Cheryl Sue Wallingford v. Mutual Life Insurance Company of New York D/B/A Centennial Towers, Property Management Systems, Inc., and James Kelley D/B/A Ranger Construction Co.

• Court: Court of Appeals of Texas
• Decided: June 7, 1995
• Docket: 03-93-00060-CV
• Status: Published

Opinion

Wallingford

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-93-00060-CV

Cheryl Sue Wallingford, Appellant

v.

Mutual Life Insurance Company of New York d/b/a Centennial Towers, Property Management Systems, Inc., and James Kelley d/b/a Ranger Construction Co., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 465,318, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

Appellant Cheryl Sue Wallingford sued Mutual Life Insurance Company of New York d/b/a Centennial Towers, Property Management Systems, Inc. and James Kelley d/b/a Ranger Construction Company, appellees, for personal injuries she sustained while employed as a receptionist by the Association of Texas Professional Educators ("ATPE"). After a jury trial in which the jury found no negligence or causation on the part of any of the appellees, the trial court rendered a take-nothing judgment against Wallingford. Wallingford appeals from this judgment, raising eight points of error complaining of the trial court's jury charge; the trial court's error in overruling her motion for continuance, her motion for judgment notwithstanding the verdict ("JNOV"), and her motion for new trial; the trial court's alleged bias and prejudice; and various evidentiary rulings. We will affirm the trial court's judgment.

BACKGROUND

In January 1988, ATPE hired Wallingford as a receptionist. At that time, ATPE's offices were located in Suite 250 of Centennial Towers. During June and July of 1988, ATPE contracted with Ranger Construction Company to remodel office space adjacent to the reception area occupied by Wallingford. At the time, appellee Mutual Life Insurance Company of New York ("MONY") owned the building and Property Management Systems, Inc. ("PMS") managed the property. Wallingford claims that as a result of this renovation project, she suffered serious and permanent injuries that forced her to quit work on July 8, 1988. She sued appellees, alleging their negligence and gross negligence proximately caused her injuries. According to Wallingford, Centennial Towers had a substandard heating, ventilation, and air conditioning ("HVAC") system, which exacerbated the effect of the hazardous, toxic fumes given off by products used in the renovation, thus causing her injuries. After a jury trial, the jury found no negligence or causation on the part of any of the appellees, and the trial court rendered a take-nothing judgment against Wallingford. Wallingford appeals from this judgment.

DISCUSSION

A.  The Jury Charge

Wallingford complains in her first two points of error that the trial court erred in submitting the case to the jury under a general negligence charge instead of a premises liability charge. The second question submitted to the jury asked:

Did the negligence, if any, of the persons named below proximately cause the injury to Cheryl Wallingford?

. . .

Answer "Yes" or "No" for each of the following:

a. Mutual Life Insurance Company of New York

d/b/a Centennial Towers

b. Property Management Systems, Inc.

c. James Kelley d/b/a Ranger Construction

d. Cheryl Wallingford

Wallingford does not argue that this charge was improper for a general negligence claim. Rather, she asserts that this broad form general negligence submission was inappropriate in the context of a premises liability claim. We will assume arguendo that Wallingford's claim was in fact a premises liability claim. ⁽¹⁾

Wallingford contends that the trial court should have submitted instructions to the jury based on the four elements required by the Texas Supreme Court in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), to establish a premises liability claim:

(1) Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2) The condition posed an unreasonable risk of harm;

(3) The owner/operator did not exercise reasonable care to reduce or to eliminate the risk; and

(4) The owner/operator's failure to use such care proximately caused the plaintiff's injuries.

Id. at 296. In Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992), the supreme court specifically identified the appropriate jury charge in the context of a premises liability claim. The court stated that a general negligence question such as Pattern Jury Charge 66.04 "is a correct broad form premises liability question." Id. at 266; see also 3 State Bar of Texas, Texas Pattern Jury Charge 66.04 (1990). The court stressed, however, that "appropriate instructions in a premises liability case must incorporate the four Corbin elements." Keetch, 845 S.W.2d at 266. In the present case, jury question two tracked Pattern Jury Charge 66.04 exactly. However, no instructions were submitted incorporating the four Corbin elements. Accordingly, the charge was improper for a premises liability claim.

In order to preserve error on appeal, an appellant must comply with the relevant Texas Rules of Civil Procedure. Where a court has omitted an instruction from the charge, Rule 278 requires that in order to preserve error for appellate review, the complaining party must request the desired instruction in writing and in substantially correct form. Tex. R. Civ. P. 278. Thus, a trial court's failure to submit an instruction shall not be a ground for reversal of a judgment unless the instruction was tendered in substantially correct wording. Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20, 21 (Tex. 1987). The supreme court has defined the meaning of "substantially correct":

[S]ubstantially correct . . . does not mean that it must be absolutely certain, nor does it mean one that is merely sufficient to call the matter to the attention of the court will suffice. It means one that in substance and in the main is correct, and that is not affirmatively incorrect.

