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Born v. Virginia City Dance Hall and SaloonTex.App.-Hous. [14 Dist.],1993.
Court of Appeals of Texas,Houston (14th Dist.).
Belinda BORN, Individually, and as Community Survivor of the Estate of William B. Born, Jr., Deceased, and as Next Friend of Marissa J. Born, Justin K. Born, and William Austin Born; and William B. Born and Harriet Born, Surviving Parents of William B. Born, Jr., Appellants,
v.
VIRGINIA CITY DANCE HALL AND SALOON, Appellee.
No. C14-92-00918-CV.
July 1, 1993.
Rehearing Denied Aug. 5, 1993.
Saloon patron's survivors brought wrongful death action against saloon alleging that saloon violated Texas Dram Shop Act by serving patron and his companion alcohol after they had become intoxicated. The 234th District Court, Harris County, Ruby Kless Sondock, J., entered judgment on jury finding of no negligence on part of saloon that patron's survivors take nothing against saloon. Patron's survivors appealed. The Court of Appeals, Robert E. Morse, Jr., J., sitting by designation, held that: (1) patron's survivors failed to produce sufficient record to demonstrate error requiring reversal; (2) patron's survivors did not preserve issue of peremptory challenges for appeal; (3) patron's survivors failed to present sufficient record to show harm in trial court's refusal to allow expansion of voir dire examination; (4) trial court's refusal of proposed jury instruction which improperly applied negligence standard to Dram Shop Act claim was not reversible error; (5) trial judge properly questioned witness in order to clarify witnesses' response; and (6) patron's survivors failed to produce sufficient record to demonstrate that jury finding of no damages was not supported by evidence.
Affirmed.
West Headnotes
[1]
Appeal and Error 30 
1177(9)
30 Appeal and Error
30XVII Determination and Disposition of Cause
30XVII(D) Reversal
30k1177 Necessity of New Trial
30k1177(9) k. Imperfect Condition of Transcript, or Record in General. Most Cited Cases
Appellant is entitled to new trial under rule governing lost or destroyed records on appeal if he has made timely request for statement of facts, court reporter's notes and records have been lost or destroyed without appellant's fault, and parties cannot agree on statement of facts. Rules App.Proc., Rule 50(e).
[2]
Appeal and Error 30 1135
30 Appeal and Error
30XVII Determination and Disposition of Cause
30XVII(B) Affirmance
30k1134 Error Not Shown
30k1135 k. In General. Most Cited Cases
Appellants, who claimed that use of an audiotape recording system resulted in transcription with errors and omissions which rendered record wholly insufficient for appellate review, failed to produce sufficient record to demonstrate error requiring reversal where Court of Appeals was unable to determine whether alleged defects were harmful as appellants did not attach entire written transcription of taped trial, but only presented pages that contained errors or omissions, and where appellants did not specify how alleged errors or omissions were harmful. Rules App.Proc., Rules 50(d), 53(d), 55.
[3]
Jury 230 110(14)
230 Jury
230V Competency of Jurors, Challenges, and Objections
230k110 Waiver of Right to Object or Challenge
230k110(14) k. Effect of Failure to Exhaust Peremptory Challenge. Most Cited Cases
Trial court's refusal to excuse an unqualified juror does not necessarily result in harmful error; harm occurs when party uses all of his peremptory challenges and is thereby prevented from striking other objectionable jurors from list.
[4]
Jury 230 110(14)
230 Jury
230V Competency of Jurors, Challenges, and Objections
230k110 Waiver of Right to Object or Challenge
230k110(14) k. Effect of Failure to Exhaust Peremptory Challenge. Most Cited Cases
Jury 230 142
230 Jury
230V Competency of Jurors, Challenges, and Objections
230k142 k. Objections and Exceptions. Most Cited Cases
Party complaining of trial court's failure to excuse unqualified juror must advise court that party has exercised all peremptory challenges and is prevented from striking other objectionable jurors before peremptory challenges are exercised in order to preserve issue for appeal.
