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Bell v. Harris

Court of Appeals of Texas, Fifth District, Dallas

May 3, 2017


         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-00107-2014

          Before Justices Bridges, Lang-Miers, and Whitehill



         Dwight Bell, Deborah Bell, and Bob Bell appeal the trial court's take nothing judgment in favor of Karen Lynn Harris. This Court, by letter dated March 18, 2016, notified the Bells that their pro se brief did not comply with the rules of appellate procedure and directed them to file an amended brief that complied with rule 38.1. On March 23, 2016, the Bells filed an amended brief in which they list fifteen issues and "points of err" A through R. The Bells' brief makes the following arguments: (1) the trial court erred in excluding the Bells' business records because Harris "at no time withdrew or amended [her] deemed admission to rear-ending" Bob's vehicle; (2) summary judgment must be reversed if liberal construction of the pleadings reveals a fact issue or if the pleadings would support "a recovery under any theory of law"; (3) Harris' deemed admission was conclusively established and not withdrawn or amended; the trial court erred in excluding medical records and pleadings despite the Bells' attempts to use them at trial; (4) business records accompanied by an affidavit that complies with rule of evidence 902(10)(b) are presumptively authentic; (5) a party's production of documents is self-authenticating; (6) the trial court erred in taking the case away from the jury and dismissing the jury; (7) Harris failed to prepare and submit a motion for directed verdict; (8) it was a "violation" for the trial judge and Harris' counsel to "engage in a conversation . . . which could not be heard, " and the trial court erred in granting a directed verdict under these circumstances; (9) Harris' proposed jury charge was flawed because Harris "did not take the witness stand to offer any evidence to support her affirmative defense; (10) the trial "should have been about the amount of money [the Bells] were entitled to based on their allegations, pleadings, and testimonies at trial" because Harris' deemed admission of "the causation of the rear-end accident" resolved the liability issue; (11) a letter in a trespass case is admissible and sufficient to prove the intent of another party; and (12) the trial court erred in granting a motion for JNOV. We affirm the trial court's judgment.

         In October 2013, the Bells filed their original petition alleging that, on April 30, 2012, Harris rear-ended Bob's vehicle in which Dwight was a passenger. The petition alleged Dwight received injuries requiring surgery, and his wife, Deborah, was also suing Harris for loss of consortium. The petition asserted claims of negligence, negligence per se, respondeat superior, and negligent entrustment. Harris filed an answer in which she asserted a paid or incurred medical expenses limitation applied, the Bells' own negligence was the sole or partial proximate cause of the accident, Harris was not responsible for any medical conditions or damages because they were pre-existing conditions, and the Bells failed to mitigate damages.

         In December 2013, Dwight and Deborah filed a traditional motion for summary judgment on the grounds that Harris admitted hitting the Bells' vehicle from behind, and there was no evidence presented by Harris sufficient to raise a fact issue whether the Bells' comparative negligence precluded any recovery. The motion stated it was supported by a police crash report form, a vehicle damage guide for traffic crash investigators, an investigator's narrative opinion of "What Happened, " hospital emergency department discharge instructions, Harris' response to the Bells' request for admissions, Dwight and Deborah's original petition, Harris' answer to the original petition, and affidavits of Dwight and Deborah.

         In August 2014, "Joiner Bob Bell and Linda Bell" filed a traditional motion for summary judgment on the grounds that Harris had not overcome the rebuttable presumption that the underlying rear-end accident was caused by her negligence. Bob and Linda's motion stated it was supported by the same documents as Dwight and Deborah's motion, with the addition of Bob and Linda's original complaint, affidavits of Dwight and Deborah, and the affidavit of Reginal McIntyre, identified as "Reggie Auto Clinic."

         Harris responded that the Bells did not prove all elements of their negligence cause of action as a matter of law. Harris argued fact issues existed on the elements of cause in fact, proximate cause, and damages. In making these arguments, Harris asserted the affidavits attached to the Bells' motions for summary judgment were defective and did not present competent summary judgment evidence. Specifically, Harris argued the affidavit of "Dwight/Deborah Bell" was defective on its face because (1) it was entitled "Plaintiff Dwight Bell Affidavit"; (2) its first line stated: "Before me, the undersigned authority, personally appeared Deborah Bell, who being by me duly sworn, deposed as follows: 1. My name is Dwight Bell"; (3) it did not properly authenticate the police report and medical records attached; and (4) it contained statements that were not based on personal knowledge. Thus, Harris argued, the Bells failed to submit competent summary judgment evidence, and their motions for summary judgment should be denied.

         The Bells filed a motion to cure any alleged defects or, alternatively, to be granted a continuance. However, on September 16, 2014, the trial court issued a memorandum ruling denying the Bells' motion for summary judgment. On August 2015, Harris filed a no-evidence motion for summary judgment in which she argued there was no evidence she breached a duty to the Bells or that the Bells' damages were proximately caused by the alleged breach.

         At a pre-trial conference on September 3, 2015, Harris' counsel objected to the police report and medical records the Bells attached to "multiple pleadings in the case." Harris' counsel argued the records were hearsay and not properly authenticated because the Bells themselves executed business records affidavits in support of the records "[t]estifying that they are custodian of records for Plano Police Department" and for the medical records. Dwight responded as follows:

We were eyewitnesses and have personal knowledge of these documents that he claimed that they're hearsay. I was in the car when the car actually had an accident. I was in the operating room when the surgery went down.

         The trial court granted Harris' motion to exclude the police report. Regarding the medical records, the trial court also granted Harris' motion to exclude the records because they were not authenticated and the Bells presented no affidavit to establish a causal connection between the accident and the Bells' medical damages. The trial court also excluded the Bells' recorded statements because they were not deposition transcripts but "recorded statements usually done by an insurance company." Regarding Deborah's affidavit, Harris objected that it was hearsay that was not relevant to the case, and the statements it contained were made without personal knowledge. The trial court excluded the affidavits but instructed the Bells they could testify regarding the information contained in the affidavits but could not show the affidavits to the jury.

         At trial on September 8, 2015, Bob testified he and Dwight were stopped in a turn-around lane on highway 75 in Plano when Harris hit him from behind, and "it knocked [Bob's] car forward" even though his foot was on the brake pedal. Bob pulled in to a nearby 7-Eleven, and Harris followed. Harris said she was at fault and apologized. Bob called the police, who came and "assessed the accident." After Bob exchanged insurance information with Harris, he attempted to start his car again but "had a hard time starting it." Bob "eventually" got the car started, but it "petered out" about a mile down the road. Bob called his mechanic to send a wrecker, and Dwight called Deborah to come pick him up. On cross-examination, Bob testified his car was a fourteen-year-old S10 Chevrolet pickup with "a hundred and some thousand" miles on it.

         Deborah testified Dwight called her on the day of the accident, and she went to Plano and picked him up. Dwight was "trying to be a tough guy, but [Deborah] could see he was in pain and he was hurting." Deborah took Dwight home and applied ice to his left knee and his head. Deborah took Dwight to the hospital where "he was diagnosed and treated and given instructions of what was going on." Four months before the accident, Deborah had surgery on her shoulder, and Dwight had been taking care of her. After the accident, Deborah was "forced" to take care of Dwight, who was "complaining" and "taking medicine all the time." Deborah testified that, after the accident, ...

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