Id. (citation omitted); see also Collins v. Beste, 840 S.W.2d 788, 791 (Tex. App.--Fort Worth 1992, writ denied).

Wallingford submitted a written request for the following instruction in connection with jury question two:

You are instructed that the owner and/or occupier and/or possessor of a premises owes a duty to all invitees upon the premises to exercise reasonable care for their safety while on the premises. You are further instructed that the owner/occupier/possessor of a premises includes the titled owner of such premises, the manager of such premises and such entities as a contractor who is occupying a portion of such premises for the purposes of construction. You are further instructed that the term "invitee" includes such persons and entities as tenants and their employees. The standard of care for such owner/occupier /manager/contractor is to exercise that degree of care which an ordinarily prudent owner/occupier/manager/contractor would exercise under all the pertinent circumstances and, in the light of what such owner/occupier/manager/contractor knew or should have known about the risks involved with regard to that particular activity in question. Such duty of the owner/occupier/manager /contractor toward invitees also includes, but is not limited to, the duty to inspect the premises to discover dangerous conditions, to provide protective measures and/or devices in order to prevent injury to invitees, and to give a warning to invitees adequate to enable them to avoid harm or otherwise protect themselves against potential harm.

(Emphasis added.) This instruction is not in substantially correct form.

A request is affirmatively incorrect if it assumes a material controverted fact. Placencio, 724 S.W.2d at 21; Collins, 840 S.W.2d at 791. Wallingford's requested instruction expands the definition of "owner/occupier" to "owner/occupier/possessor" and then asserts that "owner/occupier/possessor" includes the manager of the premises and "such entities as a contractor who is occupying a portion of the premises for the purposes of construction." This proposed instruction fails to point out that a contractor on the premises must be in control of the premises in order to be charged with the same duty as an owner. See Wal-mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993) ("The phrase `occupier of premises,' as interpreted by Texas courts, means the party in control of premises.") (quoting Howe v. Kroger Co., 598 S.W.2d 929, 930 (Tex. Civ. App.--Dallas 1980, no writ)); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985) (stating that contractor "who is in control of the premises" is charged with same duty as owner or occupier).

The contractor, James Kelley, testified that Wallingford's employer, ATPE, supervised the renovation project and thus was in control of the project. In addition, ATPE's attorney, Rebecca McLamore, testified that ATPE made the decision not to relocate during the renovation due to cost and lack of space availability. Her testimony arguably corroborated Kelley's testimony that ATPE was in control of the premises during the renovation project. Wallingford's proposed instruction assumes a material controverted fact--that Kelley was in control of the premises--and is therefore affirmatively incorrect. See Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 187 (Tex. App.--Corpus Christi 1992, writ denied) (holding that plaintiff's requested instruction was affirmatively incorrect because it assumed hotly contested material fact--plaintiff's qualifications for her job); see also London v. Merriman, 756 S.W.2d 736, 742 (Tex. App.--Corpus Christi 1988, writ denied).

Wallingford's proposed instruction fails to meet the substantially correct requirement in two other aspects. A substantially correct instruction must be in "substantially the same form as the essential elements outlined in Corbin." Hernandez v. Kroger Co., 711 S.W.2d 3, 4 (Tex. 1986); see also Prudential Ins. Co. of Am. v. Henson, 753 S.W.2d 415, 417 (Tex. App.--Eastland 1988, no writ). Wallingford correctly asserts that issues or instructions do not have to be in any precise form in order to preserve error. All that is necessary is that they be "substantially" or essentially correct. In H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992), the plaintiff requested submission in the precise form dictated by Corbin. Instead, the court submitted instructions in "granulated" form. The supreme court held:

Although submitted in granulated form, the jury questions contained the proper elements of a premises liability action. Because the charge fairly submitted to the jury the disputed issues of fact and because the charge incorporated a correct legal standard for the jury to apply, we hold that the trial court's refusal to submit [the plaintiff's] tendered question and instruction did not amount to harmful error.

Id. at 260 (emphasis added). In contrast, Wallingford's proposed instruction improperly refers to a "particular activity" rather than "a condition on the premises." This instruction fails to comport with Corbin and Keetch, which clearly distinguish negligent activity cases from premises liability cases and only require an instruction on the duty owed an invitee by the owner of the premises in a premises liability case. In addition, Wallingford's proposed instruction sets out a standard of care owed an invitee by an owner/occupier/manager/contractor based upon the testimony of Wallingford's expert, Dr. James Wood. This language greatly expands the standard of care Corbin and Keetch impose upon owners and occupiers of a premises and thus sets out an incorrect legal standard.

