Bradley Blommaert, Teresa Blommaert and Mike Blommaert v. Borger Country Club, Jeff Griffin, Mark Mitchell, Roberta Sewell, Robert Archer, James Baker, William Benda, Shad Goldston, Kent Gray, Randy Gray, Danny Haynes, Matt Hood & Dwight Rice

• Court: Court of Appeals of Texas
• Decided: April 3, 2014
• Docket: 07-12-00337-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00337-CV

BRADLEY AND TERESE BLOMMAERT, AND MIKE BLOMMAERT, APPELLANTS

V.

BORGER COUNTRY CLUB, JEFF GRIFFIN, MARK MITCHELL, ROBERTA SEWELL, ROBERT ARCHER, JAMES BAKER, WILLIAM BENDA, SHAD GOLDSTON, KENT GRAY, RANDY GRAY, DANNY HAYNES, MATT HOOD & DWIGHT RICE, APPELLEES

On Appeal from the 84th District Court Hutchinson County, Texas Trial Court No. 38,466, Honorable William D. Smith, Presiding

April 3, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellants, Bradley Blommaert, Terese Blommaert (collectively, “the

Blommaerts”), and Mike Blommaert, appeal a take-nothing judgment entered against

them as to their claims against appellees, Borger Country Club (the Club), and Jeff

Griffin, Mark Mitchell, Roberta Sewell, Robert Archer, James Baker, William Benda, Shad Goldston, Kent Gray, Randy Gray, Danny Haynes, Matt Hood, and Dwight Rice

(collectively, “the Directors”). For the following reasons, we affirm.

Factual and Procedural Background

Due to the manner in which we will resolve the issues presented by this appeal,

we will only briefly discuss the factual background leading to the instant appeal. The

Club operates a golf driving range as part of its recreational services. At the time that

the driving range was so purposed, it was adjacent to undeveloped pasture land.

However, at some point, Mike Blommaert constructed a residential building on this

pasture land. After construction was complete, the Blommaerts made the building their

residence. Golf balls struck at the driving range invaded the Blommaerts’ property. The

Blommaerts notified the Club, who attempted to remedy the complaint by reorienting the

driving range tee boxes, and notifying users of the driving range to aim away from the

residence. However, when errant golf shots continued to cause golf balls to invade their

property, the Blommaerts filed suit against the Club.

By their original petition, the Blommaerts sought injunctive relief and damages

against the Club for trespass and negligence. After discovery, the Blommaerts

amended their petition to add the Directors as defendants, and added claims for gross

negligence. Appellees requested leave to designate Mike Blommaert as a responsible

third party, which was granted by the trial court. The Club alleged that Mike Blommaert

was proportionately responsible for the Blommaerts’ damages. Before trial, Mike

Blommaert intervened in the lawsuit.

2 As the case proceeded to trial, the Blommaerts filed a number of pretrial motions,

including motions for appellees’ counsel to show authority, to compel discovery, for

leave to amend their petition, to modify the discovery control plan, for continuance, for

change of venue, for recusal of the trial judge, and to strike the designation of Mike

Blommaert as a responsible third party. After appellants rested at trial, appellees

moved for a directed verdict. The trial court rendered judgment against appellants on

their claims of trespass and gross negligence, and on all claims against the Directors.

Thus, the only claim that went to the jury was the Club’s negligence. When that issue

was submitted to the jury, the jury returned a verdict that the Club was not negligent, but

that the Blommaerts and Mike Blommaert were. In response to a question regarding

proportionate responsibility, the jury concluded that Mike Blommaert was 50 percent

responsible for the negligence and that the Blommaerts were also 50 percent

responsible. The jury also determined that Mike Blommaert did not detrimentally rely on

any promise made by the Club. By virtue of its directed verdict and the jury’s verdict,

the trial court entered judgment that appellants take nothing by their suit. Appellants

timely appealed.

