*1 Berrospe There is no ousted fact, party
Justo from the house —in neither possession property. in actual
Further, Berrospe repu- there is no evidence way title in such a as infer
diated notice maintained, though Berrospe
Justo. Even
insured, paid property taxes on the years
fourteen after the death of Mr. Ama-
dor, performed he had these functions since purchase Berrospe’s
the initial of the house. in conformity
actions were with his actions
before the death of Mr. Amador. These
actions were “hostile” to Justo’s inter- 1/8 and, therefore, property,
est could not put
have Justo on notice of an adverse claim
to his Accordingly, interest. we conclude 1/8 Berrospe’s possession adverse claim is
without merit as a matter of law.
We sustain of error three. two, argues of error Justo objection
trial court in overruling erred his
testimony relating Berrospe’s payment of
Ms. Amador’s medical bills and maintenance
expenses for the house. Because we have
sustained the other we need
not address this one.
We reverse and render that Ber-
rospe nothing against take in his suit Justo. SYSTEMS, INC., Energy
DRILEX Masx Group, Inc.,
Services and Masco
Industries, Inc., Appellants, Flores, and Maria Individ- FLORES
ually and As Parents of Gina Marie
Flores, Georgette Luis Jose Flores and Flores, Minors, Appellees.
Nicole
No. 04-94-00586-CV. Texas, Appeals
Court of
San Antonio.
Dec. 1996.
Rehearing Overruled Feb. *2 negligence against claims
defect and Inc., Group, Systems, Energy Masx Services (“Drilex”). Industries, Inc. Masco Inc. nipple, special drilling also Amoco leased stripper wiper bucket or box known as *3 (hereinafter “bucket”), in from Drilex for use injury to drilling of the well where the Flores occurred. The bucket was used prevent drilling being spilled from on mud by removing from the rig floor the mud pipe drill as it was extracted from well. by attaching sling The bucket is moved containing lifting hooks to the holes located top at the The is then bucket. bucket string rotating lowered down the drill to the by attaching hoisting equipment to the head sling. responsible clamping for Flores was rotating to the after the bucket head Sullivan, III, John A. Henriquez, Veronica must bucket was lowered. The bucket Briscoe, Filteau, Marla J. Sullivan & Geor- properly aligned clamp it to the order P.C., Houston, gantas, appellants. for rotating head. Baiamonte, Terry Edwards, E. R. William injury during process Flores’ occurred III, Edwards, Edwards, Terry, Baiamonte & lowering the bucket. The hooks on the Christi, Molina, Corpus Romero Frank R. sling slipped out of the bucket’s holes when Jr., Nye, Jr., Nye, Law Offices of Frank R. slack in the line removed the tension from City, appellees. Rio Grande for sling. bucket then slid The unattached hand, string onto Flores’ down the drill CHAPA, J., Before C. and RICKHOFF resting top rotating which was LOPEZ, JJ. head. CHAPA, Chief Justice. Although the record is clear that Drilex Amoco, parties leased the bucket to dis- appeal personal This injury judg- is from a pute whether Drilex also leased Amoco the ment in appellees. appel- favor The sling. appellees allege The that both the points lants raise five contending: of error defective, and sling and the bucket were (1) witness; expert erroneous exclusion of an injury by negli- Flores’ was caused Drilex’s (2) (3) error; jury charge insufficient evi- gence product argued or defect. Drilex that (4) claim; support product dence to liability injury operational negli- was a result of support negligence insufficient evidence to gence part rigging of H crew on the & P’s (5) claim; and erroneous allocation of settle- specifically and Amoco. Drilex maintained ment credit. We overrule first negli- that it was not liable defect or error, points four but we sustain the fifth gence sling. to the attributable relating of error to the allocation of the settlement credit.
ARGUMENTS ON APPEAL
SUMMARY OF FACTS
error,
points
appellants
five
ar-
(“Flores”)
gue
sustained a hand
should be reversed
(1)
injury
employed
roughneck/floor-
expert
while
as a
based on
erroneous exclusion of an
(“H P”).
(2)
(3)
witness;
error;
Payne
jury charge
Helmerich
&
insuffi-
hand
liability
injury
during
drilling
support product
cient
was sustained
(4)
claim;
support
Company
of a well for Amoco
insufficient evidence to
Production
(“Amoco”).