Wallingford had the duty to present the trial court with an instruction that was not affirmatively incorrect. We hold that Wallingford's requested instruction was incorrect, thereby failing to preserve any trial court error in submitting the case under a general negligence theory rather than a premises liability theory. Therefore, we overrule Wallingford's first two points of error.

B.  Sufficiency of the Evidence to Support the Jury Verdict

In three points of error, Wallingford challenges the sufficiency of the evidence to support the jury's verdict. She complains in her fourth and fifth points of error that the trial court erred in overruling her motion for JNOV because the evidence was legally and factually insufficient to support the jury's failure to find that appellees were negligent. She complains in her third point of error that the trial court erred in overruling her motion for new trial because the evidence established appellees' negligence as a matter of law.

Wallingford had the burden of proof to establish appellees' negligence. When the appellant had the burden of proof on an issue that was answered adversely, a "no-evidence" point should be styled as "a matter of law" point. William Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 Tex. Bar J. 439, 440 (1983). When an appellant with the burden of proof on an issue challenges the "factual sufficiency" of the evidence to support the jury's verdict, the proper point is that the adverse finding was against the great weight and preponderance of the evidence. Id. Wallingford raised a "no-evidence" or "matter of law" point in her third and fourth points of error, and she attempted to raise a "factual insufficiency" point in her fifth point of error.

Under the common-law doctrine of negligence, three elements must be established: "1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In order to meet her burden of proof, Wallingford first had to establish that appellees owed her a legal duty. The existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. The trial court submitted the case under a general negligence theory, thus defining negligence as "failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." An owner or occupier of a premises owes invitees a legal duty to use "ordinary care that a reasonably prudent person would exercise under all the pertinent circumstances." Corbin, 648 S.W.2d at 295. Appellees do not contest that they owed a duty of care to Wallingford; however, they dispute Wallingford's claim that they breached that duty and thus were negligent.

With respect to the issue of breach of duty, "an occupier's liability to an invitee depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition." Id. Thus, in order to establish an occupier/defendant's negligence, the plaintiff must prove: (1) the defendant breached the applicable standard of care because it had actual or constructive knowledge that a dangerous condition existed on the premises; (2) the condition posed an unreasonable risk of harm to the plaintiff; and (3) the defendant did not exercise reasonable care to reduce or to eliminate the risk. See id. at 296. ⁽²⁾

In order to establish appellees' negligence, Wallingford first had to prove that they had actual or constructive knowledge of a dangerous condition on the premises that posed an unreasonable risk of harm to her. Wallingford argues that appellees knew or should have known that the building's ventilation system and the chemicals and solvents used in the renovation project created a risk of exposure that could result in adverse health effects, neurotoxic injuries, and even death. According to Wallingford, the combination of the faulty ventilation system and the hazardous chemicals contained in the products used in the renovation amounted to an unreasonable risk of harm.

To prove that appellees knew or should have known of the dangerous condition, Wallingford offered into evidence the testimony of Dr. Woods, a bioenvironmental engineer ⁽³⁾ who testified that the ventilation system in Centennial Towers violated Austin city codes as well as codes set by the American Society of Heating, Refrigeration and Air Conditioning Engineers ("ASHRAE") and that the poor ventilation system was insufficient to properly ventilate the chemicals. Dr. Woods further testified that appellees knew or should have known about the ventilation system defect and were negligent in not remedying the defect.

Wallingford relied on the testimony of Gary Sauls and Phillip Masden to establish that the chemical exposure posed an unreasonable risk of harm to her. Sauls and Masden were employees of Devoe and Raynolds, the company that sold the products for the renovation project to contractor James Kelley. Sauls and Masden testified that the products Kelley used all posed hazards that required the user to take certain precautions, such as adequate ventilation. They further testified that a material safety data sheet ("MSDS") for each product that listed such hazards was available to appellees upon request. In addition, Wallingford introduced testimony of Dr. Marvin Legator and Dr. Thomas Callender, who described in detail the hazards of the chemicals and solvents contained in the products used in the renovation.

In response, appellees offered the testimony of their own expert, Gil Kent, to rebut Dr. Woods's testimony. Kent is a design engineer who has designed numerous electrical and mechanical systems, including many of the HVAC systems used in Austin. He testified that Centennial Towers's HVAC system met applicable codes and standards in place when the building was built, and that the building had been inspected and approved by the City of Austin to be in compliance with the codes. ⁽⁴⁾ Kent concluded that the ventilation system was adequate. Furthermore, on cross-examination, appellees elicited from Dr. Woods an admission that he had never designed an HVAC system like the one installed in Centennial Towers and that he had only designed one HVAC system in his entire career.

