# Young v. Gardner > Court of Appeals of Texas · January 17, 1974 · 507 S.W.2d 250 URL: https://www.frixlaw.com/law-library/cases/5042456 ## Case - **Full name:** John YOUNG et ux. v. Elmer C. GARDNER et ux. - **Court:** Court of Appeals of Texas - **Decided:** January 17, 1974 - **Citations:** 507 S.W.2d 250; 1974 Tex. App. LEXIS 2429 - **Precedential status:** Published - **Opinion:** On rehearing by Evans - **Judges:** Evans, Coleman - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5042456 ## Opinion text ON MOTIONS FOR REHEARING EVANS, Justice. In their motion for rehearing appellees argue that we erroneously concluded that the trial court withdrew the appellants’ case from the jury and rendered judgment on those issues against appellants as a matter of law. We have again examined the record and conclude that our initial evaluation of the record was correct. Appellees argue that they withdrew their motion for instructed verdict and never reurged it to the court. However, the record shows that at the close of the plaintiffs’ case, the court granted appellees’ motion for a directed verdict; then at the conclusion of plaintiffs’ bill of exceptions, appellees’ counsel asked the court to withdraw its order granting appellees an instructed verdict and to reserve ruling on that motion “until a later stage in the lawsuit.” Appellees’ counsel said he was “simply going to ask the court to withhold its ruling” and would go forward with his evidence. It seems clear from the record that the appellees’ motion was never withdrawn from the court’s consideration and that ap-pellees merely requested the court to refrain from ruling on the motion at that time. The trial court obviously considered this to be the case: “THE COURT: Under those circumstances I will just take the motion along with the case and we will then proceed on that basis.” After close of all the evidence, during discussion between the court and counsel as to the preparation of the court’s charge, the following statements were made by ap-pellees’ counsel and the court: “MR. EDWARDS: Your Honor, May I ask what the disposition, for the record, is going to be on all of my special issues? “THE COURT: I am going to refuse them — at least I think so now — but I am going to go back over them in the morning. But what I have read I am going to refuse now. I don’t think there is a fact question anywhere in here. I am not belittling your case. I don’t think there is a legitimate fact question. “MR. EDWARDS: The Court remembers, I take it, that I have still got a bill of exceptions to make with Mr. Gardner and the doctor ? “THE COURT: You bet. Yes. We will get all of that in.” Again it seems clear - from the record that the court had at that point determined that there was no fact issue to present to the jury on appellants’ case and the court therefore refused to submit any of the issues requested by the plaintiffs on their case. While certainly preferable as a matter of practice, it was not essential that the *272 trial court formally announce its decision that judgment on the appellants’ issues was determined against appellants as a matter of law. In our original opinion, we explained that our holding that the case must be reversed and remanded does not rest upon a determination that the trial court erred in withdrawing the case from the jury; it is based, rather, on the trial court’s action in the exclusion of evidence which we have found to constitute harmful error. Appellees further contend, in their motion for rehearing, that the record does not support the statement in our majority opinion to the effect that the trial court had made it clear to counsel that evidence would not be permitted as to collateral expressions between the parties relating to the August 25, 1967 instrument. In making his Bill of Exception to preserve error with respect to the evidence excluded, appellants’ counsel stated to the court: “. . . Defendants’ Exhibit Number 3 was never properly proven up nor properly admitted, but that once admitted, even for the limited purposes for which it was admitted, as I understood it by the Court at the time, we had taken the position and do take the position that we would be entitled under numerous exceptions to the parol evidence rule to attack this instrument and it’s my understanding that heretofore the Court has granted a motion in limine which is any way prevented me from doing so for any reason whatsoever and it’s my understanding that the Court has prevented me under the motion to even lay any groundwork or ask any questions which might lead up to or present to the Court a situation which would more able— more ably — more better enable this Court to determine whether or not we should be able to go forward. “Therefore, Your Honor, for these reasons we would like to present on this bill of exception the following testimony which we feel like should have gone to the jury in connection with Defendants’ Exhibit Number 3 and all of which we contend, Your Honor, are one of — more than one of the numerous exceptions to the parol evidence rule.” At the conclusion of the testimony of Mrs. Young on the plaintiffs’ bill, appellants’ counsel stated to the court: “For the purposes of the bill of review, Your Honor, I think that completes the testimony and we submit, Your Honor, that a very large portion of that, if not all of it, should be permitted to go to the jury and we now offer it for the purpose of having the Court submit it to the jury, Your Honor, under the exceptions to the parol evidence rule.” At the beginning of Mr. Young’s testimony on the plaintiffs’ bill, counsel for the appellants stated to the court: “Your Honor, for the purposes of the bill I understand that I have been also prevented from going into the same subject matters we just discussed with Mrs. Young by virtue of the same motion in limine and this testimony is offered Your Honor, as an indication to the Court of what we wanted to offer to the jury and feel like should be offered to the jury, and we offer it under a bill of exceptions.” After the conclusion of the plaintiffs’ bill of exceptions, counsel for appellees made the following statement to the court, which, according to our reading, is substantiated in the record: “Let me make clear where we stand as I see it, on the record. “We have taken the position and we will take this position, and we will continue to take it, that whereas evidence can be admitted explaining the events leading up to a written transaction, parol evidence cannot be admitted to vary or change or add to the terms of the written agreement. *273 “Now, the Court has ruled that, and I think unquestionably correctly so from the beginning, with the ruling of your Honor on the motion in limine. “And the Court has kept out, and I trust will keep out, consistent with your prior rulings, any parol evidence that tends to vary the terms of the written agreement of August 25, 1967, as well as any parol evidence that tends to violate or change or vary the four restrictions here in question, which are placed on the record on this property as late as June 29, 1967. “Now, that is one thing. “The motion for summary judgment is another thing — for instructed verdict is another thing. “Your Honor ruled on that motion and then gave counsel, as he was entitled, to have the right to make a bill of exception on your evidentiary ruling, if you will recall.” A reading of the entire statement of facts in our opinion demonstrates that both counsel and the court were well aware of the effect of the court’s rulings on such evidentiary matters. Every ruling of the court was consistent with its ruling sustaining appellees’ motion in limine. We remain of the opinion that appellants properly preserved the asserted error in the exclusion of such evidence by making appropriate bill of exception and offer of evidence for submission to the jury. Both appellants’ and appellees’ motions for rehearing are overruled, Chief Justice Coleman dissenting. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5042456. Public record. Not legal advice.