[5]
Jury 230 142
230 Jury
230V Competency of Jurors, Challenges, and Objections
230k142 k. Objections and Exceptions. Most Cited Cases
Appellants failed to preserve their complaint for appeal that trial court abused its discretion by inequitably granting strikes for cause where appellants did not advise court that its refusal to strike disqualified jurors forced appellants to take objectionable jurors after using all their peremptory challenges.
[6]
Appeal and Error 30 1135
30 Appeal and Error
30XVII Determination and Disposition of Cause
30XVII(B) Affirmance
30k1134 Error Not Shown
30k1135 k. In General. Most Cited Cases
Appellants who claimed that trial court erred in refusing to allow expansion of voir dire examination did not present sufficient record to show harm justifying reversal where they presented only selected pages of written transcription of voir dire examination, and thus, Court of Appeals was unable to determine whether questions appellants claimed they were unable to ask were duplicitous or were raised in those portions of transcription not presented to Court.
[7]
Appeal and Error 30 699(1)
30 Appeal and Error
30X Record
30X(M) Questions Presented for Review
30k698 Instructions
30k699 In General
30k699(1) k. In General. Most Cited Cases
Appellants preserved their complaint for appellate review that trial court erred by not submitting an instruction about an issue that was tried by consent, even though they failed to present record showing trial court's ruling on instruction, where they provided supplemental transcript containing proposed instruction which trial judge marked “refused.”
[8]
Intoxicating Liquors 223 317
223 Intoxicating Liquors
223XI Civil Damage Laws
223k314 Trial
223k317 k. Instructions. Most Cited Cases
Trial court's refusal of proposed jury instruction on issue of liability which may be imposed upon provider of alcohol beverages was not error where proposed instruction improperly applied negligence standard when exclusive remedy is Dram Shop Act, and Act does not state that serving of alcoholic beverages to an obviously intoxicated person constitutes negligence. V.T.C.A., Alcoholic Beverage Code §§ 2.02(b), 2.03.
[9]
Pleading 302 427
302 Pleading
302XVIII Waiver or Cure of Defects and Objections
302k427 k. Objections to Evidence as Not Within Issues. Most Cited Cases
When issues not raised by pleading are tried by express or implied consent of parties, they shall be treated in all respects as if they had been raised by pleading. Vernon's Ann.Texas Rules Civ.Proc., Rule 67.
[10]
Pleading 302 427
302 Pleading
302XVIII Waiver or Cure of Defects and Objections
302k427 k. Objections to Evidence as Not Within Issues. Most Cited Cases
Where evidence is relevant to an issue pleaded as well as to one not pleaded, doctrine of “trial by implied consent” should not be applied unless clearly warranted.
[11]
Pleading 302 427
302 Pleading
302XVIII Waiver or Cure of Defects and Objections
302k427 k. Objections to Evidence as Not Within Issues. Most Cited Cases
Absent probative evidence that saloon served alcoholic beverages to patron, or that saloon continued to serve patron alcoholic beverages after he appeared to be intoxicated, there was no merit to contention that proposed issue of violation of Dram Shop Act by saloon in serving patron was tried by consent.
[12]
Trial 388 29(3)
388 Trial
388III Course and Conduct of Trial in General
388k29 Remarks of Judge
388k29(3) k. Examination, Credibility, and Impeachment of Witnesses. Most Cited Cases
Although trial judge should not act as an advocate, his role is more than that of an umpire.
[13]
Trial 388 29(3)
388 Trial
388III Course and Conduct of Trial in General
388k29 Remarks of Judge
388k29(3) k. Examination, Credibility, and Impeachment of Witnesses. Most Cited Cases
For purpose of eliciting evidence that has not otherwise been brought out, judge may put competent and material questions to witness, and where anything material has been omitted, it is sometimes his duty to examine witness.
