                                  NO. 07-09-0374-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 MARCH 23, 2011
                          _____________________________

                                   DOUG SETTLER,

                                                                 Appellant
                                            v.

                      CHARLES MIZE D/B/A QUALITY FRAMING,

                                                                 Appellee
                          _____________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

     NO. 2007-539,289; HONORABLE RUBEN GONZALES REYES, PRESIDING
                       _____________________________

                                     Opinion
                          _____________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Doug Settler (Settler) sued Charles Mize d/b/a Quality Framing (Mize) for

personal injuries received while working as a framer for Mize. The injuries suffered by

him occurred when a garage header fell as it was being raised. After hearing the

evidence of all litigants, the jury found that Mize was not negligent, and judgment was

entered upon that verdict. Settler appealed, claiming that 1) the trial court abused its

discretion in refusing to allow him to pose a particular question to the jury during voir
dire, and 2) the evidence was legally and factually insufficient to support the verdict that

Mize was not negligent. We affirm the judgment.

        Issue 1 – Voir Dire

        During voir dire, Settler sought permission to pose the following question to the

jury:

                The Court will instruct you that you may not consider whether any
        party is covered in whole or in part by insurance of any kind. There will be
        no evidence or discussion about insurance in this case. Some people
        may have such a strong belief that jury verdicts affect insurance rates that
        they would be unable to follow the Court’s instruction. My question is
        whether you can follow the Court’s instruction not to consider the question
        of insurance?

After the matter was debated by the litigants, counsel for Settler asked the trial court:

“So you’re going to deny allowing me to ask that question?” (Emphasis added). The

court then replied:    “That question that you’ve presented to the Court, yes, sir.”

(Emphasis added). In so deciding, the trial court allegedly abused its discretion

because the ruling denied appellant his “right to ask a proper question [and] prevented

determination of whether grounds existed to challenge jurors for cause and denied [him

the] intelligent use of peremptory challenges.”      The issue is overruled for several

reasons.

        First, Settler never established, here or below, that the particular question was a

proper one.     When the trial court inquired about whether he had legal authority

supporting his purported right to ask “that question in that fashion,” the response it

received was “. . . I mean, it’s in the Court’s Charge. I don’t know that there’s a case

that says you can ask that particular question . . . .” Apparently, that would be the same

answer we would receive if we were to make the same inquiry. No authority addressing



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the legitimacy of that particular question was given to us by Settler. Nor did he explain

why it was appropriate to specifically say “some people may have a strong belief that

jury verdicts affect insurance rates” or why any of the other particular verbiage selected

by him was legitimate.     And, while Settler talks to us at length about being able to

generally voir dire the prospective jurors on the subject of insurance and their ability to

follow an instruction directing them to avoid the consideration of insurance, nothing in

the trial judge’s comments or ruling prohibited him from generally delving into those

topics. He simply was barred from asking a specific question which he has yet to show

was proper.

       Second, to secure reversal, Settler was obligated to not only establish that the

trial court erred but also that the error was calculated to cause and probably did cause

the rendition of an improper judgment.       Aransas County Navigation Dist. No. 1 v.

Johnson, No. 13-05-563-CV, 2008 Tex. App. LEXIS 3153 at *33 (Tex. App.- Corpus

Christi April 29, 2008, pet. denied) (mem. op.).        The second component of that

obligation (i.e. harm) went unaddressed by him, as well. Thus, he did not satisfy his

appellate burden.

       Third, and though not basis in and of itself for overruling the issue, Settler’s

representation about the “Pattern Jury Charges [being] created by the Committee on

Pattern Jury Charges and adopted by the Texas Supreme Court” is wrong. Those

charges are akin to forms developed by a committee of the State Bar of Texas, not the

Supreme Court. Furthermore, we know of nothing from the Supreme Court mandating

that the judiciary use them or illustrating that the Supreme Court has adopted them as

its own works.