Appellees also produced evidence to negate Wallingford's assertion that the renovation project created an unreasonable risk of harm to her. Kent inspected the building and concluded that the reception area where Wallingford had worked was physically isolated from the area of construction by sheetrock walls on both sides of the room running from the floor of the reception area to the floor of the room above. He concluded that it was physically impossible for fumes to have been vented into Wallingford's work area from the construction site because there were no return air ducts in any of the areas under construction. In addition, Dr. Thomas Lowry and Dr. Joe Juren both testified that data concerning the concentration of chemicals is very important in determining whether chemical exposure is dangerous, as Wallingford's own expert, Dr. Legator, conceded. Dr. Woods admitted on cross-examination that he could not quantify the amount of Wallingford's exposure to any potentially toxic substance used in the remodeling, and Dr. Juren concluded based on his examination of Wallingford's medical records that if Wallingford suffered from toxic exposure of any kind, it was probably "very minor, very minimal."

To prove that appellees failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm to her, Wallingford relied on the testimony of Dr. Woods. Dr. Woods testified that based upon custom, practice, and industry standards, an owner/manager/contractor has a duty to determine the content and potential toxicity of products being used in a renovation and construction project, which requires familiarity with the contents of the MSDS for every product used on the project, and to warn all building occupants of potential hazards and completely isolate them from exposure or evacuate them. He then testified that appellees took none of these steps to reduce or eliminate the risks. Furthermore, Wallingford claims that Kelley admitted on cross-examination that no precautionary measures were taken due to excessive expense, conceding that precautionary steps would have made the renovation project safer for the building's occupants. ⁽⁵⁾ She also points to the testimony of several ATPE employees, who testified that no one warned them that toxic chemicals were in use or about the potential hazardous effects of exposure.

Appellees offered into evidence testimony that rejected Dr. Woods's suggested standard of care. Rebutting Dr. Woods's assertion that the contractor had a duty to check the MSDS of each product used on the project for hazardous chemicals, Kelley testified that he relied on the architect's specifications ATPE provided him in accordance with industry practice: "I had clear specs on what to put in the space . . . . It was real simple. You go A, B, you know, put metal studs, Sheetrock, wood, paneling, doors, paint it and carpet, sealants and you are out of there." When asked on cross-examination whether he put safety over money, Kelley testified:

Q: (By Mr. Musselwhite) Do you put safety over money or money over safety?

A: I follow what was spec'd on the job.

Q: Well, if the specs ---

A: If there was something wrong with the job, I would point it out to ATPE what I saw. I didn't see anything wrong with this job.

Q: Let me put it this way, do you or do you not have the rule or the policy that when you get into a job you want to check it out to make sure, do everything that you can within your power to make certain that whatever you do on that job, knowing people are going to be working in the vicinity, that they are not going to be injured by what you do? You try to do that, don't you?

A: Yes, sir, I do.

In addition, Kent, appellees' expert, testified that the need to isolate or evacuate building occupants depends upon the quantity of fumes, which Wallingford did not establish. Kent testified on cross-examination:

Q: Would you agree with Dr. Woods that to do it, in addition to making sure that you have an adequate, airtight barrier, as much as you can make it airtight, if that barrier is not sufficient to keep the fumes out of the areas where people are working, then with those kind of products that put off those kinds of hazardous fumes, it would be prudent to then evacuate, have exhaust fans, or use some method to evacuate that air out so that it would not go into the areas where people are remaining there all day, wouldn't it, sir?

A: If the quantity were such that would be harmful. I am not sure that anyone can establish that. ⁽⁶⁾

. . . .

Q: And would you recommend, if they are going to use those kind of products and--in the construction on either side, as the diagram shows on either side of Ms. Wallingford's place, . . . there could be construction of those kind of products wouldn't you recommend, sir, that at least they do some testing to see if the air quality was getting down so bad that it might be harmful?

A: Again I don't know what the construction consisted of, what--and what kind. If there were a substantial amount, I would say yes. If it wasn't, then no.

Q: Well, let's assume [the construction] involved enough that several people were getting--were complaining about it, headaches, burning eyes, that kind of thing, wouldn't you, if you were on staff or consultant or that company that owned and operated that building or was doing the contract work, wouldn't you recommend to them that they do some testing and--

A: If there were multiple complaints, yes.

(Emphasis added.) Kelley testified that no one complained about the fumes or problems resulting from the fumes. This was corroborated by several of Wallingford's co-workers, who testified that although the fumes were bothersome, they did not complain to anyone. On redirect, Kent explained to the jury that the steps taken to isolate or ventilate a work area depend on the quantity of chemicals used and that massive ventilation is not needed with, for example, typical painting projects.

Appellees also introduced evidence that precautionary measures were taken. Kelley testified that steps were taken to isolate employees from the fumes, particles, and noises generated by the renovation. He explained that the demolition required for the renovation, which involved pulling down sheetrock sections, was done only on the weekend. Kelley further testified that he isolated the area under renovation by hanging heavy plastic barriers around the area to keep dust from transferring into other parts of the building.

