i i i i i i
OPINION
No. 04-08-00090-CV
Eliazar RUIZ and G.E.M. Materials, Inc.,
Appellants
v.
Henrietta S. GUERRA, Individually and as Representative of the Estate of Daniel Guerra, Jr.,
Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra,
Appellees
Henrietta S. Guerra, Individually and as Representative of the Estate of Daniel Guerra, Jr.,
Deceased, and Brandi N. Guerra, Jonathan S. Guerra, and Christopher E. Guerra,
Cross-Appellants
v.
Sterling Truck Corporation,
Cross-Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-18420
Honorable Andy Mireles, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: May 27, 2009
04-08-00090-CV
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
In this personal injury and wrongful death case, Eliazar Ruiz and G.E.M. Materials, Inc.
appeal the trial court’s judgment in favor of Henrietta S. Guerra, individually and as representative
of the Estate of Daniel Guerra, Jr., deceased, and Brandi N. Guerra, Jonathan S. Guerra, and
Christopher E. Guerra (hereinafter, “the Guerra family”). In a cross-appeal, the Guerra family
challenges the assessment of court costs. We affirm the judgment of the trial court in part, and
reverse and render in part.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of December 9, 2004, Eliazar Ruiz, an employee of G.E.M. Materials, was
driving a dump truck filled with sand in the right-hand lane of IH-35 South. At the same time,
Daniel Guerra, Jr. was driving an HEB Grocery Company eighteen-wheeler tractor-trailer in the
center lane. The two trucks collided and veered sharply to the right, leaving the highway, crossing
the access road, and crashing first into a car traveling on the access road and then into a concrete
retaining wall. Madeline and Joseph Yorfino, passengers in the car, were pinned inside their car,
upside down, between the trucks and the retaining wall. The HEB truck caught fire. Both the HEB
driver, Daniel Guerra, Jr., and one passenger in the car, Joseph Yorfino, died at the scene of the
accident. Madeline Yorfino and the G.E.M. driver, Eliazar Ruiz, were taken to the hospital for
treatment of their injuries.
Madeline Yorfino, individually and as personal representative of the Estate of Joseph R.
Yorfino, Sr., deceased, Joseph R. Yorfino, Jr., individually, and Stella Duffy, individually
(“the Yorfino family”) and Ruiz originally filed suit against HEB and the Estate of Daniel Guerra,
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Jr.1 On May 10, 2006, HEB filed a motion for leave to designate two entities as responsible third
parties: (1) Alamo City Truck Service, Inc. (“Alamo City”), a maintenance company, and (2) Sterling
Truck Corporation (“Sterling”), the manufacturer of the HEB truck; the motion was granted by the
trial court in a written order dated June 1, 2006. HEB also filed a First Amended Answer, alleging
that Ruiz’s negligence caused the fatal accident. On May 23, 2006 and June 7, 2006, the Yorfino
family and Ruiz sued Alamo City and Sterling. Thereafter, on October 2, 2006, the Guerra family
filed a plea in intervention, asserting claims against Alamo City and Sterling. On December 8, 2006,
the day before the two-year statute of limitations ran, the Yorfino family amended their pleadings,
cross-claiming against Ruiz and filing suit against G.E.M., alleging that Ruiz and G.E.M. were
negligent and responsible for the accident. The Guerra family filed a First Amended Petition in
Intervention on February 2, 2007, more than two years after the accident, bringing a cross-claim
against G.E.M. Three days later, the Guerra family filed their Third Amended Original Petition,
cross-claiming against Ruiz.
The case proceeded to trial in October 2007, with the Yorfino family2 and the Guerra family
as plaintiffs and Ruiz, G.E.M., and Sterling as defendants. Conflicting evidence was presented as
to the cause of the accident. Ruiz and three eyewitnesses testified that the HEB truck was to blame
for causing for the accident; however, an expert accident reconstructionist disagreed, and opined that
the accident occurred when the G.E.M. truck left its lane and hit the HEB truck. Additionally,
testimony was presented regarding the procedures that a motor vehicle carrier company must follow
1
… Initially, suit was filed by Ruiz against HEB. Thereafter, the Yorfino family filed a separate suit against
HEB and the Estate of Daniel Guerra, Jr. The Yorfino family later nonsuited Daniel Guerra, Jr.’s estate. Both cases
were consolidated on January 31, 2005.
2
… Prior to trial the Yorfino family settled with HEB.
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when hiring a driver. Following the close of evidence, Ruiz and G.E.M. moved for a directed verdict
based upon the expiration of limitations as to the individual wrongful death claims of Henrietta
Guerra, Christopher Guerra, and Jonathan Guerra; the trial court denied the motion. Subsequently,
the jury returned a verdict determining that Ruiz was negligent and that G.E.M. negligently entrusted
a vehicle to Ruiz. The jury apportioned 25% of the negligence to Ruiz and 75% to G.E.M. The
judgment also provided that the Yorfino family and the Guerra family take nothing against Sterling.
Ruiz and G.E.M. were ordered to pay court costs with respect to the claims asserted against them
by the Yorfino family and the Guerra family; the Guerra family was ordered to pay Sterling’s court
costs. Ruiz and G.E.M. timely appealed. Subsequent to filing the notice of appeal, Ruiz and G.E.M.
settled with the Yorfino family.
DIRECT APPEAL
On appeal, Ruiz and G.E.M. argue that the trial court erred in entering judgment in favor of
the Guerra family because: 1) the claims of Henrietta Guerra, Christopher Guerra, and Jonathan
Guerra are barred by limitations as a matter of law; 2) the evidence was legally and factually
insufficient to support the jury’s determinations that Ruiz’s negligence proximately caused the
accident; 3) the evidence was legally and factually insufficient to support the jury’s determinations
that G.E.M. negligently entrusted a vehicle to Ruiz and that such conduct caused the accident; and
4) evidence regarding a failed drug test taken by Ruiz two years before the accident should not have
been admitted. Ruiz and G.E.M. additionally claim the trial court erred in entering judgment in favor
of the Estate of Daniel Guerra, Jr. because the evidence was factually insufficient to support the
jury’s award and the amount of the award of damages for conscious physical and emotional pain
prior to death. Finally, they contend the trial court erred in entering judgment in favor of Henrietta
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Guerra because the evidence was legally and factually insufficient to support the jury’s award and
the amount of the award of damages for loss of inheritance.
