("SBA") loan file pertaining to disaster-relief loan applications Leaird's had submitted to the SBA because Wrangler failed to produce a copy of the file to Leaird's in response to Leaird's request for production of statements under former Rule of Civil Procedure 166b(2)(g).
Leaird's had been a family-owned business in downtown Gatesville since 1898. Originally, Leaird's sold general merchandise, but over the years the business evolved until in the 1980's Leaird's operated a clothing store and a furniture store. Leaird's sold primarily Wrangler western wear in the clothing store. Jeb McClellan was Leaird's president during the pertinent time period. His brother Clay also participated in the operation of the business.
The evidence at trial focused on Leaird's relationship with Wrangler from 1989 until 1995 when Leaird's eliminated the western wear part of the business. Carl Brown, a retired credit department supervisor for Wrangler, testified about the status of the Leaird's account during the pertinent time period. Leaird's began falling farther and farther behind on payments. As a result, Wrangler began placing credit holds on Leaird's orders until payments were received. When a payment was received, Wrangler would ship merchandise to Leaird's corresponding to the amount by which Leaird's had reduced its arrearages.
In May 1994, Wrangler reduced Leaird's credit line from $101,000 to $75,000 because of the arrearages. Wrangler reduced the credit line to $1 in July, effectively halting further shipment of goods until payments were received from Leaird's. Wrangler ultimately refused to ship any further merchandise to Leaird's after it failed to bring its account current. Wrangler sent its last shipment on December 29, 1994. Leaird's made four payments in 1995 totaling $380.15. After these payments, Leaird's still owed Wrangler $25,211.24, which is the amount Wrangler sought to recover in the instant suit.
Leaird's contends in its first issue that the court abused its discretion by allowing Eugene Worthington, Leaird's own banker, to provide expert testimony in Wrangler's behalf and by allowing Wrangler to introduce a memorandum drafted by Worthington because Wrangler failed to designate him before trial as an expert witness.
Wrangler responds that, with respect to admission of the memo, Leaird's failed to preserve its complaint for appellate review because it failed to reurge its objection when Wrangler later questioned Jeb McClellan about Worthington's memo. Wrangler argues in the alternative that any error in the admission of the memo was rendered harmless because the trial court admitted similar evidence from other witnesses without objection; because the court should have granted Wrangler's motion for summary judgment on Leaird's counterclaims; and because the memo went only to the issue of Leaird's damages, which the jury did not reach.
Worthington was Executive Vice-President of the National Bank of Gatesville, Leaird's primary lender. Worthington was in charge of the bank's lending department. Wrangler did not identify Worthington in discovery as an expert witness, although Leaird's did list him as such.
Wrangler asked Worthington for his opinion about how Leaird's had performed "over the last eight years." The trial court sustained Leaird's objection that the question sought an expert opinion. Wrangler then asked him how Leaird's performed in "the '90 to '94 time frame." Leaird's raised the same objection, but the trial court overruled the objection this time. Worthington responded that the furniture store and the clothing store had each experienced good years and bad years during this period.
After Worthington testified extensively concerning Leaird's loan history with the bank, Wrangler asked him about a typewritten document identified as Plaintiff's Exhibit 55. Worthington described this document as "a memo out of the Leaird's loan file dated June 16th of '96" which he had prepared. Leaird's objected that the memo contains expert opinion and Wrangler had not designated Worthington as an expert. The trial court responded that "most of it is factual it seems to me." Leaird's repeated the objection with reference to one sentence in particular, viz, "Mismanagement and bad financial management continued to plague them." The court overruled the objection.
Worthington then read the entirety of the memo to the jury, including the sentence to which Leaird's particularly objected. Counsel for Wrangler repeated the objected-to sentence and asked, "Was that your conclusion?" Worthington responded affirmatively. Wrangler's counsel then asked Worthington whether he believed that "over the years Leaird's has had bad financial [management]." The trial court granted Leaird's a running objection to his testimony. Worthington responded:
I believe that you have to take action when you run a business. Sometimes they did not take action quick enough, or notice trends in their business. That, I would classify as bad management, yes, sir.
The remainder of Worthington's testimony focused on his conversations with the McClellans about their deteriorating relationship with Wrangler.
To preserve an issue for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. Tex. R. App. P. 33.1(a); In re M.D.S., 1 S.W.3d 190, 202 (Tex. App. Amarillo 1999, no pet.); see also Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g) (applying former appellate rule 52(a)). A running objection can satisfy the Rule 33.1(a) requirement of a timely objection. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242-43 (Tex. App. Corpus Christi 1994, writ denied); Commerce, Crowdus & Canton, Ltd. v. DKS Constr., Inc., 776 S.W.2d 615, 620 (Tex. App. Dallas 1989, no writ).
If a trial court permits a running objection as to a particular witness's testimony on a specific issue, the objecting party "may assume that the judge will make a similar ruling as to other offers of similar evidence and is not required to repeat the objection." Commerce, Crowdus & Canton, 776 S.W.2d at 620; City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App. Fort Worth 1988, writ denied); accord Atkinson Gas Co., 878 S.W.2d at 242; Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex. Civ. App. Houston 1960, no writ). However, the courts have generally limited application of this rule to those instances in which the similar evidence comes from the same witness. See Atkinson Gas Co., 878 S.W.2d at 243; Commerce, Crowdus & Canton, 776 S.W.2d at 620; Holland, 748 S.W.2d at 113. If a different witness testifies to similar evidence without objection, then any error arising from the admission of the evidence in question is rendered harmless. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984); Atkinson Gas Co., 878 S.W.2d at 242; City of Houston v. Riggins, 568 S.W.2d 188, 190 (Tex. Civ. App. Tyler 1978, writ ref'd n.r.e.).
Wrangler argues that Leaird's failed to preserve any error arising from the admission of Worthington's opinion testimony because it later questioned Jeb about this opinion without objection. Wrangler called Jeb as an adverse witness and questioned him extensively on reasons for Leaird's demise. The particular interrogation at issue occurred at the conclusion of his "direct" examination by counsel for Wrangler:
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