CARVER, Justice.
Arlington Equities, Inc., recovered a judgment against Andres Fernandez, a realtor, and sought payment from the Real Estate Recovery Fund administered by the Texas Real Estate Commission. The trial court denied relief, and Arlington appeals. We affirm.
Arlington contracted with Fernandez to purchase from him real property he had under contract to purchase from a third party. Fernandez failed to close his own contract to purchase the property and likewise failed to close his contract to re-sell to Arlington. No funds for any purpose were disbursed by Arlington, and this complaint is for lost profit and deceptive trade practice.
The sole question presented is whether Arlington‘s damages of lost profits and deception, but no out-of-pocket losses, may qualify for payment from a fund established by our Legislature “for reimbursing aggrieved persons who suffer actual damages.”
Article 6573a as originally enacted provided “for reimbursing aggrieved persons who suffer monetary damages” and was amended to the present language coincident with the pendency of, but before the decision of, Pace v. State, 650 S.W.2d 64 (Tex.1983). Pace held that the original act would not include “punitive damages” as “punitive damages are not to restore one to his position before the act giving rise to the damages, rather they are to punish the wrongdoer and are an example to others.” Pace, 650 S.W.2d at 65. In Torres v. State, 605 S.W.2d 394, 396 (Tex.Civ.App.—Beaumont 1980, no writ), the court held that under the statute as originally enacted, mere breach of contract, which did not change the position of the aggrieved party, did not qualify for payment from the fund. Relying upon the legislative choice of “reimbursing” in the original act, the legislative retention of “reimbursing” in the amended act, the exclusion of mere breach of contract in Torres, and the exclusion of punitive damages in Pace, we find and hold that Arlington had expended nothing for which it was entitled to be reimbursed (as used in article 6573a) from the fund and that Arlington had not changed its monetary position to secure the contract which Fernandez breached; consequently, there was no position to which it was entitled to be restored (as described in Pace and Torres).
We affirm the trial court‘s denial of relief to Arlington and assess the costs of proceedings on this issue in the trial court and costs in this court to Arlington.
David Lee SMITH, Appellant, v. J.W. THORNTON, et al., Appellees.
No. C14-87-00531-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Dec. 22, 1988.
Rehearing Denied Feb. 2, 1989.
Before JUNELL, SEARS and CANNON, JJ.
OPINION
CANNON, Justice.
This is an appeal from a take-nothing judgment in a personal injury case. On December 14, 1982, David Lee Smith was hit by a car while on the premises of Monsanto Company‘s Chocolate Bayou Plant. Smith sued the driver of the car, J.W. Thornton, Crescent Electric Company, Inc., Thornton‘s employer, and Monsanto Company. (J.W. Thornton died prior to trial, and the Estate of J.W. Thornton was added as a party.) The case was tried before a jury, which found Smith sixty percent negligent. The trial court thus entered a take-nothing judgment in favor of the defendants. We affirm that judgment on appeal.
At the time of the accident, appellant Smith was an employee of Voss International, a subcontractor at the Monsanto plant. Upon his arrival at the plant on the 14th, he parked his car and was crossing the street (in a crosswalk) from his parking lot to his designated work area at approximately 6:50 a.m. Meanwhile, appellee Thornton and his passenger Gerald Cottingham were driving down the street to their parking lot. It was raining and visibility was poor. By the time Thornton saw Smith in the crosswalk, he was unable to stop, and the car struck Smith, breaking both his legs.
At trial the jury found both Smith and Thornton negligent in failing to keep a proper lookout. The jury also found Monsanto negligent in failing to provide a flashing yellow light; however, such negligence was determined not to be a proximate cause of the accident. The jury then assigned sixty percent negligence to Smith, thirty-five percent to Thornton and five percent to Monsanto.
Smith raises two points of error on appeal. In point of error one, he argues that the trial court erred in denying his motion to compel discovery of documents because Monsanto failed to establish that those documents were privileged from discovery. The documents at issue are those materials comprising the accident investigation report. In response to a request for production Monsanto claimed that the report was exempt from discovery under
The party who seeks to limit discovery by asserting a privilege has the burden of proof. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex.1986). At the time of trial in January 1987,
3. Exemptions. The following matters are not discoverable:
d. with the exception of discoverable communications prepared by or for experts, any communication passing between agents or representatives or the employees of any party to the action or communications between any party and his agents, representatives or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen; ...
Smith contends that Monsanto failed to establish the applicability of the
Wilbeck explained that Monsanto acted contrary to policy in this instance because “due to the unusual nature of the emergency response and the fact that the emergency medical team and ambulance from Monsanto was used, we felt like there was potential litigation in this case.” The unusual circumstance was that the ambulance transported a non-employee to other than a primary point of care. When the ambulance arrived at the designated facility, there was no orthopedic surgeon available. After some discussion, the team agreed to take Smith on to Freeport where he was treated.