Statute of Limitations
Initially, Ruiz and G.E.M. argue the trial court erred in entering judgment in favor of
Henrietta Guerra, Christopher Guerra, and Jonathan Guerra, because their individual wrongful death
claims were barred as a matter of law by the statute of limitations.3 A wrongful death claim is
governed by a two-year statute of limitations. TEX . CIV . PRAC. & REM . CODE ANN . § 16.003(b)
(Vernon Supp. 2008) (“A person must bring suit not later than two years after the day the cause of
action accrues in an action for injury resulting in death. The cause of action accrues on the death of
the injured person.”). Though the accident at issue occurred on December 9, 2004, the Guerra family
did not assert any claims against Ruiz or G.E.M. until February of 2007, when they filed a cross-
claim against G.E.M. on February 2, 2007 and also filed a cross-claim against Ruiz on February 5,
2007. The Guerra family responds that their claims against Ruiz and G.E.M. are “saved” by
pleadings Sterling filed which “effectively designated” Ruiz and G.E.M. as responsible third parties,
thereby allowing the Guerra family to avoid the limitations bar. In support of their argument, the
Guerra family directs us to section 33.004(e) of the Texas Civil Practice and Remedies Code (“the
Code”), which provides that a claimant may join a person who is designated as a responsible third
party within sixty days of the designation “even though such joinder would otherwise be barred by
limitations.” TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(e) (Vernon 2008). The statute of
limitations exception afforded by section 33.004(e), however, is not available unless the person
3
…Ruiz and G.E.M. acknowledge that the tolling provision of section 16.001 of the Texas Civil Practice &
Remedies Code renders the claims of Brandi Guerra, who was sixteen at the time of her father’s death, and the Estate
of Daniel Guerra, Jr. timely.
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whom the claimant seeks to join has been properly designated. See id. To determine whether
Sterling properly designated Ruiz and G.E.M. as responsible third parties, we begin by examining
the entire text of section 33.004.
“[I]t is cardinal law in Texas that a court construes a statute, first, by looking to the plain and
common meaning of the statute’s words.” Reed v. State, 269 S.W.3d 619, 624 (Tex. App.—San
Antonio 2008, no pet.) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,
865 (Tex. 1999) (internal quotation omitted)). When the statute’s text is clear and unambiguous, we
interpret the statute according to its plain meaning, see City of Rockwall v. Hughes, 246 S.W.3d 621,
625-26 (Tex. 2008), and we must adopt the interpretation supported by the statute’s plain language
unless that interpretation would lead to absurd results. Tex. Dep’t of Protective & Regulatory Servs.
v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We also construe the statute as a whole
and will not give one provision a meaning which is out of harmony or inconsistent with other
provisions. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002). We
presume that the Legislature intended a just and reasonable result by enacting the statute. TEX .
GOV ’T CODE ANN . § 311.021(3) (Vernon 2005).
Section 33.004 of the Code, titled “Designation of Responsible Third Party,” provides in
relevant part:
(a) A defendant may seek to designate a person as a responsible third party by filing
a motion for leave to designate that person as a responsible third party. The motion
must be filed on or before the 60th day before the trial date unless the court finds
good cause to allow the motion to be filed at a later date.
(b) Nothing in this section affects the third-party practice as previously recognized
in the rules and statutes of the state with regard to the assertion by a defendant of
rights to contribution or indemnity. Nothing in this section affects the filing of cross-
claims or counterclaims.
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...
(e) If a person is designated under this section as a responsible third party, a claimant
is not barred by limitations from seeking to join that person, even though such
joinder would otherwise be barred by limitations, if the claimant seeks to join that
person not later than 60 days after that person is designated as a responsible third
party.
(f) A court shall grant leave to designate the named person as a responsible third
party unless another party files an objection to the motion for leave on or before the
15th day after the date the motion is served.
...
(h) By granting a motion for leave to designate a person as a responsible third party,
the person named in the motion is designated as a responsible third party for purposes
of this chapter without further action by the court or any party.
TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(a), (b), (e), (f), (h) (Vernon 2008).
The Guerra family asks us to hold that under section 33.004(e) they are not barred by
limitations because pleadings filed by Sterling effectively designated both Ruiz and G.E.M. as
responsible third parties.4 The Guerra family directs us to Sterling’s February 15, 2007 pleading
entitled “First Amended Plea Against Capacity, Special Exceptions, and Original Answer to the
Third Amended Guerra Petition in Intervention,” which they claim effectively designated Ruiz and
G.E.M. as responsible third parties.5 The Guerra family further argues that because Ruiz and G.E.M.
filed no objection to Sterling’s pleading, “this designation and the corresponding statute-of-
limitations extension were automatic.” We respectfully disagree.
4
… W e look only to the pleadings filed by Sterling 60 or more days prior to trial as required by section
33.004(a). T E X . C IV . P R A C . & R EM . C O D E A N N . § 33.004(a) (“[t]he motion must be filed on or before the 60th day
before the trial date. . .”).
… The Guerra family argues that their cross-claims against G.E.M. and Ruiz (filed on February 2, 2007 and
5
February 5, 2007) became effective on the day of, but after, Sterling’s February 15, 2007 filing.
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Section 33.004(a) clearly requires that the defendant first file a motion for leave to designate
a person as a responsible third party. TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(a). “A
defendant may seek to designate a person as a responsible third party by filing a motion for leave
to designate that person as a responsible third party. The motion must be filed on or before the 60th
day before the trial date unless the court finds good cause to allow the motion to be filed at a later
date.” Id. (emphasis added); see also Sheffield v. Begeman, 274 S.W.3d 846, 850 (Tex.
App.—Eastland 2008, pet. filed) (holding that when third party’s identity is known, section
33.004(a) unambiguously requires defendant to file a timely motion for leave to designate
responsible third party). It is undisputed that Sterling did not file a motion for leave to designate
Ruiz and G.E.M. as responsible third parties as required by the statute.
The Guerra family contends, however, that the February 15, 2007 pleading filed by Sterling
“effectively” designated Ruiz and G.E.M. as responsible third parties. Although we question
whether a pleading can substitute for the motion required by section 33.004(a), we disagree that the
February 15, 2007 pleading “effectively designated” Ruiz and G.E.M. as responsible third parties.
