Opinion
06-20-00001-CV
07-22-2020
KIMBERLY FREEMAN, INDIVIDUALLY AND AS NEXT FRIEND OF H.H., A MINOR CHILD, Appellant v. GERRI SUE THOMAS, Appellee
On Appeal from the 402nd District Court Wood County, Texas
Trial Court No. 2016-712 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Kimberly Freeman, individually and as next friend of H.H., a minor child (Appellant), sued Gerri Sue Thomas for negligence causing injuries in a motor vehicle accident. Thomas stipulated to liability, leaving damages as the only contested issue at trial. Appellant submitted affidavits concerning the cost and necessity of medical expenses pursuant to Section 18.001 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001 (Supp.). Because Thomas failed to file controverting affidavits, Appellant objected to certain closing arguments by Thomas that challenged their medical expenses. After the trial court sustained Appellant' objections, a Wood County jury awarded Freeman $5,000.00 for her past medical expenses and $7,500.00 for H.H.'s past medical expenses. The jury also awarded $1,000.00 for H. H.'s future medical care and $2,500.00 for H.H.'s past physical pain and suffering. Because the amount awarded by the jury was less than the amount Appellant sought at trial, Appellant appealed.
In a single point of error on appeal, Appellant argues that the trial court erred in denying her motion for new trial based on Thomas's closing argument. Thomas argues that Appellant did not preserve her jury argument complaint. We agree. As a result, we affirm the trial court's judgment.
I. Factual Background
Appellant moved to exclude evidence and argument that the medical bills she submitted were not reasonable or necessary. At a pretrial hearing on this motion, Thomas presented the trial court with an opinion from the Tyler Court of Appeals that stated,
[A] medical provider's Section 18.001 affidavit can save the plaintiffs the expense of having to hire an expert to testify that their medical expenses were reasonable and necessary. See Turner v. Peril, 50 S.W.3d 742, 747 (Tex. App.—Dallas 2001, pet. denied) . . . .In re Brown, No. 12-18-00295-CV, 2019 WL 1032458, at *2 (Tex. App.—Tyler Mar. 5, 2019, orig. proceeding) (mem. op).
The Tyler court continued,
A defendant who does not file a counteraffidavit may make arguments contesting the plaintiff's affidavits during opening statements and closing arguments. Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *12 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op., not designated for publication); Ten Hagen [Excavating, Inc. v. Castro-Lopez], 503 S.W.3d [463], 494 [(Tex. App.—Dallas 2016, pet. denied)]. Furthermore, a defendant may cross-examine a plaintiff about his injuries and prior medical conditions, and introduce the corresponding medical records, because a plaintiff's Section 18.001 affidavit does not establish "conclusive evidence of the reasonableness or necessity of the charges or the causation of the corresponding injuries." Grove v. Overby, No. 03-03-00700-CV, 2004 WL 1686326, at *6 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.); Ten Hagen, 503 S.W.3d at 494. These limited avenues still available to a party who has a counter-affidavit struck are a far cry from the rights and protections afforded a party who has filed a proper counter-affidavit.Brown, 2019 WL 1032458, at *5. Relying on this case, the trial court ruled, "All right. You're going to be able to argue . . . without using any specific numbers or speculative numbers."
On appeal, Appellant first objected to the following portion of Thomas's closing argument at trial:
[BY THOMAS]: . . . . Turning to the medical bills, we've all seen medical bills before. We've all seen that there's a top number, the charges, and there's a bottom number, the number that actually gets --
[BY APPELLANT]: Your Honor, I'm going to object. This is a limine issue, and we're getting into payers, health insurance, all kinds of things.