Appellants present twelve issues by their appeal. Appellants’ first seven issues

relate to various pretrial rulings of the trial court. Appellants’ eighth, tenth, and eleventh

issues generally challenge the trial court allowing argument and evidence regarding

certain claims and defenses. Appellants’ ninth issue challenges the trial court’s failure

to enter judgment as a matter of law in favor of appellants on their trespass claim. By

3 their twelfth issue, appellants contend that the trial court erred in allowing evidence to

be destroyed after trial.1

Directed Verdict

Appellants present no issue expressly challenging the trial court’s decision to

direct verdict on appellants’ claims of trespass and gross negligence against the Club,

and on all claims against the Directors. Furthermore, none of appellants’ issues provide

us with authority or analysis directly addressing the directed verdict. When a trial court

directs a verdict for a defendant, to obtain a reversal, the plaintiff must establish that the

directed verdict cannot be supported on the grounds asserted by the defendant. Dolenz

v. Pulse, 791 S.W.2d 572, 573 (Tex. App.—Dallas 1990, writ dism’d w.o.j.) (citing

McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964)). An appellant’s failure to challenge

a directed verdict waives any error in the granting of the directed verdict. See Dunn v.

Bank-Tec South, 134 S.W.3d 315, 327-28 (Tex. App.—Amarillo 2003, no pet.); Davis v.

Mazda Motor Corp., No. 04-98-00844-CV, 1999 Tex. App. LEXIS 8587, at *2-3 (Tex.

App.—San Antonio Nov. 17, 1999, pet. denied); Dolenz, 791 S.W.2d at 573.

Consequently, appellants have waived their right to challenge the trial court’s actions

and have failed to discharge their burden to prove that the trial court’s directed verdict

was improper. See Dunn, 134 S.W.3d at 328; Davis, 1999 Tex. App. LEXIS 8587, at

*2-3; Dolenz, 791 S.W.2d at 573. Thus, we overrule all of appellants’ issues to the

extent that they challenge those rulings entered by the trial court by directed verdict.

1 Because we affirm the judgment of the trial court, any error in the trial court’s “destruction” of evidence is harmless.

4 Negligence Claims against the Club

Because all of appellants’ claims other than their negligence claims against the

Club were disposed of by the trial court’s directed verdict ruling, we will address those

issues that challenge the jury’s verdict that the Club was not negligent, and that all

damages were caused solely by Mike Blommaert’s and the Blommaerts’ negligence.

Appellants’ arguments that relate to their negligence claim against the Club contend that

the trial court erred in allowing argument, evidence, and jury questions of defenses

which were not relevant to appellants’ negligence claim.

In the argument portion of their brief, appellants contend that they filed a motion

in limine requesting the trial court require the Club to approach the trial court to obtain

permission before presenting any argument or evidence that would reference these

defenses. However, the trial court denied appellants’ requests as to prescriptive rights,

proportionate responsibility, and waiver and estoppel. A trial court's ruling on a motion

in limine preserves nothing for review; a party must object at trial when the testimony is

offered to preserve error for appellate review. See Hartford Accident & Indem. Co. v.

McCardell, 369 S.W.2d 331, 335 (Tex. 1963); Greenberg Traurig of N.Y., P.C. v.

Moody, 161 S.W.3d 56, 91 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Prati v. New

Prime, Inc., 949 S.W.2d 552, 555 (Tex. App.—Amarillo 1997, writ denied) (op. on reh’g).

Thus, appellants’ arguments relating to grounds set forth in their motion in limine are not

preserved for review without a timely and specific objection when the evidence was

offered at trial. See TEX. R. APP. P. 33.1; Hartford Accident & Indem. Co, 369 S.W.2d at

335; Greenberg Traurig of N.Y., 161 S.W.3d at 91; Prati, 949 S.W.2d at 555.

5 Appellants cite to certain instances during trial where they claim that the Club

presented argument and evidence of unavailable defenses. Of those instances cited

during the Club’s opening and closing arguments, appellants did not object. Therefore,

these arguments were not preserved for review. See TEX. R. APP. P. 33.1; Hartford

Accident & Indem. Co, 369 S.W.2d at 335; Greenberg Traurig of N.Y., 161 S.W.3d at