The only reference to Ruiz and G.E.M. found in the February 15, 2007 pleading is listed under a
section entitled “Affirmative Defenses” and consists of a single sentence, which states as follows:
Sterling alleges that intervenors’ alleged damages were proximately caused by, or in
the alternative were solely proximately caused by, the acts, omissions, or fault of
Eliazar Ruiz, who was acting at the time within the course and scope of his
employment with G.E.M. Materials, Inc.
This language does not state that Sterling seeks to designate, or is designating, Ruiz and G.E.M. as
responsible third parties, nor does it reference section 33.004.6
… The Guerra family also contends that a pleading filed by Sterling on April 17, 2007, in which Sterling
6
sought contribution from HEB and G.E.M., likewise “effectively” designated G.E.M. as a responsible third party. Again,
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Moreover, other provisions of section 33.004 contemplate affirmative court action that was
wholly absent here. Subsection (f) states that, “A court shall grant leave to designate the named
person as a responsible third party unless another party files an objection to the motion for leave on
or before the 15th day after the date the motion is served.” TEX . CIV . PRAC. & REM . CODE ANN .
§ 33.004(f) (emphasis added)7. Section 33.004(h) further provides, “By granting a motion for leave
to designate a person as a responsible third party, the person named in the motion is designated as
a responsible third party for purposes of this chapter without further action by the court or any
party.” TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(h) (emphasis added).
Here, the record does not reflect that Sterling filed a motion for leave, or sought court action
to grant leave, to designate Ruiz and G.E.M. as responsible third parties. Further, no court order
reflecting that such leave was granted appears in the record before us. In order to invoke the
limitations exception provided in section 33.004(e), a person must be designated “under this section”
as a responsible third party. TEX . CIV . PRAC. & REM . CODE ANN . § 33.004(e). A plain reading of
the statute compels us to hold that such a designation cannot be achieved without both the timely
filing of a motion for leave and a court order granting leave to designate the named person.
In oral argument before this court, counsel for the Guerra family argued that the procedural
requirements contained in sections 33.004(a) and (f) are excused by section 33.004(b) when the
this pleading is devoid of any language putting G.E.M. on notice that Sterling is designating it as a responsible third
party, and the pleading wholly fails to mention section 33.004. Further, no motion for leave was filed, as required by
section 33.004(a). T EX . C IV . P RAC . & R EM . C O D E A N N . § 33.004(a).
7
… See also T EX . C IV . P RAC . & R EM . C O D E A N N . § 33.004(g) (“If an objection to the motion for leave is
timely filed, the court shall grant leave to designate the person as a responsible third party unless the objecting party
establishes: (1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy
the pleading requirement of the Texas Rules of Civil Procedure; and (2) after having been granted leave to replead, the
defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading
requirements of the Texas Rules of Civil Procedure.”).
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person being designated as a responsible third party is already a party to the suit. See TEX . CIV .
PRAC. & REM . CODE ANN . §§ 33.004(a), (b), (f). We disagree. No such exception is set forth within
the plain language of section 33.004(b), nor can it be found in a fair reading of the statute as a whole.
The designation of a responsible third party is governed by sections 33.004(a)-(l). Id. at
§§ 33.004(a)-(l). Section 33.004(b) merely reflects the legislative intent that “previously recognized”
third party practice, or the filing of cross-claims or counterclaims, is not affected by the requirements
for designating a responsible third party. Id. § 33.004(b).
Reading the statute in its entirety and according to its plain language, we conclude that a
defendant seeking to designate a responsible third party has the burden to both file a motion for leave
to designate a responsible third party and obtain the court’s favorable ruling on the motion. TEX .
CIV . PRAC. & REM . CODE ANN . § 33.004(a), (f). It is only upon the court’s granting of a motion for
leave to designate a person as a responsible third party that the designation becomes effective. TEX .
CIV . PRAC. & REM . CODE ANN . § 33.004(h) (“By granting a motion for leave to designate a person
as a responsible third party, the person named in the motion is designated as a responsible third
party. . .”) (emphasis added). Once a favorable ruling is obtained and a responsible third party is
designated, a claimant can join the newly designated responsible third party even though limitations
has expired, so long as joinder is accomplished within 60 days. TEX . CIV . PRAC. & REM . CODE ANN .
§ 33.004(e). Because the record before us contains neither a motion for leave to designate
Ruiz and G.E.M. as responsible third parties nor an order granting the motion, section 33.004(e) does
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not apply. 8 Accordingly, Henrietta Guerra, Christopher Guerra, and Jonathan Guerra cannot save
their claims against Ruiz and G.E.M. on that basis. Before fully disposing of this limitations issue,
however, we must address the Guerra family’s alternative arguments.
As an alternative response to the appellants’ assertions that their wrongful death claims are
barred by limitations, the Guerra family contends that Brandi, who was a minor at the time of the
accident, timely brought a wrongful death action not only for her own benefit, but also for the benefit
of her mother and two brothers. In support of their argument, the Guerra family directs us to their
“Fourth Amended Petition in Intervention” filed on March 16, 2007, in which they asserted that suit
was brought “both individually and on behalf of each other pursuant to section 71.004(b).” The
Guerra family contends that section 71.004 of the Code permits Brandi to bring “the action” for the
benefit of the entire family, even though the adults’ claims are time-barred. See TEX . CIV . PRAC. &
REM . CODE ANN . § 71.004(b) (Vernon 2008) (“The surviving spouse, children, and parents of the
deceased may bring the action or one or more of those individuals may bring the action for the
benefit of all.”) (emphasis added). We agree that because Brandi was a minor at the time of her
father’s death, the statute of limitations on her entitlement to bring a wrongful death claim was tolled
until she reached the age of 18. See TEX . CIV . PRAC. & REM . CODE ANN . § 16.001(a)(1), (b). We
disagree, however, that the tolling afforded by Brandi’s minority extends to her mother and brothers.
At common law, there existed no right to recover for the wrongful death of another person.
See In re Labatt Food Service, L.P., No. 07-0419, 2009 WL 353524, at *3 (Tex. Feb. 13, 2009) ( orig.
