bradley-blommaert-teresa-blommaert-and-mike-blommaert-v-borger-country ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00337-CV
BRADLEY AND TERESE BLOMMAERT,
AND MIKE BLOMMAERT, APPELLANTS
V.
BORGER COUNTRY CLUB, JEFF GRIFFIN, MARK MITCHELL,
ROBERTA SEWELL, ROBERT ARCHER, JAMES BAKER, WILLIAM BENDA,
SHAD GOLDSTON, KENT GRAY, RANDY GRAY, DANNY HAYNES,
MATT HOOD & DWIGHT RICE, APPELLEES
On Appeal from the 84th District Court
Hutchinson County, Texas
Trial Court No. 38,466, Honorable William D. Smith, Presiding
April 3, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellants, Bradley Blommaert, Terese Blommaert (collectively, “the
Blommaerts”), and Mike Blommaert, appeal a take-nothing judgment entered against
them as to their claims against appellees, Borger Country Club (the Club), and Jeff
Griffin, Mark Mitchell, Roberta Sewell, Robert Archer, James Baker, William Benda,
Shad Goldston, Kent Gray, Randy Gray, Danny Haynes, Matt Hood, and Dwight Rice
(collectively, “the Directors”). For the following reasons, we affirm.
Factual and Procedural Background
Due to the manner in which we will resolve the issues presented by this appeal,
we will only briefly discuss the factual background leading to the instant appeal. The
Club operates a golf driving range as part of its recreational services. At the time that
the driving range was so purposed, it was adjacent to undeveloped pasture land.
However, at some point, Mike Blommaert constructed a residential building on this
pasture land. After construction was complete, the Blommaerts made the building their
residence. Golf balls struck at the driving range invaded the Blommaerts’ property. The
Blommaerts notified the Club, who attempted to remedy the complaint by reorienting the
driving range tee boxes, and notifying users of the driving range to aim away from the
residence. However, when errant golf shots continued to cause golf balls to invade their
property, the Blommaerts filed suit against the Club.
By their original petition, the Blommaerts sought injunctive relief and damages
against the Club for trespass and negligence. After discovery, the Blommaerts
amended their petition to add the Directors as defendants, and added claims for gross
negligence. Appellees requested leave to designate Mike Blommaert as a responsible
third party, which was granted by the trial court. The Club alleged that Mike Blommaert
was proportionately responsible for the Blommaerts’ damages. Before trial, Mike
Blommaert intervened in the lawsuit.
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As the case proceeded to trial, the Blommaerts filed a number of pretrial motions,
including motions for appellees’ counsel to show authority, to compel discovery, for
leave to amend their petition, to modify the discovery control plan, for continuance, for
change of venue, for recusal of the trial judge, and to strike the designation of Mike
Blommaert as a responsible third party. After appellants rested at trial, appellees
moved for a directed verdict. The trial court rendered judgment against appellants on
their claims of trespass and gross negligence, and on all claims against the Directors.
Thus, the only claim that went to the jury was the Club’s negligence. When that issue
was submitted to the jury, the jury returned a verdict that the Club was not negligent, but
that the Blommaerts and Mike Blommaert were. In response to a question regarding
proportionate responsibility, the jury concluded that Mike Blommaert was 50 percent
responsible for the negligence and that the Blommaerts were also 50 percent
responsible. The jury also determined that Mike Blommaert did not detrimentally rely on
any promise made by the Club. By virtue of its directed verdict and the jury’s verdict,
the trial court entered judgment that appellants take nothing by their suit. Appellants
timely appealed.
