Karl Oszczakiewicz v. Richard Stephen Fitzhenry D/B/A King Arthur's Pub ( 2006 )

In The Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-154 CV ____________________

KARL OSZCZAKIEWICZ, Appellant

V.

RICHARD STEPHEN FITZHENRY D/B/A KING ARTHUR'S PUB, Appellee

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-165263

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MEMORANDUM OPINION

Appellant Karl Oszczakiewicz sued Timothy Wayne Smith and Richard Stephen Fitzhenry, doing business as King Arthur's Pub, for personal injury. Appellant obtained a default judgment against Smith. The default judgment stated, "Smith beat [appellant] and [appellant] obtained multiple fractures on his face[.]" The judgment awarded appellant $3,000,000 in actual damages and $10,000,000 in punitive damages for Smith's liability. The case against Fitzhenry was tried to a jury. ⁽¹⁾   At the conclusion of the evidence, the trial judge granted a motion for an instructed verdict in Fitzhenry's favor.

Background

Appellant was a customer at King Arthur's Pub and was in the bar when Smith arrived. Smith said, "[H]i. How are you doing[?]," and then walked by and sat down. About five minutes later, Smith heard appellant call him a vulgar name. Smith stated he just looked at appellant and "kind of blowed . . . it off, you know. And then wasn't even two minutes after," appellant said the vulgar name again. Smith testified he stood up, and the bartender grabbed him and "brought [Smith] to the bathroom." The bartender told Smith "[t]hey [were] making [appellant] leave." The time was around 9:30 p.m. When Smith came out of the bathroom, appellant was gone, and Smith sat back down with his friends and drank beer. "[W]e figured everything was over." The bar closed at midnight, and Smith and his female friend left. While they were in the parking lot, "a black Chevrolet truck comes whipping in. . . . [Appellant] jumps out of his truck, comes around the truck; and he has a shotgun." Appellant stated, "Now I'm as big as you, you [s.o.b]." Smith stated, "[Appellant] pointed the gun, bounced it off my forehead." Smith's female friend "started hollering at [appellant]." When appellant looked toward her, Smith "pulled the shotgun from him[.] I hit -- he charged me, I popped him and he laid on the ground." Smith testified he hit appellant in the face with the shotgun. After calling 911, Smith waited for the ambulance and police to arrive. Smith testified he was protecting himself and his friend.

Richard Fitzhenry testified he had one employee working at the bar that night. He does not employ a security guard. He indicated he has never had a reason to employ a guard, and he has never had an incident involving an assault after closing hours. The bar's policy is that if a person causes an altercation in the bar, "[w]hoever instigates the situation gets barred for good." He also indicated the parking lot is well lit.

Exclusion of Evidence

On appeal appellant complains of the trial court's exclusion of "Exhibit D," which appellant described as "pictures of the personal injuries." We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). Fitzhenry objected to the photographic evidence on lack-of-predicate grounds, and the trial judge sustained the objection. A photograph's admissibility is conditioned upon its identification by a witness as an accurate portrayal of the facts, and on verification by that witness, or a person with knowledge, that the photograph is a correct representation of such facts. Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex. 1987). Appellant's mere request to have the photographs admitted does not lay the proper predicate for admissibility. Appellant points out that he filed the photographs in "Exhibit D" with the District Clerk's office. However, the filing of documentary records does not obviate the need to lay the proper predicate when offering the photographs or other documents into evidence at trial.

Appellant also argues that since the trial court considered this documentary evidence in the default judgment hearing at which Smith's liability was established, the trial court should take notice of that evidence in the proceeding against Fitzhenry. Appellant did not make this argument during trial and has not preserved it for appeal. See Tex. R. App. P. 33.1(a). Moreover, the default judgment proceeding sought to establish liability against Smith only. There, appellant testified to a different account of the night's events from that testified to by Smith at the trial here. The evidence presented to the trial judge at the default judgment hearing against Smith is not automatically admitted at the subsequent jury trial against Fitzhenry. Here, appellant sought to establish Fitzhenry's liability, and he had the burden of presenting evidence to the jury to prove his case. Appellant failed to lay the proper common law predicate for admission of the photographs into evidence. Fitzhenry objected to the admission of the photographs on that ground, and the trial judge properly excluded them.