8
… In supplemental authority filed in this court, the Guerra family cites a recent El Paso opinion for the
proposition that a court order is not required to effectuate the designation of a responsible third party under section
33.004. See Moreno v. Palomino-Hernandez, 269 S.W .3d 236, 243 (Tex. App.— El Paso 2008, pet. filed). In
Moreno, however, the defendant did timely file a motion for leave to designate former co-defendant as a responsible
third party, which was granted by the trial court. Id.
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proceeding) (citing Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 (Tex. 1992)). The Wrongful
Death Act was enacted to create a cause of action allowing the surviving parents, children, and spouse
of a deceased tort victim to recover damages for their own losses from the victim’s death. TEX . CIV .
PRAC. & REM . CODE ANN . §§ 71.002-.004 (Vernon 2008); Labatt, 2009 WL 353524, at *3.
“[W]rongful death claimants have an individually owned statutory cause of action.” In re Golden
Peanut Co., LLC, 269 S.W.3d 302, 312 (Tex. App.—Eastland 2008, orig. proceeding [mand.
pending]); see In re McCoy, 373 F.Supp. 870, 875 (W.D. Tex. 1974) (wrongful death statute is
designed to compensate the statutory beneficiaries for their own losses resulting from the death of the
deceased). Because each plaintiff in a wrongful death action suffers a distinct, apportionable injury
due to a family member’s death, see Utts v. Short, 81 S.W.3d 822, 835 (Tex. 2002), each plaintiff
must prove his or her own entitlement to recover. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 71.010(b) (Vernon 2008) (“The damages awarded shall be divided, in shares as found by the jury
in its verdict, among the individuals who are entitled to recover and who are alive at that time.”).
With certain exceptions, a two-year limitations period applies to a wrongful death action.
TEX . CIV . PRAC. & REM . CODE ANN . §§ 16.003(b), 16.001(a)(1), (b); see, e.g., Enciso v. Chmielewski,
16 S.W.3d 858, 860 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Minors, such as Brandi,
receive the benefit of tolling of limitations for their cause of action until they reach the age of 18. See
TEX . CIV . PRAC. & REM . CODE ANN . § 16.001(a)(1), (b). The Guerra family would have us interpret
section 71.004 to extend the minor plaintiff’s tolling benefit to the other statutory beneficiaries. Case
law simply does not support their argument.
Case law illustrates that the limitations period must be calculated for each wrongful death
claimant, and some statutory beneficiaries may be barred while others receive the benefit of tolling.
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In Cox v. McDonnell-Douglas Corp., a widow and her three minor children brought a wrongful death
action eight years after the decedent’s death. Cox v. McDonnell-Douglas Corp., 665 F.2d 566, 567
(5th Cir. 1982). The Fifth Circuit determined that the children’s claims were not time-barred because
the action was filed prior to the expiration of the applicable limitations period. Id. at 573. The widow
argued that her claim was also timely because she was misled as to the cause of her husband’s death
and was thus entitled to the benefits of the “discovery rule” and the “fraudulent concealment”
doctrine. Id. Although the court ultimately did not resolve whether the widow’s claim was barred
by limitations, it noted that she was “not entitled to the benefit of the minority tolling provision.” Id.
Additionally, in Tex. Utilities Co. v. West, 59 S.W.2d 459, 460 (Tex. Civ. App.—Amarillo 1933, writ
ref’d), the decedent’s widow, acting for herself and on behalf of her two minor children, and the
decedent’s parents, brought wrongful death claims more than three years after the decedent was killed.
The defendant claimed that limitations barred all the plaintiffs’ claims; the trial court sustained the
defendant’s contention as to the individual claims of the surviving wife and parents of the decedent,
but held that limitations did not defeat the claims of the minor plaintiffs. Id. The Amarillo court of
appeals affirmed the trial court’s judgment, holding that although the wrongful death claims brought
by the surviving adults were barred by limitations, limitations did not defeat the claims of the
children. Id. at 461.
In addition, the statutory language itself does not support the Guerra family’s argument that
the tolling afforded by Brandi’s minority extends to her mother and brothers. Nothing within the
plain language of section 71.004(b) suggests that it is intended to extend limitations or create an
additional tolling exception for a wrongful death claimant. To the contrary, section 71.004(b) only
deals with a statutory beneficiary’s “standing” to bring a wrongful death action on behalf of the other
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statutory beneficiaries; it contains no reference to limitations. TEX . CIV . PRAC. & REM . CODE ANN .
§ 71.004(b). “The [Texas Wrongful Death Act] contemplates that only one suit shall be brought,
which shall be for the benefit of all parties entitled to recover.” See Avila v. St. Luke’s Lutheran
Hosp., 948 S.W.2d 841, 850 (Tex. App.—San Antonio 1997, writ denied) (requirement that all
beneficiaries be parties was enacted chiefly to protect the defendant from multiple suits arising out
of the same death). Accordingly, we agree that under section 71.004(b) any one statutory beneficiary
can initiate a wrongful death action on behalf of the other beneficiaries. However, nothing in the
statutory language of section 71.004 can be interpreted to resurrect a wrongful death claim that is
barred by limitations. The fact that one beneficiary has standing to bring a single suit on behalf of all
has no bearing on whether the statute of limitations bars the individual claims of other statutory
beneficiaries. See Utts, 81 S.W.3d at 844 (“each individual wrongful death beneficiary has the right
to recover damages proportionate to his or her injury”).
Here, at the time the Guerra family first pled a cause of action against Ruiz and G.E.M., the
claims of Brandi’s mother and brothers were clearly barred by limitations. While there is no dispute
that Brandi may proceed with her claim, there is no language in section 71.004, or otherwise in the
Code, which permits her to resurrect the time-barred claims of her mother and brothers. Thus, the
rights of Henrietta Guerra, Jonathan Guerra, and Christopher Guerra to recover against Ruiz and
G.E.M. cannot be saved on this basis.
Lastly, the Guerra family maintains that Ruiz and G.E.M. waived any potential limitations
defense in at least three ways. First, they did not plead limitations as an affirmative defense to Brandi
Guerra’s wrongful death claim as required by Rule 94 of the Texas Rules of Civil Procedure. See
TEX . R. CIV . P. 94. Second, Ruiz and G.E.M. failed to file a verified denial stating that Brandi lacked
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the capacity to bring a wrongful death claim for the “benefit of all” or could not recover in the
capacity in which she sued. See TEX . R. CIV . P. 93. Third, Ruiz and G.E.M. failed to specifically
deny the Guerra family’s allegation that “[a]ll conditions precedent to the filing of this cause . . . and
the entry of judgment against Defendants for the full amount prayed for have been met and/or have
occurred.” See TEX . R. CIV . P. 54.
