Opinion
No. 11-14-00028-CV
02-25-2016
PAUL HOMMAN AND JENNIFER CHAMBERS HOMMAN, Appellants v. EDWARD A. KUGLER AND ED'S MAINTENANCE, INC., Appellees
On Appeal from the 352nd District Court Tarrant County, Texas
Trial Court Cause No. 352-246839-10
MEMORANDUM OPINION
This appeal arises from a jury trial in a personal injury action. Appellants, Paul Homman and Jennifer Chambers Homman, sued Edward A. Kugler and Ed's Maintenance, Inc. for physical injuries that Paul Homman (Homman) allegedly received as a result of a one-vehicle accident. The jury found Homman to be completely responsible for the injuries he allegedly sustained when the pickup he was driving was involved in an accident while pulling a trailer loaded by Kugler. The jury also found that Appellants did not suffer any damages as a result of the accident. The trial court entered a "take nothing" judgment in favor of Appellees based upon the jury's verdict. Appellants challenge the trial court's judgment in six issues. We affirm.
Appellants' original brief included three issues. However, we subsequently granted Appellants' request to file a supplemental brief. Their supplemental brief included six issues. Therefore, we will address the issues as identified in Appellants' supplemental brief.
Background Facts
Homman was employed by David's Patio. On July 21, 2008, he drove a pickup and trailer to Ed's Maintenance—a retail outlet—to pick up a load of angle iron. Kugler, the owner of Ed's Maintenance, used a forklift to place the load of angle iron on the trailer. After Kugler placed the load on the trailer, Homman used a single strap to secure the load. He then drove away from Ed's Maintenance and proceeded back toward David's Patio.
Homman accelerated as he prepared to enter the freeway, and the trailer began to sway. He attempted to slow the pickup, but the trailer pushed forward, lifting the back wheels of the pickup into the air. The pickup spun around and leaned sideways on two wheels before the trailer broke off from the hitch and rolled away. The pickup righted itself, settling on all four wheels without rolling over. The load remained secured to the trailer after the accident. Police and paramedics arrived at the scene shortly thereafter. Homman did not receive a citation for the accident, nor did he feel the need to be taken to the hospital by paramedics.
Homman returned home after the accident and felt sore. The next morning he awoke and felt pain and soreness from his upper buttocks up to the base of his skull. Homman eventually sought medical treatment. He was diagnosed with bulging and herniated discs. Homman received epidural steroid injections and physical therapy. Homman testified that he was also supposed to have fusion surgery on his lower back but had not yet done so by the time of trial.
Appellants sued Kugler and Ed's Maintenance for negligence in loading the trailer and for failure to give notice of the hazard created by the improperly loaded trailer. Appellees asserted that Homman's negligence was the cause of the accident. Appellees also designated David's Patio as a responsible third party for failing to adequately train Homman.
As noted previously, the jury returned a verdict in favor of Appellees. It assigned 100% of the responsibility for the accident to Homman. The jury also found that Appellants did not suffer any damages as a result of the accident. In this regard, the two damage questions were not conditionally submitted based upon affirmative findings pertaining to Kugler's liability for the accident. Accordingly, the jury determined the matter of Appellants' damages even though it did not find Kugler liable.
Analysis
In Appellants' first, second, and third issues, they challenge the legal and factual sufficiency of the jury's findings on liability. In Appellants' fourth issue, they assert that they established "some damages" as a matter of law. As the plaintiffs, Appellants had the burden of proof on each of these issues. See Middleton v. Palmer, 601 S.W.2d 759, 764-65 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.). When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which he had the burden of proof, he must show that the evidence establishes as a matter of law all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When a party attacks the factual sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242.
We direct our attention to Appellants' fourth issue because it is dispositive of all of Appellants' challenges to the sufficiency of the evidence. Appellants assert in their fourth issue that they established some damages as a matter of law. Appellees contend that Appellants did not preserve this evidentiary challenge in the trial court. We agree.
In a case tried to a jury, a challenge to the legal sufficiency of the evidence concerning a particular finding can be preserved for appeal in one of five ways: (1) a motion for directed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer, or (5) a motion for new trial. See Steves Sash & Door Co., v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988) (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985)); Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 748-49 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
Appellants contend that they preserved their evidentiary challenge to the jury's findings of zero damages in their motion for new trial. They challenged the apportionment of liability in their motion for new trial. However, they made no reference to the jury's findings on damages in their motion for new trial. They contend in their supplemental brief that their request in the motion for new trial asking for the jury's verdict to be set aside and a new trial ordered necessarily extended to an attack on the jury's findings on damages. We disagree. The request to set aside the jury's verdict was premised on Appellants' argument pertaining to Kugler's alleged negligence and Homman's "lack of control of the loading of the trailer." Appellants made no reference in the motion for new trial to the damages they now assert were established as a matter of law. Furthermore, Appellants did not list any damage findings in their motion for new trial that they contended were against the great weight and preponderance of the evidence. Even under a broad reading of the motion for new trial, we can only find that Appellants challenged the jury's apportionment of liability, and cannot find any language indicating that Appellants challenged the jury's zero-damages findings.
