AFFIRM; and Opinion Filed December 1, 2015.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00685-CV

                            JUAN F. QUINTANILLA, Appellant
                                         V.
                            BAXTER PAINTING, INC., Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-12-13607

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Schenck
                                    Opinion by Justice Brown
       After he was injured on the job, Juan F. Quintanilla sued his employer Baxter Painting,

Inc. for negligence. A jury returned a verdict in favor of Baxter Painting, and the trial court

rendered a take-nothing judgment in accordance with the verdict. In a single issue on appeal,

Quintanilla contends the trial court erred by refusing his request to exclude witnesses from the

courtroom during trial. For the following reasons, we affirm the trial court’s judgment.

       In his pleadings, Quintanilla alleged he was seriously injured while working as a painter

for Baxter Painting on a residential painting project. He asserted that he was standing on

scaffolding and it suddenly moved, causing him to fall to the ground. Quintanilla contended the

incident was proximately caused by Baxter Painting’s negligence.         Specifically, he alleged

Baxter Painting failed to provide a safe workplace, proper equipment, and adequate training,
failed to warn of any dangers, and failed to adequately establish and enforce safety rules and

regulations, among other things.

       The case proceeded to a jury trial. At the end of Quintanilla’s opening statement, his

counsel asked the court if he could invoke “the rule.” The trial judge responded that counsel had

waived his request by not invoking the rule prior to his opening statement. After opposing

counsel’s opening statement, Quintanilla’s counsel asked the judge to clarify whether he had lost

his right to invoke the rule for the rest of the trial, and the judge responded that he had.

       The trial lasted two days.        Quintanilla’s first witness was John Timothy Baxter,

owner/president of Baxter Painting. Among other things, Baxter testified that his painters were

instructed in weekly safety meetings to check equipment before using it to make sure it was in

good working order. He also stated it was a rule not to move scaffolding around while people

are on it. Baxter testified that safety meetings were held every Friday and all painters were

required to attend.    According to Baxter, scaffold safety was discussed every week at the

meetings.

       Quintanilla next called Troy Oswald, General Manager of Baxter Painting, as a witness.

Oswald testified that he sat through Baxter’s testimony and heard everything he said. Oswald

also testified about Baxter Painting’s weekly safety meetings. He helped conduct the meetings.

He testified that on Fridays, he talked to employees about scaffolding, ladder safety, and fall

protection. He also discussed with employees the importance of checking equipment before

using it. He would tell painters to always look at the equipment, make sure it was safe, and let

the company know right away if anything was unsafe. Oswald was unaware of any broken

wheel locks on Baxter Painting’s scaffolding, and no one had reported that any locks weren’t

working. Oswald also stated it was against the rules to be pushed around on scaffolding.




                                                 –2–
           Quintanilla testified that on the day of his injury, he was on scaffolding and “[s]omebody

would come by and move the scaffold in order to be able to go into the next section.” At some

point, he asked another painter, Abner Diaz, to move him and Diaz did. Quintanilla testified

Diaz supposedly put the brakes on and that Quintanilla felt Diaz push the brakes. A couple of

minutes later, the scaffold slipped from under him. According to Quintanilla, Oswald, Diaz, and

other workers all knew the wheel locks on Baxter Painting’s scaffolding did not work.

Quintanilla testified that, in the year he worked for Baxter Painting, there weren’t safety

meetings every Friday at his job locations. He testified he went to about three such meetings.

           Quintanilla also presented the testimony of Diaz and a chiropractor. Baxter Painting

called one witness, Lorenzo Retana, who testified he was a former supervisor or safety manager

for Baxter Painting.

           The jury was asked if the negligence of Baxter Painting proximately caused the

occurrence in question. It answered no. In accordance with the verdict, the trial court rendered a

judgment ordering that Quintanilla take nothing. This appeal followed.