We are not persuaded by these arguments. To begin with, Ruiz and G.E.M. did not challenge
Brandi’s wrongful death claim because they concede that her claim was timely filed under the tolling
provided by section 16.001. Similarly, Ruiz and G.E.M. did not challenge Brandi’s capacity to sue
because they acknowledge that she could bring suit pursuant to section 16.001. Further, we do not
agree that Rule 54 applies to the facts of this case. See TEX . R. CIV . P. 54. Ruiz and G.E.M. did
timely file an amended answer seventeen days prior to trial in which they asserted their limitations
defense to the claims of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra. See TEX . R. CIV .
P. 63 (amended pleadings must be filed at least 7 days before trial unless later filing is permitted by
leave of court). Accordingly, we do not agree that Ruiz and G.E.M. waived their limitations defense.
In summary, having rejected each of the Guerra family’s arguments, we hold that the claims
of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra against Ruiz and G.E.M. are barred
by the statute of limitations as a matter of law. Accordingly, the trial court erred in entering judgment
in favor of Henrietta Guerra, Christopher Guerra, and Jonathan Guerra. Ruiz and G.E.M.’s first issue
is sustained. Due to our resolution of this issue, we need not address the fifth issue raised by Ruiz
and G.E.M., in which they argue there is no evidence to support the award to Henrietta Guerra for loss
of inheritance.
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Sufficiency of the Evidence on the Issue of Proximate Causation
In their second issue, Ruiz and G.E.M. contend the trial court erred in entering judgment in
favor of the Guerra family9 because there was legally and factually insufficient evidence to support
the jury’s finding that negligence on the part of Ruiz proximately caused the accident at issue.
Negligence consists of three essential elements: (1) a legal duty owed by one person to another; (2)
breach of that duty; and (3) damages proximately resulting from that breach. D. Houston, Inc. v.
Love, 92 S.W.3d 450, 454 (Tex. 2002); Uniroyal Goodrich Tire Co. v. Martinez, 928 S.W.2d 64, 68
(Tex. App.—San Antonio 1995), aff’d, 977 S.W.2d 328 (Tex. 1998). To show that conduct caused
an injury, the plaintiff must present evidence of cause in fact and foreseeability. Love, 92 S.W.3d at
454.
When a party challenges the legal sufficiency of the evidence supporting an adverse finding
on an issue on which it did not have the burden of proof, it must demonstrate on appeal that there is
no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983);
Collins & Aikman Floorcoverings, Inc. v. Thomason, 256 S.W.3d 402, 407 (Tex. App.—San Antonio
2008, pet. denied). We consider all the evidence in the light most favorable to the jury’s finding of
the disputed fact, crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 810-11 (Tex.
2005). A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete
absence of evidence of a vital fact; (2) the court is barred by rules of law or rules of evidence from
9
… Due to our resolution of the first issue, any future mention of “the Guerra family” refers only to Brandi
Guerra and the Estate of Daniel Guerra, Jr.
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giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a
vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite
of a vital fact. City of Keller, 168 S.W.3d at 810. In reviewing factual sufficiency, we consider all
the evidence and will set aside the verdict only if the evidence supporting the jury finding is so weak
or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting this review, we do not substitute our
judgment for that of the jury, as they are the sole judge of the credibility of the witnesses and the
weight to be given their testimony. City of Keller, 168 S.W.3d at 819, 821.
The following evidence was presented at trial. Ruiz testified that on the morning of the
accident, he was traveling at 45 to 50 m.p.h. in the right lane of a three-lane highway. Ruiz was about
to move to the middle lane when he saw the HEB tractor-trailer in the far left lane approaching at a
fast speed with its right blinker on. Next, he heard a loud bang, and the HEB truck hit his truck on
the driver’s side door. Ruiz was certain he maintained his lane of traffic the entire time.
Wayne Ratliff was about to enter the highway when he heard a “pop” resembling a tire
exploding. He saw the HEB truck do a “little side-to-side,” and then straighten out before crossing
the highway, hitting the dump truck, and pushing it into a car on the access road. Ratliff was not
certain what lanes the trucks were in, but thought the HEB truck was in the far left lane, and was
traveling faster than the dump truck.
Jeff Rumsey was driving a semi truck in front of the two trucks on IH-35. He heard a loud
popping noise prior to seeing the HEB truck suddenly careen to the right. Rumsey believed the HEB
truck was in the middle lane at the time the trucks collided. He did not see the dump truck do
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anything to cause the accident. Rumsey stressed that the accident happened so long ago and that all
the vehicles were traveling so fast that he had a difficult time recalling exactly what happened.
Bryan Hubertus testified that he was following the HEB truck on IH-35 and noticed that it was
weaving a bit due to the wind. The HEB truck moved to the left lane to pass another semi truck, and
then moved back toward the center lane, but never stopped and kept moving to the right until it hit
the dump truck. Hubertus did not hear any loud noises prior to the impact, and did not describe the
HEB truck’s movement as erratic or sudden. He speculated that the point of impact between the two
trucks was toward the back of the dump truck. He did not notice anything the driver of the dump
truck did to cause the accident.
Steve Irwin, an accident reconstructionist hired by the Yorfino family, testified that his office
spent 400 hours reviewing this accident. Irwin presented numerous accident photographs and
diagrams to the jury, as well as a three-dimensional digital recreation of the accident. Irwin placed
the HEB truck in the center lane at the time of the accident due to the presence of specific tire marks
from the HEB truck in the center lane. Irwin believed the dump truck came over from the right lane
and into the center lane and had a side-to-side wreck with the HEB truck. He stated that the left-rear
of the dump truck made contact with the right-front corner of the HEB trailer. Irwin based this
conclusion on the tire marks in the middle lane and on damage to the trucks. Irwin explained that the
rightward movement of the vehicles started when the heavier dump truck’s left rear corner hit the
right front of the HEB trailer.
