Opinion
No. 05-15-01117-CV
05-03-2017
DWIGHT BELL, DEBORAH BELL, AND BOB BELL, Appellants v. KAREN LYNN HARRIS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas
Trial Court Cause No. 296-00107-2014
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Whitehill
Opinion by Justice Bridges
Dwight Bell, Deborah Bell, and Bob Bell appeal the trial court's take nothing judgment in favor of Karen Lynn Harris. This Court, by letter dated March 18, 2016, notified the Bells that their pro se brief did not comply with the rules of appellate procedure and directed them to file an amended brief that complied with rule 38.1. On March 23, 2016, the Bells filed an amended brief in which they list fifteen issues and "points of err" A through R. The Bells' brief makes the following arguments: (1) the trial court erred in excluding the Bells' business records because Harris "at no time withdrew or amended [her] deemed admission to rear-ending" Bob's vehicle; (2) summary judgment must be reversed if liberal construction of the pleadings reveals a fact issue or if the pleadings would support "a recovery under any theory of law"; (3) Harris' deemed admission was conclusively established and not withdrawn or amended; the trial court erred in excluding medical records and pleadings despite the Bells' attempts to use them at trial; (4) business records accompanied by an affidavit that complies with rule of evidence 902(10)(b) are presumptively authentic; (5) a party's production of documents is self-authenticating; (6) the trial court erred in taking the case away from the jury and dismissing the jury; (7) Harris failed to prepare and submit a motion for directed verdict; (8) it was a "violation" for the trial judge and Harris' counsel to "engage in a conversation . . . which could not be heard," and the trial court erred in granting a directed verdict under these circumstances; (9) Harris' proposed jury charge was flawed because Harris "did not take the witness stand to offer any evidence to support her affirmative defense; (10) the trial "should have been about the amount of money [the Bells] were entitled to based on their allegations, pleadings, and testimonies at trial" because Harris' deemed admission of "the causation of the rear-end accident" resolved the liability issue; (11) a letter in a trespass case is admissible and sufficient to prove the intent of another party; and (12) the trial court erred in granting a motion for JNOV. We affirm the trial court's judgment.
In October 2013, the Bells filed their original petition alleging that, on April 30, 2012, Harris rear-ended Bob's vehicle in which Dwight was a passenger. The petition alleged Dwight received injuries requiring surgery, and his wife, Deborah, was also suing Harris for loss of consortium. The petition asserted claims of negligence, negligence per se, respondeat superior, and negligent entrustment. Harris filed an answer in which she asserted a paid or incurred medical expenses limitation applied, the Bells' own negligence was the sole or partial proximate cause of the accident, Harris was not responsible for any medical conditions or damages because they were pre-existing conditions, and the Bells failed to mitigate damages.
In December 2013, Dwight and Deborah filed a traditional motion for summary judgment on the grounds that Harris admitted hitting the Bells' vehicle from behind, and there was no evidence presented by Harris sufficient to raise a fact issue whether the Bells' comparative negligence precluded any recovery. The motion stated it was supported by a police crash report form, a vehicle damage guide for traffic crash investigators, an investigator's narrative opinion of "What Happened," hospital emergency department discharge instructions, Harris' response to the Bells' request for admissions, Dwight and Deborah's original petition, Harris' answer to the original petition, and affidavits of Dwight and Deborah.
In August 2014, "Joiner Bob Bell and Linda Bell" filed a traditional motion for summary judgment on the grounds that Harris had not overcome the rebuttable presumption that the underlying rear-end accident was caused by her negligence. Bob and Linda's motion stated it was supported by the same documents as Dwight and Deborah's motion, with the addition of Bob and Linda's original complaint, affidavits of Dwight and Deborah, and the affidavit of Reginal McIntyre, identified as "Reggie Auto Clinic."
Harris responded that the Bells did not prove all elements of their negligence cause of action as a matter of law. Harris argued fact issues existed on the elements of cause in fact, proximate cause, and damages. In making these arguments, Harris asserted the affidavits attached to the Bells' motions for summary judgment were defective and did not present competent summary judgment evidence. Specifically, Harris argued the affidavit of "Dwight/Deborah Bell" was defective on its face because (1) it was entitled "Plaintiff Dwight Bell Affidavit"; (2) its first line stated: "Before me, the undersigned authority, personally appeared Deborah Bell, who being by me duly sworn, deposed as follows: 1. My name is Dwight Bell"; (3) it did not properly authenticate the police report and medical records attached; and (4) it contained statements that were not based on personal knowledge. Thus, Harris argued, the Bells failed to submit competent summary judgment evidence, and their motions for summary judgment should be denied.
The Bells filed a motion to cure any alleged defects or, alternatively, to be granted a continuance. However, on September 16, 2014, the trial court issued a memorandum ruling denying the Bells' motion for summary judgment. On August 2015, Harris filed a no-evidence motion for summary judgment in which she argued there was no evidence she breached a duty to the Bells or that the Bells' damages were proximately caused by the alleged breach.
