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Edwards v. Edwards

Court of Appeals of Texas, Eighth District, El Paso

December 11, 2013

Bradley Scott EDWARDS, et ux., Kristen Edwards, Appellants,
v.
Robert E. EDWARDS, Appellee.

Page 758

Brian William Butcher, Hurst, for Appellants.

James K. Campbell, McKinney, for Appellee.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice.

Appellant Bradley Scott Edwards (hereinafter " Appellant" or " Scott" ) [1] appeals the denial of his motion for a new trial following an adverse verdict in a personal injury suit filed against Scott's father, Robert E. Edwards (" Appellee" or " Robert" ). In his sole issue on appeal, Appellant argues that the trial court abused its discretion bye denying a new trial in light of evidence from Robert's wife and Scott's mother, Sarah Elaine Edwards (" Sarah" ), that Robert may have given false testimony during a pretrial deposition. For the

Page 759

following reasons, we affirm the trial court's judgment.

FACTUAL BACKGROUND

Appellant requested only a partial reporter's record and not a full reporter's record under TEX.R.APP.P. 36.4 et seq. As such, we are constrained in our review of the facts of this case. Appellant Scott and his wife Kristen sued Scott's father, Robert, on negligence and premises liability claims. On November 17, 2008, Scott went to his father Robert's farm next door in Krum, Texas, to help his father raise the roof of a barn. Scott and Robert are both homebuilders, although Robert is retired. Robert loaned Scott a ladder so that Scott could remove plywood that had been nailed in to the ceiling joists of the barn. While Scott and Robert were working to remove a piece of plywood, one of the legs on Scott's ladder splintered and failed. Scott fell to the ground and sustained injury requiring emergency medical treatment.

Robert testified that the ladder Scott used was at least twenty years old, that it had been stored outside exposed to the elements, that it had been broken and repaired prior to the breakage at issue in this case, that the leg that broke on the day Scott was injured had some wear-and-tear damage, that the ladder had cracks in it, and that " [l]adders like this have blown off roofs." At a pretrial deposition, Robert had testified that he did not see whether the ladder had cracks in it prior to the accident.

Following trial, Robert's wife and Scott's mother, Sarah, made an ex parte communication with the court by sending a letter stating that her husband had not been truthful during his testimony. At a hearing on Appellant's motion for a new trial, Sarah testified that Robert had been upset after having his deposition taken and said in the presence of other family members that he had not felt he had been given the opportunity to tell the truth. Robert further stated that he denied awareness of problems with the ladder at deposition, but that he was aware of the presence of the cracks in the ladder, that the cracks had been there for years, and that the ladder should have been thrown away a long time ago. Sarah also testified that Robert told her that he was intimidated by his attorney, felt pressured to testify a certain way during the deposition or else lose insurance coverage after twenty-five years, and was not allowed to change his deposition after informing his attorney about the error, although that testimony was subsequently stricken from the record as either being nonresponsive or subject to privilege. The trial court denied Appellant's motion for a new trial.

DISCUSSION

In his sole issue on appellate review, Scott argues that the trial court abused its discretion by denying the motion for new trial because the specter of Robert's false testimony at a pretrial deposition constitutes ...


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