Irwin also explained how both the physical evidence, and the absence of other physical
evidence, negated G.E.M.’s theory that the HEB truck left its lane and hit the dump truck. Had the
lightly-loaded HEB truck suddenly veered to the right and hit the heavier sand-laden dump truck, the
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tire marks and damage to the vehicles would have looked very different. Additionally, Irwin
specifically refuted Hubertus’ eyewitness account by explaining that it was impossible for the HEB
truck to have continuously moved from the left lane to the right lane because of the HEB tire marks
in the center lane. Irwin posited that Hubertus may have missed the one to two seconds that the dump
truck was in the middle lane.
Mark Leonard, an accident reconstructionist retained by Sterling, testified that he reached the
same conclusions that Irwin did regarding the cause of the accident. Leonard prepared a diagram of
the accident scene, including skid marks and vehicle paths, that matched Irwin’s reconstruction. He
explained that the tire marks in the center lane were made by the HEB trailer’s ABS brakes as the
trailer was hit by the dump truck. He also explained that the initial impact between the back of the
dump truck and the right front of the HEB truck caused the rightward movement of the two trucks.
Leonard stated that the only possible explanation for the accident was that it occurred in the middle
lane when the dump truck crossed lanes and hit the HEB truck.
Ruiz and G.E.M. contend the jury was not free to disregard the testimony of three independent
eyewitnesses because the expert testimony was not supported by a scientific basis and was therefore
incompetent. See City of Keller, 168 S.W.3d at 813. However, Ruiz and G.E.M. did not object at
trial that Irwin and Leonard’s testimony was not scientifically supported, nor do they explain on
appeal how the scientific basis is deficient. Further, despite Ruiz and G.E.M.’s argument, the
eyewitness testimony was not entirely consistent. It was possible for the jury to believe the expert
testimony over that of the eyewitness testimony. “Jurors are the sole judges of the credibility of the
witnesses and the weight to give their testimony [and] may choose to believe one witness and
disbelieve another.” Id. at 819. As a reviewing court, we are not free to impose our own opinion in
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place of the jury’s. Id. Accordingly, we hold the evidence is legally and factually sufficient to
support the jury’s finding on the issue of proximate cause. Ruiz and G.E.M.’s second issue is
overruled.
Evidence of Positive Drug Test
In their sixth issue, Ruiz and G.E.M. contend the trial court erred in admitting evidence of
Ruiz’s failed drug test two years before the accident. At trial, the jury was informed that Ruiz tested
positive for cocaine in September of 2002, more than two years before he began working for G.E.M.
While there was undisputedly no evidence of drug usage in this accident, the Guerra family contends
that the positive drug test was relevant to the issue of negligent entrustment and was properly
admitted; as a preliminary matter, they maintain that the issue was not preserved for appeal because
Ruiz and G.E.M. made no objection to the admissibility of the test results at trial. We agree that this
issue was waived.
“As a prerequisite to presenting a complaint for appellate review, the record must show that
the complaint was made to the trial court by a timely request, objection, or motion.” TEX . R. APP . P.
33.1(a)(1). Ruiz and G.E.M. initially raised the issue of the admissibility of the positive drug test
through a pre-trial motion in limine; the trial court granted the motion as to voir dire. The next day,
during a bench conference, the trial court ruled that references to the positive drug test would be
allowed during opening statements; Ruiz and G.E.M. objected, and the trial court assured them that
their complaint would be preserved if they made their objections at the time the evidence was
presented to the jury. During trial, however, Ruiz and G.E.M. failed to lodge an objection when the
issue of Ruiz’s positive drug test was raised. Ruiz testified via video deposition about his positive
drug test, and three other witnesses testified regarding Ruiz’s positive drug test; each time, Ruiz and
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G.E.M. failed to object. Further, when the Yorfino family offered an exhibit demonstrating the
positive drug test result, it was admitted without objection from Ruiz and G.E.M. By failing to
present their complaints to the trial court, Ruiz and G.E.M. waived the argument that evidence of the
positive drug test was erroneously admitted. See TEX . R. APP . P. 33.1(a); Magna Donnelly Corp. v.
DeLeon, 267 S.W.3d 108, 114 (Tex. App.—San Antonio 2008, no pet.) (holding that failure to raise
timely objection at trial results in waiver of issue on appeal). Accordingly, Ruiz and G.E.M.’s sixth
issue is overruled.
Negligent Entrustment
Ruiz and G.E.M. next argue that the trial court erred in entering judgment in favor of the
Guerra family because there was legally and factually insufficient evidence to support the jury’s
findings that G.E.M.’s negligent entrustment of a vehicle to Ruiz proximately caused the accident.
The elements of negligent entrustment are: (1) entrustment of the vehicle by the owner; (2)
to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known at
the time of entrustment to be unlicensed, incompetent, or reckless; (4) that the driver was negligent
on the occasion in question; and (5) that driver’s negligence proximately caused the accident. See
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (per curiam) (citing
Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)); Avalos v. Brown Auto.
Ctr., Inc., 63 S.W.3d 42, 48 (Tex. App.—San Antonio 2001, no pet.). The parties do not dispute the
first element, and, as discussed supra, we have already held that there was sufficient evidence to
support the jury’s finding that Ruiz’s negligence proximately caused the accident. See Broesche v.
Bullock, 427 S.W.2d 89, 94 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.) (holding
that there is no need to establish proximate causation flowing from the entrustment if the driver’s
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negligence is already found to have caused the accident). Accordingly, we must determine whether
sufficient evidence supports the findings that Ruiz was an unlicensed, incompetent, or reckless driver,
and that G.E.M. knew or should have known this at the time of entrustment.
The evidence at trial showed that Ruiz applied to work for G.E.M. on September 16, 2004.
At the time, Bradley Friesenhahn was responsible for hiring practices at G.E.M. He gave Ruiz a drug
test, which was negative, and obtained a three-year driving history report, which reflected one
speeding citation. Friesenhahn did not obtain Ruiz’s driving record directly from the Texas
Department of Public Safety, nor did he inform the company he used to obtain Ruiz’s driving history
that he was required to comply with federal and state regulations concerning drivers of commercial
vehicles. Friesenhahn acknowledged that he was unfamiliar with regulations requiring G.E.M. to
contact Ruiz’s former employers, and he did not do so. In addition, Jose Vela testified that he was
responsible for training G.E.M. employees to drive trucks. He accompanied Ruiz over a three-day
period to observe his driving; Vela was not concerned with Ruiz’s driving history. Finally, Gary
Friesenhahn, G.E.M.’s vice president, testified that he understood G.E.M. had an obligation under
state and federal regulations to conduct driver history checks; however, at the time Ruiz was hired,
he was not aware of such requirements.
