Johnson v. Garza

884 S.W.2d 831, 1994 WL 443724
CourtCourt of Appeals of Texas
DecidedOctober 12, 1994
Docket3-92-546-CV
StatusPublished
Cited by26 cases

This text of 884 S.W.2d 831 (Johnson v. Garza) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Garza, 884 S.W.2d 831, 1994 WL 443724 (Tex. Ct. App. 1994).

Opinions

OPINION

PER CURIAM.

The primary issue in this damage suit is whether the trial court’s instructed verdict, at the close of the appellants’1 case, in favor of the appellees was improper. Appellants sued Mr. Garza for intentionally setting fire to Garza’s own condominium unit, for intentionally disarming the unit’s fire alarm system and for negligently failing to maintain the unit’s fire alarm system. Appellants assert the trial court erred in granting an instructed verdict and bring ten points of error. Appellees bring one cross-point involving the amount of the cost bond.

A fire destroyed four units of the Wood-slopes condominiums on October 27, 1989. Appellants owned or resided in three of the units. Appellee Garza owned the fourth unit and appellee Leach lived with him.

On the day of the fire, Mr. Garza left his condominium at his usual time. Mr. Leach did so as well (they worked in the same business, a braiding inspection business with offices located on Mr. Garza’s ranch). Mr. Leach made inspections during the morning, then returned to the condominium, and did some laundry. Mr. Garza returned to the condominium sometime before noon. Mr. Leach left to do an inspection and requested that Mr. Garza remove some clothes from the dryer.

Appellee Garza completed the laundry, had a milkshake, and left the condominium to return to his ranch. He stopped to make a bank deposit and buy groceries. Approximately thirty to sixty minutes after he had left the condominium, he received a telephone call telling him the condominiums were on fire.

Mr. and Mrs. Buey, who lived in an adjoining unit, discovered the fire sometime between 1:30 and 2:00 p.m. in the cedar privacy wall between their unit and Garza’s. Mrs. Buey called the fire department and Mr. Buey went to the Garza unit. Upon discovering the unit was locked, Buey obtained a key from a neighbor. He and a second neighbor, Mr. Wetzel, went inside the condominium unit to see if anyone was inside. Both saw fire in Garza’s kitchen, which fire had extended up to the west bedroom above it. Mr. Buey also stated that he had gone up the entryway stairs and saw fire in the upper east bedroom.

After determining that no one was in the Garza unit, Buey and Wetzel left, and Wetzel turned off gas valves leading to each unit. About that time, fire trucks arrived and shortly thereafter, Garza arrived. He went into his unit to get keys, and moved his car out of the garage. Several minutes later, the Buoy’s unit collapsed and fell to the ground. Approximately fifteen minutes later, Garza’s unit did the same.

No one knew which volunteer fire department served the condominium complex. The firefighters who first arrived were unable to gain access to the back of the units because the condominiums sat on a forty to fifty foot cliff on steel beams. Water pressure problems also created a water shortage. Furthermore, fighting the fire was more difficult [834]*834because the units were built almost entirely of dry cedar wood, inside and out, and had no fire walls between the units.

The appellants’ basic complaint in their first six points of error is that the trial court refused to allow them to introduce circumstantial evidence to show Garza’s precarious financial condition and motive to cause the fire. They alleged that Garza had a large loan balance that had been “called” for immediate payment; that this caused Garza a sudden financial crisis; and that the crisis was alleviated by insurance proceeds applied to the loan balance.

Appellants also speculated that a second, secret, insurance policy existed which they were unable to locate because they could not access an insurance industry data base. They assert that if the trial court had permitted them to inquire into Garza’s loan and into the possibility of a second, secret, insurance policy, they could have shown a motive for Garza to set the fire or at least shown that his negligence caused the fire.

Prior to taking evidence in the trial, appel-lees filed a motion in limine asking the court to exclude all evidence of appellees’ “finances, financial situation, or income tax returns until plaintiffs first bring forth some evidence of a financial motive to set Eli Garza’s condominium on fire.” This motion was granted.

Appellants contend that the court’s granting of the motion in limine was improper and imposed conditions not required by the law of arson which permits any type of circumstantial evidence to be admitted to prove motive.

Garza’s response to appellants’ contention is that his motion in limine was filed for the purpose of preventing the appellants from introducing pure speculative evidence that the appellees started the fire for financial gain. Garza also points out that the pre-trial motion in limine did not prevent the appellant from offering the excluded evidence during trial and taking the necessary steps to preserve error; that is, offering the evidence during trial and making a bill of exceptions to any adverse ruling by the court.

We find no merit to appellants’ contention that the trial court imposed improper conditions on the exclusion of their evidence. The appellants did not make an offer of the evidence which they say was excluded. Furthermore, at no point did the court ever prevent, or even suggest, that appellants could not, during trial, offer the evidence for a ruling or make a bill of exception concerning that evidence. If the court had prevented appellant from making a bill, then error would have been preserved. See Reveal v. West, 764 S.W.2d 8, 10-11 (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding). In general, the grant or denial of a motion in limine does not preserve error, Redding v. Ferguson, 501 S.W.2d 717, 722 (Tex.Civ.App.—Fort Worth 1973, writ ref'd n.r.e.). Granting the motion is not reversible error; it is the subsequent exclusion of relevant evidence that may constitute reversible error. Schütz v. Southern Union Gas Co., 617 S.W.2d 299, 303 (Tex.Civ.App.—Tyler 1981, no writ). To preserve error concerning the exclusion of evidence, the complaining party must offer the evidence and secure an adverse ruling from the court. Roberts v. Tatum, 575 S.W.2d 138, 144 (Tex.Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.). The party objecting to a motion in limine must show the factual relevance of the objectionable material. City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.—Houston 1964, writ ref'd n.r.e.).

In reviewing the record, we can find no evidence, other than the appellants’ allegations and speculations, that either Garza or Leach had a motive to set fire deliberately to Garza’s condominium; that is, to commit arson.

In the State of Texas, civil cases as well as criminal cases have similar requirements to prove that arson has been committed. Those requirements are (1) incendiary origin of a fire and (2) a connection between the defendant and the fire. See State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 282 (Tex.App.—San Antonio 1992, writ denied); see also O’Keefe v. State,

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Bluebook (online)
884 S.W.2d 831, 1994 WL 443724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-garza-texapp-1994.