Vulcan Materials Company and Adan Gomez v. Gary L. Bowers--Appeal from County Court At Law No 10 of Bexar County

MEMORANDUM OPINION

No. 04-04-00062-CV

VULCAN MATERIALS COMPANY and Adam Gomez,

Appellants

v.

Gary L. BOWERS,

Appellee

From the County Court at Law No. 10, Bexar County, Texas

Trial Court No. 276748

Honorable David J. Rodriguez, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Dissenting opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

This appeal concerns the trial court=s sanction against appellants= trial counsel for counsel=s violation of the court=s order on appellee=s motion in limine. In six issues on appeal, counsel asserts the trial court abused its discretion in sanctioning him. We conclude the trial court did not abuse its discretion and, therefore, affirm the trial court=s judgment.

BACKGROUND

At trial, appellee asserted he sustained injuries to his person and property, claiming damages for medical expenses, physical pain, impairment, mental anguish, physical disfigurement, lost wages, and loss of earning capacity. Before trial, the court considered appellee=s motion in limine, which included a request for a ruling regarding the collateral source rule. The trial court granted appellee=s request that the following was not admissible:

That Plaintiff has received, may have received, will receive, or may be entitled to receive any benefits of any kind or character from a collateral source because such evidence is wholly immaterial and irrelevant to any issue in this case and highly prejudicial to Plaintiff and is based upon the theory that juries may view Plaintiff=s recovery as a double recovery and adjust their verdicts if they are permitted to consider collateral benefits.

Counsel for appellants sought a clarification of the court=s ruling, and after further arguments from counsel, the trial court stated, AYou know he [plaintiff/appellee] still has to prove that he lost salary and you can cross him on that, but I don=t think you can make the statement that he didn=t lose money because he got paid anyway. I think that is collateral source.@ (Emphasis added.)

During trial, appellee testified that he was president and chief executive officer of Diamondback Management Services, a corporation solely owned by his family, and that he was a salaried employee whose salary did not depend on the number of hours he worked. Evidence presented at trial indicated appellee=s salary increased after the accident. During cross-examination, appellee was questioned by appellants= counsel as follows:

Q. In terms of your salaried income, Mr. Bowers, in your deposition you admitted to me, didn=t you, that you did not get a cut in pay from one year to the next?

A. I think that was shown on the earlier ones, I believe, yes.

Q. Okay. And, likewise, in your deposition, Mr. Bowers, it is true, isn=t it, that you didn=t actually lose wages, you have not lost money, your income is not less because of this accident? (Emphasis added.)

Before appellee answered, the trial court called the lawyers to the bench, dismissed the jury, and discussed counsel=s possible violation of the court=s ruling on the motion in limine. Appellee=s attorney moved for a mistrial. Counsel explained he did not believe he had violated the ruling and, if he had, any violation could be cured by an instruction to the jury.[1] The trial court granted the motion for a mistrial.[2]

Following a second trial, the court granted a directed verdict in favor of appellee on liability and the jury awarded appellee actual damages. In its final judgment, the trial court found that counsel Ain total contravention of the orders of this Court as set forth in the motion in limine and oral pronouncements of the Court, violated the Court=s rulings as it pertained to the collateral source rule during the course of the trial, as a consequence thereof and in order that justice be done, a mistrial was granted.@ The trial court sanctioned counsel $1944.00 for the attorney=s fees and costs of retrying the case.

 COURT=S RULING

A motion in limine is a procedural device that permits a party to identify, prior to trial, certain evidentiary issues the court may be asked to rule upon. Fort Worth Hotel Ltd. P=ship v. Enserch Corp., 977 S.W.2d 746, 757 (Tex. App.CFort Worth 1998, no pet.). The purpose of such a motion is to prevent opposing parties from asking prejudicial questions and introducing prejudicial evidence in front of the jury without first seeking leave of court. Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Enserch Corp., 977 S.W.2d at 757. The imposition of sanctions for violations of orders in limine is left to the sound discretion of the trial court and we, as an appellate court, will not reverse a trial court=s sanctions absent a clear abuse of discretion. Lassiter v. Shavor, 824 S.W.2d 667, 669 (Tex. App.CDallas 1992, no writ).

We agree with counsel that the trial court erred in determining that questions regarding appellee=s continued receipt of his salary violated the collateral source rule. The collateral source rule is defined as Athe doctrine that, if an injured party receives compensation for its injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay.@ Black=s Law Dictionary (7th ed. 1999). In Texas, the collateral source rule has been held to apply in cases where the injured party received insurance benefits, see Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 935 (Tex. 1980), general fringe benefits, McLemore v. Broussard, 670 S.W.2d 301, 303 (Tex. App.CHouston [1st Dist.] 1983, no writ), gratuitous services, Oil Country Haulers, Inc. v. Griffin, 668 S.W.2d 903, 904 (Tex. App.CHouston [14th Dist.] 1984, no writ), and worker=s compensation benefits. See Lee Wright, Inc. v. Hall, 840 S.W.2d 572, 582 (Tex. App.CHouston [1st Dist.] 1992, no writ). AMedical insurance, disability insurance, and other forms of protection purchased by a plaintiff, as well as gifts a plaintiff receives are easily identifiable as >independent= sources of income that are subject to the collateral source rule.@ Lee Wright, Inc., 840 S.W.2d at 582.

