i          i      i                                                                     i       i      i




                                   MEMORANDUM OPINION

                                           No. 04-09-00703-CV

                                              Nevin MARR,
                                                Appellant

                                                     v.

                                              Scott FAGLIE,
                                                 Appellee

                      From the 216th Judicial District Court, Bandera County, Texas
                                          Trial Court No. 7993
                             Honorable N. Keith Williams, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 22, 2010

AFFIRMED

           Nevin Marr appeals a take nothing judgment rendered after a jury trial. We affirm the take

nothing judgment.

                                      GENERAL BACKGROUND

           In 2001, Marr filed suit against Faglie and three other defendants for assault and battery. One

of the other defendants, Bobbie Burger, did not file an answer, and Marr filed a motion to sever his

claims against Burger into a separate lawsuit. The motion was granted. After the severance, Marr
                                                                                         04-09-00705-CV



obtained a default judgment against Burger. The default judgment recited that by failing to appear,

Burger admitted liability, that Marr’s actual damages were $41,003.24, and that Burger was thirty

percent responsible for Marr’s injuries.

        Marr’s claim against Faglie was tried in 2009. The jury found in favor of Marr on liability,

but did not award any actual damages. However, the jury found Faglie acted with malice and

awarded exemplary damages. Faglie filed a motion to disregard the jury’s award of exemplary

damages because the award was not supported by a finding of actual damages as required by section

41.004(a) of the Texas Civil Practices and Remedy Code. The trial court granted the motion and

rendered a take nothing judgment. Marr appeals.

                                            DISCUSSION

        Marr contends the trial court erred in disregarding the jury’s verdict on exemplary damages.

Marr acknowledges that recovery of actual damages is a prerequisite to the receipt of exemplary

damages. TEX . CIV . PRAC. & REM . CODE 41.004(a) (West 2008). However, he argues the statutory

requirement of actual damages means any damages awarded “in the context of the overall case.”

Marr claims he is entitled to the exemplary damages because the default judgment against Burger

awarded actual damages. We disagree.

        Faglie was not a party to the severed cause in which the default judgment was taken. As a

general rule “people are not bound by a judgment in a suit to which they were not parties.” Amstadt

v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). For a prior judgment to have binding effect

against another party there must be privity among the parties. Id. Privity does not exist merely

because persons are interested in the same question; rather, it requires identity of interest. Texas Real

Estate Com’n v. Nagle, 767 S.W.2d 691, 694 (Tex. 1989). “People can be in privity in at least three


                                                   -2-
                                                                                         04-09-00705-CV



ways: (1) they can control an action even if they are not parties to it; (2) their interests can be

represented by a party to the action; or (3) they can be successors in interest, deriving their claims

through a party to the prior action.” Amstadt, 919 S.W.2d at 653. There is no evidence in the record

to support a finding of privity under any of theses theories. Faglie was not a party to the severed case;

nor is there evidence he received notice of the default judgment hearing. Faglie did not have a full

and fair opportunity to litigate the issue of Marr’s actual damages in the severed suit. Therefore, the

findings in the default judgment can not be the basis of actual damages against him. See Tarter v.

Metropolitan Sav. & L. Ass’n, 744 S.W.2d 926, 927 (Tex. 1988).

        Alternatively, Marr contends he is entitled to a new trial because the trial court erred in

excluding his medical cost evidence. Marr did not bring forward a reporter’s record of the trial

evidence, objections of counsel, and the trial court’s rulings on the objections. Rather, he filed only

the exhibits introduced at trial. Although Marr contends that he has brought forth a sufficient record

of the trial proceedings, we disagree. To preserve error, the record must show that appellant made

a timely request, objection, or motion, and that the trial court ruled on it. TEX . R. APP . P. 33.1.

Without an offer of proof, reviewing courts cannot determine whether the exclusion of evidence was

harmful. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.).

Moreover, to succeed on a claim that the trial court erred in admitting or excluding evidence, the

complaining party is required “to show that the judgment turns on the particular evidence admitted

or excluded.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). It was Marr’s

burden to bring forward a sufficient record to show the trial court’s error. See Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). Marr failed to bring forward a record demonstrating




                                                   -3-
                                                                                        04-09-00705-CV



an error in the exclusion of the medical cost evidence. See TEX . R. APP . P. 34.6; City of Brownsville,

897 S.W.2d at 753.



                                                        Steven C. Hilbig, Justice




                                                  -4-