(5)
claim;
negligence
Amo-
erroneous alloca-
settled with
proceeded
product
co
to trial on their
tion of settlement credit. We will address
ruling
arbitrary
is
they
of error in the order which
where the
and unreason-
Pierson,
able.
a. The Rule and of Review Standard thereby permits the courtroom a witness to freely parties converse with the and other Upon party, a request of TexR. regarding Allowing witnesses the case. 267(a) Civ. Evid. 614 and Tex.R. Civ. P. expert present to be and hear sworn witness require a trial the exclusion of court to order testimony regarding underlying the the facts in all witnesses from the courtroom order to expert’s opinion basis of the is far different testimony prevent hearing them from of permitting expert openly than to discuss purpose of the rule is other witnesses. The testimony parties with the and other ascertaining by preventing to aid in the truth expert witnesses. influencing testimony from an one witness’s testimony. Century other witness’s 21 Real by appellants was No effort made Co., Corp. v. Real Estate Estate Hometown have the trial court exclude Acock from the 118, (Tex.App. 890 S.W.2d 130 — Texarkana by requesting a Rule when it was invoked denied). 1994, provide Both writ rules presence essential finding that Acoek’s was of exemption of three classes witnesses presentation appellants’ of case. In to the (1) (2) parties; desig from the Rule: fact, Exceptions Acock testified in his Bill of party representative nated of a that is not a hearing testimony given in the that (3) person; person pres a whose natural necessary courtroom was not to the forma presenta ence is shown to be essential to the Furthermore, opinions. tion of his is clear party’s tion of a cause. Tex.R. Civ. Evid. only Acock from the record that not was 267(b). 614; In Tex.R. Civ. P. addition present during testimony of another wit courtroom, from the court is exclusion invoked, ness after the Rule was but he also required they instruct the that witnesses represen party’s the case with the discussed are not to converse with each other or expert There and another witness. tative case, except person regarding other fore, the trial court did not abuse its discre 267(d). attorneys. TexR. Civ. P. expert striking tion in Acock as an witness. reviewing In a trial court’s refusal assuming that trial court testimony a Even
allow based on violation Acock, 267, excluding in the error would Evid. 614 and Tex.R. Civ. P. did err Tex.R. Civ. it amount grounds for reversal unless of review is whether the trial the standard appellants’ rights to such a denial of the court its discretion. See Pierson v. ed abused Noon, 506, the rendition of an (Tex.App probably that it caused 814 S.W.2d 509 . —Hous Tex.R.App. 81(b)(1). denied). 1991, improper judgment. P. writ Abuse of Dist.] ton [14th in does not by the fact the Error the exclusion discretion is not shown par require if it is cumulative of other testimony trial court vital to a reversal excluded Barnard, appellate Mentis v. 870 S.W.2d ty’s case or that the court would evidence. (Tex.1994). 14, the record in differently. Frawley, 16 Based on have v. decided Gaines bar, 950, testimony would the case at Acock’s (Tex.App 955 Worth 739 S.W.2d . —Fort writ). testimony 1987, cumulative of other only error exists have been no Reversible
213 Therefore, excluding questions evidence. Acock’s testi- must be sub Broad-form mony jury mitted in eases whenever feasible. would not constitute reversible error. 277; Bell, P. Mobil Co. v. Civ. Chem. Tex.R.
Appellants’
first
of error is overruled.
245,
(Tex.1974);
Dep’t
517 S.W.2d
255
Texas
E.B.,
Human Services v.
802 S.W.2d
(Tex.1990).
Jury
However,
Charge
in
the submission of
2. Error
jury
question
to the
which assumes the
appel-
second
disputed
fact consti
existence of
material
complain
lants
that the trial court
erred
tutes error. Otto Vehle & Reserve Law Offi
submitting jury question number 11 and in
Brenner,
cers
Ass’n
refusing
appellants’ jury questions
to submit
writ).
(Tex.Civ.App.—San Antonio
no
relating
placement
sling
to the
into the
appellants argue
jury question
num
appellees
stream of commerce.2 The
contend
weight
ber
commented on the
of the evi
objection
that the
charge
to the
was waived
permitted
dence and
to assume that
appellants’ objections
because the
were made
placed
sling
into the stream of
charge
at the
conference rather than after
commerce,
disputed
which was
at trial.
formally
charge
presented by
the final
jury question
addressed
Alternatively,
the court.
main-
product
theory
liability
defect
broad-
charge
tain that the
was not
error.
“yes”
form.