Wilbeck testified to other indications that Monsanto thought there was good cause to believe a suit would be filed. Usually statements are taken verbally and interpreted by the investigation committee and are then typed. The reports from the emergency team members attending Smith were handwritten and were very lengthy. All the blank spaces on the paper were crossed out so that nothing could be added. Wilbeck stated that the reports were prepared in this manner so they could be admissible in potential litigation. Following the accident, the first person on the scene was the gate guard, and his statement was taken to gain facts that could be used in litigation. Other statements in the investigation report are those of contractor employees at the scene. Wilbeck testified they were obtained from the contractors because Monsanto rarely interviews such employees directly. When asked if the statements were obtained before or after suit was filed, Wilbeck explained that normally they are not “accessed” except in the process of gathering information for litigation that has actually been filed. However, he did not know when these particular statements were acquired.
Wilbeck was not personally involved in investigating the accident as he did not become safety and health superintendent until November 1984. Neither had he discussed the reason for conducting the investigation with Red Usrey, his predecessor and the person in charge of the investigation. However, by virtue of its placement in Usrey‘s file drawer, Wilbeck could draw the conclusion that the report was put in a “potential file claim position.” He explained that the words “potential litigation” appear on the file in which this particular report was placed. Finally, Wilbeck had taken part in three accident investigations prior to assuming his current position and, based on that experience, stated that if this accident took place today, it is highly likely a claim would result. He further testified that to his knowledge there was no notice letter, telephone call or other communication suggesting that Smith might file suit against Monsanto prior to the actual filing.
The trial court has great latitude to order or deny discovery, and its action cannot be set aside unless there is a clear showing of abuse of discretion. Tucker v. Gayle, 709 S.W.2d at 249. Even if we were to find that the trial court abused its discretion in this case, we would then have to determine from the record as a whole whether the withholding of the investigation report “amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment....”
Apparently based on Wilbeck‘s testimony, appellant Smith has determined that the investigation report includes a one-page written report, two pages of diagrams and eleven statements (two from Monsanto ambulance attendants, one from a gate guard and “eight statements from non-Monsanto personnel apparently employed by contractors on the plant premises“). In actuality, the report consists of the report of the Monsanto investigation committee, two diagrams and nine statements.
The committee report is simply a one-page summary of the events. Regarding the diagrams, Monsanto furnished Smith a copy of one of them, which is similar to the other but with traffic signs added. As for the statements, there are duplicate ones from Thornton, the driver, and Cottingham, his passenger, both of whom testified at trial (Thornton by deposition). There is also a statement from the Monsanto gate guard, as well as a brief report prepared by an employee in the Monsanto safety department. The report also contains the statements of the ambulance driver and one of the attendants, describing only the treatment of Smith and his transportation to the two hospitals. The remaining statements are those of Richard Pankonun (Pankonien?), Smith‘s foreman at Voss, John Spears of Voss and Brian Pace of Group Constructors, Inc. All three men (along with Thornton and Cottingham) were listed by Monsanto in response to plaintiff‘s interrogatories as persons having knowledge of facts relevant to the case, and Pankonun testified at trial.
More importantly, however, we have examined the documents and conclude they contain no admissible evidence that was not before the jury at trial. The testimony addressed the issues at length. Although only Smith, Thornton and Cottingham actu
Smith also contends in point of error one that Monsanto failed to establish the applicability of the
In point of error two, Smith argues that the trial court erred in permitting Wilbeck to testify as a fact witness for Monsanto as he was not previously listed in Monsanto‘s answers to plaintiff‘s interrogatories as a person with knowledge of facts relevant to the case. Smith maintains that Wilbeck‘s testimony came as a surprise and caused prejudice to his case because he was denied the opportunity to prepare for it.
Following his testimony in the privilege hearing, Wilbeck was brought back to testify regarding several photographs of the accident scene. These photographs were taken on December 12, 1986, four years after the accident, between 6:52 a.m. and 7:20 a.m. Wilbeck was asked to verify that he was present and that the photographs reasonably and accurately depicted the conditions existing at the time they were taken. Upon objection by Smith that this was testimony as to Monsanto‘s case in chief, Monsanto argued that the testimony was necessary to rebut photographs taken by plaintiff‘s expert between 8:00 p.m. and 9:00 p.m. Monsanto further argued that Smith had been informed several days prior to trial that a rebuttal witness might be called if the expert‘s photographs were admitted.
The judgment of the trial court is affirmed.
SEARS, Justice, concurring.
On Motion for Rehearing, I concur in the results only in the original opinion.
However, in examining the record and the documents sought to be discovered, I would find the error in denying discovery to be harmless for the reasons set forth in the original opinion. Therefore, I concur in the results only.