Opinion
No. 04-03-00251-CV
Delivered and Filed: April 21, 2004.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-02213, Honorable Frank Montalvo, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Bryon Fitz sued San Antonio Hospitality Investments, Inc., a hotel franchisee, after he was injured by a tractor-trailer turning into a hotel owned and operated by the company. After the trial court entered a take-nothing judgment in favor of San Antonio Hospitality Investments, Fitz brought this appeal. We affirm the trial court's judgment.
Background
Fitz was injured by a tractor-trailer while walking on a sidewalk near a local hotel, Days Inn Hotel Southeast. At the time, the driver of the tractor-trailer, Robert Dollard ("Dollard"), was turning into the parking lot of the Days Inn Hotel Southeast. Although Fitz survived, he suffered multiple injuries, including the amputation of his right leg. The tractor-trailer was owned by Pacific Motor Trucking Co. ("Pacific Motor Transport"). Fitz asserted a negligence claim against Dollard and Pacific Motor Transport. Fitz further asserted a negligence claim against San Antonio Hospitality Investments, Inc. ("SAHI"), the hotel franchisee that owned and operated the Days Inn where the accident occurred, and Days Inn Worldwide ("DIW"), the hotel franchisor.
DIW moved for summary judgment on the basis that there was no principal-agent relationship between DIW and SAHI that would subject DIW to liability. The trial court granted DIW's motion for summary judgment and severed the case against DIW. Fitz settled with Dollard and Pacific Motor Transport for $2.75 million. Fitz's claims against SAHI went to trial and the jury returned a verdict awarding Fitz $1,957,610 in damages. The jury found SAHI and Fitz each ten percent negligent, and Dollard and Pacific Motor Transport eighty percent negligent. Because SAHI had elected a dollar-for-dollar credit for the $2.75 million settlement, the trial court entered a take-nothing judgment in favor of SAHI. After the trial court denied Fitz's motion for new trial, this appeal ensued.
This court affirmed the summary judgment granted in favor of DIW on October 1, 2003. See Fitz v. Days Inns Worldwide, Inc., No. 04-02-00487-CV, 2003 WL 22238939 (Tex. App.-San Antonio 2003, no pet. h.).
Fitz raises five issues on appeal: (1) whether the trial court erred by denying his motion for new trial based on the misconduct of two jurors; (2) whether the trial court erred by admitting evidence of his alcohol consumption in the months before his accident; (3) whether the trial court erred by excluding a video recording of a tractor-trailer, similar to the one that ran over him, turning into the parking lot of the Days Inn Hotel Southeast after his accident; and (4) whether the jury's award of $1.2 million for future medical expenses was against the great weight and preponderance of the evidence.
Juror Misconduct
In his first two issues, Fitz claims the trial court erred by denying his motion for new trial based on the alleged misconduct of two jurors, Kendra Dinsmore and Debra Pohl. Fitz's motion for new trial alleged that presiding juror Kendra Dinsmore concealed her bias against non-economic damages during voir dire. Fitz's motion further alleged that Debra Pohl, despite the court's instructions to the contrary, improperly viewed and investigated the accident scene during the course of trial.
We review a trial court's ruling on a motion for new trial under an abuse of discretion standard. Chavarria v. Valley Transit Co., 75 S.W.3d 107, 110 (Tex. App.-San Antonio 2002, no pet.). To obtain a new trial on the ground of juror misconduct, the movant must establish that: (1) the misconduct occurred; (2) it was material; and (3) it probably caused injury. Tex. R. Civ. P. 327(a); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). To demonstrate probable injury, "there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he `would otherwise have done on one or more issues vital to the judgment.'" Pharo v. Chambers County, Tex., 922 S.W.2d 945, 950 (Tex. 1996). "Whether misconduct occurred and caused injury is a question of fact for the trial court." Golden Eagle Archery, 24 S.W.3d at 372.
We note that before Golden Eagle Archery v. Jackson the issue of whether misconduct caused injury was considered a question of law. See Pharo, 922 S.W.2d at 950 ("Determining the existence of probable injury is a question of law.").
Presiding Juror Kendra Dinsmore
One of the allegations of juror misconduct in this case is the assertion that presiding juror Kendra Dinsmore was untruthful in her responses during voir dire, concealing her bias against non-economic damages. During voir dire, Fitz questioned the jury panel members about their individual attitudes toward the award of non-economic damages. Fitz asked, among other questions, whether they believed in non-economic damages and could assess such damages in this instance.