[BY THOMAS]: Judge, I've said no such thing. I'm telling something that they already know, that there's a top number, and then there's a number that actually gets paid.Later in the argument, Thomas referred the jury to a $1,684.00 bill for Freeman's treatment in the emergency room and compared it to the $1,146.00 bill sent to Johnny Edward Trammell, another plaintiff in the case who is not a party to this appeal, "who [was] treated at the exact same hospital on the exact same day for the exact same car accident with the exact same ER physician group." Thomas informed the jury that Trammell only paid $118.40 out-of-pocket for the $1,146.00 and made the following argument about Freeman's bill, leading to other sustained objections:
[BY APPELLANT]: He's trying to imply that the bills are not owed, and they are.
THE COURT: Sustained.
[BY THOMAS]: I've done the math on this, roughly, and the amount that was paid was a little more than 10 percent of the amount billed, so I say, for the ER doctors, give them 200 bucks for their $1,600.
[BY APPELLANT]: Your Honor, I'm going to object. This is improper jury argument. He's getting -- he's challenging reasonableness and necessity without experts again . . . He can't do it for [Freeman's] bill, and [Trammell] was in bankruptcy.
[BY THOMAS]: Judge, these are two affidavits that he put into evidence. I -- I don't know why I can't point out the differences in the two of them, especially since he put these into evidence. . . . [Trammell] was in Chapter 13 bankruptcy two years after this accident occurred.
THE COURT: I'll sustain the objection. Let's move along.
[BY THOMAS]: And just to point out, Judge, this affidavit was made in 2015.
THE COURT: I'll sustain the objection. Move along. . . .
[BY THOMAS]: . . . . And I think, if you give [Trammell] his chiropractic -- some of his chiropractic bills, as well, at a reasonable rate, I think you put $6,500 in that. $6,500 medical care expenses in the past. That's a reasonable amount of money. That's what those doctors would expect to get paid for that, and it doesn't leave him holding the bag.
Because the reality is -- and nobody tells you this except me -- everyone in this room has to accept your decision. I have to accept it. Plaintiffs' counsel has to accept it. They have to accept it. The Judge has to accept it. And the doctors have to accept -
[BY APPELLANT]: I'm going to object. The doctors are not a party to the case. They do not have to accept whatever happens.
[BY THOMAS]: The doctors can't change whatever it is that you tell them is reasonable.
[BY APPELLANT]: They can't change it, but they -- they can go after the Plaintiffs all they want. That's not true.
THE COURT: Counsel, you're flirting with disaster. Move along.
Without objection, Thomas argued that the jury should award Freeman $5,000.00 for past medical expenses and nothing for future medical treatment, past and future pain and suffering, mental anguish, or physical impairment. Thomas also argued, without objection, that H.H. should receive only $7,500.00 for past medical bills and up to $1,000.00 for past pain and suffering.
After the trial court entered judgment on the jury verdict, Appellant filed a motion for new trial on the ground that Thomas's closing argument had failed to comply with the trial court's pretrial ruling. The trial court overruled the motion for new trial.
II. The Jury Argument Complaint Is Unpreserved
"Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled." Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). This is because [a] party is "required to obtain an adverse ruling on their objection to preserve error for review." Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 896-97 (Tex. App.—Texarkana 2004, pet. denied) (citing TEX. R. APP. P. 33.1(a)(2)); see In re A.D.K., No. 06-19-00019-CV, 2019 WL 2607599, at *7 (Tex. App.—Texarkana June 26, 2019, pet. denied) (mem. op). As a result, a party cannot complain at trial when a court affords all relief requested by that party. Thus, with respect to the complaints sustained by the trial court, Appellant received all relief requested and cannot complain of the trial court's inaction in providing further relief.
Also, in addition to making a timely overruled objection, the complaining party must also "request . . . an instruction that the jury disregard the improper remark." Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009) (citing TEX. R. APP. P. 33.1; Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-41 (Tex. 1979)); see Wal-Mart Stores Tex., LLC v. Bishop, 553 S.W.3d 648, 676 (Tex. App.—Dallas 2018, pet. dism'd by agreement). "[R]etraction of the argument or instruction from the court can [typically] cure any probable harm." Peñalver, 256 S.W.3d at 680. Here, it is undisputed that Appellant did not request an instruction for the jury to disregard any remark made during closing argument.
