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NUMBER 13-05-182-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID MORA AND JENNY MORA, Appellants,
v.
EMMA CHACON, Appellee.
On appeal from the County Court At Law No. 5
of Hidalgo County, Texas.
MEMORANDUM OPINION[1]
Before Chief Justice Valdez, and Justices Castillo and Garza
Memorandum Opinion by Justice Castillo
Appellee Emma Chacon filed suit against appellants David Mora and his minor daughter, Jenny Mora, alleging personal injuries sustained in a vehicular accident. A jury found in favor of Chacon and awarded damages. In ten issues, the Moras maintain that the trial court erred by (1) denying a motion for an independent medical examination, (2) overruling objections to statements made during opening statement, (3) overruling evidentiary objections, (4) denying a request to disregard statements in closing argument, (5) granting Chacon's motion to disregard the jury's finding, and (6) denying their motion for new trial. We affirm.
I. Background
On October 2, 2003, while on her way to work, Chacon's vehicle was struck as it neared an intersection controlled by four-way stop signs. The driver of the other vehicle, fifteen-year-old Jenny Mora, did not make a complete stop at the intersection, made a left turn, and collided with Chacon's vehicle. David Mora admitted that he allowed Jenny to drive and that he knew she was not licensed to drive.
II. Independent Medical Examination
By their first issue, the Moras assert that the trial court erred by denying their request for an independent medical examination ("IME"). They argue that in light of Chacon's untimely-disclosed medical records, their request for an IME was timely. Chacon counters that the motion was properly denied as untimely.
No later than thirty days before the end of any applicable discovery period, a party may move for an order compelling another party to submit to a physical examination by a qualified physician. See Tex. R. Civ. P. 204(a)(1). The motion and notice of hearing must be served on the person to be examined and on all parties. Tex. R. Civ. P. 204(b). The court may issue an order for examination (1) for good cause shown, and (2) when the physical condition (including the blood group) of a party is in controversy. Tex. R. Civ. P. 204(c)(1).
Chacon filed suit on February 2, 2003. By order dated July 30, 2004, the trial court set the Moras' motion for an IME for hearing on September 28, 2004. At the hearing, the Moras' counsel (1) acknowledged that jury trial was set for October 25, 2004, (2) argued that they filed their IME motion in July but were unable to secure an earlier hearing for disposition,[2] and (3) Chacon's discovery responses were inadequate and insufficient, thus delaying the IME request. Chacon's counsel countered that both the deadline for discovery (thirty days before trial) and for designation of experts (sixty days before trial) had expired and, thus, the request was untimely. The trial court apprised counsel it would pronounce the ruling by telephone call that afternoon. The record does not contain an order memorializing the complained-of denial of the Moras' motion for IME.
As a prerequisite for presenting a complaint for appellate review, the record must show that the trial court ruled on the motion, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2); Wal‑Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam). Because the record does not demonstrate that the trial court ruled on the motion for IME, whether expressly or implicitly, the Moras have waived their right to complain. Id. We overrule the first issue.
III. Improper Opening Statement
A. References to Damages
By their second issue, the Moras maintain that the trial court erred by overruling their objection to opposing counsel's statements to the jury during opening statement that the evidence would show (1) past and future medical expenses and (2) lost wages or earning capacity. The Moras argue that overruling their objections was error because Chacon's discovery responses were essentially inadequate and incomplete, and because she did not request relief for lost wages or earning capacity, respectively. Chacon responds that the Moras waived error on the medical expenses calculation question and the trial court denied a trial amendment, thus negating any untimely claim for lost wages or earning capacity.
