Debra Smith v. James East, Individually and D/B/A Avery Fine Wines & Spirits And Terri Bayless East, Individually and D/B/A Avery Fine Wines & Spirits

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00800-CV

Debra Smith, Appellant

v.

James East, Individually and d/b/a Avery Fine Wines & Spirits; and Terri Bayless East,
Individually and d/b/a Avery Fine Wines & Spirits, Appellees

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 09-486-C368, HONORABLE BURT CARNES, JUDGE PRESIDING

OPINION

Debra Smith appeals a take-nothing judgment in a wrongful-death action arising from

the death of her daughter, S.S. The principal issue presented is whether Smith can recover on jury

findings apportioning a combined total of more than 50% of responsibility for S.S.’s death to Smith

and to S.S. herself, but less than 50% of responsibility to either of them individually. Concluding

that Texas law bars Smith from recovering, and that Smith has not otherwise demonstrated reversible

error, we will affirm the district court’s judgment.

BACKGROUND

S.S. died from self-inflicted acute alcohol poisoning at seventeen years of age. She

lived with Smith, her natural mother. S.S. imbibed the lethal volume of alcohol during the afternoon

of Tuesday, February 10, 2009, while “partying” with friends, and Smith found her afterward lying
on a couch in the apartment they shared, unresponsive, when Smith returned home from work in the

early evening. Efforts to revive S.S. proved unsuccessful.

Smith would later allege that S.S. obtained the fatal alcohol from a business known

as Avery Fine Wine & Spirits, which is co-owned by appellees, James East and Terri Bayless East.

Smith sued the Easts for damages both individually as a wrongful-death beneficiary1 and as

representative of S.S.’s estate.2 Smith’s basic factual theory was that S.S. had gone to Avery and

succeeded in obtaining alcohol from James East on numerous occasions beginning when she was

as young as sixteen years of age, that such access to alcohol had caused what was admittedly a

troubled teen to spiral further downward into alcoholism, and that James had ultimately given her the

alcohol that killed her. Smith further alleged that James had been acting in the course and scope of

his employment with Avery, such that Terri East was vicariously liable for his actions. Smith pled

liability theories of common-law negligence as well as negligence per se founded on alleged

violations of statutes prohibiting the provision of alcohol to a minor or to a “habitual drunkard.”3

She further alleged that the Easts had acted with gross negligence, entitling her to recover punitive

damages. The Easts denied that James had provided S.S. alcohol, and pled that S.S.’s death had

instead been proximately caused by the contributory negligence of Smith and/or S.S. herself.

1
See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.004, .009 (West 2008). In the absence
of material intervening substantive changes, we cite the current versions of codes for convenience.
2
See id. § 71.021 (West 2008).
3
See Tex. Alco. Bev. Code Ann. §§ 101.63, 106.03, .06 (West 2007 & West Supp. 2012).
The Legislature amended section 106.06 in 2011, but the change has no substantive impact on
our analysis.

2
 The claims were tried to a jury, which heard evidence over the course of five days.

The district court granted the Easts a directed verdict as to Smith’s survival claims and a directed

verdict to Smith that James had been acting within the course and scope of his employment with

Avery. It submitted to the jury, without objection from either side, a broad-form question inquiring

whether the negligence of James, S.S., or Smith had proximately caused S.S.’s death. There was no

dispute that the case was governed by chapter 33 of the civil practice and remedies code—Texas’s

proportionate responsibility scheme4—so the district court next submitted a question, predicated on

affirmative negligence findings, asking the jury to determine the percentage of the negligence

causing S.S.’s death that was attributable to (as applicable) James, Smith, or S.S. See Tex. Civ. Prac.

& Rem. Code Ann. § 33.003 (West 2008). The court additionally submitted the amount of Smith’s

damages and a punitive-damages predicate question inquiring as to whether the harm to S.S. had

been caused by James’s gross negligence. The jury found that the negligence of James, Smith, and

S.S. had each proximately caused S.S.’s death; apportioned responsibility 35% to James, 25% to

S.S., and 40% to Smith; awarded Smith $646,269.00 in damages; and failed to find that James had

acted with gross negligence.