The relevant excerpt from voir dire in this case is as follows: "The other thing you're going to have to do, we think that the Judge will ask you to do at the end of trial besides assessing fault by percentage is to determine the fair and reasonable compensation for [Fitz's] injuries. And the elements that you look at in general are the economic damages . . . [a]nd . . . non-economic damages . . . Do any of you feel like you really can't do that, or don't feel that you believe in that system and really don't think you could assess damages like that for — and particularly I'm asking you about non-economic damages."
Juror Dinsmore did not identify herself as having any reservations about non-economic damages. However, immediately after trial, Dinsmore revealed to Fitz's attorney that she did not believe in non-economic damages. At the evidentiary hearing on Fitz's motion for new trial, juror Dinsmore confirmed Fitz's assertion. Juror Dinsmore testified that "as a member of the military, I generally felt that non-economic damages — generally I don't believe in them because I wouldn't be entitled to them as a member of the military."
The non-economic damage question asked by Fitz during voir dire was a specific and direct question calling for disclosure. Juror Dinsmore failed to respond to Fitz's question even though she knew she did not personally believe in awarding such damages. Thus, we believe juror Dinsmore's failure to disclose her bias during voir dire was improper.
The determination of the materiality prong in the instant case is not difficult. Juror Dinsmore's failure to respond to specific voir dire questions that pertained to her is material to the case. The fact that a juror in a negligence case concealed her bias against the award of non-economic damages when such damages would likely be at issue is arguably material to the parties' jury selection process.
Turning to the final prong of our analysis, we must determine whether the record demonstrates that injury probably resulted from juror Dinsmore's misconduct. Fitz argues he was injured by Dinsmore's misconduct because the jury's verdict would have been higher had she not been on the jury, citing White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947). In White Cabs, the plaintiff sued White Cabs for the injuries he suffered during a collision with a taxicab owned by the company. 203 S.W.2d at 200. During the jury's deliberations, the jurors discussed what percentage of the jury award would belong to the plaintiff's attorney. Id. at 201. The jury ultimately awarded the plaintiff $16,000 following this discussion. Id. The defendant filed a motion for new trial alleging juror misconduct, and the trial court held a hearing on the defendant's motion. Id.
At the motion for new trial hearing, all of the jurors testified that the issue of attorney's fees was discussed. Id. at 202. They stated that the discussion occurred after five jurors had voted to award $20,000 to the plaintiff, one for $17,500, and five for $15,000. Id. The trial court denied the defendant's motion because it determined no injury probably resulted from the jury discussing the attorney's fees issue. Id. at 201.
After the court of appeals affirmed the trial court's judgment, the supreme court reversed. Id. at 203. The court reasoned that:
We do not know that the five jurors who had voted for $15,000 were in fact induced by the discussion of attorney's fees to agree to a verdict of $16,000, for we cannot know what their mental processes were. But we believe that the reasonable conclusion from the testimony of the jurors and from the entire record is that they were probably induced by that discussion to agree to the answer that was made. The five jurors voted on the first ballot for $15,000. After that the misconduct occurred. It was material and of such nature that it was calculated to induce agreement to a greater amount. After the misconduct occurred the greater amount, $16,000, was agreed to by all of the jurors.
Id. at 202.
The instant case, however, is distinguishable from White Cabs because the record does not reveal evidence of probable injury. Unlike the record in White Cabs, the record in the case at bar does not indicate that the perceptions of the other jurors were likely colored by the biased juror. It does not appear from the record that Dinsmore ever revealed her bias to any of the other jurors. Additionally, Dinsmore voted in favor of awarding non-economic damages. If any inference was to be drawn from such fact by the other jurors, it is the inference that Dinsmore was open minded regarding non-economic damages. Thus, the reasonable conclusion from the record is that Dinsmore's bias did not affect the other jurors.
Fitz contends "[i]t is not a leap to say that a person who does not believe in damages for pain and mental anguish will vote for a lower amount than one who agrees with the law allowing such damages." Unfortunately, with the record presented, we can only speculate as to whether Dinsmore was influenced by her own bias when it came to calculating Fitz's damages, for this would require delving into Dinsmore's thought processes during deliberations. Because we cannot manufacture injury by supposition or conjecture, we hold the record does not support Fitz's contention that he was injured as a result of Dinsmore's misconduct. Accordingly, Fitz's first appellate issue is overruled. Juror Debra Pohl
Fitz also argues the fact that the jury awarded only $1.2 million for his medical expenses when expert testimony showed his medical expenses would be $2.2 million demonstrates juror Dinsmore's misconduct probably caused injury. We find this argument unpersuasive because the jury may have awarded him less money for future medical expenses because his expert's testimony was internally inconsistent on this issue. On cross-examination, Fitz's expert testified Fitz has been able to care for his own needs without any assistance from any attendant care service provider since his accident. Thus, the jury may have based its decision to award Fitz a lesser award because it concluded Fitz did not need all of the future medical care his expert alleged he would need.