Before opening statements and out of the presence of the jury, the Moras' counsel made a "pre-objection," requesting that opposing counsel not mention (1) calculation of economic damages, including future medical expenses, and (2) loss of earnings or capacity. The trial court ruled it would allow the statements. During opening statement, opposing counsel stated that the evidence would show Chacon incurred "over $12,000 in past medical expenses" and "surgery was going to cost another 10, $12,000." Counsel later repeated, twice, the cost of the surgery and future medical expenses. Counsel also stated that "[Chacon was] off work for a couple of weeks, and finally after a couple of weeks, she goes back to work." Counsel stated the evidence would show "loss of wages." The Moras' counsel objected on grounds that the claim exceeded the scope of the pleadings. Chacon's counsel requested a trial amendment to include the claim, which the trial court implicitly denied. Next, Chacon's counsel made the complained-of statement, "I'll tell you what, Judge. I'll let them keep the two weeks. I'll just let them keep it." The Moras seize on counsel's statement and argue that, had the trial court sustained their timely objection to references to the lost earnings and capacity, they would not have been harmed by counsel's statement in the jury's presence.
As to the references to future medical expenses, the Moras did not object when these references were repeatedly made during opening statement. The Moras waived error. Tex. R. App. P. 33.1(a)(1); McKenzie, 997 S.W.2d at 280. As to their timely-made lost-earnings objection, the trial court did not rule on that objection. The Moras waived error. Id. Even so, the trial court denied a trial amendment and, thus, granted the relief requested. That ruling renders the Moras' complaint moot. The Moras did not object to general references to loss of earning capacity. Once more, they waived error. Id. We overrule the second issue.
B. References to the Opinion of a Non-testifying Police Officer
By their third issue, the Moras maintain that the trial court erred by overruling their objection to opposing counsel's statements as to the opinion of the investigating police officer in an unauthenticated police report. Chacon counters that error was waived.
During opening statement, the following occurred , in the context of the Moras' complaint:
[By Chacon's counsel]: Well, now who else knows that it was her fault? I mean, clearly I think we already know it, but let's go ahead and just put more on it. Who else knows that? Well, the police officer knows that. How do we know that? Because what does he say? Officer that did the investigation said, 'Look, Jenny Mora, this is what she did, she failed to control her speed'B
[Moras' counsel]: Your HonorB
[Chacon's counsel]: Bshe ran a stop signB
[Moras' counsel]: Your Honor, I have to object to this. There's not going to be any evidence about what the police officer said.
[Chacon's counsel]: It's in the police report.
[Moras' counsel]: There's not going to be a police report.
[Chacon's counsel]: Well, I've got the police report as my Exhibit 1.
The trial court did not rule on the objection. Thus, the Moras waived error. Tex. R. App. P. 33.1(a)(1), (2)(A). We overrule the third issue.
IV. Evidentiary Objections
By their fifth, sixth, and seventh issues, and a sub-issue in their third and fourth issues, the Moras maintain the trial court erred in overruling their objections to (1) the use of unauthenticated videotape testimony, (2) doctors' reports, (3) medical records, (4) Chacon's testimony as to the cause of her medical problems, and (5) the police report.
A. Standard of Review
Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens‑Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Pegasus Energy Corp. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 133 (Tex. App.BCorpus Christi 1999, pet. denied). An abuse of discretion exists when the court's decision is without reference to guiding rules or principles or is arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242 (citing Southwestern Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959)). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. See State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989). Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; see also Gee, 765 S.W.2d at 396; Ed Rachal Found. v. D'Unger, 117 S.W.3d 348, 368 (Tex. App.BCorpus Christi 2003, pet. filed) (citing Malone, 972 S.W.2d at 43)).
B. Use of Videotape Testimony
By their fourth issue, the Moras maintain that the trial court erred in overruling their objection to Chacon's use of Jenny Mora's videotaped testimony because Chacon did not comply with rules of civil procedure 202 and 203.2. See Tex. R. Civ. P. 202[3] and 203.2.[4] Chacon responds that the parties agreed to the non-stenographic videotaped deposition, and the parties and their counsel appeared at the deposition. The parties do not dispute that Jenny Mora was deposed by agreement.[5] Chacon conceded at trial and on appeal that the deposition was not certified under rule 203.2. The complained-of videotape excerpt before the jury included the following colloquy:
[Chacon's counsel]: Based on what you saw out there at the scene, ma'am, and based on your own perception of that, did the lady in that other car do anything wrong that caused this crash?
[Jenny Mora]: No.