Both sides filed motions for judgment on the verdict, but advanced divergent views

as to the legal effect of the jury’s findings. Smith urged that the findings entitled her to a judgment

awarding her $241,639.21, an amount roughly equaling 35% of the damages the jury awarded

her—corresponding to James’s percentage of responsibility—plus prejudgment interest on that

4
See Tex. Civ. Prac. & Rem. Code Ann. § 33.002 (West 2008) (“[T]his chapter applies to
. . . any cause of action based on tort in which a defendant . . . is found responsible for a percentage
of the harm for which relief is sought.”).

3
amount. See id. § 33.013(a) (West 2008) (“[A] liable defendant is liable to a claimant only for the

percentage of the damages found by the trier of fact equal to that defendant’s percentage of

responsibility with respect to the . . . death . . . for which the damages are allowed.”). The Easts, in

contrast, argued that chapter 33 barred recovery for Smith altogether because (1) section 33.001

prohibits “a claimant” from recovering damages “if his percentage of responsibility is greater than

50 percent,” id. § 33.001 (West 2008), and (2) section 33.011(1) defines “claimant” for purposes of

that chapter in a manner that makes a wrongful-death plaintiff and the decedent through whom she

claims a single “claimant.” See id. § 33.011(1) (West 2008). Consequently, the Easts reasoned,

the district court was required to render a take-nothing judgment on Smith’s claims.5 Following a

hearing on the competing motions, the district court rendered a final judgment incorporating the

jury’s verdict in full and ordering that Smith take nothing on her claims, a disposition that the parties

agree necessarily rested upon the legal conclusion, advanced by the Easts, that Smith and S.S. were

a single “claimant” for purposes of section 33.001.

Thereafter, Smith timely filed a motion for new trial. In her motion, Smith reurged

her arguments regarding chapter 33’s application to the jury’s findings but also asserted that

the jury’s negligence findings against her and S.S. were against the great weight and preponderance

of the evidence. Smith also complained of evidentiary rulings that included the admission of

photographs of S.S. that Smith regarded as “provocative.” The district court overruled the motion

by written order. This appeal ensued.

5
The Easts also moved for judgment notwithstanding the verdict to the extent of urging that
the evidence was legally insufficient to support the jury’s finding that any acts or omissions by James
had proximately caused S.S.’s death. The Easts have not raised this contention on appeal.

4
 ANALYSIS

Chapter 33

In her first and primary issue, Smith challenges the district court’s construction of

chapter 33, urging that she and S.S. are properly considered to be separate “claimants” for purposes

of determining the amount that statute permits her to recover based on the jury’s findings.

Consequently, Smith argues, section 33.001 does not bar her recovery because the jury apportioned

only 40% of the negligence to her individually, and only 25% to S.S. Instead, Smith reasons, she

may recover 35% of the damages awarded by the jury, corresponding to the percentage of negligence

it apportioned to James.

Statutory construction presents a question of law that we review de novo. See State

v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our primary objective in statutory construction is to

give effect to the legislature’s intent. See id. We seek that intent “first and foremost” in the statutory

text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). “Where text is clear,

text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437

(Tex. 2009) (op. on reh’g) (citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs.

v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006)). We consider the words in context, not in

isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We rely on the plain meaning of the

text, unless a different meaning is supplied by legislative definition or is apparent from context, or

unless such a construction leads to absurd results. See Entergy Gulf States, Inc., 282 S.W.3d at 437;

City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); see also Tex. Gov’t Code Ann.

§ 311.011 (West 2005) (“Words and phrases shall be read in context and construed according to the

rules of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or

5
particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”).

We also read every word, phrase, and expression in a statute as if it were deliberately chosen,

and likewise presume that words excluded from the statute are done so purposefully. See Shook

v. Walden, 304 S.W.3d 910, 917 (Tex. App.—Austin 2010, no pet.). Only when the statutory text

is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’” Entergy Gulf States, Inc.,

282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)).

Our analysis of Smith’s first issue begins with the text of section 33.001:

In an action to which this chapter applies, a claimant may not recover damages if his
percentage of responsibility is greater than 50 percent.

Tex. Civ. Prac. & Rem. Code Ann. § 33.001. As previously noted, it is undisputed that Smith’s

wrongful-death action is “an action to which this chapter applies.” In turn, the “percentage of

responsibility” referenced in section 33.001, read in context with the remainder of chapter 33,

refers to the jury’s apportionment of responsibility as required under section 33.003, here

the findings apportioning 40% of responsibility to Smith, 25% to S.S., and 35% to James.

