                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 02-07-148-CV


GLENN E. GALLAHER                                                    APPELLANT

                                              V.

GENA BROWN                                                             APPELLEE

                                          ------------

           FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      In two points, Appellant Glenn Gallaher argues that the trial court erred

by denying his motion for new trial because Appellee Gena Brown mentioned

at trial a previously undisclosed witness only to prejudice the jury and because

Appellee mentioned at trial Appellant’s previous car accidents in violation of the

trial court’s order on Appellant’s motion in limine. Because we hold that the



      1
          … See T EX. R. A PP. P. 47.4.
trial court did not abuse its discretion by denying Appellant’s motion for new

trial, we affirm the trial court’s judgment.

                         F ACTS AND P ROCEDURAL H ISTORY

      On November 29, 2005, Appellant filed suit against Appellee and her

insurance carrier, State Farm Mutual Automobile Insurance Company, for

damages arising out of a car accident between Appellant and Appellee. He

alleged that on December 4, 2003, Appellee changed lanes while turning left

at an intersection and struck his car, pushing it into the median. Appellant

claimed injuries resulting from the accident and sought damages for reasonable

medical expenses, lost wages, and damage to his credit report due to

nonpayment of medical expenses. He alleged that State Farm had failed to pay

for all the damages to his vehicle, causing him mental anguish, monetary

damages, and harm to his credit. State Farm filed a plea to the jurisdiction on

standing grounds, which the trial court granted.

      The case went to trial on Appellant’s claims against Appellee. Appellant

filed a motion in limine seeking to exclude testimony that he had “been involved

in   any   unrelated   prior   claims,   wrecks,   suits,   settlements,   workers’

compensation cases, and the amount thereof.”          Because Appellant claimed

medical expenses for treatment of a back injury resulting from his car accident

with Appellee, the trial court allowed Appellee to introduce evidence that he

                                          2
had been involved in a prior accident that he had previously claimed had injured

his back. The trial court granted Appellant’s motion as to other accidents that

Appellant had been involved in.

      The jury found that the negligence of both Appellant and Appellee caused

the accident, attributing seventy-five percent of fault to Appellee and twenty-

five percent to Appellant. The jury awarded Appellant damages of $150.00 for

past medical expenses. Appellee filed a motion for judgment on the verdict in

which she claimed a credit of $4,133.59 for the amount State Farm had

previously paid to Appellant.      The trial court entered a final judgment

acknowledging application of the credit and ordering that Appellant take

nothing.

      Appellant filed a motion for new trial based on grounds of newly

discovered evidence and of Appellee’s violation of the trial court’s order on the

motion in limine. The trial court denied the motion, and Appellant filed this

appeal.

                              S TANDARD OF R EVIEW

      We review for an abuse of discretion a trial court’s decision on a motion

for new trial.2 To determine whether a trial court abused its discretion, we


      2
     … In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Champion Int'l Corp.
v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig.

                                       3
must decide whether the trial court acted without reference to any guiding rules

or principles; in other words, we must decide whether the act was arbitrary or

unreasonable.3 Merely because a trial court may decide a matter within its

discretion in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.4

                                   A NALYSIS

      Appellant brings two points on appeal. Appellant’s first point is that

“[f]or the first time in the course of this lawsuit, during trial [Appellee]

mentioned a witness that had not been identified in discovery as a person with

relevant knowledge. The witness was only mentioned to prejudice the jury and

for trial by ambush.”   He characterizes this testimony as newly discovered

evidence warranting a new trial.

      At trial, Appellee testified that at the scene of the accident, Appellant

began screaming at her. Her attorney then elicited the following testimony:

      [Appellee’s attorney]: Now, as -- as [Appellant] continued to
      scream and curse at you, did he finally stop when a friend of yours



proceeding).

…
      3
      Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985), cert. denied, 476 U.S. 1159 (1986).
      4
          … Id.

                                       4
      who was a male that was following you to the Christmas party
      came up?