Peter Philbrick, a trucking industry driving expert, testified extensively regarding the
regulations pertaining to commercial motor vehicle safety. He stated that a commercial motor
vehicle employer is required to obtain a prospective employee’s driving record for the past five years
from the Texas Department of Public Safety. Philbrick also testified that a commercial motor vehicle
employer is required to request controlled substances information, specifically, verified positive drug
tests, from a prospective driver’s previous employers for the past two years. If the employer obtains
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information from a previous employer revealing that the prospective driver tested positive for a
controlled substance, then the employer is prohibited from permitting the driver to drive a commercial
vehicle until the driver completes the return-to-duty requirements, which include a drug education
program or rehabilitation, if recommended by a substance abuse professional.
The Yorfino family introduced Ruiz’s Texas Department of Public Safety driving history
record, reflecting that Ruiz received five speeding citations—one while driving a commercial
vehicle—in the five years prior to the accident at issue. Additionally, Ruiz’s commercial motor
vehicle driving privilege was disqualified for sixty days in 2002 because he received two speeding
citations within thirty days of each other. Evidence of Ruiz’s positive drug test for cocaine while
working for a previous employer in September of 2002 was also introduced. Ruiz admitted that he
did not complete a drug education program or rehabilitation after testing positive for cocaine.
According to Philbrick’s testimony, which the jury was free to believe, Ruiz was per se
unqualified to drive a commercial motor vehicle at the time of the accident because he had not
completed the return-to-duty requirements after testing positive for a controlled substance. Had
G.E.M. complied with the statutory requirements and contacted Ruiz’s former employer, they would
have known that Ruiz was unqualified to drive a commercial vehicle. See Morris v. JTM Materials,
Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.) (“An employer owes a duty to its other
employees and to the general public to ascertain the qualifications and competence of the employees
it hires, especially when the employees are engaged in occupations that require skill or experience and
that could be hazardous to the safety of others.”). We conclude the evidence is sufficient to support
the jury’s determination that G.E.M. negligently entrusted the dump truck to Ruiz. Ruiz’s and
G.E.M.’s third issue is overruled.
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Conscious Pain and Suffering
In their fourth issue, Ruiz and G.E.M. contend the evidence is legally and factually insufficient
to support the jury’s award of $400,000 to Daniel Guerra, Jr.’s estate for the physical and emotional
pain he suffered prior to his death. In Texas, only pain consciously suffered and experienced is
compensable. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.—Texarkana
2005, no pet.). Its existence may be established by circumstantial evidence, or inferred or presumed
as a consequence of severe injuries. Id.; Borth v. Charley’s Concrete Co., Inc., 139 S.W.3d 391, 395
(Tex. App.—Fort Worth 2004, pet. denied). “The duration of the pain and mental anguish is an
important consideration.” HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort
Worth 2005, no pet.).
At trial, Jeffrey Rumsey testified that on the morning of the accident, he was driving in front
of the trucks driven by Ruiz and Daniel Guerra, Jr. He stated that the HEB truck violently careened
to the right after losing control. From his rearview mirror, Rumsey observed Daniel Guerra, Jr.
looking “very panicked.” Wayne Ratliff testified that he was on the access road and about to enter
the highway when he witnessed the accident. He stopped to see if he could help, but the cab of the
HEB truck was demolished and on fire, and he did not think the driver was alive. Steve Irwin, an
accident reconstructionist, testified that from the time the first skid mark was left on the roadway until
all the vehicles came to rest probably amounted to five seconds.
Ruiz and G.E.M. contend that because Daniel Guerra, Jr. died mere seconds after the crash,
any award for conscious pain and suffering is not justified. However, “consciousness of approaching
death is a proper element to be considered in evaluating mental suffering.” Jenkins v. Hennigan, 298
S.W.2d 905, 911 (Tex. Civ. App.—Beaumont 1957, writ ref’d n.r.e.); see, e.g., Mo. Pac. R.R. Co. v.
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Lane, 720 S.W.2d 830, 833 (Tex. App.—Texarkana 1986, no writ) ($19,500 award upheld for pain
and suffering due to terror and mental anguish decedent suffered for six to eight seconds before a train
struck his truck); Hurst Aviation v. Junell, 642 S.W.2d 856, 859 (Tex. App.—Fort Worth 1982, no
writ) ($20,000 mental anguish award affirmed where decedent suffered horror of his impending doom
during the fleeting seconds that his airplane plummeted to earth after a mid-air collision); see also
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 634 (Tex. 1986) (although amount was not
challenged on appeal, jury awarded $500,000 to each of four decedents for mental anguish suffered
from the brief time airplane broke up in mid-air at 10,000 feet until it crashed on the ground).
Although there is no evidence that Daniel Guerra, Jr. was conscious after the vehicles came to a stop,
there was evidence that he was conscious while his truck careened out of control and that he was
panicked, and presumably, aware of his impending death. See Gen. Motors Corp. v. Saenz, 829
S.W.2d 230, 244 (Tex. App.—Corpus Christi 1991), rev’d on other grounds, 873 S.W.2d 353 (Tex.
1993) (upholding award for conscious pain and suffering where impending crash caused “panic
steering”). Accordingly, we find this evidence sufficient to support a finding of mental anguish
suffered prior to Daniel Guerra, Jr.’s death.
Furthermore, we conclude the jury’s award is supported by factually sufficient evidence. See
Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (appellate court employs factual sufficiency
analysis in determining whether damages are excessive, and reviews entire record to determine
whether sufficient evidence supports damage award). The jury has wide latitude in determining the
amount of an award for pain and suffering. Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948,
951 (Tex. App.—San Antonio 1997, no writ). “Matters of pain and suffering, which are necessarily
speculative and not subject to precise mathematical calculations, are particularly within the province
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of the jury to resolve and to determine appropriate amounts.” Id. at 951-52. Given the testimony that
Daniel Guerra, Jr. appeared panicked in the last seconds before his death, and the testimony that the
HEB truck caught fire, we cannot conclude the award of $400,000 to his estate is excessive.
