NUMBER 13-02-582-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BOBBIE GILL, Appellant,
v.
ROBERT SLOVAK, Appellee.
On appeal from the County Court at Law No 4
of Nueces County, Texas.
M E M O R A N D U M O P I N I O N
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Chief Justice Valdez
This is an appeal of a judgment granted in favor of appellant, Bobbie Gill, against appellee, Robert Slovak, in relation to a personal injury suit. In three issues, appellant asserts the trial court: (1) abused its discretion by admitting unreliable expert testimony from an unqualified expert witness; (2) erred by refusing to grant appellant’s motion for a new trial when the trial court’s damage award was manifestly inadequate and clearly against the great weight and preponderance of the evidence; and (3) abused its discretion by refusing to allow appellant to cross-examine appellee’s expert witness, regarding payment by an insurance company, to show bias or prejudice. We affirm.
I. Factual and Procedural Background
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
II. Analysis
1. Expert Testimony
Appellant’s first issue asserts the trial court abused its discretion by admitting unreliable expert testimony from an unqualified expert witness. The parties contest whether this issue is properly before this Court. Appellee asserts any potential error was waived when appellant elicited Dr. McNish’s testimony. Appellant contends: (1) the error was properly preserved when the trial court overruled his motion to exclude the testimony at the pretrial Robinson hearing; and (2) this Court should recognize the waiver exception articulated in Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791, 793 n.2 (5th Cir. 1979) (reviewing Fed. R. Evid. 103 and concluding plaintiff does not waive or invite error by introducing evidence after trial court has overruled an evidentiary objection on that evidence).
Law on Waiver
A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when that party introduced the same evidence or evidence of a similar character. Southwestern Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 473 (Tex. 1998); McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984). Similarly, when a party elicits testimony from a witness, that party should not later be allowed to complain of the admission of an unfavorable answer. Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1987). Accordingly, a party is not entitled to complain of responsive answers to questions that party asked the witness on cross-examination. Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 499 (Tex. App.–Corpus Christi 1999, no pet.).
Analysis
At trial, the testimony elicited by appellant from Dr. McNish covered Dr. McNish’s qualifications to provide an expert opinion on the subject matter, the basis of his analysis and his ultimate conclusion. By eliciting the complained-of testimony from Dr. McNish, appellant waived his right to present the issue on appeal. See id. Texas law is clear, and we refuse to adopt the exception to waiver rule advanced by the Fifth Circuit in Reyes. Accordingly, we overrule appellant’s first issue.
2. Motion for New Trial
In his second issue, appellant asserts the trial court erred by refusing to grant appellant’s motion for a new trial when the trial court’s damage award was manifestly inadequate and clearly against the great weight and preponderance of the evidence. The basis of appellant’s complaint is that Dr. McNish’s causation related testimony regarding appellant’s injuries constitutes no-evidence under the competency requirements of Havner, and thus, undisputed evidence supports amounts substantially greater than those awarded by the trial court.
Analysis
We have concluded that appellant waived his right to complain of the admission of Dr. McNish’s testimony, and thus, appellant cannot assert Dr. McNish’s testimony constitutes no-evidence of causation of damages. See Varel Mfg. Co., 990 S.W.2d at 499. Further, appellant is requesting a factual sufficiency review of the evidence to support the trial court’s “inadequate” damage awards. See Golden Eagle Archery, Inc. v. Jackson,116 S.W.3d 757, 771-75 (Tex. 2003). Appellant failed to articulate a standard of review, provide citation to authority to substantiate that standard of review, and provide substantive analysis within that standard of review. Thus, appellant has waived his right to our review. See Tex. R. App. P. 38.1(h); Knie v. Piskun, 23 S.W.3d 455, 460 (Tex. App.–Amarillo 2000, pet. denied). Accordingly, we overrule appellant’s second issue.
3. Cross Examination
Appellant’s final issue asserts the trial court abused its discretion by refusing to allow appellant to cross examine appellee’s expert witness, regarding payment by an insurance company, in order to show bias or prejudice. Again, appellant failed to articulate a standard of review, provide citation to authority to substantiate that standard of review, and provide substantive analysis within that standard of review. Thus, appellant has waived his right to our review of this issue. See Tex. R. App. P. 38.1(h); Piskun, 23 S.W.3d at 460. Accordingly, we overrule appellant’s third issue.
III. Conclusion
We affirm the judgment of the trial court.
Rogelio Valdez
Chief Justice
Memorandum Opinion delivered and filed
this 22nd day of December, 2004