Appellants present twelve issues by their appeal. Appellants’ first seven issues
relate to various pretrial rulings of the trial court. Appellants’ eighth, tenth, and eleventh
issues generally challenge the trial court allowing argument and evidence regarding
certain claims and defenses. Appellants’ ninth issue challenges the trial court’s failure
to enter judgment as a matter of law in favor of appellants on their trespass claim. By
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their twelfth issue, appellants contend that the trial court erred in allowing evidence to
be destroyed after trial.1
Directed Verdict
Appellants present no issue expressly challenging the trial court’s decision to
direct verdict on appellants’ claims of trespass and gross negligence against the Club,
and on all claims against the Directors. Furthermore, none of appellants’ issues provide
us with authority or analysis directly addressing the directed verdict. When a trial court
directs a verdict for a defendant, to obtain a reversal, the plaintiff must establish that the
directed verdict cannot be supported on the grounds asserted by the defendant. Dolenz
v. Pulse, 791 S.W.2d 572, 573 (Tex. App.—Dallas 1990, writ dism’d w.o.j.) (citing
McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964)). An appellant’s failure to challenge
a directed verdict waives any error in the granting of the directed verdict. See Dunn v.
Bank-Tec South, 134 S.W.3d 315, 327-28 (Tex. App.—Amarillo 2003, no pet.); Davis v.
Mazda Motor Corp., No. 04-98-00844-CV, 1999 Tex. App. LEXIS 8587, at *2-3 (Tex.
App.—San Antonio Nov. 17, 1999, pet. denied); Dolenz, 791 S.W.2d at 573.
Consequently, appellants have waived their right to challenge the trial court’s actions
and have failed to discharge their burden to prove that the trial court’s directed verdict
was improper. See Dunn, 134 S.W.3d at 328; Davis, 1999 Tex. App. LEXIS 8587, at
*2-3; Dolenz, 791 S.W.2d at 573. Thus, we overrule all of appellants’ issues to the
extent that they challenge those rulings entered by the trial court by directed verdict.
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Because we affirm the judgment of the trial court, any error in the trial court’s “destruction” of
evidence is harmless.
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Negligence Claims against the Club
Because all of appellants’ claims other than their negligence claims against the
Club were disposed of by the trial court’s directed verdict ruling, we will address those
issues that challenge the jury’s verdict that the Club was not negligent, and that all
damages were caused solely by Mike Blommaert’s and the Blommaerts’ negligence.
Appellants’ arguments that relate to their negligence claim against the Club contend that
the trial court erred in allowing argument, evidence, and jury questions of defenses
which were not relevant to appellants’ negligence claim.
In the argument portion of their brief, appellants contend that they filed a motion
in limine requesting the trial court require the Club to approach the trial court to obtain
permission before presenting any argument or evidence that would reference these
defenses. However, the trial court denied appellants’ requests as to prescriptive rights,
proportionate responsibility, and waiver and estoppel. A trial court's ruling on a motion
in limine preserves nothing for review; a party must object at trial when the testimony is
offered to preserve error for appellate review. See Hartford Accident & Indem. Co. v.
McCardell, 369 S.W.2d 331, 335 (Tex. 1963); Greenberg Traurig of N.Y., P.C. v.
Moody, 161 S.W.3d 56, 91 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Prati v. New
Prime, Inc., 949 S.W.2d 552, 555 (Tex. App.—Amarillo 1997, writ denied) (op. on reh’g).
Thus, appellants’ arguments relating to grounds set forth in their motion in limine are not
preserved for review without a timely and specific objection when the evidence was
offered at trial. See TEX. R. APP. P. 33.1; Hartford Accident & Indem. Co, 369 S.W.2d at
335; Greenberg Traurig of N.Y., 161 S.W.3d at 91; Prati, 949 S.W.2d at 555.