91; Prati, 949 S.W.2d at 555. As to the Club’s offers of evidence of these claimed

unavailable defenses, appellants’ repeatedly objected on the grounds of relevance with

no additional argument or specific reference to unavailable defenses. 2 As such,

appellants’ trial objection was not sufficiently specific to preserve the error alleged on

appeal. See TEX. R. APP. P. 33.1(a)(1)(A); Arkoma Basin Exploration Co. v. FMF

Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008) (“the cardinal rule for

preserving error is that an objection must be clear enough to give the trial court an

opportunity to correct it.”); Helping Hands Home Care, Inc. v. Home Health of Tarrant

Cnty., Inc., 393 S.W.3d 492, 514-15 (Tex. App.—Dallas 2013, pet. denied) (relevance

objection not sufficiently specific to preserve complaint that evidence was more

prejudicial than probative, even though those grounds were presented in a pretrial

motion in limine). Furthermore, because appellants’ complaint on appeal regarding

evidence of unavailable defenses does not comport with appellants’ relevancy

objection, nothing has been preserved for our review. See Haley v. GPM Gas Corp., 80

S.W.3d 114, 120 (Tex. App.—Amarillo 2002, no pet.); Tex. Dep’t of Transp. v. Olson,

980 S.W.2d 890, 898 (Tex. App.—Fort Worth 1998, no pet.). Therefore, appellants’

2 During questioning of Mike Blommaert about the difference between “spec” and “custom” homes, appellants objected on relevancy grounds. This objection was overruled by the trial court. Appellants requested and were granted a running objection. However, this objection did not identify that it was an objection to evidence of unavailable defenses and nothing about the specific questioning would have made those grounds apparent from the context.

6 complaints regarding presentation of evidence of unavailable defenses have not been

presented for our review.

In their last-identified objection to unavailable defenses, appellants did specify

grounds for that objection. During the testimony of Edward Smilow, an expert witness

on golf course design, appellants objected to questioning concerning an article that the

witness had been quoted in as raising issues that are not relevant to appellants’

negligence claim. The Club responded that the questioning went to the witness’s

credibility. The trial court overruled appellants’ objection. In reviewing the subsequent

testimony, it is clear that the Club did use this article to impeach the prior testimony of

Smilow. We must uphold a trial court’s evidentiary rulings if it is proper on any grounds.

Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 702 (Tex. App.—Fort Worth

2006, pet. denied) (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43

(Tex. 1998)). Because the challenged examination of Smilow was appropriate to

impeach his prior testimony, the trial court did not err in overruling appellants’ objection.

Appellants challenge the jury charge only as to “legal theories which were not

relevant defenses to [appellants’] claims at trial.” However, review of the jury charge

reveals that the prescriptive rights or prior grant defenses argued by appellants to have

been unavailable were in no way included in the jury charge. Thus, even were we to

agree with appellants’ contentions that these defenses were unavailable to the Club,

appellants’ have not identified any error in the jury charge. Appellants also argue that it

was error for the trial court to fail to submit the issue of trespass to the jury or to rule in

favor of appellants on trespass as a matter of law. However, as discussed above,

appellants’ failure to challenge the trial court’s directed verdict waived these issues.

7 Consequently, we conclude that appellants have failed to show that the trial court erred

in its jury charge.

We conclude that the trial court did not err in any of its challenged rulings relating

to the Club’s argument, admission of evidence, or jury charge.

Other Issues

Due to our resolution of appellants’ issues above, we will affirm the judgment of

the trial court. However, a few of appellants’ issues challenging pretrial rulings could

have the effect of preventing the trial court from properly entering directed verdict or

submitting appellants’ negligence claims to the jury. Thus, out of an abundance of

caution, we will address these issues.

Appellants challenge the trial court’s denial of their motion to show authority,

which challenged whether the Club’s attorney had authority to represent the individual

Directors. Such a motion is authorized by Texas Rule of Civil Procedure 12, which is

the exclusive method for questioning the authority of an attorney to represent a party in

a proceeding. TEX. R. CIV. P. 12; Kindle v. Wood Cnty. Elec. Co-op, Inc., 151 S.W.3d

206, 210 (Tex. App.—Tyler 2004, pet. denied). Rule 12 requires that the motion be

served on the challenged attorney at least ten days before the hearing on the motion.