The jury heard the same evidence later, without objection:
[Chacon's counsel]: Let me see. What else did you tell us at your deposition? Ma'am, you told us that Mrs. Chacon did nothing wrong, it was not her fault because that was the truth. Isn't that correct?
[Jenny Mora]: Correct.
Because the Moras did not object when the same evidence was later adduced, they waived error. Tex. R. App. P. 33.1. Even assuming that the Moras preserved error, the evidence showed that Jenny Mora did not see Chacon's vehicle prior to impact:
Q: [By her counsel] After you passed the stop sign, Jenny, did youBdid you make a left turn?
A: Yes.
Q: Okay. Tell the jury what you saw after you turned to the left and you were headed east.
A: I saw the sun. The sun was in my eyes, and I couldn't really see. . . .
Q: Did the sun prevent you from seeing Mrs. Chacon?
A: I couldn't see what was on the bridge, soB
Q: You couldn't see anythingBanyone on the bridge?
A: No. . . .
On this record, the Moras have not established reversible error. Tex. R. App. P. 44.1(a). Accordingly, even if we were to conclude that the trial court erred in admitting the complained‑of evidence, the Moras have not shown that the error was calculated to cause and probably did cause "the rendition of an improper judgment." Tex. R. App. P. 44.1; see Ed Rachal Found., 117 S.W.3d at 368. We overrule the fourth issue.
C. Doctors' Letter Reports
By their fifth issue, the Moras maintain that the trial court erred in overruling their objection to admitting the doctors' letter reports included with Chacon's medical records in exhibits 14 and 18 because the letter reports were not a routine entry made in the regular course of business. They argue that, as such, the letter reports are inadmissible hearsay and do not qualify as business records. Chacon counters that the Moras waived error and the letter reports were properly admitted.
Exhibit 14 concerns treatment for Chacon's shoulder pain. Similarly, exhibit 18 concerns history of and treatment for Chacon's pain in, among other locations, her shoulders, knee, and back. The letter reports are among the medical records for different treating physicians.
The Moras objected but did not secure a ruling from the trial court. The trial court did overrule an objection as to exhibit 20, but that ruling did not address the objections to exhibits 14 and 18. Because the Moras did not secure a ruling on their objections, they waived their right to complain. Tex. R. App. P. 33.1(a)(2)(A).
D. Medical Records
By their sixth issue, the Moras maintain that the trial court erred in overruling their objection to the admission of medical records, in exhibits 7 through 20, on grounds that the records were offered for the purpose of providing the jury with the testimony of experts, the identity of which were not timely disclosed in responses to proper requests for disclosure.[6] The Moras assert that Chacon filed her notice of filing of affidavits with attached business records on August 11, 2004, and, thus, on that date the Moras first determined which medical records might be used. Chacon responds that the Moras waived error because their objection at trial does not correspond to the objection on appeal. Chacon further responds that the Moras did not send her a request for disclosure or any other discovery.
The parties dispute whether any discovery requests were served requesting the identity of testifying experts, and this is the crux of the Moras' objection at trial and issue on appeal. Assuming without deciding that the Moras preserved error, our resolution of the issue turns on the requirements of rule 195.1 of the Texas Rules of Civil Procedure which states:
A party may request another party to designate and disclose information concerning testifying expert witnesses only through a request for disclosure under rule 194 [footnote omitted] and through depositions and reports as permitted by this rule.
Tex. R. Civ. P. 195.1.
Nothing in the record demonstrates that the proper discovery tool requesting designation of testifying experts was served on Chacon. See Tex. R. Civ. P. 194.2(f), 195.1, 195.2.[7] Thus, on this record, we cannot conclude that the trial court acted without reference to guiding principles in overruling the Moras' objections. Malone, 972 S.W.2d at 43; Aquamarine Operators, 701 S.W.2d at 241-42. We overrule the Mora's sixth issue.
E. Lay Testimony
By their seventh issue, the Moras maintain that the trial court erred in overruling their objection to Chacon testifying as to the cause of her medical problems because she was not qualified to give such an opinion. Chacon counters that the testimony was admissible.
The Moras direct us to the following excerpt from Chacon's testimony, during direct-examination:
Q. Ma'am, ultimately . . . I want you to . . . tell [the jury] the problems that you're having now, were they as a result of . . . that crash? . . . .
