Opinion
No. 04-03-00472-CV
Delivered and Filed: May 26, 2004.
Appeal from the 407th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-17892, Honorable Karen H. Pozza, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Bernard A. McGaffigan and Florence E. McGaffigan, as guardians of Stephen McGaffigan, appeal the trial court's denial of their motion for new trial. We affirm the judgment of the trial court.
Background
On March 2, 2000, Stephen McGaffigan was a passenger in a van traveling northbound on Broadway. The van was struck from behind by a vehicle operated by Dima Mora, Jr., and owned by M.D. Electrical Contractors, Inc., Mora's employer.
On behalf of Stephen, his parents, Bernard and Florence McGaffigan, brought suit against Mora and M.D. Electrical for negligence. The McGaffigans then moved for partial summary judgment, claiming that Mora and M.D. Electrical are collaterally estopped from denying liability for negligence because Mora's liability was established in the judgment of Gladys Egar v. Dimar Mora, Jr., and M.D. Electrical Contractors, Inc. (a lawsuit by another passenger in the van Stephen was riding in when the accident occurred). The trial court granted the motion. Thus, the only issue remaining at trial was the issue of damages.
At trial, the McGaffigans introduced the deposition testimony of Dr. Dennis Gutzman, who testified to injuries that Stephen sustained as a result of the accident. According to Gutzman, the accident caused Stephen to tear the rotator cuff in his right shoulder. To rebut this testimony, Mora offered the testimony of Dr. William Blair. Blair testified that, in his opinion, the accident did not cause Stephen's torn rotator cuff.
The McGaffigans also called Gladys Egar as a witness. Egar testified as follows:
Q: And Ms. Egar, were you involved in an automobile collision on March 2nd of 2000?
A: Yes.
Q: Okay. And did you talk to — and what kind of vehicle were you in?
A: I was in the Star Shuttle van.
Q: And do you remember what kind of vehicle hit you?
A: It was a truck.
Q: Okay. And did you talk to the driver of that truck?
A: No, I didn't.
Q: Okay. Were you injured in that collision?
DEFENSE COUNSEL: Objection, Your Honor.
A: Yes, I was.
PLAINTIFFS' COUNSEL: Your Honor, Mr. Mora opened the door yesterday when he said he talked to her and she was fine.
DEFENSE COUNSEL: Objection, Your Honor. May we approach? That's a mischaracterization of his testimony.
(On-the-record bench conference.)
PLAINTIFFS' COUNSEL: Your Honor, yesterday when I —
THE COURT: I'm going to overrule that one objection, but to go into any other detail is not necessary and irrelevant.
PLAINTIFFS' COUNSEL: Okay, so —
THE COURT: With regard to any injuries she claims that she suffered.
PLAINTIFFS' COUNSEL: Can I just for impeachment, say that she wasn't fine?
THE COURT: Huh?
PLAINTIFFS' COUNSEL: He said she was fine, Your Honor.
DEFENSE COUNSEL: He didn't.
THE COURT: Well, you already — she already said that.
PLAINTIFFS' COUNSEL: No, she didn't say that she was fine.
THE COURT: She just said she was injured.
PLAINTIFFS' COUNSEL: Okay.
THE COURT: You can ask her the question again. You can ask her the question again for clarification.
PLAINTIFFS' COUNSEL: Okay.
(Bench conference ended.)
Q: Ms. Egar, were you injured in that collision?
A: Yes, I was.
Q: Thank you.
A: My right shoulder —
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Anything else?
PLAINTIFFS' COUNSEL: No, Your Honor.
The jury awarded the McGaffigans $6,000 for past medical care, $5,000 for past physicial pain and mental anguish, and $1,750 for past physical impairment. The trial court rendered judgment in conformity with the verdict. The McGaffigans filed a motion for new trial. The trial court denied the motion.
Motion for New Trial
On appeal, the McGaffigans argue that the trial court erred in denying their motion for new trial. According to the McGaffigans, the trial court's refusal to allow Egar to testify about her shoulder injury probably caused the rendition of an improper judgment.
To obtain a reversal based on the erroneous exclusion of evidence, an appellant must show (1) that the trial court committed error and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. McGraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).
Here, because the McGaffigans' lawyer voluntarily concluded his examination of Egar, it is not clear whether the trial court in fact excluded any evidence. Additionally, because the McGaffigans failed to make an offer of proof or bill of exception, it is not clear that they preserved error for appeal. See Tex. R. Evid. 103; see also Tex.R.App.P. 33.2. We need not decide these issues, however, because even if the trial court excluded evidence and the McGaffigans preserved error for appeal, exclusion of this evidence was not error.
The McGaffigans first argue that the trial court erred in refusing to allow Egar to testify about her shoulder injury because it is relevant. According to the McGaffigans, testimony that Egar sustained a shoulder injury as a result of the accident is relevant to the issue of whether Stephen sustained a shoulder injury as a result of the accident. Such testimony, the McGaffigans contend, also rebuts Blair's testimony that the accident did not cause Stephen's shoulder injury.
We disagree. The fact that Egar may have suffered a shoulder injury as a result of the accident does not tend to make the McGaffigans' allegation that Stephen suffered a shoulder injury as a result of the accident more or less probable than it would be without the evidence. Accordingly, such testimony is irrelevant. See Tex. R. Evid. 401 (defining "relevant evidence").
The McGaffigans also argue that Egar's testimony was improperly excluded because Mora "opened the door" to this type of testimony by testifying that, after the accident, Egar told him she was fine. Here, however, the trial court allowed Egar to testify that she was injured as a result of the accident. Accordingly, the McGaffigans were allowed to rebut Mora's testimony.
Because this testimony is irrelevant, and because its exclusion did not preclude the McGaffigans from rebutting evidence that Egar was not injured, the trial court did not err in excluding this testimony. Accordingly, we hold that the trial court did not err in denying the McGaffigans' motion for new trial. We overrule this issue on appeal.
Conclusion
We affirm the judgment of the trial court.