      [Appellee]: Yeah, he pulled his car up behind mine in the median
      and got out and walked up because he saw his behavior, and as
      soon as he came up, he stopped.

Appellant argues that Appellee’s “male friend” was a person with relevant

knowledge whom Appellee had failed to disclose and that Appellee therefore

was not entitled to produce evidence mentioning this friend.          Appellant

contended that, because of this testimony, the trial court should have granted

him a new trial. Appellee counters that the testimony showed that this friend

did not arrive at the scene until after the accident had occurred and therefore

was not a person with relevant knowledge as to liability or as to Appellant’s

medical injuries. Appellee further argues that Appellant has not shown how the

failure to identify the friend probably caused an improper verdict.

      We hold that Appellant has not preserved this argument for review

because he did not object in the trial court when this testimony was

introduced. 5 Further, we note that any error in the admission of this testimony




      5
        … See One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d
673, 677 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (stating that to
preserve error when allegedly inadmissible evidence is put before the jury, a
party must pursue an adverse ruling from the trial court, and absent such an
adverse ruling, “nothing is preserved for appellate review”); see also T EX. R.
A PP. P. 33.1(a).

                                       5
was harmless because Appellant conceded in his closing argument that he

yelled at Appellee, and Appellant has made no showing of what information he

would have obtained from Appellee’s friend or how the testimony of the

existence of this person probably caused the rendition of an improper verdict. 6

We overrule Appellant’s first point.

         In his second point, Appellant argues that the trial court abused its

discretion by failing to grant a new trial because Appellee violated the court’s

order on his motion in limine by asking Appellant about car accidents in which

he had previously been involved other than the accident in which he had

previously injured his back. A motion in limine preserves nothing for review.7

A party who wishes to complain on appeal about a violation of a motion in

limine must object when the testimony that is the subject of the motion is



         6
        … See T EX. R. A PP. P. 44.1(a) (stating that no judgment may be reversed
on appeal for trial court error unless the error probably caused the rendition of
an improper judgment or probably prevented the appellant from properly
presenting the case to the court of appeals); see also Smith v. Levine, 911
S.W.2d 427, 433 (Tex. App.—San Antonio 1995, writ denied) (noting rule that
a party seeking new trial based on newly discovered evidence “must bring
forward non-cumulative evidence of which the movant did not become aware,
and could not with the exercise of diligence have become aware, until after
trial, and this newly-discovered evidence must be so material that it would
probably produce a different result”).

…
         7
             In re R.V., Jr., 977 S.W.2d 777, 780 (Tex. App.—Fort Worth 1998, no
pet.).

                                          6
offered at trial.8 The party must further ask the court to instruct the jury to

disregard the objectionable testimony and move for a mistrial. 9

      During trial, Appellee’s attorney twice raised the issue of prior accidents.

In one instance, he questioned Appellant about whether he had injured his back

in a car accident in 1994. That line of questioning did not violate the trial

court’s order on the motion in limine. Appellee’s attorney also asked Appellant

about an accident when questioning him about his cutting off Appellant after

she had hit his car. Appellee’s attorney asked, “Now, the truth of the matter

is you—you did that because you were in another accident where a hit-and-run

driver hit you in that same car; isn’t that true?” Appellant objected that the

evidence had no relevance and was prejudicial.         The trial court sustained

Appellant’s objection.

      Appellant received from the trial court all the relief that he requested.

Because Appellant did not pursue an adverse ruling from the trial court, he has

not preserved this issue for review. 10


…
      8
     Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91 (Tex.
App.—Houston [14th Dist.] 2004, no pet.).
      9
      … T EX. R. A PP. P. 33.1(a); T EX. R. E VID. 103; State Bar of Tex. v. Evans,
774 S.W.2d 656, 658 n.6 (Tex. 1989).
      10
        … See One Call Sys., Inc., 936 S.W.2d at 677; see also Patir v. MFC
Int’l Corp., 60 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 2001, no

