4M Linen & Uniform Supply Co., Inc. v. WP Ballard & Co.

ON SECOND MOTION FOR REHEARING

On appellant’s first motion for rehearing, we held the trial court erred in refusing to allow 4M Linen to make an informal bill of exception, but we found the error was harmless. On second motion for rehearing, appellant claims the error was harmful. 4M Linen refers us to In re Marriage of Goodwin, 562 S.W.2d 532 (Tex.Civ.App.—Texarkana 1978, no writ); Ledisco Fin. Serv., Inc. v. Viracola, 533 S.W.2d 951 (Tex.Civ.App.—Texarkana 1976, no writ); and Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App.—Dallas 1965, writ ref’d n.r. e.).

In all three cases cited by 4M Linen, the party who attempted to make a bill to preserve excluded testimony was prevented from preserving a record of the excluded testimony. Dorn directly supports our holding. In Dorn, the Dallas Court of Appeals held it was not reversible error to refuse a bill of exception when the information appellant attempted to offer was immaterial to the outcome of the suit. 392 S.W.2d at 186. We said the same thing in this case: the evidence offered in the late bill was not relevant to the issue of defendant’s liability.

We do not think Ledisco assists 4M Linen’s cause either. In Ledisco, the trial court refused to permit appellant to make a bill of exception to preserve cross-examination testimony of a witness. 533 S.W.2d at 958. On appeal, the court held the objections, the questions, and the statements of counsel were sufficient to apprise both courts of the nature of the evidence appellant expected to produce. 533 S.W.2d at 959. Here, as in Ledisco, we can look at the record and find the testimony the trial court excluded.

Neither should Goodwin offer 4M Linen any comfort. In Goodwin, the trial court announced it would render judgment without taking any evidence. 562 S.W.2d at 533. Before the judgment was signed, appellant filed a motion to make a bill of exception to preserve evidence. Id. Without ruling on the bill, the court rendered a judgment reciting that it heard evidence and the parties waived a record. Id. On appeal, the Texarkana Court of Appeals reversed because appellant did not have the opportunity to present evidence. That is not the case here. The record before us contains the testimony 4M Linen attempted to offer at trial.

4M Linen complains about the timing of the bill: it was not permitted to make a bill before the trial court charged the jury, as required in Tex.R.App.P. 52(b). 4M Linen, however, was permitted to present the excluded evidence to the trial court after the charge was read to the jury. That evidence was brought forward for our consideration in the statement of facts.

After finding the trial court erred, we reviewed the evidence in the late bill and held the evidence was not relevant. 4M Linen now insists it has a right to a reversal and retrial because the trial court did not permit it to make a timely bill of exception.

If the purpose of the procedure for a bill of exception is to afford a party the opportunity to preserve excluded testimony for appellate review, the late informal bill did so. We find the late informal bill was the equivalent of a formal bill of exception, which can be filed as late as 60 days after the judgment is signed or, if a motion for new trial was filed, as here, 90 days after the judgment was signed.

*329We overrule 4M Linen’s second motion for rehearing.