Accordingly, Ruiz and G.E.M.’s fourth issue is overruled.
CROSS-APPEAL
In their cross-appeal, the Guerra family claims the trial court abused its discretion in assessing
Sterling’s court costs solely against the Guerra family. At trial, the Guerra family’s expert testified
that certain bolts in the Sterling truck were defective, and therefore affected the accident. However,
the jury determined that the negligence of Ruiz and G.E.M. caused the accident, and found no liability
on the part of Sterling. The trial court entered judgment on the jury’s verdict, and ordered that Sterling
recover all of its court costs from the Guerra plaintiffs.
The Guerra family maintains that pursuant to Rule 131 of the Texas Rules of Civil Procedure
the Yorfino family was also Sterling’s adversary, and as such should have been ordered to share in
paying Sterling’s court costs. See TEX . R. CIV . P. 131 (“The successful party to a suit shall recover
of his adversary all costs incurred therein, except where otherwise provided.”). Further, the Guerra
family maintains that because the trial court did not state on the record its reason for shifting all costs
to the Guerra family, Rule 141 permitting the trial court to assess costs in a manner other than as
provided by Rule 131 is inapplicable. See TEX . R. CIV . P. 141 (“The court may, for good cause, to
be stated on the record, adjudge the costs otherwise than as provided by law or these rules.”). In
response, Sterling contends that the Guerra family was Sterling’s true adversary for purposes of Rule
131, because they were the only party to present evidence and argue that a defect in the design or
manufacture of the Sterling truck contributed to the accident. The Yorfino family, in contrast,
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“meekly plead[ed] an alternative theory of recovery alleging Sterling’s negligence,” and did not
present any evidence at trial claiming the truck was defective or Sterling was negligent. Sterling
further contends that the good cause requirement of Rule 141 is only triggered where the prevailing
party is not awarded its full recoverable costs. See TEX . R. CIV . P. 141.
We review the trial court’s assessment of court costs for an abuse of discretion. Rogers v.
Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985); Moore v. Trevino, 94 S.W.3d 723, 729 (Tex.
App.—San Antonio 2002, pet. denied). Under this standard, we will not overrule the trial court’s
decision unless it acted unreasonably, arbitrarily, or without reference to guiding rules or principles.
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). We review the entire record to determine
whether the trial court abused its discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664,
666 (Tex. 1996).
As a successful party, Sterling was entitled to recover court costs from its adversary. See TEX .
R. CIV . P. 131. “Adversary” is defined in common usage as “one that contends with, opposes, or
resists.” See MERRIAM -WEBSTER ’S NINTH NEW COLLEGIATE DICTIONARY 59 (9th ed. 1991). This
court has described an “adverse party” as one whose position at trial and on appeal has been one of
open hostility toward any judgment favorable to the successful party. Hohenberger v. Schnitzer, 235
S.W.2d 466, 469 (Tex. Civ. App.—San Antonio 1950, writ ref’d). With that in mind, we turn to the
record.
During trial, the Guerra family stressed the theory that certain bolts in the HEB truck failed,
thus causing the accident. In opening arguments, the Guerra family’s counsel stated, “Sterling-
Freightliner is taking the position that there is nothing wrong with their bolts . . . And I think you’re
going to find, after listening to the experts, that that testimony is just not credible. . . . ‘How many
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Danny Guerras do you have to kill before you will even go and test your bolts?’ Because, ladies and
gentlemen, Sterling-Freightliner has done no testing of these bolts to refute what our experts say.”
The Guerra family’s expert metallurgist, Edward Cox, testified that certain Sterling bolts consistently
fail at a specified torque range. Cox stated that those particular bolts were defective and that Sterling
was negligent in their application. In closing, the Guerra family’s counsel stated that although she
believed the G.E.M. truck struck the HEB truck, there was “more to the story,” arguing “[i]t happened
because Sterling-Freightliner had a defective bolt in the front-right spring hanger of that truck. . . Was
there a manufacturing defect? Absolutely. . . . Was there a design defect? Absolutely.” Counsel
stressed that, “it is extremely important to the Guerra family that Sterling-Freightliner be found to be
the majority negligent in this case, because they really believe that Sterling-Freightliner is responsible
for Danny Guerra’s death.”
To the contrary, the Yorfino family did not present any evidence at trial claiming the HEB
truck was defective or that Sterling was negligent. During closing argument, counsel for the Yorfino
family stressed that liability for the loss of Joseph Yorfino and Daniel Guerra, Jr. lies on Ruiz and
G.E.M., and only mentioned Sterling once, stating, “if you determine that Sterling is or is not
responsible, any remaining negligence in the charge needs to be split between G.E.M. and Mr. Ruiz.”
Additionally, during opening arguments, counsel for the Yorfino family stated, “[w]e’re not going
to be involved in that fight [between the Guerra family and Sterling as to whether a defect in the HEB
truck caused the accident] . . . . We believe that Ruiz caused the accident. Mr. LeGrand [counsel for
the Guerra family] and Sterling will fight out whether or not the truck[,] or the defective truck[,]
contributed to that.” As Sterling points out, it was to the Guerra family’s benefit to place blame on
Sterling because of the statute of limitations defense asserted against the Guerra family by Ruiz and
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G.E.M. In fact, during closing argument, counsel for the Guerra family stated that, “[i]t is important
to the Guerra family that Sterling be at least 50 percent at fault in this case. That is extremely
important, okay?”
Based on our review of the record, we agree that the Guerra family was Sterling’s only true
adversary. Although the Yorfino family had pleadings on file alleging Sterling’s negligence, they did
not present any evidence or make any arguments in support of such a theory. Because Rule 131
provides that the successful party shall recover all costs from his adversary, the trial court did not
abuse its discretion in ordering the Guerra family to pay Sterling’s court costs. See TEX . R. CIV . P.
131. The Guerra family’s issue on cross-appeal is overruled.
CONCLUSION
Based on the foregoing analysis, we reverse the trial court’s judgment in favor of Henrietta
Guerra, Christopher Guerra, and Jonathan Guerra, and render judgment that Henrietta Guerra,
Christopher Guerra, and Jonathan Guerra take nothing on their claims against Ruiz and G.E.M. In
all other respects, the judgment of the trial court is affirmed.
Phylis J. Speedlin, Justice
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