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Appellants cite to certain instances during trial where they claim that the Club
presented argument and evidence of unavailable defenses. Of those instances cited
during the Club’s opening and closing arguments, appellants did not object. Therefore,
these arguments were not preserved for review. See TEX. R. APP. P. 33.1; Hartford
Accident & Indem. Co, 369 S.W.2d at 335; Greenberg Traurig of N.Y., 161 S.W.3d at
91; Prati, 949 S.W.2d at 555. As to the Club’s offers of evidence of these claimed
unavailable defenses, appellants’ repeatedly objected on the grounds of relevance with
no additional argument or specific reference to unavailable defenses. 2 As such,
appellants’ trial objection was not sufficiently specific to preserve the error alleged on
appeal. See TEX. R. APP. P. 33.1(a)(1)(A); Arkoma Basin Exploration Co. v. FMF
Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008) (“the cardinal rule for
preserving error is that an objection must be clear enough to give the trial court an
opportunity to correct it.”); Helping Hands Home Care, Inc. v. Home Health of Tarrant
Cnty., Inc., 393 S.W.3d 492, 514-15 (Tex. App.—Dallas 2013, pet. denied) (relevance
objection not sufficiently specific to preserve complaint that evidence was more
prejudicial than probative, even though those grounds were presented in a pretrial
motion in limine). Furthermore, because appellants’ complaint on appeal regarding
evidence of unavailable defenses does not comport with appellants’ relevancy
objection, nothing has been preserved for our review. See Haley v. GPM Gas Corp., 80
S.W.3d 114, 120 (Tex. App.—Amarillo 2002, no pet.); Tex. Dep’t of Transp. v. Olson,
980 S.W.2d 890, 898 (Tex. App.—Fort Worth 1998, no pet.). Therefore, appellants’
2
During questioning of Mike Blommaert about the difference between “spec” and “custom”
homes, appellants objected on relevancy grounds. This objection was overruled by the trial court.
Appellants requested and were granted a running objection. However, this objection did not identify that
it was an objection to evidence of unavailable defenses and nothing about the specific questioning would
have made those grounds apparent from the context.
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complaints regarding presentation of evidence of unavailable defenses have not been
presented for our review.
In their last-identified objection to unavailable defenses, appellants did specify
grounds for that objection. During the testimony of Edward Smilow, an expert witness
on golf course design, appellants objected to questioning concerning an article that the
witness had been quoted in as raising issues that are not relevant to appellants’
negligence claim. The Club responded that the questioning went to the witness’s
credibility. The trial court overruled appellants’ objection. In reviewing the subsequent
testimony, it is clear that the Club did use this article to impeach the prior testimony of
Smilow. We must uphold a trial court’s evidentiary rulings if it is proper on any grounds.
Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 702 (Tex. App.—Fort Worth
2006, pet. denied) (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998)). Because the challenged examination of Smilow was appropriate to
impeach his prior testimony, the trial court did not err in overruling appellants’ objection.
Appellants challenge the jury charge only as to “legal theories which were not
relevant defenses to [appellants’] claims at trial.” However, review of the jury charge
reveals that the prescriptive rights or prior grant defenses argued by appellants to have
been unavailable were in no way included in the jury charge. Thus, even were we to
agree with appellants’ contentions that these defenses were unavailable to the Club,
appellants’ have not identified any error in the jury charge. Appellants also argue that it
was error for the trial court to fail to submit the issue of trespass to the jury or to rule in
favor of appellants on trespass as a matter of law. However, as discussed above,
appellants’ failure to challenge the trial court’s directed verdict waived these issues.
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Consequently, we conclude that appellants have failed to show that the trial court erred
in its jury charge.
We conclude that the trial court did not err in any of its challenged rulings relating
to the Club’s argument, admission of evidence, or jury charge.
Other Issues
Due to our resolution of appellants’ issues above, we will affirm the judgment of
the trial court. However, a few of appellants’ issues challenging pretrial rulings could
have the effect of preventing the trial court from properly entering directed verdict or
submitting appellants’ negligence claims to the jury. Thus, out of an abundance of
caution, we will address these issues.
Appellants challenge the trial court’s denial of their motion to show authority,
which challenged whether the Club’s attorney had authority to represent the individual
Directors. Such a motion is authorized by Texas Rule of Civil Procedure 12, which is
the exclusive method for questioning the authority of an attorney to represent a party in
a proceeding. TEX. R. CIV. P. 12; Kindle v. Wood Cnty. Elec. Co-op, Inc., 151 S.W.3d
206, 210 (Tex. App.—Tyler 2004, pet. denied). Rule 12 requires that the motion be
served on the challenged attorney at least ten days before the hearing on the motion.