The remaining allegation of juror misconduct is the assertion that juror Debra Pohl improperly viewed and investigated the accident scene during trial despite the court's instructions to the contrary. Fitz attached an affidavit to his motion for new trial from juror Ralph Morrow regarding an incident concerning juror Pohl after deliberations were completed. According to juror Morrow, juror Pohl revealed she had "gone to the accident scene in question . . . during the trial" and "had sat across the street and watched the driveway in question for awhile." SAHI filed a response to Fitz's motion and attached an affidavit from juror Pohl stating:
During the jury selection process in the above-referenced case, the attorneys asked whether or not anyone was familiar with the subject hotel. I advised the attorneys that I was familiar with the hotel since my parents lived less than 1/4 mile away and I advised the attorneys that I drive past the hotel. At no time during the above-referenced case did I visit the scene of the accident solely for the purpose of observing the driveway or making other factual observations . . . At no time during the trial did I sit across the street from the hotel and specifically watch the driveway in question as alleged in the affidavit of Ralph Morrow.
Both jurors Morrow and Pohl confirmed the statements made in their affidavits at the motion for new trial hearing.
It is evident that the trial court was presented with conflicting evidence about whether juror Pohl acted improperly. When a court is presented with conflicting evidence on the issue of whether juror misconduct occurred, we must defer to the trial court's finding on the issue. See Pharo, 922 S.W.2d at 948 ("We have held that determining whether jury misconduct occurred is a question of fact for the trial court, and if there is conflicting evidence on this issue the trial court's finding must be upheld on appeal."). Because the evidence before the court was conflicting, we cannot say the trial court erred by implicitly finding that juror Pohl did not act improperly. See id. Fitz's second issue is therefore overruled.
Trial Court's Evidentiary Rulings
Fitz's third and fourth issues concern the trial court's evidentiary rulings. First, Fitz complains that the trial court erroneously admitted evidence concerning his alcohol consumption in the months before his accident. Second, Fitz complains that the trial court erroneously excluded a video recording of a tractor-trailer, similar to the one that ran over him, turning into the parking lot of the Days Inn Hotel Southeast sometime after his accident.
We apply an abuse of discretion standard to the question of whether a trial court erred in an evidentiary ruling. Owens Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. We must uphold the trial court's evidentiary ruling if there is any legitimate basis for its ruling. Id. If the evidentiary ruling is erroneous, we will not reverse the ruling unless the error probably caused the rendition of an improper judgment. Id. Generally, a complaining party must demonstrate that the judgment turns on the particular evidence excluded or admitted to succeed on a challenge to a trial court's evidentiary ruling. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
Alcohol Evidence
Fitz claims the trial court erred by admitting evidence concerning his alcohol consumption in the months leading to his accident. According to Fitz, his drinking is irrelevant and prejudicial to his case because it is undisputed that he was not intoxicated at the time of the accident. Because alcohol played no causative role in the accident, Fitz argues the admission of the alcohol evidence prejudiced him in the minds of the jury so that it "probably kept the award of damages below the settlement amount of $2.75 million."
Texas Rule of Evidence 402 provides, "[a]ll relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible." Tex. R. Evid. 402. Here, evidence of Fitz's alcohol consumption bears directly upon the degree of pain and anguish suffered by Fitz as a result of the accident. According to Fitz's expert on pain management, Dr. James Rogers, a person's use of alcohol would be important to pain management because of its exacerbating effect and bearing on treatment methodology. Thus, Fitz's alcohol consumption is relevant to the issue of damages.
We must now determine whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to Fitz. See Tex. R. Evid. 403. ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."). Although evidence concerning Fitz's consumption of alcohol could possibly portray him in a negative light in the eyes of some jurors, we believe the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice in this instance. The alcohol evidence is highly probative in that it relates to the fair and reasonable compensation for the mental anguish experienced by Fitz as a result of the accident. As previously noted, Fitz's pain management expert testified that knowledge of Fitz's alcohol consumption would have been important to him since it could have given him "an idea of other problems that may be exacerbating [his] pain." Because there is a legitimate basis for the trial court's ruling and the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice, we cannot say the trial court erred by admitting the alcohol evidence. Fitz's third issue is therefore overruled.