Consequently, if, as the district court concluded, Smith and S.S. collectively are considered a single

“claimant,” section 33.001 would bar recovery because that “claimant’s” percentage of responsibility

would exceed 50 %.6

6
Although the district court submitted the negligence and proportionate fault of Smith
and S.S. separately, as if they were separate parties or “claimants,” no one has suggested that this
has any impact on our analysis. We further observe, again, that Smith did not object to the charge
as submitted.

6
 The text of section 33.001 in itself does not resolve that question. Although the

provision uses “claimant” only in the singular and the male possessive pronoun “his” with reference

to the “percentage of responsibility” apportioned to the “claimant,” such number- and gender-

specific references in codes, the Legislature has instructed, are not dispositive. See Tex. Gov’t Code

Ann. § 311.012 (West 2008) (Code Construction Act) (“[t]he singular includes the plural and

the plural includes the singular” and “[w]ords of one gender include the other genders”). Thus,

section 33.001 leaves open the possibility of a plural or collective “claimant.” On the other hand,

the provision does not affirmatively resolve our issue, either, so we must look elsewhere in search

of that answer.

As the Easts emphasize, section 33.011 explicitly defines several terms “[i]n this

chapter,” including “claimant”:

“Claimant” means a person seeking recovery of damages, including a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff. In an action in which a party
seeks recovery of damages for injury to another person, damage to the property of
another person, death of another person, or other harm to another person, “claimant”
includes:

(A) the person who was injured, was harmed, or died or whose property
was damaged; and

(B) any person who is seeking, has sought, or could seek recovery of
damages for the injury, harm, or death of that person or for the
damage to the property of that person.

Tex. Civ. Prac. & Rem. Code Ann. § 33.011(1). It is beyond dispute that Smith’s action is one “in

which [she] seeks recovery of damages for . . . death of another person”—she sues under the

Texas wrongful-death statute, wherein the Legislature has created a cause of action, “for the

7
exclusive benefit of the surviving . . . parents of the deceased,” “for actual damages arising from an

injury that causes an individual’s death . . . caused by [a] person’s . . . wrongful act, neglect, [or]

carelessness.” See id. §§ 71.002(a), (b), .004 (West 2008). Accordingly, “claimant” in this case

includes both S.S. (“the person who . . . died”), see id. § 33.011(1)(A), and Smith (a “person who

is seeking, has sought, or could seek recovery of damages for the . . . death of that person”), see id.

§ 33.011(1)(B).

One implication of section 33.011’s definition of “claimant,” as the Texas Supreme

Court has held, is that section 33.001 bars recovery by a derivative plaintiff if the fact-finder

apportions more than 50% of responsibility to the person through whom the plaintiff claims. See

JCW Elec., Inc. v. Garza, 257 S.W.3d 701, 707 (Tex. 2008) (holding that section 33.001 barred

plaintiffs’ wrongful-death and survival claims when decedent was apportioned sixty percent of

responsibility for his own death because “[w]hen the claim involves death, as here, ‘claimant’ is

defined to include not only the party seeking damages, but also the decedent”). The supreme court’s

precedents also compel us to conclude that where, as here, the fact-finder apportions more than 50%

of responsibility collectively to the derivative plaintiff and the person through whom she claims,

section 33.001 likewise bars the plaintiff’s recovery on the cause of action. Although the high court

has yet to answer that question directly, this conclusion follows from its jurisprudence addressing

settlement credits under chapter 33.

In Drilex Systems, Inc. v. Flores, an injured worker sued several defendants for a job-

related injury, and his wife and three children joined in the suit as derivative plaintiffs. 1 S.W.3d

112, 115 (Tex. 1999). One of the defendants, Amoco, settled with the plaintiffs for a total of

$774,675, distributed in agreed-upon amounts among the individual plaintiffs. See id. at 120-21.