Appellants are now asserting over twenty items of medical expenses that they contend were established as a matter of law. Appellants did not refer to any of these medical expenses in their motion for new trial. We also note that the Appellants did not challenge the jury's zero-damages findings in their initial briefing. They asserted an issue pertaining to damages in their supplemental briefing after Appellees pointed out the omission in their initial briefing.
Additionally, the jury charge did not ask the jurors to determine damages only if they found that parties other than Homman were liable. Instead, the jury charge provided: "Do not reduce the amounts in your answers because of the negligence, if any, that you have attributed to PAUL HOMMAN in Questions 1 and 2. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment." Put another way, the jury's findings of zero damages were independent of the jury's liability findings. Accordingly, Appellants' challenge to the jury's apportionment of liability cannot be said to implicitly challenge the zero-damages findings.
Appellants' failure to challenge the jury's zero-damages findings in the trial court results in a waiver of their evidentiary challenge to the issue of damages. See TEX. R. APP. P. 33.1. Thus, we overrule Appellants' fourth issue. Where there is an unchallenged finding of no damages, the findings on liability become immaterial. Peterson v. O'Neal, No. 11-94-194-CV, 1995 WL 17212045, at *1 (Tex. App.—Eastland Sept. 21, 1995, no writ) (not designated for publication); San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.—San Antonio 1993, no writ) (holding that an unchallenged no-damages finding renders any error in the liability findings harmless). Accordingly, Appellants' first, second, and third issues challenging the legal and factual sufficiency of the liability findings are immaterial. We overrule Appellant's first, second, and third issues.
While not reaching Appellants' contention that they established some items of damages as a matter of law, we note that they premise this assertion on the fact that they filed cost affidavits pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 (West 2015) that Appellees did not controvert. We addressed a similar contention in Beauchamp v. Hambrick, 901 S.W.2d 747, 748-49 (Tex. App.—Eastland 1995, no writ). We held in Beauchamp that "Section 18.001 provides that evidence of reasonableness and necessity submitted under the statute will support a finding of fact. The statute does not provide that the evidence is conclusive, nor does it address the issue of causation." 901 S.W.2d at 749. --------
In their fifth and sixth issues, Appellants asserts that the trial court erred in admitting evidence of Homman's marihuana use and the workers' compensation benefits he received. We review the trial court's ruling on the admission of evidence under an abuse of discretion standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). To succeed on appeal when evidence is erroneously admitted, a complaining party must demonstrate (1) that the erroneously admitted evidence was controlling on a material issue dispositive of the case and was not cumulative and (2) that the error probably caused rendition of an improper judgment in the case. See Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). It is the complaining party's burden to show harm from an erroneous evidentiary ruling. In re M.S., 115 S.W.3d 534, 538 (Tex. 2003); see also City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995) ("A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted.").
Before trial, the trial court granted Appellants' motion to exclude evidence of Homman's alleged drug use, but with the caveat that it would be allowed if it became relevant during trial. Homman subsequently testified that he became addicted to pain medication following the accident. He further stated that he was advised by his surgeon to reduce his daily intake of pain medication in order to prepare his body for surgery. Homman gradually reduced his intake of pain medication, but not without serious side effects. Homman testified that while going through severe withdrawals, he attempted to commit suicide.
At one point, Homman had been admitted to John Peter Smith Hospital, and he informed the doctors of his prior marihuana, amphetamine, and cocaine use. Outside the presence of the jury, Appellees moved to introduce evidence of Homman's prior drug use as relevant to his claim for mental anguish damages. Appellants' counsel objected to the introduction of such evidence, asserting that it was not relevant and that its probative value was substantially outweighed by the danger of unfair prejudice. The trial court agreed with Appellees' counsel and stated: "Well, for purposes of showing the cause of the accident, it's not admissible. For this other mental anguish, it's admissible. That's the Court's ruling."
Appellants assert that the admission of evidence pertaining to Homman's marihuana use was erroneous. They cite Bedford v. Moore, 166 S.W.3d 454, 465 (Tex. App.—Fort Worth 2005, no pet.), in support of this proposition. The court held in Bedford that, "[g]enerally, drug usage, without further evidence of negligence, is inadmissible." Id.
The evidence pertaining to Homman's drug usage consisted of two types. As referenced above, Appellees initially sought to offer historical evidence of his drug usage as it pertained to his claim for mental anguish damages. Appellees raised this matter at a hearing outside the presence of the jury. They asserted that Homman opened the door to the admissibility of this evidence when he testified about his addiction to prescribed pain medication following the accident and the mental anguish he suffered from it, including his attempted suicide when he tried to stop taking the prescribed pain medicine. Appellants objected to the introduction of any evidence of Homman's drug use on the basis of relevancy and prejudice. The trial court overruled the objections to the extent that Appellees sought to offer the evidence with respect to Appellants' claim for mental anguish.