At a pre-trial conference on September 3, 2015, Harris' counsel objected to the police report and medical records the Bells attached to "multiple pleadings in the case." Harris' counsel argued the records were hearsay and not properly authenticated because the Bells themselves executed business records affidavits in support of the records "[t]estifying that they are custodian of records for Plano Police Department" and for the medical records. Dwight responded as follows:
We were eyewitnesses and have personal knowledge of these documents that he claimed that they're hearsay. I was in the car when the car actually had an accident. I was in the operating room when the surgery went down.The trial court granted Harris' motion to exclude the police report. Regarding the medical records, the trial court also granted Harris' motion to exclude the records because they were not authenticated and the Bells presented no affidavit to establish a causal connection between the accident and the Bells' medical damages. The trial court also excluded the Bells' recorded statements because they were not deposition transcripts but "recorded statements usually done by an insurance company." Regarding Deborah's affidavit, Harris objected that it was hearsay that was not relevant to the case, and the statements it contained were made without personal knowledge. The trial court excluded the affidavits but instructed the Bells they could testify regarding the information contained in the affidavits but could not show the affidavits to the jury.
At trial on September 8, 2015, Bob testified he and Dwight were stopped in a turn-around lane on highway 75 in Plano when Harris hit him from behind, and "it knocked [Bob's] car forward" even though his foot was on the brake pedal. Bob pulled in to a nearby 7-Eleven, and Harris followed. Harris said she was at fault and apologized. Bob called the police, who came and "assessed the accident." After Bob exchanged insurance information with Harris, he attempted to start his car again but "had a hard time starting it." Bob "eventually" got the car started, but it "petered out" about a mile down the road. Bob called his mechanic to send a wrecker, and Dwight called Deborah to come pick him up. On cross-examination, Bob testified his car was a fourteen-year-old S10 Chevrolet pickup with "a hundred and some thousand" miles on it.
Deborah testified Dwight called her on the day of the accident, and she went to Plano and picked him up. Dwight was "trying to be a tough guy, but [Deborah] could see he was in pain and he was hurting." Deborah took Dwight home and applied ice to his left knee and his head. Deborah took Dwight to the hospital where "he was diagnosed and treated and given instructions of what was going on." Four months before the accident, Deborah had surgery on her shoulder, and Dwight had been taking care of her. After the accident, Deborah was "forced" to take care of Dwight, who was "complaining" and "taking medicine all the time." Deborah testified that, after the accident, Dwight stopped taking vacations and going to baseball games with the grandchildren, and she and Dwight no longer had a sexual relationship.
Darryl Lewis, Dwight's nephew, testified he moved in with Dwight and stayed for about a year. During that time, Lewis helped take care of the house work and helped Dwight with "everything . . . that he couldn't do." Following Lewis' testimony, the Bells rested their case.
Harris moved for a directed verdict on all of the Bells' claims. Regarding the Bells' negligence claims, Harris argued there was "no evidence of any proximate cause of any of the damages that are alleged in this case." Regarding the Bells' negligence per se, respondeat superior, negligent entrustment, and gross negligence claims, Harris argued there was no evidence to support such claims. The trial court granted a directed verdict on the Bells' negligence per se, respondeat superior, negligent entrustment, and gross negligence claims. As to the Bells' negligence claims, the trial court stated Harris was asking the court to "throw it out now for your failure to meet the minimal requirement to get the case to the next level" and asked the Bells to respond. Dwight objected to Harris' request for a directed verdict and stated, "This is a jury trial." The trial court advised Dwight he was "missing some very big points" and asked Dwight to "respond specifically to [Harris'] claim that you have failed to meet your burden and produce evidence . . . as to each of the elements to your cause of action for negligence." Dwight first responded that "the evidence that we have, it is obvious that it has been objected [sic] by this court." The trial court stated he was "not going to relitigate the prior decisions that I have made." Dwight maintained that the testimony that had been given was "as accurate as it can be" and he did not see where Harris had proved "that it didn't happen." The trial court stated that it was "not the duty of the Defendant to prove anything in any lawsuit ever." Dwight replied that, if he could not "do anything but just object to it, then that's all I can do."
The trial court next addressed Deborah, who stated she "object[ed] to all that the Defendant's attorney stated before this court where - regarding the negligence." The trial court responded that Deborah was "missing my point" and asked her to "point the Court to evidence supporting its going to a jury for each of the elements of the cause of action for negligence." Deborah responded as follows:
I object to the ordinary care that the Defendant has failed to - to act upon and the negligence that she has - that we have displayed in this court to show her - to show that the proximate cause - the proximate cause of the accident, I object to what the attorney is alleging at this time.The trial court next turned to Bob, who stated he wanted to "take a look at what we have here because I wasn't clear on what all he is objecting to." The trial court advised Bob he could not look at Harris' attorney's notes, and Harris' attorney was "was allowed to make an oral motion for directed verdict" and had not given the court any papers. Bob "agree[d] with the rest of the Plaintiffs" that, "through testimony . . . I think we have proven that." Dwight once again stated that "the jury should be allowed to make the decision as to innocence or guilt." The trial court granted the motion for directed verdict on all counts, and this appeal followed.