Wallingford alleges in her fourth point of error that the trial court erred in denying her motion for JNOV because there was no evidence to support the jury's failure to find that appellees were negligent. ⁽⁷⁾

In her third point of error, Wallingford claims that the trial court erred in overruling her motion for new trial because appellees were negligent as a matter of law. These points of error both raise "matter of law" points. In reviewing "matter of law" points, we must consider all of the evidence, and if the converse of the jury's finding is established conclusively, we will sustain the point of error. Cornelius, supra, at 440. Having considered all of the evidence, we conclude that Wallingford failed to conclusively establish appellees' negligence. Therefore, we overrule her third and fourth points of error.

For purposes of appeal, a complaint that the trial court erred in failing to grant a motion for JNOV raises only a "no evidence" point. Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 861 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ) (citing Chemical Cleaning, Inc. v. Chemical Cleaning & Equip. Serv., Inc., 462 S.W.2d 276 (Tex. 1970)). However, we will assume arguendo that Wallingford's fifth point raised a point of error asserting that the jury's verdict was against the great weight and preponderance of the evidence. A "great weight" point requires us to consider and weigh all the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Cornelius, supra, at 441. We have weighed all the evidence and determine that the trial court's judgment is not against the great weight and preponderance of the evidence. We accordingly overrule Wallingford's fifth point of error.

C.  Motion for Continuance

In her sixth point of error, Wallingford contends that the trial court erred in denying the September 8, 1992 motion for continuance filed by her attorneys Richard Roth and Hector Uribe and her pro se motion for continuance filed September 11, 1992. Wallingford's first attorney, Joe Johnson, filed her original petition in May 1989. On January 25, 1990, Johnson filed a motion to withdraw as Wallingford's counsel, attaching Wallingford's statement that she no longer wanted him to represent her. On August 31, 1990, Wallingford designated Don Black as her attorney. The case was set for trial on November 4, 1991. In July 1991, Black filed a motion to withdraw because he could no longer afford to pursue the litigation; the court granted the motion on August 13, 1991. In its order granting Black's motion, the trial court agreed to grant an expedited hearing on Wallingford's motion for continuance if she could find a lawyer to take her case.

On November 5, 1991, the trial court allowed Roth and Uribe to appear as Wallingford's counsel; the court also ordered a continuance of the November 4, 1991 trial setting and reset the case for trial on September 14, 1992. In its order, the trial court stated:

In the event Plaintiff should in the future discharge her attorneys they shall be permitted to withdraw but, no further continuance will be granted on such grounds and Plaintiff will be required to proceed Pro Se, or through representation by additional or new counsel whose appearance, if any, will be subject to and expressly conditioned upon adherence to the trial setting and Pre-Trial Order as set forth herein.

Roth and Uribe filed a motion for continuance on January 31, 1992, alleging that Wallingford's two prior attorneys had done nothing in her case. The court denied the motion. On September 4, 1992, Roth and Uribe filed a motion to withdraw on grounds that Wallingford had effectively terminated them as her attorneys and had made it impossible for them to effectively represent her.

In a September 8, 1992 motion, Wallingford, Roth, and Uribe requested that Benton Musselwhite be substituted as counsel of record and that the court continue the trial setting for at least forty-five days from the date of the order granting such continuance. In the motion, Musselwhite conditioned his agreement to substitute as counsel upon the granting of the continuance. In a hearing held that day, the court gave Wallingford three options: try the case pro se, go to trial with Roth and Uribe, or go to trial with a new attorney if she could find one. Regardless of which option she selected, the court instructed that the case was going to trial on September 14, 1992. Wallingford persisted in her decision to terminate Roth and Uribe, and the court granted their motion to withdraw as counsel.

Wallingford filed a pro se motion for continuance on September 11, 1992. In her motion, she claimed that she could not be present at trial because her medical, emotional, and psychological condition required immediate hospitalization and that three of her expert witnesses--Dr. Woods, Dr. Callendar, and Dr. Richard Austin--had prior engagements that prevented them from appearing at trial. The trial court denied her motion, and the case went to trial on September 14, 1992. Musselwhite represented Wallingford at trial. Wallingford was present and testified during the trial, as did Dr. Woods, Dr. Callendar, and Dr. Austin.

The Texas Supreme Court has made clear that the granting or denial of a motion for continuance is within the sound discretion of the trial court. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). "Absent a manifest showing of abuse of discretion, the trial court's decision will not be disturbed." LaChance v. Hollenbeck, 695 S.W.2d 618, 620 (Tex. App.--Austin 1985, writ ref'd n.r.e.). The supreme court has instructed:

The trial court's action will not be disturbed unless the record discloses an abuse of discretion. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their own fault or negligence.