           Quintanilla contends the trial court erred in refusing to invoke the rule and exclude

nonexempt witnesses from the courtroom. Sequestration in civil litigation is governed by Texas

Rule of Evidence 614 and Texas Rule of Civil Procedure 267. Drilex Sys., Inc. v. Flores, 1

S.W.3d 112, 116 (Tex. 1999). These rules provide that, at the request of any party, the witnesses

on both sides shall be removed from the courtroom to some place where they cannot hear the

testimony delivered by any other witness in the cause. 1 Id.; TEX. R. CIV. P. 267; TEX. R. CRIM.

EVID. 614. Sequestration minimizes witnesses’ tailoring their testimony in response to that of

     1
        Specifically, rule 267 provides, “At the request of either party, in a civil case, the witnesses on both sides shall be sworn and removed out
of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause.” TEX. R. CIV. P. 267(a)
(emphasis added). Rule 614 provides, “At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’
testimony.” TEX. R. EVID. 614 (emphasis added). The following witnesses are not required to be sequestered: (1) a party who is a natural person
or the spouse of such natural person, (2) an officer or employee of a party that is not a natural person and who is designated as its representative,
and (3) a person whose presence is shown by a party to be essential to the presentation of the cause. TEX. R. CIV. P. 267(b).



                                                                       –3–
other witnesses and prevents collusion among witnesses testifying for the same side. Drilex, 1

S.W.3d at 116. Sequestration is mandatory upon the request of a party. See Elbar, Inc. v.

Claussen, 774 S.W.2d 45, 51 (Tex. App.—Dallas 1989, writ dism’d).               Here, prior to the

testimony of any witness, Quintanilla requested that the rule be invoked. We conclude the trial

court erred in refusing to invoke the rule. See In re H.M.S., 349 S.W.3d 250, 253 (Tex. App.—

Dallas 2011, pet. denied).

       This Court has held that the erroneous failure to exclude witnesses from the courtroom is

not reversible unless it is shown to be harmful. Id. Quintanilla agrees that a showing of harm is

required and maintains he has shown the error was harmful in that it probably caused the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1). He contends that at trial

Oswald changed his testimony from that given earlier in a deposition to give more detail about

the topics discussed at the weekly safety meetings and to indicate that Diaz did not have a

supervisory role over Quintanilla. Quintanilla argues Oswald altered his testimony to conform to

Baxter’s testimony.

       In his appellate brief, to demonstrate harm, Quintanilla quotes from Oswald’s deposition.

Oswald’s deposition was not offered into evidence at trial. For his record references, Quintanilla

directs us to excerpts of the deposition that appear in the appellate record in an attachment to a

formal bill of exception. Quintanilla does not mention the bill of exception in his brief. He filed

the bill in the trial court while this appeal was pending. Quintanilla asked the trial court to

approve the bill and file it with the clerk so Oswald’s deposition would be properly included in

the clerk’s record on appeal. Baxter Painting did not agree to the contents of Quintanilla’s bill of

exception, arguing that Oswald’s deposition was not offered as evidence at trial. In response,

Quintanilla stated he was not offering the deposition testimony because it was wrongfully

excluded at trial, but rather to show the harm that resulted from the court’s failure to invoke the

                                                –4–
rule. We abated the appeal to allow the trial court to conduct the necessary proceedings. The

trial judge conducted a hearing on Quintanilla’s bill of exception at which it orally denied the

bill. We then reinstated the appeal.

           The purpose of a bill of exception is to allow a party to make a record for appellate

review of matters that do not otherwise appear in the record, such as evidence that was excluded.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006); see TEX. R. APP. P. 33.2. If the

parties agree on the contents of the bill of exception, the judge must sign the bill and file it with

the trial court clerk. TEX. R. APP. P. 33.2(c)(2). If the parties do not agree on the contents, the

trial judge must do one of three things:

           (A) sign the bill of exception and file it with the trial court clerk if the judge finds
           that it is correct;

           (B) suggest necessary corrections to the bill so it accurately reflects the
           proceedings in the trial court, and if the party agrees to the corrections, have the
           corrections made, sign the bill, and file it with the trial court clerk; or

           (C) if the complaining party will not agree to the suggested corrections, return the
           bill to the complaining party with the judge’s refusal written on it, and prepare,
           sign, and file with the trial court clerk such bill as will, in the judge’s opinion,
           accurately reflect the proceedings in the trial court.