We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.—San Antonio 1999, pet. denied). The law is well established that, to present an issue to this Court, a party's brief shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. TEX.R.APP. P. 38.1; McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.—Dallas 2001, pet. denied). Bare assertions of error, without argument or authority, waive error. See Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate briefing). When a party fails to adequately brief a complaint, he waives the issue on appeal. Devine v. Dallas County, 130 S.W.3d 512, 514 (Tex. App.—Dallas 2004, no pet.)
First, the Bells argue the trial court erred in excluding the Bells' business records because Harris "at no time withdrew or amended [her] deemed admission to rear-ending" Bob's vehicle. The record shows that, in response to requests for admission, Harris admitted she was involved in a motor vehicle accident with Bob in which her vehicle struck Bob's vehicle from behind. However, Harris did not admit, by deemed admission or otherwise, that the collision caused any damage to Bob, Dwight, or Deborah or that Harris was responsible for any damages to Bob, Dwight, or Deborah. We overrule the Bells' first argument.
Second, the Bells argue summary judgment must be reversed if liberal construction of the pleadings reveals a fact issue or if the pleadings would support "a recovery under any theory of law." The record shows the trial court did not grant a motion for summary judgment in favor of either party in this case. We overrule the Bells' second argument.
Third, the Bells argue Harris' deemed admission was conclusively established and not withdrawn or amended. It is true Harris admitted she struck Bob's vehicle from behind and did not withdraw or amend this admission. However, as previously stated, this admission did not establish causation or damages. We overrule the Bells' third argument.
Fourth, presumably in an attempt to challenge the exclusion of their evidence, the Bells argue business records accompanied by an affidavit that complies with rule of evidence 902(10)(b) are presumptively authentic. The affidavits the Bells submitted did not comply with the rules of evidence. Instead, the Bells attempted to authenticate documents by means of their own affidavits, not affidavits of the custodians of the records as required by rule 902(10)(b). See TEX. R. EVID. 902(10)(b); Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 360-61 (Tex. App.—Dallas 2007, pet. denied). We overrule the Bells' fourth argument.
Fifth, the Bells argue a party's production of documents is self-authenticating. However, the Bells did not raise this argument in the trial court and have therefore not preserved this issue for our review. See TEX. R. APP. P. 33.1. We overrule the Bells' fifth argument.
Sixth, the Bells argue the trial court erred in taking the case away from the jury and dismissing the jury. Specifically, the Bells argue the trial judge "dismissed the jury for reasons he stated that he promised a friend he would talk to a child who was giving his friend trouble in the middle of our jury trial." The Bells cite no evidence in the record or legal authority to support this argument. We therefore conclude this issue has been waived. See Sullivan, 943 S.W.2d at 486. We overrule the Bells' sixth argument.
Seventh, the Bells argue Harris failed to prepare and submit a motion for directed verdict. We interpret this as an objection to Harris making the motion for directed verdict orally. A motion for directed verdict may be in writing or may be made orally. See Dillard v. Broyles, 633 S.W.2d 636, 645 (Tex. App.—Corpus Christi 1982, writ ref'd n.r.e.). we overrule the Bells' seventh argument.
Eighth, the Bells argue it was a "violation" for the trial judge and Harris' counsel to "engage in a conversation . . . which could not be heard," and the trial court erred in granting a directed verdict under these circumstances. Again, the Bells cite no evidence in the record or legal authority to support this argument. This issue has been waived. See Sullivan, 943 S.W.2d at 486. We overrule the Bells' eighth argument.
In their ninth argument, the Bells argue Harris' proposed jury charge was flawed because Harris "did not take the witness stand to offer any evidence to support her affirmative defense." However, the trial court granted a directed verdict, and the jury charge was never submitted to the jury. Under these circumstances, we need not address whether the jury charge contained errors. We overrule the Bells' ninth argument.
Tenth, the Bells argue the trial "should have been about the amount of money [the Bells] were entitled to based on their allegations, pleadings, and testimonies at trial" because Harris' deemed admission of "the causation of the rear-end accident" resolved the liability issue. As discussed previously, Harris' admission did not establish causation or damages. We overrule the Bells' tenth argument.
Eleventh, the Bells argue a letter in a trespass case is admissible and sufficient to prove the intent of another party. The Bells assert the "evidence presented at trial was (1) a letter sent by the Appellee that threatened to destroy Appellant's garden, and (2) a video recording of Appellee destroying the garden on January 1, 2014." This argument does not appear to be related to the facts of this case, and we will not address it further. We overrule the Bells' eleventh argument.
In "conclusion," the Bells argue the trial court erred in granting a motion for JNOV. We note the trial court did not grant a motion for JNOV in this case. Further, the Bells' conclusion is not supported by citations to the record or tied to the facts of this case. See Sullivan, 943 S.W.2d at 486. We overrule the Bells' concluding argument.
We affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE 151117F.P05
JUDGMENT
On Appeal from the 296th Judicial District Court, Collin County, Texas
Trial Court Cause No. 296-00107-2014.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee KAREN LYNN HARRIS recover her costs of this appeal from appellant DWIGHT BELL, DEBORAH BELL, AND BOB BELL. Judgment entered May 3, 2017.