TEX. R. CIV. P. 12. In the present case, appellants filed an initial motion challenging the
attorney’s authority to represent unnamed directors. However, they filed a
“supplemental” motion on April 12, 2012, that specifically named the Directors and
alleged that deposition testimony proved that the Club’s attorney did not have authority
to represent some of the Directors individually. We agree with appellees that, by
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naming the Directors in their “supplemental” motion, we conclude that appellants’ April
12 motion was an amended motion, rather than a supplemental motion. See TEX. R.
CIV. P. 62; Tex-Hio P’ship v. Garner, 106 S.W.3d 886, 890 (Tex. App.—Dallas 2003, no
pet.). Because an amended motion takes the place of its superseded predecessor, see
TEX. R. CIV. P. 65; FKM P’ship v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d
619, 633 (Tex. 2008) (“causes of action not contained in amended pleadings are
effectively dismissed at the time the amended pleading is filed . . . .”), appellants did not
file their amended motion to show authority until four days prior to the hearing. As such,
the motion did not comply with the requirements of Rule 12 and the trial court did not err
in denying the motion.
Appellants also challenge the trial court’s denial of their motion to transfer venue.
Appellants’ motion includes the affidavit of the Bloomaerts and affidavits from three
residents of Hutchinson County. See TEX. R. CIV. P. 257. However, appellees filed a
response to this motion that identified defects in the affidavits filed by appellants in
support of their motion. On the basis of these defects, the trial court could conclude that
appellants failed to comply with the requirements of Rule 257, and denied the motion.
Furthermore, because appellants’ motion was controverted, appellants bore the burden
of proving that they could not receive a fair and impartial trial in Hutchinson County at
the hearing on the motion. See Governing Bd. v. Pannill, 659 S.W.2d 670, 688 (Tex.
App.—Beaumont 1983, writ ref’d n.r.e.). However, appellants offered no evidence at
the hearing. For either of these reasons, the trial court did not abuse its discretion in
denying appellants’ motion to transfer venue.
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Appellants also challenge the denial of their motion to recuse. Appellants’ initial
motion simply asked the trial judge to exercise his discretion and voluntarily recuse
himself from the case. Appellants cited none of the grounds for recusal listed in Texas
Rule of Civil Procedure 18b(b). See TEX. R. CIV. P. 18b(b). Appellants’ amended
motion was based on the argument that the judge’s impartiality might reasonably be
questioned. See id. at 18b(b)(1). The regional presiding judge heard the amended
motion to recuse and denied the same. We review the ruling on a motion to recuse for
an abuse of discretion. Id. at 18a(j)(1)(A). In making this determination, we are to
review the totality of the evidence presented at the recusal hearing to see if the record
reveals sufficient evidence to support the conclusion that the trial judge was unbiased.
Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 250 (Tex. App.—El Paso 2012, no
pet.). Appellants contended that the small size of the local community and the
significance of the Club within that community might call Judge Smith’s impartiality into
question. Furthermore, appellants contended that certain of Judge Smith’s rulings
indicated a bias or prejudice in favor of the Club. No specific connection between
Judge Smith and the Club was established by appellants, and the importance of the
Club to a small community is conclusory and speculative. As to appellants’ contention
regarding Judge Smith’s rulings, appellants were required to “show that this bias arose
from an extrajudicial source and not from actions during the pendency of the trial court
proceedings, unless these actions during proceedings indicate a high degree of
favoritism or antagonism that renders fair judgment impossible.” In re M.C.M., 57
S.W.3d 27, 33 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). From the record of
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the recusal hearing, we cannot conclude that the denial of the motion constituted an
abuse of discretion.
Finally, appellants challenge the trial court’s denial of their motion to strike Mike
Blommaert’s designation as a responsible third party. However, any error by the trial
court failing to strike Mike Blommaert’s designation as a responsible third party was
rendered moot when Mike Blommaert intervened. See In re S.A.M., 321 S.W.3d 785,
790 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Once a person intervenes in a suit,
the person becomes a party for all purposes and continues to be a party unless the trial
court strikes the intervention.”). Thus, this issue presents nothing for our review.
Conclusion
Having overruled each of appellants’ issues that could result in reversal, we
affirm the judgment of the trial court.
Mackey K. Hancock
Justice
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