TEX. R. CIV. P. 12. In the present case, appellants filed an initial motion challenging the

attorney’s authority to represent unnamed directors. However, they filed a

“supplemental” motion on April 12, 2012, that specifically named the Directors and

alleged that deposition testimony proved that the Club’s attorney did not have authority

to represent some of the Directors individually. We agree with appellees that, by

8 naming the Directors in their “supplemental” motion, we conclude that appellants’ April

12 motion was an amended motion, rather than a supplemental motion. See TEX. R.

CIV. P. 62; Tex-Hio P’ship v. Garner, 106 S.W.3d 886, 890 (Tex. App.—Dallas 2003, no

pet.). Because an amended motion takes the place of its superseded predecessor, see

TEX. R. CIV. P. 65; FKM P’ship v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d

619, 633 (Tex. 2008) (“causes of action not contained in amended pleadings are

effectively dismissed at the time the amended pleading is filed . . . .”), appellants did not

file their amended motion to show authority until four days prior to the hearing. As such,

the motion did not comply with the requirements of Rule 12 and the trial court did not err

in denying the motion.

Appellants also challenge the trial court’s denial of their motion to transfer venue.

Appellants’ motion includes the affidavit of the Bloomaerts and affidavits from three

residents of Hutchinson County. See TEX. R. CIV. P. 257. However, appellees filed a

response to this motion that identified defects in the affidavits filed by appellants in

support of their motion. On the basis of these defects, the trial court could conclude that

appellants failed to comply with the requirements of Rule 257, and denied the motion.

Furthermore, because appellants’ motion was controverted, appellants bore the burden

of proving that they could not receive a fair and impartial trial in Hutchinson County at

the hearing on the motion. See Governing Bd. v. Pannill, 659 S.W.2d 670, 688 (Tex.

App.—Beaumont 1983, writ ref’d n.r.e.). However, appellants offered no evidence at

the hearing. For either of these reasons, the trial court did not abuse its discretion in

denying appellants’ motion to transfer venue.

9 Appellants also challenge the denial of their motion to recuse. Appellants’ initial

motion simply asked the trial judge to exercise his discretion and voluntarily recuse

himself from the case. Appellants cited none of the grounds for recusal listed in Texas

Rule of Civil Procedure 18b(b). See TEX. R. CIV. P. 18b(b). Appellants’ amended

motion was based on the argument that the judge’s impartiality might reasonably be

questioned. See id. at 18b(b)(1). The regional presiding judge heard the amended

motion to recuse and denied the same. We review the ruling on a motion to recuse for

an abuse of discretion. Id. at 18a(j)(1)(A). In making this determination, we are to

review the totality of the evidence presented at the recusal hearing to see if the record

reveals sufficient evidence to support the conclusion that the trial judge was unbiased.

Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 250 (Tex. App.—El Paso 2012, no

pet.). Appellants contended that the small size of the local community and the

significance of the Club within that community might call Judge Smith’s impartiality into

question. Furthermore, appellants contended that certain of Judge Smith’s rulings

indicated a bias or prejudice in favor of the Club. No specific connection between

Judge Smith and the Club was established by appellants, and the importance of the

Club to a small community is conclusory and speculative. As to appellants’ contention

regarding Judge Smith’s rulings, appellants were required to “show that this bias arose

from an extrajudicial source and not from actions during the pendency of the trial court

proceedings, unless these actions during proceedings indicate a high degree of

favoritism or antagonism that renders fair judgment impossible.” In re M.C.M., 57

S.W.3d 27, 33 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). From the record of

10 the recusal hearing, we cannot conclude that the denial of the motion constituted an

abuse of discretion.

Finally, appellants challenge the trial court’s denial of their motion to strike Mike

Blommaert’s designation as a responsible third party. However, any error by the trial

court failing to strike Mike Blommaert’s designation as a responsible third party was

rendered moot when Mike Blommaert intervened. See In re S.A.M., 321 S.W.3d 785,

790 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Once a person intervenes in a suit,

the person becomes a party for all purposes and continues to be a party unless the trial

court strikes the intervention.”). Thus, this issue presents nothing for our review.

Conclusion

Having overruled each of appellants’ issues that could result in reversal, we

affirm the judgment of the trial court.

Mackey K. Hancock Justice