A. Yes, sir.
The Mora's objection occurred after Chacon answered and, thus, was untimely. Tex. R. App. P. 33.1(a)(1). Further, prior to the complained-of testimony, Chacon testified as follows during direct examination:
Q. Ma'am, bottom line what I want you to tell the jury is . . . what problems you've had physically, you've experienced, you feel as the result of that crash?
A. I believe that when the air bag exploded . . . where it hit my neck, and to where I was trying to open the jammed door, I just didn't know how much force I was tryingBI was using. I was just trying to get out of there. After the crash, I did . . . have a neck brace from the doctor, some dizziness. I just hurt very badly in that shoulderB
(emphasis supplied). Because the same or similar testimony was admitted without objection, the Moras waived their right to complain. Tex. R. App. P. 33.1.[8] We overrule the Moras' seventh issue.
F. Police Report
By a sub-issue in their third issue, the Moras maintain that the trial court erred in overruling their objection to admitting the police report in evidence because it (a) contained the police officer's opinion as to the factors contributing to the incident without a showing of adequate credentials for the officer to express opinions on causation, and (b) was untrustworthy. Chacon counters that the error was waived.
The Moras concede that they objected at trial to admission of the police report on grounds that the document was not properly authenticated. The trial court overruled the objection. The complaint on appeal does not correspond with the complaint to the trial court. Tex. R. App. P. 33.1; see In re T.R.S., 931 S.W.2d at 756; D/FW Commercial Roofing, 854 S.W.2d at 189. Accordingly, the Moras waived their right to complain on appeal. We overrule the sub-issue in the Moras' third issue.
V. Closing Argument
By their eighth issue, the Moras maintain that the trial court erred in failing to instruct the jury to disregard opposing counsel's comments during closing argument that the Moras were lying. Chacon counters that the argument was responsive to the Moras' closing argument.
The Moras seize on opposing counsel's statement that he was reminded of the "old saying . . . are you going to believe me or are you going to believe your lying eyes? I mean you're going to believe me or you're going to believe my lying client who lied about everything. I mean, she's admitted that it was her fault, butB." The Moras objected and the trial court stated, "Let's watch the characterizations [counsel]."
Prior to the complained-of statement, Chacon's counsel argued, "They cannot tell you the truth, not once. They have never ever told you the truth." The Moras did not object. Because the complained-of statement was made earlier, without objection, we conclude that the Moras have not shown reversible error. Tex. R. App. P. 44.1; see Ed Rachal Found., 117 S.W.3d at 368. We overrule the eighth issue.
VI. Post-trial Proceedings
By their ninth and tenth issues, the Moras maintain that the trial court erred by (1) granting Chacon's motion to disregard all jury findings in response to Question Number 2,[9](2) entering judgment that the Moras, father and minor daughter, are jointly and severally liable for one hundred percent of the damages, and (3) denying their motion for new trial.[10] Chacon counters that the trial court did not err in disregarding the jury's finding in response to apportionment of fault because it was immaterial as a matter of law.
The parties do not dispute that neither party objected to the charge as submitted to the jury. See Tex. R. App. P. 38.1(f). The record contains the parties' separate motions to disregard the jury's finding in Question Number 2. The Moras requested that the trial court disregard the percentage of negligence to Mr. Mora because "the negligence of the owner is of no consequence." In her motion, Chacon requested the trial court to disregard the jury finding because David Mora became vicariously liable for his minor daughter's negligence under the law of negligent entrustment. The motion continues that Mr. Mora's percentage of responsibility should not have been submitted to the jury "as conceded by counsel for Mora." The trial court judgment recites that both motions were granted. The Moras' motion for new trial, in context, states "David Mora can only be vicariously liable for the percentage of negligence as found by the jury to be attributable to Jenny Mora." The sole ground assigning error to the trial court's granting the motion to disregard is on the theory of contribution. Without stating the grounds, the trial court signed an order denying the motion for new trial. The appellate record does not demonstrate whether the trial court convened hearings on the motions to disregard or motion for new trial.