8
The claims proceeded to trial against the remaining defendants and a jury found defendant

Drilex Systems 60% responsible for the worker’s injuries (thereby making it jointly and severally

liable7), the worker 10% responsible, and the remaining defendants 30% responsible, and awarded a

total of $2,145,000 in damages. Id. at 116. Drilex invoked the lump-sum settlement credit provided

under section 33.012(b) which required, as it does now, that “[i]f the claimant has settled with one

or more persons, the court shall further [in addition to reducing the recovery by the claimant’s

percentage of responsibility8] reduce the amount of damages to be recovered by the claimant with

respect to a cause of action by a credit equal to . . . the sum of the dollar amount of all settlements

. . . .” See id. at 122 (citing Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.012(b),

1995 Tex. Gen. Laws 971, 974 (amended 2003, 2005) (current version at Tex. Civ. Prac. & Rem.

Code Ann. § 33.012(b) (West 2008)).9 The lower courts applied the credit based on the specific

settlement amounts paid and damages awarded to each individual plaintiff. See id. at 121. Drilex

contended that section 33.012(b), read in combination with the definition of “claimant” in section

33.011(1), meant that the trial court was required instead to deduct the total amount of settlement

payments paid to the family “claimant” collectively from the total amount the family “claimant”

7
See Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.013(b), 1995 Tex. Gen.
Laws 971, 974 (amended 2003, 2007) (current version at Tex. Civ. Prac. & Rem. Code Ann.
§ 31.013(b)(1) (West 2008)).
8
See Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.012(b), 1995 Tex. Gen.
Laws 971, 974 (amended 2003, 2005) (current version at Tex. Civ. Prac. & Rem. Code Ann.
§ 33.012(b) (West 2008)).
9
At the time, section 33.012(b) also provided an alternative sliding-scale credit based on
percentages of the total award, but the Legislature has since limited the application of that credit to
health care liability cases. See Tex. Civ. Prac. & Rem. Code Ann. § 33.012(c)(2) (West 2008).

9
recovered, which had the effect of reducing the total amount the family members could recover

against it. See id. The supreme court agreed with Drilex. Its reasoning is instructive here:

All of the Flores family members are seeking recovery of damages for injury
to Jorge [the injured worker]. Thus, under the plain language of section 33.011(1),
the term “claimant” in section 33.012(b)(1) includes all of the family members.

If the Legislature had intended that each of the parties seeking recovery for
damages for the same person be treated as individual claimants, it could easily have
written the statute as follows: “In an action in which a party seeks recovery of
damages for injury to another person . . . both that other person and the party
seeking recovery of damages are claimants.” Instead, the Legislature provided that
“‘claimant’ includes both that other person and the party seeking recovery of
damages.” We are bound to apply the Legislature’s chosen definition. Thus, the
court of appeals erred in treating each of the Flores family members as individual
claimants rather than as one claimant.

Because we must view the entire Flores family as one claimant for
section 33.012(b)(1) purposes, the total of all damages to be recovered by the family
must be reduced by the total of all settlements received by the family.

Drilex, 1 S.W.3d at 122 (citations omitted).

Although the definition of “claimant” addressed in Drilex was later amended by

2003’s H.B. 4, those changes served only to expand the scope of “claimant” and do not alter the

underpinnings of the supreme court’s analysis in that case.10 And, while aspects of Drilex have at

10
Under the version of chapter 33 addressed in Drilex, the definition of “claimant” provided,
in relevant part:

In an action in which a party seeks recovery of damages for injury to another person,
damage to the property of another person, death of another person, or other harm to
another person, “claimant” includes both that other person and the party seeking
recovery of damages pursuant to the provisions of Section 33.001.

Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.011(1), 1995 Tex. Gen. Laws 971, 973
(amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 31.011(1) (West 2008));

10
times elicited criticism, the decision remains binding precedent nonetheless. See Utts v. Short,

81 S.W.3d 822, 831 (Tex. 2002) (Baker, J., concurring) (noting Drilex remains controlling law);

id. at 838 (Owen, J., dissenting) (“Drilex remains authoritative and has not been overruled.”).11 We

are thus bound to follow Drilex unless and until the Texas Supreme Court instructs us otherwise.

See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004,

no pet.).

The linchpin of the supreme court’s analysis in Drilex was its construction of

section 33.011(1)’s definition of “claimant.” The Legislature expressly made that same definition

applicable to the use of “claimant” throughout chapter 33. See Tex. Civ. Prac. & Rem. Code Ann.