Appellee did not receive his salary as compensation for any injuries. Thus, it appears the trial court erred when it determined that counsel=s question violated the collateral source rule. However, for the reasons stated below, we cannot say the trial court abused its discretion in awarding sanctions.

 VIOLATION OF COURT=S RULING

Courts have the inherent power to regulate behavior in their courtrooms. See, e.g., Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (noting that Athe discretion vested in the trial court over the conduct of a trial is great.@). Courts also have the inherent power to sanction to protect the dignity, independence and integrity of the court system and to aid in the administration of justice. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding); Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App.CSan Antonio 2000, no pet.); Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.CHouston [1st Dist.] 1995, no writ). A sanction for violating a court order must, however, be appropriate to the circumstances of the case. Lassiter, 824 S.W.2d at 669.

Counsel asserts appellee waived his objection to the prohibited question because evidence of appellee=s pre-accident salary and post-accident salary was already before the jury; therefore, the prohibited question was merely cumulative of evidence already presented by both sides. We disagree. The trial court told counsel he could cross-examine appellee about his salary but counsel could not ask appellee if he Alost money@ because that was a deduction from the evidence for the jury to make. At the sanctions hearing, the trial court explained his reasoning, AAnd secondly as I recall the W-2s had already been preadmitted so there was already - - the jury could already perceive that he - - his salary was going up every one of those years.@ Therefore, the admission into evidence of appellee=s salary information did not waive any objection to counsel=s prohibited question.

In granting the motion in limine, the trial court specifically told counsel, AI don=t think you can make the statement that he didn=t lose money because he got paid anyway.@ At trial, counsel asked, A. . . it is true, isn=t it, that you didn=t actually lose wages, you have not lost money, your income is not less because of this accident?@ Counsel asked the very question he was instructed not to ask. Attorneys may not violate a court order even though they may believe the order is incorrect. The proper remedy is by appeal. Here, if counsel believed the trial court=s order prevented him from delving into a topic not precluded by the collateral source rule, his remedy would have been a timely objection and an offer of proof sufficient to preserve his complaint for appeal. See Anderson v. Higdon, 695 S.W.2d 320, 325 (Tex. App.CWaco 1985, writ ref=d n.r.e.). The remedy is not to ignore a court=s legitimate exercise of its authority to rule on evidentiary matters.

Counsel also asserts he did not intentionally violate the court=s ruling. While lack of intentional disrespect may be considered, it is a matter for the trial court=s determination. Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743 (1962). At the sanctions hearing, the court considered counsel=s argument that any violation of its ruling was inadvertent. Nevertheless, the trial court concluded counsel=s actions warranted sanctions. We do not infer from the court=s ruling that counsel acted with intentional disrespect or in bad faith. And we acknowledge that the court=s ruling drew a fine distinction that may have been difficult for counsel to discern. However, we cannot say the trial court abused its discretion in ordering sanctions.

Finally, counsel asserts the trial court did not follow the requirements of Texas Government Code section 21.002(d) because his guilt or innocence should have been determined by a Ajudge other than the judge of the offended court@; therefore, his due process rights were violated. We decline to address this complaint because it was not preserved for our review. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaining party gave the trial court an opportunity to rule on the complaint by making the complaint to the trial court in a specific and timely objection. Tex. R. App. P. 33.1(a); see Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Here, counsel failed to voice an objection concerning his due process rights at the hearing on the motion for sanctions.

SANCTIONS AMOUNT

Although counsel does not otherwise challenge the amount of the sanction, he asserts the sanction exceeded the maximum statutory fine for contempt of court. See Tex. Gov=t Code Ann. ' 21.002(b) (Vernon 2004) (AThe punishment for contempt of a court other than a justice court or municipal court is a fine of not more than $500 or confinement in the county jail for not more than six months, or both such a fine and confinement in jail.@). Counsel relies on Kidd v. Lance, 794 S.W.2d 586 (Tex. App.CAustin 1990, orig. proceeding), in which a defendant=s attorney intentionally violated an order in limine, and the trial court ordered a mistrial and assessed a $53,000 fine against both the attorney and the party. The Kidd court concluded that the trial court issued a sanction far in excess of the statutory $500 maximum. Id. at 588.

We disagree with counsel=s argument. A judge=s power to sanction is not limited to application of a contempt proceeding. Onstad v. Wright, 54 S.W.3d 799, 804-05 (Tex. App.CTexarkana 2001, pet. denied). A court=s inherent power to sanction Ais one such fashion in which a court can impose such a penalty.@ Id. at 805. The authority to impose such sanctions is derived from the court=s inherent power to impose sanctions to discipline an attorney=s behavior. See In re Bennett, 960 S.W.2d at 40 (sustaining $10,000 sanction in attorney=s fees as an exercise of the trial court=s inherent power). Therefore, the trial court did not abuse its discretion in sanctioning counsel in the amounts of $1,800 and $144 respectively for his violation of the court=s order on the motion in limine and its ruling during the course of trial.

CONCLUSION

We overrule appellants= counsel=s issues on appeal and affirm the trial court=s judgment.

Sandee Bryan Marion, Justice

[1] We believe the violation could have been cured by an instruction; however, there is no issue on appeal raising this complaint.

[2] There is no issue on appeal asserting the trial court abused its discretion in declaring a mistrial.