[14]
Trial 388 29(3)
388 Trial
388III Course and Conduct of Trial in General
388k29 Remarks of Judge
388k29(3) k. Examination, Credibility, and Impeachment of Witnesses. Most Cited Cases
Trial judge's questioning of witness was proper, despite claim that trial court erred by instructing witness how to answer question on direct examination, where trial judge's action was to paraphrase previous question and to clarify witnesses' response, and where judge did not instruct witness to answer question differently in any material respect than he had already answered.
[15]
Trial 388 29(1)
388 Trial
388III Course and Conduct of Trial in General
388k29 Remarks of Judge
388k29(1) k. In General. Most Cited Cases
It was not improper in wrongful death action for trial judge to attempt to clarify issue regarding reason for witnesses' termination of employment where decedent's survivors asserted that witness had previously testified that he was put on leave of absence due to criminal conviction arising out of incident giving rise to wrongful death action, but defense counsel told jury that witness was on leave of absence because of allegations in wrongful death case, and in response to judge's questioning, witness answered that he was not suspended because of lawsuit.
[16]
Appeal and Error 30 1135
30 Appeal and Error
30XVII Determination and Disposition of Cause
30XVII(B) Affirmance
30k1134 Error Not Shown
30k1135 k. In General. Most Cited Cases
Appellants failed to produce sufficient record to demonstrate error that jury finding of no damages was against great weight and preponderance of evidence where trial was electronically recorded and appellants failed to provide complete written transcription of statement of facts but, rather, provided only selected pages from written transcription.
[17]
Damages 115 221(7)
115 Damages
115X Proceedings for Assessment
115k219 Verdict and Findings
115k221 Special Interrogatories and Findings by Jury
115k221(7) k. Sufficiency of Verdict or Findings. Most Cited Cases
Where there is no liability finding, question of damages is immaterial.
*953 Robert V. Holland, Jr., Kelly D. Shephens, Houston, for appellants.
Debora Beck McWilliams, Houston, for appellee.
Before ROBERTSON and CANNON, JJ., and MORSE, J., Sitting by Designation.
OPINION
ROBERT E. MORSE, Jr., Justice.
The survivors of William B. Born, Jr. appeal from a take nothing judgment rendered in favor of appellee, Virginia City Dance Hall and Saloon. Appellants bring six points of error. We affirm.
Appellants filed a wrongful death suit against appellee, and against three parties who are not part of this appeal, including Jerry B. Nicar, Movimex, Inc., and Carlos Tamborrel. Appellants contended that appellee violated the Texas Dram Shop Act by serving the decedent and Jerry Nicar alcohol after they had become intoxicated. Appellants further claimed that Nicar, who was allegedly intoxicated, was negligent in failing to warn the decedent and in operating the vehicle that was involved in a collision which resulted in the death of William Born, Jr.
Upon motion, the trial court granted summary judgment in favor of Movimex, Inc. and Carlos Tamborrel. The case proceeded to trial, where the proceedings were electronically recorded. After all parties had rested and while the jury was deliberating, appellants and Nicar reached a settlement and filed this agreement with the court. The jury returned a verdict finding no negligence on the part of appellee, Nicar, or the decedent. Thus, the trial court entered judgment awarding appellants $25,000.00 based on their settlement agreement with Nicar and ordering that appellants take nothing against appellee.
[1] In their first point of error, appellants contend the judgment should be reversed because there is an insufficient record on appeal. Because the trial was electronically recorded and the written transcription contains many omissions and errors, appellants argue that Rule 50(e) is applicable and that they are entitled to a new trial. Rule 50(e) pertains to lost or destroyed records and provides:
When the record or any portion thereof is lost or destroyed, it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.
Tex.R.App.P. 50(e). In interpreting this rule, Texas courts have held that there are three requirements for a new trial under Rule 50(e):1. That the appellant has made a timely request for a statement of facts;
2. That the court reporter's notes and records have been lost or destroyed without the appellant's fault;
3. That the parties cannot agree on a statement of facts.
*954 Hidalgo, Chambers & Co. v. Federal Deposit Ins. Corp., 790 S.W.2d 700, 702 (Tex.App.-Waco 1990, writ denied).