§ 33.011 (providing definitions of terms, including “claimant,” “[i]n this chapter”). It follows that

the same construction of “claimant” would likewise control under section 33.001, such that Smith

is barred from recovery because the “claimant” of Smith and S.S. was found to be more than 50%

responsible for S.S.’s death.

cf. Tex. Civ. Prac. & Rem. Code Ann. § 33.011(1) (West 2008) (“In an action in which a party seeks
recovery of damages for injury to another person, damage to the property of another person, death
of another person, or other harm to another person, “claimant” includes: (A) the person who was
injured, was harmed, or died or whose property was damaged; and (B) any person who is seeking,
has sought, or could seek recovery of damages for the injury, harm, or death of that person or for
the damage to the property of that person). The effect of the H.B. 4 amendments was thus to expand
“claimant” to encompass not only derivative plaintiffs who are actually asserting claims, but any
person who could potentially assert such a claim. Cf. Utts v. Short, 81 S.W.3d 822, 825 (Tex. 2002)
(plurality op.) (addressing whether, under prior version of chapter 33, nonsettling defendant entitled
to settlement credit).
11
In the plurality opinion, four members of the Utts court contended that Drilex was wrongly
decided and should be overruled, while two members argued that Drilex was distinguishable and did
not control because Walker was not a party seeking damages when the trial court submitted the case
to the jury. Utts, 81 S.W.3d at 827. Three members of the court took the position that Drilex was
correctly decided and should be applied. Id. at 838 (Owen, J., dissenting).

11
 In contending otherwise, Smith relies on two decisions of the Corpus Christi Court of

Appeals, Sanchez v. Brownsville Sports Ctr., Inc., 51 S.W.3d 643 (Tex. App.—Corpus Christi 2001,

no pet.), and a subsequent memorandum opinion that followed Sanchez over a dissent, Salinas

v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107 (Tex. App.—Corpus Christi Nov. 25, 2009,

pet. denied) (mem. op.); see id. at *6 (Vela, J., dissenting). Both Sanchez and Salinas involved

wrongful-death and survival claims asserted by two parents of a deceased child. See Sanchez,

51 S.W.3d at 652-53; Salinas, 2009 WL 4263107, at *1. In each case, a jury found that the

two parents collectively, but not individually, were responsible for more than 50% of their child’s

death, and the defendant attempted to invoke section 33.001 to bar either parent from recovering.

See Sanchez, 51 S.W.3d at 654-56; Salinas, 2009 WL 4263107, at *3-4. The Salinas defendants

relied on Drilex in support of their argument. See Salinas, 2009 WL 4263107, at *4. Rejecting this

argument, the Corpus Christi Court reasoned that Drilex was distinguishable because it involved the

issue of settlement credits, not the right of each parent to recover damages under the wrongful-death

statute in light of chapter 33. See id. at *4. Leaving aside whether Sanchez and Salinas can be fully

reconciled with Drilex, they are distinguishable from the present case because they involved claims

asserted by two different wrongful-death beneficiaries and the issue of whether the contributory

negligence of the two beneficiaries collectively could bar recovery under section 33.001. The

Corpus Christi Court explained the distinction:

Although only one cause of action exists in . . . [a] wrongful death case, each of the
parents is entitled to recover for the death of their son . . . . As they are each entitled
to recover, each of the Ramoses is a claimant for the purposes of the civil practice
and remedies code. Each one of the Ramoses should have recovered the amount of
damages apportioned to them by the jury and reduced by their respective percentages
of responsibility.

12
Sanchez, 51 S.W.3d at 656 (internal citations omitted); see Salinas, 2009 WL 4263107, at *4;

see also Tex. Civ. Prac. & Rem. Code Ann. § 71.004 (“An action to recover damages as provided

by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the

deceased.”). Here, by contrast, there is only one wrongful-death beneficiary suing—Smith—and

the issue is whether her contributory negligence and that of the decedent through whom she

claims can bar recovery under section 33.001. Consequently, Sanchez and Salinas do not alter our

conclusion that Drilex compels us to hold that Smith and S.S. are a single “claimant” for purposes

of section 33.001, barring recovery.