Id.

           Quintanilla used the bill of exception procedure to include Oswald’s deposition testimony

in the appellate record. But the trial court denied the bill of exception, and Quintanilla has not

raised a complaint on appeal about the trial court’s actions regarding his bill.                                                    Oswald’s

deposition testimony, not offered into evidence at trial and attached to a bill of exception that

was not agreed to by Baxter Painting and not approved by the trial court, is not properly before

us. 2 See Cont’l Coffee Prods. Co. v. Cazarez, 903 S.W.2d 70, 80 (Tex. App.—Houston [14th

      2
        Critically, Quintanilla himself testified that he knew about scaffolding safety and the dangers presented. And, Quintanilla called Diaz who
testified that he was an independent contractor, for whom Baxter Painting would not be responsible. This testimony, adduced by the appellant
himself on these topics, militates any claim of harm in this case from Baxter and Oswald testifying on these same matters despite the invocation
of the rule.


                                                                      –5–
Dist.] 1995), aff’d in part and rev’d in part on other grounds, 937 S.W.2d 444 (Tex. 1996); see

also McInnes v. Yahama Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984) (fact that

excluded deposition was on file with trial court and part of appellate record not sufficient to

make it proper bill of exception). Accordingly, Quintanilla’s efforts to show harm due to the

differences between Oswald’s trial testimony and deposition testimony fail. 3 We conclude

Quintanilla has not shown the trial court’s error in failing to exclude witnesses from the

courtroom probably caused the rendition of an improper judgment.                                               See TEX. R. APP. P.

44.1(a)(1). And Quintanilla has made no attempt to argue that, under the second part of rule of

appellate procedure 44.1(a), the trial court’s error probably prevented him from properly

presenting his case to this Court. See id. 44.1(a)(2). Under the facts and the arguments before us

in this case, we cannot conclude Quintanilla has established that the error was reversible. We

overrule Quintanilla’s sole issue.

           Baxter Painting has filed a “motion for damages” asking this Court to impose damages

against Quintanilla for filing a frivolous appeal. See id. 45. An appeal is frivolous if, at the time

asserted, the advocate had no reasonable grounds to believe the judgment would be reversed or if

an appeal is pursued in bad faith. D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205

(Tex. App.—Dallas 2011, no pet.). We award damages only under those circumstances we find

truly egregious. Id. This is not such a circumstance. Indeed, we agreed with Quintanilla that the

trial court erred in refusing his request to invoke the rule.                                    Accordingly, we deny Baxter

Painting’s motion for damages.




     3
       At oral argument, Quintanilla argued that he showed Oswald’s testimony had changed by impeaching him at trial with his deposition
testimony. The record reflects that Quintanilla’s counsel asked Oswald about two differences between his deposition and trial testimony, namely:
(1) whether Oswald touched the wheel locks to inspect them or merely visually inspected them, and (2) whether he talked to Quintanilla after the
incident. These are not the discrepancies mentioned in Quintanilla’s briefing.



                                                                     –6–
      We affirm the trial court’s judgment.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE

140685F.P05




                                              –7–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JUAN F. QUINTANILLA, Appellant                       On Appeal from the 14th Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-00685-CV         V.                        Trial Court Cause No. DC-12-13607.
                                                     Opinion delivered by Justice Brown, Justices
BAXTER PAINTING, INC., Appellee                      Lang-Miers and Schenck participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee BAXTER PAINTING, INC. recover its costs of this
appeal from appellant JUAN F. QUINTANILLA.


Judgment entered this 1st day of December, 2015.




                                               –8–