[2] Appellee offers three reasons why appellant's argument should fail. First, appellee notes that the record is not lost or destroyed and therefore, Rule 50(e) is inapplicable. Second, appellant has not established that the parties cannot agree on the unidentified speakers and inaudible responses. Finally, appellee contends that appellant has not attempted to follow the methods for correcting inaccuracies in the records set out in Rule 55(a).
We agree with appellee that appellants' claim is not that the record was lost or destroyed, but that the use of an audiotape recording system resulted in a transcription with inaccuracies. Rule 55 provides methods for correcting any inaccuracies in the record; however, appellants have not requested relief under this rule. Appellants also have not shown that the parties cannot agree on a statement of facts.
Furthermore, appellants have not attached the entire written transcription of the taped trial. Appellants counter that the Texas Supreme Court rules for electronic recording of court proceedings only require a transcription of relevant portions of the recorded statement of facts. Furthermore, these rules provide for the following presumption:
The appellate court shall presume that nothing omitted from the transcriptions in the appendices is relevant to any point raised or to the disposition of the appeal. The appellate court shall have no duty to review any part of an electronic recording.
Rules Governing the Procedure for Making a Record of Court Proceedings in Harris County by Electronic Recording 6 (1991). This presumption is the same as the presumption in Rule 53(d) regarding partial statements of facts. Rule 53(d) states that when a partial statement of facts is filed, there is a “presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal.” Tex.R.App.P. 53(d). Despite this presumption, the supreme court has held that an appellant complaining of no evidence to support a trial court finding could not show error in the absence of a complete or agreed statement of facts. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968) (per curiam). Texas courts have extended this analysis to cases where the appellant complains of insufficient evidence in an electronically recorded trial. Rowlett v. Colortek, Inc., 741 S.W.2d 206, 208 (Tex.App.-Dallas 1987, writ denied).
Rule 50(d) requires an appellant to present a sufficient record to show error requiring reversal. Tex.R.App.P. 50(d). Appellants argue that the errors and omissions FN1 render the record wholly insufficient for the prosecution of appeal and for appellate review, but appellants do not specify how these errors or omissions are harmful. Because appellants have only presented the pages of the written transcription that contain the errors or omissions, we are unable to determine whether these defects are harmful. Appellants have not produced a sufficient record to demonstrate error requiring reversal, as required under Rule 50(d). Therefore, we overrule point of error one.
FN1. Appellants list the following errors and omissions:
(1) seventy-seven references to unidentified speakers;
(2) sixty-four references to inaudible responses by attorneys;
(3) seventeen references to inaudible responses by veniremen, jurors and/or witnesses;
(4) nine phonetic spellings;
(5) fifteen references to inquiries as no verbal response; and
(6) nineteen obvious errors.
In point of error two, appellants claim the trial court abused its discretion by inequitably granting strikes for cause. The discussion under this point of error is unclear.FN2 Appellants seem to be arguing *955 that, instead of granting challenges for cause based on a determination whether the jurors were biased or prejudiced, the trial court granted a certain number of challenges per cause so that each party would have six peremptory strikes.
FN2. Appellants state:
Before deciding to grant all of [appellee's] and one-half of [appellants'], the Court calculated the number that could be granted to leave 6 preemptory [sic] challenges per side, on each for the alternate, 12 jurors and one alternate, thus making its decision on the number of challenges for cause based upon its own expediency rather than a fair trial.
[3][4] The trial court's refusal to excuse an unqualified juror does not necessarily result in harmful error. The harm occurs when the party uses all of his peremptory challenges and is thereby prevented from striking other objectionable jurors from the list. Hallett v. Houston Northwest Med. Center, 689 S.W.2d 888, 890 (Tex.1985). To preserve error, the complaining party must advise the court of the situation before the peremptory challenges are exercised. Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 755 (Tex.App.-Texarkana 1992, writ denied).