In order to answer
*5
question number 1 based on a defect in the
preserve
order to
error
to
ob
In
sling,
that
the
must have found
Drilex
jection relating to the failure to submit an
Therefore,
supplied
sling.
ques
the
the
jury charge, party
object,
issue in the
a
must
Appellants’
proper.
tion was
second
of
question
upon by
if the
opposing
is relied
the
error is overruled.
party,
request
or make a written
for submis
substantially
sion in
wording.
correct
Tex.R.
Sufficiency
the
3.
of
Evidence
278;
Holt,
Civ. P.
see also Morris v.
714
Appellants’
third and fourth
of error
(Tex.1986).
312-13
In Elbaor v.
regarding
sufficiency
raise concerns
the
of
Smith,
Supreme
the Texas
Court held that
support
product
the
to
the
evidence
defect
regarding
error
charge
the trial court’s
was
negligence findings.
and
preserved
plaintiff objected
where the
to the
present-
counter that
was
sufficient evidence
charge during
charge
conference and
support
jury’s findings
respect
ed to
with
substantially
submitted issues in
correct
to both claims.3
(Tex.1992).
wording.
845 S.W.2d
245
The record
the case at
that
bar indicates
a.
of
Standard
Review
appellants objected
jury question
to
num
charge
1 at
reviewing
raising
ber
conference
In
a challenge
and submitted
insuffi
evidence,
requested jury questions
ciency
which were en
of the
the court must consid
Therefore,
by
dorsed
the court
weigh
as denied.
er and
all of the evidence. Cain v.
Bain,
appellants properly preserved
(Tex.1986)(per
their ob
709 S.W.2d
176
curiam).
jection
jury charge.
to the
The verdict
be set aside
should
5, 1989,
Question
April
plaintiff's
1.
No. 1 reads as follows:
at the time of the
injury?”
design
equip-
"Was there a
defect in
of the
supplied by
Systems,
Drilex
ment
Inc. that was
3.Admittedly,
appellants created some confu-
producing
ques-
a
cause of the occurrence in
by
respect
sion with
to the waiver issue raised
tion.”
appellees by
their references to "Drilex’s
appellants proposed
submission of
addressing
judgment
motion for
on verdict” in
questions including
three additional
the follow-
the fifth
of
brief and in
error
ing:
Sullivan,
by
certain oral statements made Mr.
However,
attorney
appellants.
it is clear that
you
by
preponderance
"Do
find
of the evi-
dence,
evidence,
agree
entry
considering only
to the motion or
Mr. Sullivan did
direct
judgment.
Systems,
engaged
of
The motion for
was filed
Inc. was
in the busi-
approval
selling slings,
by
appellees,
was
ness
such as that
was
and Mr. Sullivan’s
of
which
judgment.
being
special drilling nipple
used to lift the
as to the form of the
AMOUNT
CLAIMANT
SETTLEMENT
contrary
overwhelming
if it is “so
to the
only
(lump sum)
clearly wrong
as to be
weight of
evidence
Maria Fiores
$425,000.00
and
Jorge
(Individually)
$266,730.00
Flores
unjust.”
Id.
(Individually)
Gina
29,374.00
Fiores
$
(Individually)
27,286.00
Jose Flores
$
(Individually)
26,285.00
Georgette
$
has
with one
Analysis
Where a claimant
settled
or
b.
persons,
required
more
the court is
reduce
sup
There was sufficient evidence to
damages
by
the amount of
to be recovered
witnesses,
port
jury findings.
Numerous
by
computed in
the claimant
an amount
ac-
experience
op
who had considerable
well
& Rem.Code
cordance with
Tex.
Civ. PRAC.
erations,
sling
that the
custom
testified
was
(Vernon
33.012(b)
Supp.1997). There are
arily
by
company
delivered
the same service
calculating the
two
means of
credit:
optional
bucket,
delivering the
clear
(1)
of the
amount of
the sum
dollar
ly
shows
Drilex delivered the bucket.
settlements; or
addition, testimony
presented
that the
(2)
to the sum of the
equal
a dollar amount
by
same
sling
color
was the
color used
percentages
damages
found
following
identify
equipment
Drilex to
its
in the indus
of fact:
trier
try. Numerous
also testified that
witnesses
(A)
damages up
percent
those
using safety
sling
hooks on the
would have
$200,000;
prevented
slipping
it
out of
holes in
from
(B)
percent
damages
those
from
Johnson, a
the bucket. Franklin
mechanical
$200,001 $400,000;
safety engineer, also
that at
testified
(C)
percent
damages
from
those
taching
permanent
sling
bucket
$400,001 $500,000;
problem.
would have alleviated this
Both
(D)20 percent
damages greater
representative
those
Drilex’s
and Johnson testified
$500,000.
than
that the rigging
that was foreseeable
crew
simply
open
sling
hooks
could
hook the
33.012(b) (Ver-
&
Tex.