Appellant also complains he did not receive notice of the severance of the default judgment against Smith. We find no severance order in the record. Furthermore, appellant does not demonstrate harm from a severance if there had been one. Appellant may be arguing that if he knew the default judgment had been severed, he would have also known he needed to put forward his evidence at the trial against Fitzhenry. His problem, however, has nothing to do with severance or notice of severance. His problem is that although he sought to admit evidence at the jury trial from the prior hearing, he did not lay the proper predicate for admissibility. The trial court properly excluded the evidence.   

Directed Verdict

Appellant also complains of the directed verdict granted by the trial court at the conclusion of the testimony. The basis for the directed verdict motion was the lack of evidence "on damages or [on the] cause of action. . . ." A trial court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to a right of recovery. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In reviewing the trial court's directed verdict, we consider all the evidence in a light favorable to appellant's claims. See White v. Sw. Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983). If the record contains any "conflicting evidence of probative nature," the jury should resolve the issue, and a directed verdict is improper. Id.

Appellant's petition alleged Fitzhenry failed to provide adequate security and to employ an adequate and safe number of employees, failed to employ security guards, and failed to provide adequate egress and ingress on the premises. Appellant pled general negligence and premises liability claims. The claims require a showing that Fitzhenry's acts or omissions proximately caused appellant's injuries. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550-51 (Tex. 2005).

The trial record includes no testimony from appellant. Only Smith and Fitzhenry testified, and their testimony does not indicate Fitzhenry caused appellant's injuries. Pursuant to the bar's policy, the bar's employee made appellant leave. There was no fight in the bar and appellant left the premises. Smith remained in the bar for approximately two and one-half hours. The bar had no security guard because Fitzhenry had never needed one. No assault had ever occurred on the premises after closing hours. The bar closed and Smith left. Appellant drove into the bar's parking lot at midnight and, while brandishing a shotgun, charged Smith. When appellant, with shotgun in hand, turned toward Smith's friend, Smith grabbed the shotgun and used it to strike appellant in the face. There is no evidence that Fitzhenry or his agents or employees did or did not do anything that proximately caused appellant's injuries.

Appellant also appears to complain of the trial court's failure to find Fitzhenry liable under the Texas Alcoholic Beverage Code, but there is no pleading or proof under that statute. There is no evidence Smith was intoxicated to the point he posed a danger to himself or others, or that intoxication was a proximate cause of the injury. Other complaints are not founded in the record. ⁽²⁾

Appellant also claims the directed verdict denied his constitutional right to a jury verdict. Rule 265(b) of the Texas Rules of Civil Procedure requires the party who has the burden of proof to introduce his evidence to the jury. Tex. R. Civ. P. 265(b). However, the trial judge may direct a verdict if a plaintiff fails to present evidence raising a fact issue essential to his right of recovery. Prudential Ins. Co., 29 S.W.3d at 77 (citing Latham v. Castillo, 972 S.W.2d 66, 67-68, 70-71 (Tex. 1998)). Appellant presented no evidence raising a fact issue on Fitzhenry's liability. We overrule appellant's issues and affirm the judgment.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on April 26, 2006

Opinion Delivered June 29, 2006

Before Gaultney, Kreger, and Horton, JJ.

1.

Oszczakiewicz appeared pro se at trial and on appeal.

2.

Appellant complains "[a]ll exhibits were compromised during pretrial, no evidence was allowed to be seen by the jury." This is a variation of his complaint regarding the trial judge's exclusion of the photos. Fitzhenry's motion in limine did not preclude appellant from offering evidence at trial, and appellant did so. Appellant did not lay the proper trial predicate for admission of the photos. Appellant contends Smith gave false information to, and ran from, authorities. No evidence supports this claim, and it has no bearing on appellant's claim of Fitzhenry's liability. Appellant claims Fitzhenry avoided authorities, and the trial court ordered substituted service. There is no evidence the reason for substituted service was Fitzhenry's avoidance of service. Appellant maintains he was left permanently disabled "with no means for professional counsel." The record shows appellant had trial counsel, but trial counsel withdrew with appellant's agreement.