George Carrow, et al. v. Wal-Mart Stores, Inc., et al.--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-311-CV

GEORGE CARROW, ET AL.,

Appellants

v.

WAL-MART STORES, INC., ET AL.,

Appellees

From the 19th District Court

McLennan County, Texas

Trial Court # 91-3957-1

O P I N I O N

On December 9, 1989, Joan Carrow, her fourteen-year-old son, Chris, and her daughter, Judy Tibbs, were involved in a physical and verbal altercation with Brenda Howard and Harold Granger inside the Wal-Mart store on North Valley Mills Drive in Waco. The altercation apparently stemmed from a dispute between Joan Carrow and Howard and Granger over a vacant parking place on Wal-Mart's parking lot. Bringing the action individually and as next friends for Chris and Judy, Joan Carrow and her husband, George, sued Wal-Mart as well as Howard and Granger. // However, the court rendered a take-nothing judgment in Wal-Mart's favor after the jury found that Joan's negligence was the proximate cause of the occurrence and failed to find either negligence or causation on Wal-Mart's part. We will affirm.

DISCOVERY

The Carrows sent Wal-Mart written interrogatories seeking: (1) the identity of all Wal-Mart customers injured as a result of a "fight, attack, robbery, assault, beating, rape and/or any other intentional tort or criminal conduct which . . . occurred at any business which goes by the assumed or common name of Wal-Mart Department Stores"; and (2) the style, cause number, court, county, and state of each suit in which a customer of any Wal-Mart Department Store alleged "personal injuries of any kind." They also requested that Wal-Mart produce any "documents, letters or records at any Wal-Mart Department Store reflecting other reported . . . incidents [similar] to the incident that forms the basis of this suit."

Wal-Mart objected to the interrogatories and the request for production on the grounds that they were overly broad, exceeded the scope of permitted discovery, or were unduly burdensome. At the hearing on the objections, the Carrows argued that the requested information was relevant to their contention that Wal-Mart had failed to prevent reasonably foreseeable assaults on its customers in the past and had taken no steps to prevent such attacks prior to the incident involving Joan Carrow. Following the hearing, the court sustained Wal-Mart's objections and limited discovery of the requested information to the Wal-Mart store where the incident occurred and further limited discovery to the four years preceding the date of the incident involving Joan Carrow.

The Carrows' first point is that the court abused its discretion when it refused to compel discovery of prior similar attacks or assaults committed upon any customer at any Wal-Mart store in the United States. They argue that Wal-Mart failed to produce any evidence to support its objections.

We take judicial notice, as the trial court could have, that Wal-Mart is a corporate giant with hundreds, if not thousands, of stores located all over the United States. See Tex. R. Civ. Evid. 201(c). A nation-wide search for information relating to so-called similar incidents at hundreds or thousands of Wal-Mart stores, unlimited by span of time or area, is overly broad as a matter of law. See Dillard Department Stores, Inc. v. Honorable Richard Hall, Judge, 38 Tex. Sup. Ct. J. 1042-43 (July 7, 1995) (holding that a twenty-state search involving 227 Dillard stores over a five-year period is overly broad as a matter of law). Wal-Mart has a legitimate interest in avoiding overly broad discovery requests. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). Thus, a court has the discretion to narrow the scope of discovery on a case-by-case basis. Id. The court did not abuse its discretion when it limited discovery as it did. See id. Point one is overruled.

The Carrows complain in point two that the court should have compelled Wal-Mart to produce written statements made by two of its employees during Wal-Mart's investigation of the incident involving Joan Carrow. The two employees had apparently intervened to end the altercation.

Initially, the Carrows requested production of every document pertaining to "any investigation of the incident" involving Joan Carrow. Wal-Mart objected to the request on the grounds that it was overly broad and sought documents protected from disclosure by Rule 166b, but later withdrew its objections. See Tex. R. Civ. P. 166b(3)(c). The Carrows also demanded production of any of Wal-Mart's investigative statements in a subpoena duces tecum that accompanied a notice to take the deposition of a Wal-Mart employee. After Wal-Mart sought a protective order, the Carrows withdrew their deposition notice and the accompanying subpoena duces tecum. After the two Wal-Mart employees had testified at trial, the Carrows complained that Wal-Mart had never produced their written statements. At the Carrows' request, the court ordered that the witnesses' written statements be included in the record for "appellate purposes only." Two statements, presumably those of the employees, now appear in the record.

To preserve a complaint for appellate review, the complaining party must have obtained an adverse ruling on an objection, motion or request. Tex. R. App. P. 52(a). The Carrows have not pointed out an adverse ruling on a motion, objection or request on which to base their complaint. For example, the court never ruled adversely on their original request for production and was never asked to rule on a motion to compel production of the statements. Likewise, the court granted their request to have the written statements included in the record.

Although the statement of facts reflects that counsel and the court engaged in a bench conference contemporaneously with the first witness' testimony, the court reporter did not record the conference. Thus, we cannot tell from the record whether the bench conference involved an adverse ruling on a request for the production of the written statements. // Without an adverse ruling on a proper motion, objection or request, nothing is preserved for appellate review. See id. Point two is overruled.