[5] Regarding this complaint, appellant presents and cites to three pages from the written transcription of the statement of facts. These three pages indicate the jurors that each party moved to strike, but they do not show the trial court's ruling. The pages containing the trial court's ruling on strikes for cause are included in the section of the appendix regarding point of error one. We were unable to locate in the written transcription where appellants advised the court that its refusal to strike disqualified jurors forced appellants to take objectionable jurors after using all their peremptory challenges. Thus, appellants have not preserved this complaint for appeal. We overrule point of error two.
[6] In point of error three, appellants contend the trial court erred in refusing to allow expansion of voir dire examination. Appellants made a bill of exceptions describing the matters they were unable to ask the jurors. By not having the opportunity to make these inquiries, appellants claim they were denied the right to a trial by a fair and impartial jury.
The trial judge stated that he had asked the parties the amount of time they would need for voir dire and that counsel for appellants indicated he would need at least an hour. Based on this, the trial judge allowed one hour for voir dire examination.
As discussed previously, appellants have presented only selected pages of the written transcription of voir dire examination. Absent a complete record, we are unable to determine whether or not the questions appellants claimed they were unable to ask were duplicitous or were raised in those portions of the written transcription appellants have not presented to us. Because appellants have not presented a sufficient record to show harm, we find no error justifying reversal. Point of error three is overruled.
In point of error four, appellants claim the trial court erred by not submitting an instruction about an issue that was tried by consent. Appellants proposed the following instruction:
“Negligence,” when used with respect to the conduct of Virginia City Dance Hall & Saloon, Inc., means providing, selling, or serving alcoholic beverages to Jerry Nicar and/or Willie Born when it was apparent that he/they were obviously intoxicated to the extent that he/they presented a clear danger to himself/themselves and others.
The trial court refused this instruction. Instead, the trial court submitted essentially the same instruction, but one that referenced the serving of alcoholic beverages to Nicar alone. Although appellants alleged that appellee served both men intoxicating liquors, appellants alleged a Dram Shop violation only as to the serving of alcohol to Nicar. Appellants did not allege that appellee violated the Dram Shop Act by serving alcoholic beverages to the decedent. Despite this lack of pleading, appellants contend this issue was tried by consent.
[7] Appellee asserts three reasons why the trial court's refusal to submit the instruction is not error. First, appellee claims appellants did not preserve this complaint for appellate review because they failed to present the record showing the trial court's ruling on this instruction. While this may have been true when appellee prepared its brief, appellants have provided a supplemental transcript containing *956 the proposed instruction which the trial judge marked “refused.” Thus, appellants have preserved this complaint for our review.
[8] Appellee next contends the proposed instruction applies a negligence standard and it would have been error for the trial court to submit a negligence standard when the exclusive remedy is Tex.Alco.Bev.Code Ann. § 2.03. Texas courts have held that the Dram Shop Act is the exclusive remedy in lieu of other common law or statutory remedies. Fuller v. Maxus Energy Corp., 841 S.W.2d 881, 884 (Tex.App.-Waco 1992, no writ); Boyd v. Fuel Distributors, Inc., 795 S.W.2d 266, 273 (Tex.App.-Austin 1990, writ denied). Liability may be imposed upon a provider of alcoholic beverages if it is shown that:
(1) at the time of the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.
Tex.Alco.Bev.Code Ann. § 2.02(b) (Vernon Supp.1993).
The act does not state that the serving of alcoholic beverages to an obviously intoxicated person constitutes negligence. The issue on liability submitted to the jury and the accompanying instruction, as well as the instruction proposed by appellants, improperly and unnecessarily reference negligence. However, an ultimately proper definition of liability under the Dram Shop Act was submitted. The submission of appellants' proposed instruction which further incorporated the erroneous reference to negligence might not have been additionally harmful, but it was not error to refuse same.