Villegas, 711 S.W.2d at 626. In Villegas, the court noted that the failure to obtain counsel for trial was not due to the petitioner's own fault or negligence and determined that the trial court had abused its discretion. Id. In LaChance, this Court confronted a situation where the appellant discharged his attorney four days before trial. We concluded that the trial court's refusal to grant a second continuance to a party who discharged his attorney days before trial and who had been given a two-day continuance to find another attorney was not an abuse of discretion. LaChance, 695 S.W.2d at 620.

Wallingford contends that she was not negligent or at fault in being without a lawyer days before trial. According to Wallingford, all of her prior attorneys had withdrawn through no fault of her own, and she was forced to terminate Roth and Uribe's representation because they had failed to get the case ready for trial and, more importantly, because a fatal conflict of interest had developed. She argued that they had, against her will, and "for the apparent purpose of forcing an unacceptable settlement down her throat," sought to have a guardian ad litem appointed for her. Thus, she argues, the trial court abused its discretion in denying the motions for continuance. We disagree.

The record in the present case reflects that over a three-year period, Wallingford had four different sets of attorneys. The first trial setting of November 4, 1991 was continued at her request for ten months to allow her time to obtain new representation--Roth and Uribe--and to give new counsel sufficient time to prepare for trial. The court made clear in its order that if Wallingford decided to discharge Roth and Uribe, no continuance would be granted. In spite of this order, Wallingford chose to discharge them. Unlike the situation in Villegas, where appellant's attorneys "withdrew" two days before trial, Wallingford discharged Roth and Uribe, notifying them several months before trial that she was terminating their services to hire another law firm. The record reflects that Wallingford advised Roth and Uribe in mid-August of 1992 that a new firm had accepted her case and that Roth and Uribe made the entire file available to Wallingford by August 5, 1992. ⁽⁸⁾ Based on our review of the record, we conclude that the trial court did not abuse its discretion in denying the motions for continuance. We therefore overrule Wallingford's sixth point of error.

D.  A Fair Trial Before an Unbiased Judge

Wallingford asserts in her seventh point of error that the trial judge's bias, prejudice, and lack of impartiality made it impossible for her to receive a fair trial. In support of her argument, she complains that the judge disparaged her and her counsel both before and outside of the jury's presence, admitted highly prejudicial, irrelevant evidence offered by appellees, and refused to admit relevant, admissible evidence offered by her counsel. ⁽⁹⁾

To reverse a judgment based on the judge's partiality or bias, we must find "(1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party." Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Pitt v. Bradford Farms, 843 S.W.2d 705, 706 (Tex. App.--Corpus Christi 1992, no writ); see also Tex. R. App. P. 81(b)(1). A presiding judge is responsible for controlling the general conduct and management of the trial. Metzger, 892 S.W.2d at 38; Pitt, 843 S.W.2d at 706. In order to fulfill this responsibility, the judge has "inherent power" to control the disposition of the cases before it "with economy of time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254 (1936). "How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Id. at 254-55. In Texas, a trial judge's "inherent power" coupled with the applicable Texas Rules of Civil Procedure and Texas Rules of Civil Evidence accord a trial court broad, though not unfettered, discretion in handling trials. ⁽¹⁰⁾

Pursuant to its inherent power, a presiding judge has discretion in expressing himself or herself while managing a trial. Metzger, 892 S.W.2d at 38. This discretion, however, is not unlimited. The general rule is that a presiding judge must conduct the trial in a fair and impartial manner and refrain from verbally confronting or displaying displeasure toward counsel, especially in the presence of the jury, and from making unnecessary comments or remarks that may result in prejudice to a party. Brown v. Russell, 703 S.W.2d 843, 847 (Tex. App.--Fort Worth 1986, no writ); see also Metzger, 892 S.W.2d at 38; Pitt, 843 S.W.2d at 706. Lawyers have a corresponding responsibility "to conduct themselves with respect for the tribunal and the legal system." Shaw v. Greater Houston Transp. Co., 791 S.W.2d 204, 211 (Tex. App.--Corpus Christi 1990, no writ). Neither lawyers nor parties should conduct themselves in a manner likely to provoke proper admonishment from the court. Metzger, 892 S.W.2d at 39.

In order to determine whether to reverse a judgment based on judicial impropriety, we must examine the entire record. Id. We have reviewed the statement of facts in this case. Most of the complained of interactions between the judge and Wallingford's attorneys were innocuous. Many were just exchanges during which the judge disagreed with Wallingford's counsel on some point, for example, when the judge would sustain an objection made by defense counsel or overrule an objection made by her counsel. In some of these instances, unpleasant conflict and noticeable tension developed on both sides. The judge was on occasion frustrated and short with Wallingford's attorneys. In a drastic example of his frustration with Wallingford herself, the judge excused the jury and warned Wallingford and her counsel of the consequences of aggravated perjury. There is little doubt, however, that Wallingford's attorneys invited the judge's frustration and impatience in large measure. For example, Wallingford's counsel violated orders in limine and other orders of the court, argued with and insulted the judge, made derisive comments about witnesses, explored irrelevant matters, and made spurious objections.