                                          7
      Appellant contends that the error was not curable by an instruction to

disregard. To show grounds for a new trial based on an improper question

where a party did not receive an unfavorable ruling, the party must establish the

same factors as would be required to show reversible error because of an

improper jury argument,11 and a party arguing that an improper question created

incurable harm has the burden to prove that the question was not curable by

an instruction, a prompt withdrawal of the statement, or a reprimand by the

judge.12 But Appellant does not demonstrate or explain why the question of


pet.) (holding that a party must pursue an adverse ruling to preserve error in the
admission of testimony).
      11
        … See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 120
(Tex. 1984) (stating that the standard for showing reversible error based on
allegedly improper jury argument also applies when allegedly improper
questioning of a witness occurs); Standard Fire Ins. Co. v. Reese, 584 S.W.2d
835, 839-40 (Tex. 1979) (holding that (1) a party arguing reversible error based
on improper jury argument must demonstrate that an uninvited, preserved error
occurred that was not curable by an instruction, a prompt withdrawal of the
statement, or a reprimand by the judge and that the argument by its nature,
degree and extent constituted reversibly harmful error, (2) that all of the
evidence must be closely examined to determine the argument’s probable effect
on a material finding, and (3) a reversal must come from an evaluation of the
whole case).
      12
        … See Tex. Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 245, 266
S.W .2d 856, 858 (1954) (holding that only when the probable harm or the
resulting prejudice caused by an improper argument cannot be eliminated by
retraction or instruction will a new trial will be awarded in the absence of
timely, overruled objection and that “argument which is improper only because
its nature is calculated to inflame the minds and arouse the passion of prejudice
of jurors is usually regarded as being of the ‘curable’ type”); see also Reese,

                                        8
Appellee’s attorney was incurable, or how, in the context of the entire record,

the question constituted reversibly harmful error. The jury was allowed to hear

that Appellant had been in at least one other car accident because Appellee was

permitted to question him about his 1994 car accident that injured his back.

There was nothing to suggest to the jury that the hit-and-run accident and this

1994 accident were not one and the same, and in any case, Appellant does not

explain why the jury’s learning of one other car accident involving him was not

likely to inflame the jury, but learning of two car accidents was. In fact, he

does not offer any argument at all as to how the question probably resulted in

the rendition of an improper verdict. The cases cited by Appellant set out the

standard for reviewing error in cases in which improper jury argument or jury

questioning takes place, but they do not lend support for Appellant’s argument

that the question in this case resulted in incurable error. 13 Because Appellant



584 S.W.2d at 839-40.
      13
         … See Geuder v. State, 115 S.W.3d 11, 13-15 (Tex. Crim. App. 2003)
(stating that “to preserve error, an objection must be timely, specific, [and]
pursued to an adverse ruling,” and that a motion in limine preserves nothing for
review and holding that the appellant had preserved his complaint because the
trial court overruled his objection to admitted evidence); Westmoreland v. State,
174 S.W.3d 282, 290-91 (Tex. App.—Tyler 2005, pet. ref’d) (holding that the
trial court did not err when it did not grant a mistrial after a witness violated a
motion in limine because the appellant objected when the testimony was
admitted at trial, the trial court sustained the objection and gave an instruction
to disregard, and the appellant did not request a mistrial because of the

                                        9
has not shown that Appellee’s question was incurable error and because he did

not pursue an unfavorable ruling by the trial court, we overrule Appellant’s

second point.

                                   C ONCLUSION

      Having overruled both of Appellant’s points, we affirm the trial court’s

denial of Appellant’s motion for new trial.




                                                   PER CURIAM


PANEL F: DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.

DELIVERED: April 17, 2008




testimony and thus received all the relief he requested); Williams v. Gen. Motors
Acceptance Corp., 428 S.W.2d 441, 447 (Tex. Civ. App.—San Antonio 1968,
no writ) (holding that generally, in order to be entitled to a new trial because of
improper jury argument, a party must show that the party objected when the
argument was made and that the trial court overruled the objection, and absent
such an objection a new trial will be awarded only if the probable harm resulting
from the argument cannot be cured by a retraction or an instruction).

                                        10