[9][10] Finally, appellee contends that, even if there was evidence presented regarding the serving of alcoholic beverages to the decedent, this evidence was admissible on appellee's properly pled issue of contributory negligence. When issues not raised by pleading are tried by express or implied consent of parties, they shall be treated in all respects as if they had been raised by the pleadings. Tex.R.Civ.P. 67; Gulf & Basco Co. v. Buchanan, 707 S.W.2d 655, 657 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e). Where evidence is relevant to an issue pleaded as well as to one not pleaded, the doctrine of “trial by implied consent” should not be applied unless clearly warranted. Sun Power, Inc. v. Adams, 751 S.W.2d 689, 696 (Tex.App.-Fort Worth 1988, no writ).
[11] In this case, appellant alleges there is evidence raising the issue of violation of the Dram Shop Act by appellee in serving the decedent. Appellee counters that this issue was not tried by consent because the evidence was relevant to the pleaded defense of contributory negligence. To determine whether the evidence admitted was relevant only to the Dram Shop Act violation or was also relevant to the issue of contributory negligence, we reviewed the partial written transcription and we locate no evidence indicating that appellee served alcoholic beverages to the decedent.FN3 Absent probative evidence that appellee served alcoholic beverages to decedent, or that appellee continued to serve the decedent alcoholic beverages after he appeared to be intoxicated, there is no merit to appellants' contention that the proposed issue was tried by consent. We overrule point of error four.
FN3. The evidence does indicate that the decedent did not appear intoxicated before he and Nicar arrived at the dance hall. The decedent later asked for the keys to Nicar's truck, but Nicar testified that the decedent did not appear intoxicated when he took the keys. Nicar also testified to having a close friendship with the decedent and that he knew of the decedent's drinking problem. Finally, the evidence indicated that the decedent's blood alcohol concentration was 0.279.
In point of error five, appellants claim the trial court erred by instructing a witness how to answer a question on direct examination. Appellants complain about the following statements by the trial judge:
*957 Q. Well, now, being his best friend, what would have prevented you from simply turning around and saying, “Willie, stop it”?
A. I tried.
Q. What would have prevented you from turning around and saying, “Willie, have you had too much to drink to drive the truck?”
A. I know what his answer would have been.
Q. What would have prevented you from turning around and really looking at this person who you say is your best friend, who you say has a drinking problem, and determining for yourself-
A. I said he had a drinking problem.
Q. -determining for yourself whether or not he was intoxicated?
A. Like I said, you'd have to know Willie. You know, he's persistent.
Q. I'm not talking about Willie. I'm talking about you.
MR. COOPER: Judge, I object to him arguing with the witness. He asked him what would have prevented him, and the man answered, and he starts arguing with him.
THE COURT: Overruled.
The question is simply: “Would anything have prevented you.” I take it your answer is nothing other than his personality?
THE WITNESS: Yes, sir.
THE COURT: Let's move along then.
Appellants did not object to the trial court's action.
[12][13][14] Although the trial judge should not act as an advocate, his role is more than that of an umpire. Henderson-Bridges, Inc. v. White, 647 S.W.2d 375, 377 (Tex.App.-Corpus Christi 1983, no writ). For the purpose of eliciting evidence that has not otherwise been brought out, the judge may put competent and material questions to a witness, and where anything material has been omitted, it is sometimes his duty to examine a witness. Id. We find that the trial judge's action in this instance was to paraphrase the previous question and to clarify the witness' response. The judge did not instruct the witness to answer the question differently in any material respect than he had already answered.
[15] Appellants also complain about the trial court's answer to a question regarding the reason for the witness' termination of employment. Appellants assert that the witness previously testified he was put on leave of absence from employment due to a criminal conviction arising out of the incident upon which this suit is based. The written transcription presented by appellants contains no testimony by this witness about this subject. Rather, the page cited by appellants contains a statement by appellants' counsel to the trial court about the witness' prior deposition testimony. Appellants' counsel was arguing that defense counsel was misleading the jury by telling them the witness was on leave of absence because of the allegations in this case. The judge addressed this issu