In several instances, the judge's remarks and demeanor may indeed have produced the impression in the minds of the jury that he was impatient, frustrated, or even angry with Wallingford's counsel. This is unfortunate. However, Wallingford's counsel created an atmosphere in the courtroom that invited such responses, and we find no evidence in the record that the judge's impatience was anything more than that, and no evidence of bias against Wallingford or her attorneys. The judge did not become an advocate for the defense; rather, he asserted his authority to manage the control of the courtroom and the disposition of the case. ⁽¹¹⁾ We hold that Wallingford has not shown the prejudice required for us to reverse and remand on this ground and overrule her seventh point of error.

E.  Admissibility of Evidence

In her eighth point of error, Wallingford asserts that the trial court erred in allowing inadmissible evidence of her prior abortions, HIV test, and a visit to a battered women's clinic. ⁽¹²⁾ In addition, she raises a number of complaints concerning evidentiary rulings in her argument under points of error seven and eight. We will address only those alleged errors for which she provides authority. ⁽¹³⁾

Wallingford argues that the trial court committed reversible error by admitting irrelevant and highly prejudicial evidence of her prior abortions, HIV and leukemia tests, visit to a battered women's shelter, injuries sustained in 1981 due to a fall on an airplane and a car wreck, and complaints against her relating to her alleged employment discharges or terminations. She further asserts that the trial court erred by allowing appellees to offer into evidence an inadmissible medical summary. We first address the evidence that Wallingford claims is irrelevant and highly prejudicial.

The Rules of Civil Evidence provide that all relevant evidence is admissible unless otherwise provided by Constitution, by statute, or by the rules themselves and that irrelevant evidence is inadmissible. Tex. R. Civ. Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Civ. Evid. 401. Wallingford, her husband, friends, and medical providers testified that she was in good health before the exposure. Wallingford also introduced testimony about her career opportunities and diminished potential resulting from the exposure. Her claims opened the door to a full examination of other possible causes for her condition and situation. Dr. Richard Coons, a psychiatrist and one of appellees' experts, testified based on a review of Wallingford's medical and employment records that her condition resulted from psychological, rather than medical, causes. According to Coons, Wallingford suffers from malingering, which is the production of false symptoms for some sort of gain, and somatization, which involves the conversion of anxiety or difficulties in life into physical symptoms. All of the evidence Wallingford objects to as irrelevant makes more probable appellees' theory that she has a long history of the same types of complaints and problems from which she is now suffering and less probable her theory that her condition resulted from her exposure at Centennial Towers. ⁽¹⁴⁾

Wallingford also contends that the evidence should not have been admitted because of its highly prejudicial nature. Texas Rule of Civil Evidence 403 requires that relevant evidence be substantially outweighed by the danger of unfair prejudice to be excluded. Tex. R. Civ. Evid. 403. Because of the severe consequences of applying Rule 403--the exclusion of relevant evidence--the application of the rule "is an extraordinary remedy that must be used sparingly." LRS Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.--Dallas 1992, writ denied). "In weighing the prejudice, the court must first examine the necessity for and probative effect of the evidence." Id. The most effective way for appellees to rebut Wallingford's contention that her exposure caused her medical, psychological, and personal problems is to show that these problems existed long before the incident, and any prejudicial effect of this evidence does not substantially outweigh its probative value. The evidence was therefore admissible.

Wallingford also contends that the court erred in admitting appellees' medical summary. According to Wallingford, the law controlling medical summaries was originally laid down by the Texas Supreme Court in Loper v. Andrews, 404 S.W.2d 300 (Tex. 1966), and reiterated in Liberty Mutual Fire Insurance Co. v. Lynch, 624 S.W.2d 698 (Tex. Civ. App.--El Paso 1981, no writ), and Texas Imports v. Allday, 649 S.W.2d 730 (Tex. App.--Tyler 1983, no writ). These cases have nothing to do with medical summaries. Rather, they address the admissibility of medical records containing opinion testimony. Thus, Wallingford offers no authority for her contention that the court erred in admitting the medical summary and thus has failed to preserve error. Furthermore, Wallingford's attorneys made no objection at trial to the admissibility of the exhibit, thereby waiving any objections she may have had. ⁽¹⁵⁾

Assuming arguendo that Wallingford had preserved error, we conclude that the trial court was well within its discretion in admitting the summary of Wallingford's medical records. Wallingford introduced extensive testimony, testing results, and medical records relating to her medical condition. Texas Rule of Civil Evidence 1006 provides that the "contents of voluminous writings . . . otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a . . . summary." Tex. R. Civ. Evid. 1006. Wallingford's numerous medical records in this case were appropriate for summary presentation. The appellees laid the proper predicate for admissibility of the medical summary at issue, and the person who prepared the summary testified as to how the summary was prepared. Based on our conclusion that the trial court did not err in admitting any of the aforementioned evidence, we overrule Wallingford's eighth point of error.