Tractor-Trailer Video
Fitz also claims the trial court should have admitted a video recording of a tractor-trailer, similar to the one that ran over him, driving over the sidewalk as it turned into the parking lot of the Days Inn Hotel Southeast. Fitz notes multiple purposes of the videotape: (1) to establish SAHI knew or should have known of the dangerous condition; (2) to establish that the Days Inn's driveway is dangerous; (3) to establish that a tractor-trailer traveling at a normal speed is physically unable to turn into the driveway without creating a dangerous situation; (4) to establish the narrowness of the driveway substantially contributed to the accident; (5) to establish the driveway should be wider; (6) to establish large trucks regularly drove over the sidewalk to turn into the driveway of the hotel; and (7) to establish that "SAHI's proprietor . . . was not truthful when he denied under oath ever having seen or heard a truck clanging over the curb" of the hotel. We note that all of these purposes relate to the issue of whether SAHI was liable for the accident. Given the fact that the jury found SAHI ten percent negligent even though it never saw the video in question, it is clear that Fitz did not need the video in order to prove SAHI was negligent.
Fitz cites two additional purposes of the video: (1) to establish that the "offtracking of a car hauling trailer pulling into the driveway . . . might be so sudden as to make it impossible for a pedestrian in Mr. Fitz's position to jump out of its path"; and (2) to establish that the violence of Fitz's impact with the tractor-trailer justified an award of substantial pain and suffering damages. With respect to the first of these contentions, Fitz provides no argument or analysis in his brief regarding this contention. By not providing any substantive analysis to support his contention, he has presented nothing for us to review. See Tex.R.App.P. 38.1(h) (requiring a brief to "contain a clear and concise argument or the contentions made, with appropriate citations to authorities and to the record."). With respect to Fitz's remaining contention, the jury viewed an actual security camera video of Fitz's accident; thus, the jury had other evidence before it from which to determine the violence associated with the accident. See Interstate Northborough P'ship, 66 S.W.3d at 220 (recognizing an appellate court will not reverse a judgment for erroneous evidentiary rulings when the evidence in question is cumulative and not controlling on a material issue to the case.). We therefore hold the trial court's exclusion of the tractor-trailer video did not cause the rendition of an improper judgment. Fitz's fourth issue is overruled.
Future Medical Expenses
Fitz's final issue challenges, as being against the great weight and preponderance of the evidence, the jury's award of $1.2 million for future medical expenses. Fitz contends that the jury's award of $1.2 million for future medical expenses is too low. In addressing this issue, we must assess all the evidence and reverse for a new trial only if the finding of $1.2 million in damages is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 548 (Tex. App.-San Antonio 1994, no writ). "[I]n considering great weight [issues] complaining of a jury's failure to find a fact [or failure to find damages], courts of appeals should be mindful that a jury was not convinced by a preponderance of the evidence." Id. (citing Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988)). We must also bear in mind that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. A jury may choose to be guided by expert testimony on future medical damages, but it is not bound by it. Id. at 550.
In this case, the jury heard Fitz's expert testify that Fitz would require attendant care services for his daily care in excess of $1.1 million over his lifetime. This figure included the cost of a certified nurse's aid visiting Fitz every day for the next fifteen years at a cost of $317,550. It also included visits from a certified nurse's aid beginning at age 65 at a cost of $799,968. Consequently, Fitz contends that the jury should have awarded him an additional $1.1 million in future medical expenses to compensate him for the future cost of attendant care services.
This accounted for approximately 49% of the total future medical expenses Fitz claimed as damages.
The jury, however, was not bound by Fitz's expert's opinion concerning Fitz's need for future medical care. See id. The jury was free to be guided by the expert testimony provided on this issue if it so chose, but it decided not to be. Notably, Fitz's expert's testimony was internally inconsistent regarding Fitz's need for attendant care. On cross-examination, Fitz's expert testified that since the accident, Fitz has been able to care for his own needs without any assistance. The jury may have attached significance to this fact and rendered its verdict accordingly. It is not our place to substitute our judgment for that of the jury; therefore, we cannot conclude the jury's failure to make the requested award for future medical costs is so against the great weight and preponderance of the evidence as to be manifestly unjust. Fitz's fifth issue is overruled.
Conclusion
Having overruled all of Fitz's appellate issues, the judgment of the trial court is affirmed.