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Vigil v. Kirkland

Court of Appeals of Texas, Second District, Fort Worth

June 8, 2017

RITA VIGIL, APPELLANT
v.
AMY KIRKLAND, APPELLEE

         FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 352-272421-14

          PANEL: WALKER, MEIER, and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          SUE WALKER JUSTICE

         I. Introduction

         Appellant Rita Vigil filed a negligence suit against Appellee Amy Kirkland alleging personal injuries and damages after Vigil's vehicle was rear-ended by Kirkland's vehicle. A jury found that Kirkland's negligence, if any, did not proximately cause the occurrence; the trial court entered a take-nothing judgment on the jury's verdict. Vigil raises two issues. She argues that the jury's failure to find that Kirkland's negligence proximately caused the occurrence is supported by legally and factually insufficient evidence and that the trial court abused its discretion by overruling her motion for new trial. We will affirm.

         II. Factual and Procedural Background

         Vigil and Kirkland testified at trial regarding the cause of the accident. On the morning of August 3, 2012, Vigil had stopped her vehicle at a red light. About fifteen seconds later, a vehicle driven by Kirkland struck the rear end of Vigil's vehicle. Vigil estimated that Kirkland was traveling thirty miles per hour immediately before the impact.[2] Vigil said that the impact of the collision propelled her vehicle forward "[a]bout half a car" length. Vigil testified that repairs to her vehicle cost approximately $4, 000 and that she sustained personal injuries to her back, neck, and shoulders necessitating medical treatment.[3]

         Kirkland testified that the accident occurred while she was on her way home. She had driven to the elementary school where she had been employed to pick up her personal effects because she was moving to Alabama. Kirkland's nine-week-old son was with her; he was buckled in a rear-facing infant carrier in the backseat. A mirror mounted on the backseat enabled Kirkland to check on him. Kirkland said that her son had been crying ever since they left the school. When he abruptly stopped crying, Kirkland thought he might be choking. She looked back at the mirror to check on him and noticed that he had fallen asleep. When she looked back at the road, Kirkland saw Vigil's vehicle stopped at the red light approximately seven to ten car lengths ahead of her. Although Kirkland applied her brakes, she was not able to stop her vehicle before it collided with Vigil's vehicle. When asked by Vigil's counsel, "What could have been done differently to prevent this accident, " Kirkland responded, "I could have kept my eyes on the road."

         III. Sufficiency of the Evidence

         A. Standard of Review

         A party challenging the legal sufficiency of an adverse finding on an issue on which the party had the burden of proof at trial must demonstrate on appeal that the evidence conclusively established, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The reviewing court first examines the record for evidence that supports the finding, crediting favorable evidence if a reasonable fact-finder could, while disregarding contrary evidence, unless a reasonable fact-finder could not. Id.; see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If no evidence supports the finding, then the reviewing court will examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241.

         A party attacking the factual sufficiency of an adverse finding on an issue on which the party had the burden of proof must demonstrate on appeal that the adverse finding is so against the great weight and preponderance of all of the evidence, the judgment should be set aside and a new trial ordered. Id. at 242; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

         In performing evidentiary-sufficiency reviews, we must be mindful that the fact-finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex. 1986); Nwokedi v. Unlimited Restoration Specialists, Inc., 428 S.W.3d 191, 199, 205 (Tex. App.-Houston [1st Dist.] 2014, pet. denied). The fact-finder is responsible for resolving conflicts in the evidence, and it may believe one witness and disbelieve another. McGalliard, 722 S.W.2d at 697. We may not reweigh the evidence and set aside a finding merely because we are of the opinion that a different result is more reasonable. Pool, 715 S.W.2d at 634.

         B. ...


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