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       Sufficiency of the Evidence

       We next consider the allegations concerning the sufficiency of the evidence.

They are founded on the belief that Settler proved Mize was negligent in failing to 1)

train his workers on the safe method of raising a garage header, and 2) adopt a safe

method of raising a garage header. The safe method contemplated by Settler involved

the use of personnel to support the header at its connecting point as it was raised. In

rejecting those claims of negligence, the jury purportedly erred. We overrule the issue.

       Regarding the legal sufficiency challenge posed, Settler had the obligation to

show that the evidence established that Mize was negligent, as a matter of law. Dow

Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). To determine whether that

burden was met requires us to examine the record for evidence supporting the jury’s

finding and, if there is none, to then examine the entire record to determine if the

contrary proposition was established as a matter of law. Id. If the jury had before it

some evidence upon which it could base its verdict, then we need go no further due to

the first prong of the test. Given this standard of review, it would seem encumbent upon

an appellant like Settler to first address whether any evidence existed that supported

the jury’s verdict, and, if some testimony could possibily be construed as doing so, then

explain why adopting such a construction would be wrong.

       As for the matter of factual sufficiency, an appellant complaining of a jury’s

decision to deny him recovery must illustrate that the finding was against the great

weight and preponderance of all of the evidence. Id. Needless to say, satisfying either

standard of review is normally a difficult task. And, for the reasons discussed below,

Settler did not do so here.



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       First, the tact Settler took in briefing his argument focused on the existence of

evidence illustrating Mize’ alleged misfeasance.       He did not comment upon that

appearing of record and purporting to show that Mize either acted reasonably or that the

supposed omissions did not cause the injury. For instance, Settler accused Mize of

being negligent since the latter purportedly failed to provide a safe work place or train

his workers about safety. Furthermore, this supposed negligence consisted of omitting

to teach or direct workers to place their hands and feet at a particular point on the

header as it was raised so as to prevent it from “kicking out” if the nails or like devices

securing its base to the pivot point came loose. Given this accusation, one witness

testified that if the header broke away as described, “and someone had their feet or

their hands down there, that’s a cause for another accident,” and “[s]ome of those

headers and beams are so heavy,” and “I don’t see how one person’s hands or feet

could stop it.” One could interpret such testimony as indicating that 1) had Mize done

what Settler said he should have done, then the possibility of injury remained present

and, 2) the practice Settler said Mize should have utilized actually endangered those

attempting to support the header. Settler did not attempt to explain why interpreting that

evidence in such a manner would be unreasonable. Nor did he attempt to explain why

it lacked sufficient probative value to enable reasonable jurors to use it as basis for

concluding that Mize was not negligent in the manner suggested by Settler.

       The evidence about 1) appellant being considered to be an experienced framer;

2) support via a hand or foot being appropriate only when the header is not nailed to a

floor plate, unlike the circumstances at bar; 3) Mize and others having not seen a

header fall in their numerous years of working in the construction industry; 4) Mize



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having told the workers to have someone hold the connection point but that they would

do it their own way when he was not on site; 5) support of the header at the connection

point would have made no difference if the nails were not properly placed; 6) a worker

who could not say whether he would have had someone hold the connection point even

if he had been trained to do so; and 7) the method utilized by Mize in raising the header

being “a very safe method,” “a very accepted practice,” and “ordinary and customary”

was also ignored by Settler. The latter did not explain why it and the other testimony

mentioned above failed to constitute some evidence upon which a reasonable jury could

reject his claims of negligence.         This may be because such evidence actually

constituted some evidence allowing it to do so.         And, that there may have been

evidence supporting Settler’s own contention did little more than raise questions of fact

for the jury to resolve. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Given

these circumstances and the applicable law, we cannot say that the manner in which

the jury so resolved the factual disputes was against the great weight and

preponderance of the evidence. Simply put, the evidence supporting the verdict was

neither legally nor factually insufficient.

       Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Pirtle, J., concurs in the result.




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