Beyond her reliance on Sanchez and Salinas, Smith suggests that this application

of section 33.001 infringes her rights under the Open Courts provision of the Texas Constitution,

but such a challenge cannot lie where, as here, her cause of action rests upon the wrongful-death

statute and not the common law. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,

903 (Tex. 2000) (“[W]rongful-death and survival claimants cannot establish an open-courts

violation because they ‘have no common law right to bring either.’” (quoting Bala v. Maxwell,

909 S.W.2d 889, 893 (Tex. 1995))). Smith further decries what she urges are harsh consequences

or unfairness created by section 33.001’s application here, but these arguments are properly

directed to the Legislature. See T.C.R. v. Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661,

672 (Tex. App.—Austin 2009, no pet.) (citing Simmons v. Arnim, 220 S.W. 66, 70 (1920) (“Courts

. . . must take statutes as they find them . . . . They are not the law-making body. They are not

responsible for omissions in legislation. They are responsible for a true and fair interpretation of the

written law . . . .”)).

13
 Applying the controlling statutory language, as construed by the binding precedent

of the Texas Supreme Court, we hold that the jury’s findings apportioning more than 50% of

responsibility to Smith and S.S. barred Smith from recovering under the wrongful-death statute. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, .011(1); Drilex, 1 S.W.3d at 122. Consequently, the

district court did not err in rendering a take-nothing judgment on that basis. Accordingly, we

overrule Smith’s first issue.

Sufficiency of the evidence

In her third issue, Smith challenges the factual sufficiency of the evidence supporting

the jury’s negligence findings against her and S.S. The Easts argue that Smith waived her right

to challenge the sufficiency of the evidence by moving for judgment on the jury’s verdict. They rely

on Litton Industrial Products, Inc. v. Gammage, which noted that a party could not take a position

on appeal inconsistent with relief requested in a motion for judgment. 668 S.W.2d 319, 321-22

(Tex. 1984) (after moving for judgment on actual damages, defendant entitled to appeal award

of treble damages under DTPA); see also Miner-Dederick Constr. Corp. v. Mid-Cty. Rental Servs.,

Inc., 603 S.W.2d 193, 198 (Tex. 1980) (party moving for judgment on one interpretation of

jury’s findings entitled to complain that findings based on another interpretation were against

preponderance of the evidence); Green v. Texas Workers’ Comp. Ins. Facility, 993 S.W.2d 839, 843

(Tex. App.—Austin 1999, pet. denied) (party moving for judgment based on entitlement to relief

supported by jury’s findings did not waive right to complain about exclusion of expert testimony,

which allegedly resulted in jury’s failure to award additional relief). We agree with the Easts.

14
 Following the jury’s verdict apportioning liability among Smith, S.S., and the Easts,

Smith filed a motion for judgment asking that the district court “enter a judgment incorporating the

findings of the [j]ury” and award her damages consistent with the jury’s findings. Her motion made

no reservation of the right to complain about the jury’s findings regarding her or S.S.’s negligence.

Only after the district court entered a take-nothing judgment against her did Smith attempt to

challenge the factual sufficiency of the evidence supporting the jury findings on which she

had previously relied. That assertion is inconsistent with the position she took in her motion

to enter judgment. See Stewart & Stevenson Servs., Inc. v. Enserve, Inc., 719 S.W.2d 337, 341

(Tex. App.—Houston [14th Dist.] 1986, no writ) (party waived right to complain about no evidence

or insufficient evidence; by moving for judgment on verdict and then filing motion for new trial once

judgment rendered on verdict, party attempted to “have it both ways”). Further, her motion lacked

any reservation of rights to complain about the judgment on appeal. See Bray v. Tejas Toyota, Inc.,

363 S.W.3d 777, 787 (Tex. App.—Austin 2012, no pet.) (“‘To preserve the right to complain about

a judgment on appeal, a movant for judgment should state in its motion to enter judgment that it

agrees only with the form of the judgment, and note its disagreement with the content and result of

the judgment.’” (quoting Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston

[1st Dist.] 1995, writ denied), and citing First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633

(Tex. 1989))). We conclude that Smith waived her right to complain on appeal about the factual

sufficiency of the evidence supporting the jury’s findings.