CONCLUSION

Having overruled all of Wallingford's points of error, we affirm the judgment of the trial court.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: June 7, 1995

Do Not Publish

1.   Because we decide this point of error on procedural grounds, we find it unnecessary to determine under which of the two theories the case should have been submitted.

2.   In order to succeed on a negligence claim, a plaintiff must prove negligence, causation, and damages. The causation prong requires the plaintiff to prove that the defendant's failure to use reasonable care proximately caused plaintiff's injuries. Corbin, 648 S.W.2d at 295. Because Wallingford only challenges the jury's findings on the issue of negligence, we do not address the issue of causation.

3.   A bioenvironmental engineer has special training in physiology, chemistry, biochemistry, physiological chemistry, histology, and physiological systems and works to understand how the physical environment affects the human body.

4.   Wallingford claims in her brief that Kent agreed with Woods that the ASHRAE standards were violated in this case.

5.   Kelley did in fact admit on cross-examination that he did not consult a toxicologist, industrial hygiene expert, or HVAC expert at any time during the renovation. However, he did not testify that no precautionary steps were taken because of the expense but rather that precautionary steps were not taken unless called for by the job specifications.

6.   Wallingford claims that Kent, appellees' expert, "corroborated" the testimony of Dr. Woods.

7.   Wallingford contends that the jury's finding that she was injured by exposure to chemicals at Centennial Towers established as a matter of law that appellees owed her the duty to warn, protect, and maintain a safe work place. Question one of the jury charge asked: "Was Cheryl Wallingford injured by exposure to chemicals at Centennial Towers during June - July 1988?" The jury answered, "Yes." However, the jury answered "No" with respect to all appellees when asked in question two whether the negligence of any persons named below proximately caused her injuries.

8.   In Villegas, the court was persuaded by the fact that the appellant's attorney would not turn over his files. The court observed, "The attorney did not give Villegas time to employ new counsel or deliver to Villegas the papers and property to which Villegas was entitled." 711 S.W.2d at 627.

9. ⁹  Wallingford argues that the court's erroneous evidentiary rulings reflect its lack of impartiality and its effect on her ability to have a fair trial. We will address Wallingford's complaint that the court lacked impartiality and then separately address her claim that the court made erroneous evidentiary rulings.

10.   For example, Texas Rule of Civil Evidence 611 instructs:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Tex. R. Civ. Evid. 611 (emphasis added).

11.   In making this determination, it is unnecessary for us to set out and analyze each episode of conflict cited by appellants. To do so would unduly extend this opinion and would benefit no one. See Metzger, 892 S.W.2d at 39; Best Inv. Co. v. Hernandez, 479 S.W.2d 759, 761 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.).

12.   In point of error eight, Wallingford also complains that the court threatened and intimidated her with aggravated perjury and that the judge rolled his eyes and turned away from her witnesses while it listened attentively to appellees' witnesses. These arguments are controlled by our disposition of her seventh point of error.

13.   Where an appellant cites no authority in support of a point of error, the court should overrule the point of error. See Teague v. Bandy, 793 S.W.2d 50, 58 (Tex. App.--Austin 1990, writ denied).

14.   For example, Wallingford testified that the exposure caused excessive vaginal bleeding. Medical records documented a long history of excessive vaginal bleeding, and the records from the Center for Battered Women indicate that Wallingford told them that sexual abuse from her brother had resulted in bruises and internal bleeding or pain. Therefore, evidence of the prior abortions and sexual abuse was relevant to her claims. She also testified that the exposure had caused neck and back problems. Wallingford suffered neck and back injuries as a result of the 1981 accidents; thus, that evidence is also relevant to whether her exposure caused the symptoms. The evidence of testing for HIV and leukemia is consistent with Dr. Coons's diagnosis that Wallingford suffered from somatization and thus relevant to her claims.

15.   Wallingford responds that she preserved error by filing motions in limine objecting to the documents, which the court overruled. A motion in limine is designed solely to require an offering party to approach the bench and inquire into the admissibility of the evidence at issue before introducing the evidence to the jury. See Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963). The granting or denial of a motion in limine has no bearing on the ultimate admissibility of the evidence. Id. Thus, Wallingford misplaces her reliance on a motion in limine to preserve error for appeal.