Appellees assert that Appellants failed to preserve error regarding the admission of the drug usage evidence because they only lodged a single objection to the evidence, yet Appellees' counsel questioned Homman about it extensively during cross-examination. Rule 103(b) of the Texas Rules of Evidence provides, "When the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal." TEX. R. EVID. 103(b). As set out above, the trial court ruled that the drug usage evidence was admissible with respect to Appellants' claim for mental anguish damages based upon Appellants' objections that were made outside the presence of the jury. Thus Appellants' objections to the drug usage evidence were sufficient under Rule 103(b) to preserve error to the extent it was offered in response to Appellants' claim for mental anguish damages. See TEX. R. APP. P. 33.1.
We conclude that that the trial court did not abuse its discretion in permitting Appellees to offer evidence of Homman's history of drug usage as it related to his claim for mental anguish damages. Appellants sought to attribute the cause of Homman's mental anguish to the accident. "Relevant evidence is admissible . . . ." TEX. R. EVID. 402. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." TEX. R. EVID. 401. The evidence of Homman's drug usage was relevant as an alternate cause of his mental anguish. Relevant evidence cannot be excluded simply because it would create prejudice. See TEX. R. EVID. 403; Castro v. Cammerino, 186 S.W.3d 671, 681 (Tex. App.—Dallas 2006, pet. denied). Instead, there must be a demonstration that the introduction of the evidence would be unfairly prejudicial to the objecting party. Castro, 186 S.W.3d at 681. We conclude that the trial court's determination that this evidence was not unfairly prejudicial to Appellants did not fall outside the bounds of reasonable disagreement.
The second type of drug usage evidence involved testimony that Homman was under the influence of marihuana at the time of the accident. Appellees' attorney cross-examined Homman about his use of marihuana immediately preceding the accident. He admitted to smoking marihuana three days before the accident, but he denied using it on the day of the accident. However, Appellees subsequently offered the testimony of a coworker that Homman admitted to him on the day of the accident that he was "high" on marihuana. Appellees assert that Appellants failed to preserve error regarding the evidence that Homman was under the influence of marihuana at the time of the accident. With respect to the testimony of the coworker, Appellants objected to its admissibility outside the presence of the jury on the basis of its relevance and prejudicial nature. Accordingly, Appellants preserved error under Rule 103(b) with respect to the coworker's testimony.
Appellants contend that the coworker's testimony was inadmissible under the holding in Bedford. We disagree. Bedford involved a driver that tested positive for methamphetamine after an accident. 166 S.W.3d at 464. The trial court excluded this evidence on the basis that there was no evidence that the positive finding of methamphetamine after the accident established that the driver was impaired at the time of the accident. Id. at 464-65. The Fort Worth Court of Appeals upheld the exclusion of evidence on this basis by holding that "evidence of drug usage must provide some explanation for the negligence and improper conduct." Id. at 465. Bedford is distinguishable from the facts in this appeal because the coworker's testimony addressed impairment at the time of the accident. Accordingly, we conclude that the trial court did not abuse its discretion in allowing the coworker's testimony. We overrule Appellants' fifth issue.
Appellants' sixth issue concerns the admission of evidence that Homman received workers' compensation benefits as a result of the accident. Generally, information concerning workers' compensation benefits is inadmissible in a suit against a third-party tortfeasor because it is not material. J.R. Beadel & Co. v. De La Garza, 690 S.W.2d 71, 74 (Tex. App.—Dallas 1985, writ ref'd n.r.e.). Exceptions to this rule have been made for impeachment purposes, but only when a witness has given testimony inconsistent with receipt of the benefits. Id. The trial court determined that Homman's testimony about his medical expenses opened the door to evidence of workers' compensation benefits. We agree.
The collateral source rule precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeasor. Nat'l Freight, Inc. v. Snyder, 191 S.W.3d 416, 423 (Tex. App.—Eastland 2006, no pet.) (citing Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)). If a plaintiff claims financial hardship, however, evidence of a collateral source may be offered to impeach the credibility of the witness. Id. (citing Macias v. Ramos, 917 S.W.2d 371, 374 (Tex. App.—San Antonio 1996, no writ)). Homman claimed financial hardship in his testimony regarding the payment of past and future medical expenses. Accordingly, the trial court did not abuse its direction in determining that evidence of his workers' compensation benefits were admissible to impeach his claim of financial hardship. Unlike the situation in National Freight Inc., there is no evidence that Homman's workers' compensation benefits would not pay a large portion of either his past or future medical benefits. Id. We overrule Appellants' sixth issue.
Finally, Appellants assert that the errors they have alleged in their six issues on appeal constitute cumulative error requiring reversal of the trial court's judgment. We have noted that "[s]ome reviewing courts have recognized a 'cumulative-error doctrine' in situations wherein the record shows multiple errors that in isolation are not reversible but in combination give rise to reversible error." Id. at 424. (quoting Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 205 (Tex. App.—Austin 1991, no writ)). However, we have found that the trial court did not commit error in any of the issues raised by Appellants. Therefore, the cumulative-error doctrine is inapplicable to this appeal. Id.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE February 25, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.