In any event, the evidence was factually sufficient to support the jury’s negligence

findings against Smith and S.S. Under our factual-sufficiency standard of review, we weigh all the

evidence in the record and may overturn a finding only if it is so against the great weight and

15
preponderance of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986). But we may not merely substitute our judgment for that of the

jury. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The jury remains the sole judge

of witnesses’ credibility and the weight to be given their testimony. Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Applying this standard, we cannot conclude that the

evidence so greatly preponderates against the jury’s findings that they were clearly wrong and

manifestly unjust.

As for S.S.’s conduct, the jury heard considerable evidence that S.S. and her friends,

though minors, engaged in excessive drinking, that S.S. had a run-in with Houston police related to

alcohol, that she ran away from home when challenged on her drinking, and that she had generally

established a pattern of reckless behavior regarding alcohol consumption in the months leading up

to her tragic death. The jury also saw photographs taken shortly after S.S.’s death that revealed

empty alcoholic beverage containers strewn about S.S.’s bedroom and even arranged in a display on

her bureau. This evidence, in turn, was probative of Smith’s knowledge of her minor daughter’s

conduct, if not some acquiescence in it. Although Smith insisted that she tried to “lay down the law”

with S.S. and denied ever purchasing alcohol for her, the jury heard conflicting testimony of a visit

by Smith and S.S. to Avery in which Smith purchased a bottle of her daughter’s preferred brand of

vodka after S.S. set it on the counter.12 The jury also heard evidence that Smith failed to follow up

with a physician or obtain rehabilitative services for S.S. after S.S. was taken to the emergency room

12
James East testified to this event, and his account was corroborated by an Avery customer,
Jordan Lane. Smith objected to Lane as a surprise witness and moved to exclude his testimony
before trial, but has not brought these objections forward on appeal.

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for alcohol abuse in October 2008. Given such evidence, we cannot say the jury’s findings against

Smith and S.S. were clearly wrong and manifestly unjust. Accordingly, we overrule Smith’s

third issue.

Admission of evidence

In her second issue, Smith contends that the district court abused its discretion

in admitting “provocative” photographs of S.S. over Smith’s objection. Smith argues that the

photographs’ probative value, if any, was greatly outweighed by the prejudicial effect they had on the

jury. On appeal, she relies on rule of evidence 403, which provides, “[a]lthough relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Tex. R. Evid. 403. The Easts respond that Smith failed to

preserve error. Specifically, they assert that Smith objected to the photographs solely on relevance

grounds at trial, and has therefore waived her right to object on alternative grounds on appeal.

To preserve the right to complain on appeal about the admission of evidence at trial,

a party must have objected at the time the evidence was offered, the objection must have been

specific enough to enable the trial court to understand the precise nature of the error alleged,

and the party must have obtained a ruling on its objection. See Tex. R. App. P. 33.1(a); Tex. R.

Evid. 103(a)(1); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). Complaints and arguments on

appeal must correspond with the complaint made at the trial court level. Knapp v. Wilson N. Jones

Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.). “Where trial objection is

not the same as the complaint presented on appeal, the complaint is not preserved for appellate

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review.” A.G.E., Inc. v. Buford, 105 S.W.3d 667, 678 (Tex. App.—Austin 2003, pet. denied) (citing

Rogers v. Stell, 835 S.W.2d 100, 101 (Tex. 1992)).

When the Easts offered the photographs into evidence, Smith objected to their

relevance, asserting that the photographs had no probative value. She did not make any assertions

that would have alerted the district court of any reliance on rule 403. She has thus waived her

right to rely on rule 403 on appeal. See id.; see also Broxton v. State, 909 S.W.2d 912, 918

(Tex. Crim. App. 1995) (party waived right to complain about constitutionality of admission of

witness’s testimony when trial objection was limited to rule 403); Nations v. State, 944 S.W.2d

795, 799 (Tex. App.—Austin 1997, writ ref’d) (party waived right to complain about testimony’s

reliability when trial objection was limited to relevancy). In any event, we could not conclude that

the admission of these photographs was harmful in light of other evidence concerning S.S.’s conduct

of which Smith does not complain. We overrule Smith’s second issue.

CONCLUSION

Having overruled Smith’s issues on appeal, we affirm the district court’s judgment.

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Field

Affirmed

Filed: February 22, 2013

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