In particular, the Moras maintain that it is not within the province of the trial court to substitute its own finding for that of the jury. The Moras, however, requested the trial court to disregard the jury's answer. The judgment reflects their motion was granted. We conclude that the Moras have not shown reversible error. Tex. R. App. P. 44.1; see Ed Rachal Found., 117 S.W.3d at 368; see also Paris & G. N. R. Co. v. Flanders, 179 S.W. 263, 264 (Tex. 1915) ("The rule of invited error rests in the principle of estoppel, its reason being that a party is in no position to complain of an error which he has induced the court to commit."). We overrule the ninth and tenth issues.
VII. Conclusion
Having overruled the Moras' ten issues presented, we affirm the judgment.
ERRLINDA CASTILLO
Justice
Memorandum Opinion delivered and filed
this the 13th day of October, 2005.
[1] See Tex. R. App. P. 47.2, 47.4.
[2] The docket sheet reflects that the Moras filed a motion for IME on July 16, 2004. The motion is absent from the appellate record. "The record, not the docket entry, is the authoritative evidence upon which the parties must rely on appeal." Bell v. State, 734 S.W.2d 83, 84 (Tex. App.BAustin 1987, no pet.); see Williams v. Schneiber, 148 S.W.3d 581, 584 (Tex. App.BFort Worth 2004, no pet.) (stating that a docket sheet generally does not form a part of the record which may be considered, is inherently unreliable, and constitutes "a memorandum made for the clerk's and trial court's convenience.").
[3] Rule 202 states, in part:
202.1. Generally. A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.
Tex. R. Civ. P. 202.
[4] Rule 203.2 states:
The deposition officer must file with the court, serve on all parties, and attach as part of the deposition transcript or nonstenographic recording of an oral deposition a certificate duly sworn by the officer stating:
(a) that the witness was duly sworn by the officer and that the transcript or nonstenographic recording of the oral deposition is a true record of the testimony given by the witness;
(b) that the deposition transcript, if any, was submitted to the witness or to the attorney for the witness for examination and signature, the date on which the transcript was submitted, whether the witness returned the transcript, and if so, the date on which it was returned;
(c) that changes, if any, made by the witness are attached to the deposition transcript;
(d) that the deposition officer delivered the deposition transcript or nonstenographic recording of an oral deposition in accordance with Rule 203.3;
(e) the amount of time used by each party at the deposition;
(f) the amount of the deposition officer's charges for preparing the original deposition transcript, which the clerk of the court must tax as costs; and
(g) that a copy of the certificate was served on all parties and the date of service.
Tex. R. Civ. P. 203.2.
[5] In a civil case, the court will accept as true the facts stated unless another party contradicts them. Tex. R. App. P. 38.1(f). The Moras' counsel acknowledged opposing counsel's presence at the deposition in question. Thus, the Moras' rule 202 complaint is moot. See Tex. R. Civ. P. 202.
[6] The record does not establish that exhibit 13 was admitted in evidence. After the jury began deliberations, the Moras' counsel stated, "I just wanted to make sure we don't send in Exhibit 13." The reporter's record exhibit volume and master index do not show the exhibit as admitted in evidence.
[7] Rule 195.2 of the rules of civil procedure governs the deadlines for designating experts. Tex. R. Civ. P. 195.2.
[8] We observe that lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (citing Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)). Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation. Id. In such cases, lay testimony can provide both legally and factually sufficient evidence to prove the causal relationship. See Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex. App.BWaco 1999, pet. denied).
[9] Question Number 2 asked the jury:
What percentage of the negligence that caused the occurrence do you find to be attributable to each of those found by you, in your answer to Question 1, to have been negligent?
a. Emma Chacon 0%
b. Jenny Mora 40%
c. David Mora 60%
To Question Number 1, the jury answered that the negligence of David Mora and Jenny Mora proximately caused the occurrence.
[10] The motion for new trial is in the appellate record. By their tenth issue, the Moras present a concise issue related to their ninth issue. We consider the tenth issue as a subsidiary question fairly included in their ninth issue. See Tex. R. App. P. 38.1(e), (h).