STRIKING DTPA CLAIM

The Carrows generally alleged in their amended petition that Joan, Chris, and Judy entered the Wal-Mart store as "business invitees" where they were physically assaulted by Howard and Granger. They asserted that they were injured as a result of a "dangerous condition and criminal acts in the premises" and that Wal-Mart had the duty (1) "to protect and safely guard [them] from dangerous conditions on the premises or to warn of their existence," (2) "to protect [them] from assaults of third persons while on the premises" and from "ongoing criminal acts on the premises," and (3) "to exercise reasonable care for the safety of invitees." The Carrows asserted causes of action for negligence, negligent hiring, and violation of sections 17.46 and 17.50 of the Deceptive Trade Practices Act (DTPA). See Tex. Bus. & Com. Code Ann. 17.46, 17.50 (Vernon 1987 & Supp. 1995).

Wal-Mart specially excepted to and moved to strike the DTPA claim on the ground that the Carrows were not "consumers" within the meaning of the Act and thus lacked standing to sue for its violation. The court sustained the special exception and granted the motion to strike. Point three is based on the court's striking of the DTPA claim.

To recover under the DTPA, the plaintiff must first plead facts to initially establish his status as a "consumer." See Riverside Nat. Bank v. Lewis, 603 S.W.2d 169, 173 (Tex. 1980). A "consumer" is "an individual . . . who seeks or acquires by purchase or lease, any goods or services . . . ." Tex. Bus. & Com. Code Ann. 17.45(4) (Vernon 1987). In other words, the plaintiff must initially plead facts sufficient to show that the goods or services purchased or leased form the basis of his DTPA complaint. Sherman Simon Enter. v. Lorac Service Corp., 724 S.W.2d 13, 15 (Tex. 1987). Whether a person qualifies as a consumer is a question of law for the court. Henry v. Cullum Companies, Inc., 891 S.W.2d 789, 794 (Tex. App. Amarillo 1995, no writ) (citing Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 831 (Tex. App. Amarillo 1993, writ denied)).

A fair reading of the Carrows' amended petition conclusively establishes that, although they entered Wal-Mart's store with the intention of seeking or acquiring goods or services by purchase or lease, their complaints against Wal-Mart have nothing to do with the seeking or acquiring of goods or services but, instead, arise out of an intentional tort allegedly inflicted by Howard and Granger, two other store patrons. Under the circumstances, their complaint against Wal-Mart is not based on or grounded in their seeking or acquiring of goods or services by purchase or lease. See Henry, 891 S.W.2d at 795; Rojas v. Wal-Mart Stores, Inc., 857 F. Supp. 533, 537 (N.D. Tex. 1994). Thus, the court did not err when it concluded as a matter of law that, based on the facts pled, the Carrows were not "consumers" under the DTPA and therefore lacked standing to sue for its violation. See id.

Ordinarily, a court must give a party an opportunity to amend after a special exception is sustained, but it need not extend that opportunity if the pleading deficiency cannot be corrected by amendment. E.g., Slentz v. American Airlines, Inc., 817 S.W.2d 366, 369 (Tex. App. Austin 1991, writ denied); James v. Hitchcock Independent School Dist., 742 S.W.2d 701, 704 (Tex. App. Houston [1st Dist.] 1987, writ denied). Considering the nature and basis of their complaints, the Carrows could not plead facts to establish their status as consumers under the DTPA and, accordingly, the court did not err when it struck their DTPA claim without giving them an opportunity to amend. See id. Point three is overruled.

HOWARD'S MISDEMEANOR CONVICTION

During trial, the Carrows tried to introduce into evidence a certified copy of a municipal court record showing that Brenda Howard had been convicted of misdemeanor assault arising out of the altercation. The court, however, sustained Wal-Mart's objection and excluded the evidence. The Carrows complain in point four that the court acted erroneously because the evidence was relevant to prove that Howard was the aggressor.

The court properly excluded evidence of Howard's misdemeanor conviction for assault. Rule 803(22) of the Rules of Civil Evidence provides that the hearsay rule does not exclude evidence of a prior felony conviction, entered after a trial or upon a guilty plea, to prove any fact essential to sustain the judgment of conviction. Tex. R. Civ. Evid. 803(22). Howard's conviction, however, involved a misdemeanor and was thus inadmissible to prove a fact essential to the conviction, i.e., that she was guilty of perpetrating the assault. See Juan A v. Dallas County Child Welfare, 726 S.W.2d 241, 245 (Tex. App. Dallas 1987, no writ); 2 Steven Goode, Olin G. Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 803.27 (Texas Practice 1993). The court correctly excluded the evidence but, perhaps, gave the wrong reason for its action. However, it should not be reversed for giving the wrong reason for an otherwise correct result. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939). Point four is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings. and

Justice Vance

Affirmed

Opinion issued and filed August 23, 1995

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