Dallas Fort Worth Insurance Lawyer Blog
Insurance lawyers can read this opinion to find out, exactly what Not to do in a trial. This 2021, opinion is from the San Antonio Court of Appeals. The opinion is styled, Sarah Friend Neutze v. Texas Farmers Insurance Company and James ‘Doug’ Wasson, II.
What this case teaches is what Not to do. That is, do not waive the right you to have a record made of the proceeding.
Neutze sued Farmers on a homeowners claim concerning tornado damage to to her property. Farmers is alleged to have delayed in making payments and refused to make some payments. Neutze eventually sued alleging breach of contract, violations of the Texas Insurance Code and violations of the Texas Deceptive Trade Practices Act.
This case eventually went to trial. No record was taken of the trial other than an offer of proof. The record does not contain any objections to the charge submitted to the jury, and Neutze does not complain of charge error on appeal. After deliberations, all twelve jurors answered “no” for each cause of action submitted, and the trial court entered a take nothing judgment.
Neutze filed in this court a motion to supplement the record pursuant to Texas Rule of Appellate Procedure 38.7, asserting that justice requires supplementation of the record with additional deposition testimony. The deposition testimony tendered by Neutze for the first time on appeal is improper because it was not before the trial court. Therefore, the Court denies Neutze’s motion to supplement and now turns to the appeal.
On appeal, Neutze asserts the erroneous exclusion of testimony resulted in rendition of an improper judgment. The Court reviews exclusion of evidence for abuse of discretion. On appeal, Neutze asserts the erroneous exclusion of testimony resulted in rendition of an improper judgment. The Court reviews exclusion of evidence for abuse of discretion. The trial court’s ruling must be
upheld if there is any legitimate basis in the record to support the ruling.
To obtain a reversal of a judgment based on the erroneous exclusion of evidence, an appellant must show (1) the trial court’s ruling was in error, and (2) the error probably caused the rendition of an improper judgment. A trial court abuses its discretion where it acts without reference to guiding principles or rules. The trial court’s ruling must be upheld if there is any legitimate basis in the record to support the ruling.
To obtain a reversal of a judgment based on the erroneous exclusion of evidence, an appellant must show (1) the trial court’s ruling was in error, and (2) the error probably caused the rendition of an improper judgment. To show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence.
Parties may waive their right to a record. Absent a record of trial proceedings, the Court must presume that sufficient evidence supports the trial court’s judgment. Neutze apparently waived her right to a trial record.
Assuming without deciding Neutze could show error, because there is no record of trial proceedings, she cannot show harm. The record does not reflect an objection by Neutze to the lack of a record, and Neutze does not complain over the lack of a record on appeal. The only record before us is Neutze’s offer of proof. Absent a record of trial proceedings, the Court cannot assess whether the exclusion of evidence constituted harmful reversible error. The Court do not know who was called at trial, what they testified to, what evidence was admitted, or whether the complained-over exclusions would be cumulative of other evidence presented to the jury. Neutze’s failure to secure a record is dispositive of all issues. Finding no harm, the Court affirms the trial court’s judgment.