Civ. Prac.
RemCode
*6
top
in
to the holes
the
of the bucket which
Supp.1997).
non
The
that will
method
in
bar.
wit
occurred
the case at
Several
used
determined
the election of
is
in the
nesses also testified that
the holes
defendant, or, in the
of such an
absence
for the
on the
large
bucket were too
hooks
election,
percentage
method is used.
representative
(Vernon
sling, and
confirmed
Drilex’s
&
33.014
Tex.
Civ. Prac.
Rem.Code
consistency
respect
bar,
there was
with
appel-
no
Supp.1997). In the
case at
the size of the holes.
clearly
lants
the settlement
elected
have
in
accordance with
first
credit calculated
sup-
there was sufficient evidence to
Since
However,
parties
as
option.
disagree
jury’s findings, appellants’
port
third
the manner in which the settlement credit
fourth
of error are overruled.
applied.
should have been
jury
that Drilex was 60%
The
determined
4. Allocation of
Credit
Settlement
Flores,
responsible
damages
to Mr.
for
responsible,
30%
and Mr. Flores
Arnaco was
ap
fifth
responsible.
specific jury
was 10%
The
incorrectly
pellants assert that the trial court
judgment
court are
and the
set
awards
credit, citing
allocated
settlement
Gem
out as follows:
Homes,
Contreras, 861
449
Inc. v.
S.W.2d
AWARD
AWARD
JUDGMENT
CLAIMANT
JUEY
denied).
1993,
Pri-
(Tex.App.
writ
Paso
— El
$1,929,047.73
Jorge Flores
$2,000,000.00
ease,
or to the trial of this
0.00
Maria Flores
100,000.00
$
$
0.00
Gina
15,000.00
Flores
$
$
for
settled with Amoco and elected a dollar
0.00
15,000.00
Jose Flores
$
$
0.00
credit under Tex. Crv. Prac.
dollar settlement
15,000.00
Flores
Georgette
$
$
(Vernon
33.012(b),
a lump
§§
33.014
Where there has
been
Rem.Code
&
claimants,
Judgment
multiple
sum
with
Supp.1997).
Agreed
The
entered
settlement
applicable to those claim
Amoco
set
set
settlement credit
against
specifically
forth the
per
plaintiffs
claimants
as
ants should be based
each
tlement amount for each
jury
the total
verdict. Garza v.
centage of
follows:
5)
Salinas,
$20,238.09
04-96-00516-CV,-
238.09;
deducting
from the re-
Estate
No.
(Tex.
S.W.2d-,
App—
party seeks is person, the term “claimant”
to another injured person
defined to include both the seeking recovery damages any party person. Tex. injury to that Civ. for the PRAC. SUTTON, Appellant, Alan (Vernon 33.011(1) Supp.1996). § & Rem.Code ignored. are cannot be We This definition in in proper give consideration bound KATY INDEPENDENT SCHOOL 33.012(b) ap terpreting § wherein the term DISTRICT, Appellee. City Tyler, 846 pears. Tijerina v. See (Tex.1992) (statutory defini S.W.2d No. 01-96-00157-CV. effect); v. Ameri given Black tions must be Texas, Appeals Court of Co., can Bankers Ins. (1st Dist.). Houston (Tex.1972) (entire to act must be construed gether); see also Ann. Tex. Gov’t.Code 2, 1997. Jan. (words 311.011(b) (Vernon 1988) in accordance phrases Aug. shall construed Rehearing Overruled definitions).1 Thus, in the legislative with case, “claimant” as used in instant the term 33.012(b) appellants be all of the means *8 seeking recovery of dam they are all
cause injury The “sum of
ages for the to Flores. settlements,” all there
the dollar amounts of Amoco,
fore, paid by amount is the total the credit which
that amount should be appellants as “claimant” damages of the reduced.
should be 2, 1987) (June (transcript from Senate available legislative intent 1. In an effort to ascertain Office). only 33.011(1) included adopting The debate Staff Services behind the amendment 33.012(b) "claimant,” example application of we ob- expanded definition plaintiff three defendants one sued transcript senate where the committee and tained a Therefore, the one defendant. Id. adoption settled with regarding of senate bill debate of the issue aid in the resolution debate did not the Senate Commit- on Tex. S.B. 5 before Debate Whole, tape in the instant case. Leg., R.S. 40-43 70th tee of the