Nevertheless, Appellant argues that all of their jury argument complaints are preserved because "[a] complaint of incurable argument may be asserted and preserved in a motion for new trial, even without a complaint and ruling during the trial." Phillips, 288 S.W.3d at 883 (citing TEX. R. CIV. P. 324(b)(5)). Because we do not find that Thomas made an incurable argument, we disagree.
"Incurable jury argument is rare . . . because '[t]ypically, retraction of the argument or instruction from the court can cure any probable harm . . . ."' Id. (quoting Peñalver, 256 S.W.3d at 680). "[I]ncurable argument is that which strikes at the very core of the judicial process." Phillips, 288 S.W.3d at 883. "The test is . . . whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict." Peñalver, 256 S.W.3d at 681. Incurable argument "strikes at the appearance of and the actual impartiality, equality, and fairness of justice rendered by courts" and is harmful "not only because of its harm to the litigants involved, but also because of its capacity to damage the judicial system." Id. "Examples of incurable improper jury arguments can include appeals to racial prejudice, unsupported accusations of witness tampering by the opposing party, and unsupported, extreme, and personal attacks on opposing parties and witnesses." PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied) (citing Peñalver, 256 S.W.3d at 681; Cottman Transmission Sys., L.L.C. v. FVLR Enters., L.L.C., 295 S.W.3d 372, 380 (Tex. App.—Dallas 2009, pet. denied) (recognizing that incurable argument can include unsupported charges of perjury and the use of inflammatory epithets such as "liar" and "cheat")).
Here, the jury was instructed to "[b]ase [its] answers only on the evidence admitted in court and on the law that [was] in the[] instructions and questions" and not to "consider or discuss any evidence that was not admitted in the courtroom." An instruction that Thomas's closing argument was not evidence or an instruction to disregard objectionable portions of Thomas's closing argument would have cured the harm from any improper argument. Accordingly, Thomas's argument was not "so inflammatory and prejudicial that its harmfulness could not be eliminated by an instruction to the jury to disregard it." Bishop, 553 S.W.3d at 676. As a result, we conclude that Thomas's jury arguments do not fit into the categories of "rare instances of incurable" argument. Reese, 584 S.W.2d at 839; see Bishop, 553 S.W.3d at 675, 678 (finding that an improper jury argument "as to the reason Walmart did not present evidence on the reasonableness and necessity of Bishop's past medical expenses" was not incurable, in part, because the probability that the improper argument caused harm was not greater than the probability that the verdict was grounded on the proper proceedings and evidence since "[t]he jury is not required to award a plaintiff the amount of damages established in the affidavit[s]").
Since any harm from Thomas's argument was not incurable, Appellant was required to properly preserve her jury complaints by making timely objections, securing adverse rulings, and requesting instructions to disregard improper arguments. Because Appellant failed to do so, her sole complaint on appeal was unpreserved.
Citing Austin v. Weems, Appellant argues that the trial court's ruling on her motion to exclude preserved her jury argument complaint because the ruling on her "motion to exclude, in effect, accomplishe[d] the same thing as a running objection: it eliminate[d] the need to repeat the objection each time evidence [was] admitted on a topic." Austin v. Weems, 337 S.W.3d 415, 422 (Tex. App.—Houston [1st Dist.] 2011, no pet.). This argument, which is rooted in Rule 103 of the Texas Rules of Evidence, fails because Appellant is not complaining about the admission of evidence. See TEX. R. EVID. 103. Instead, the trial court's ruling that Thomas could not use "speculative numbers" during argument only established that such argument would be found improper on timely objection. Therefore, Appellant was required to adhere to error preservation rules governing jury argument.
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: July 21, 2020
Date Decided: July 22, 2020