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Duke v. Jack in Box Eastern Division, L.P.

Court of Appeals of Texas, Fourteenth District

June 13, 2017

LAURA DUKE AND JACK DUKE, Appellants
v.
JACK IN THE BOX EASTERN DIVISION, L.P., Appellee

         On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 13-CV-0838

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          John Donovan Justice

         This is a premises-liability negligence case in which a customer and her husband brought suit against a Jack in the Box restaurant for injuries sustained in a slip and fall and for loss of consortium. The trial court, based on the jury's verdict, rendered judgment against the customer and her husband. The customer and her husband appeal with three issues. We affirm.

         I. Background

         On December 22, 2011, while appellant Laura Duke was a customer in the Jack in the Box in Galveston, Texas, she slipped and fell in front of the door to the women's restroom. The incident was captured on the security camera video.

         The Dukes brought suit against appellee Jack in the Box Eastern Division, L.P. Laura alleged she slipped on water on the floor outside the women's restroom, causing her to break her hip. Laura argues Jack in the Box was negligent for failing to properly inspect for dangerous hazards and to clean or promptly mark to alert patrons of a dangerous situation, in violation of its obligations as a premises owner to business invitees. Appellant Jack Duke brought derivative claims for loss of consortium.

         It is undisputed that Laura fell in the hallway immediately in front of the women's restroom at the Jack in the Box restaurant. She fell as she was opening the door to the women's restroom. The incident was captured on a security camera video. Immediately before the incident, a Jack in the Box maintenance employee, Mariano Gaitan Rodriguez, walked down the restroom hallway. A customer alerted the restaurant that Laura had fallen. Immediately after the incident, the restaurant manager, Eusebio Cedillo, and a restaurant cook, Jorge Sagastume Martinez, were present in the restroom hallway with Laura. Cedillo helped Laura up and to the restroom door.

         Prior to trial, appellants took oral depositions of Gaitan, Cedillo, and Sagastume. None of the three former employees reported seeing any water or other hazardous conditions in the location where Laura fell.

         A jury trial commenced on April 27, 2015. In appellants' opening statement, their counsel suggested that Gaitan, Cedillo, and Sagastume made admissions that would be heard by the jury if they "stick to" their deposition testimony.

         Laura testified that she did not look at the floor as she walked down the hallway to the restroom and did not look at the floor as she approached the entrance to the women's restroom. After falling, Laura did not observe any water on the floor. She did not recall touching water with her hands while on the floor immediately after the fall. She never saw any hazard or unsafe conditions on the floor in the area where she fell. Laura testified she "mopped it up with my pants."

         Appellants called Gaitan, Cedillo, and Sagastume to testify as witnesses in their case-in-chief. None of the three former employees reported seeing any water or other hazardous conditions in the area of the incident. Each testified that they saw no water, mud, or other debris at the location in which the incident occurred.

         When appellants' counsel began to question Cedillo about potentially inconsistent testimony, Cedillo told appellants' counsel that any inconsistencies were because appellants' counsel was asking hypothetical questions and the questions went "round and round until I gave you that answer." Cedillo stated that appellants' counsel "went round in circles and found different ways to ask the same questions." Cedillo repeated during cross-examination by appellee that appellants' counsel "kept going round and round and round until he got what he was looking for." Appellants did not object to Cedillo's testimony; thus it was admitted. Instead, appellants' counsel sought to impeach Cedillo by reading Cedillo's oral deposition transcript to the jury or go through the oral deposition of Cedillo with the witness "line by line." Appellants' counsel complained, "this position that [Cedillo] has taken is specious, self-serving and ridiculous and can be demonstrably rebuked." The trial court denied the request.

          In closing arguments, both appellants' counsel and counsel for appellee commented upon the evidence admitted at trial. Appellants' counsel did not lodge any objections during closing argument. The jury found that Jack in the Box was not negligent. The trial court entered a final judgment on July 6, 2015.

         On August 4, 2015, appellants timely filed a motion for new trial arguing Jack in the Box's counsel committed reversible error by "(1) engaging in incurable jury argument and by (2) improper witness influencing involving witnesses Cedillo and Gaitan." Appellants also argued that witnesses Cedillo and Gaitan violated "the Rule" while awaiting their turn to testify. On September 4, 2015, appellants filed their "Brief in Support of Plaintiffs' Motion for New Trial, " attaching transcripts of pretrial and post-trial depositions. The brief addressed only the claim of improper jury argument. Appellee's filed a response to the motion for new trial. An oral hearing was held on September 9, 2015. Appellee objected to appellants' brief in support as being untimely. The trial court denied appellants' motion for new trial on September 10, 2015. Appellants timely filed this appeal.

         II. Analysis

         In three related issues, appellants assert that the trial court erroneously denied their motion for new trial. Appellants primarily allege improper jury argument by appellee's trial counsel, asserting he made personal attacks on appellants' counsel that created incurable, reversible, and harmful error. Appellants also contend that a new trial was warranted because the trial court erred by excluding from evidence the pretrial deposition testimony of a testifying witness. Finally, appellants assert that post-trial deposition testimony demonstrating false statements by a trial witness warranted a new trial.

          A. Standard of review

         We review a trial court's denial of a motion for new trial for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

         B. Incurable jury argument

         In their first issue, appellants maintain that the trial court erred in denying their motion for new trial because appellee's counsel made incurable jury arguments. Specifically, appellants argue:

The jury argument and repeated comments made by Jack in the Box's counsel, consisting of unsupported accusations of "tricking" "unsophisticated" witnesses into giving the "bad" testimony that would prove inconsistent with their trial testimony was prejudicial and incurable and requires a new trial.

         Control over counsel during closing argument is within the sound discretion of the trial court and will not be disturbed without a clear showing of abuse of that discretion. Mandril v. Kasishke, 620 S.W.2d 238, 247 (Tex. Civ. App.-Amarillo 1981, writ ref'd n.r.e.). A jury argument is "incurable" when it is so prejudicial or inflammatory that an instruction to disregard cannot eliminate the harm. Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968); Clark v. Bres, 217 S.W.3d 501, 509 (Tex. App.-Houston [14th Dist.] 2006, pet denied). "There are only rare instances of incurable harm from improper argument." Id. (citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex. 1979)); accord Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008).

         "Incurable jury argument encompasses appeals to racial prejudice; unsupported charges of perjury; unsupported, extreme, and personal attacks on opposing parties and witnesses; or baseless allegations of witness tampering." Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Penalver, 256 S.W.3d at 681); see also Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 609 (Tex. App.-Houston [14th Dist.] 2015, no pet.). For instance, a jury argument comparing the defendant's nursing home's conduct to medical experimentation on the elderly in Nazi Germany was incurable. Penalver, 256 S.W.3d at 681-82. A jury argument stating that the plaintiff, a naturalized United States citizen born in India, had committed "judicial terrorism" was incurable when coupled with an unsupported reference to "cultural issues" in the case. Showbiz Multimedia, LLC v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771-72 (Tex. App.-Houston [1st Dist.] 2009, no pet.). On the other hand, a jury argument making a reference to opposing counsel and asking "What kind of snake oil is he selling you" was not incurable. McChristian, 449 S.W.3d at 855-56. Additionally, a jury argument comparing the defendants in a negligence case to onlookers who did nothing during the savage beating of a slave was not incurable. 4Front Engineered Solutions, Inc. v. Rosales, 512 S.W.3d 357, 390-91 (Tex. App.-Corpus Christi 2015), rev'd on other grounds, 505 S.W.3d 905 (Tex. 2016).

         A complaint of incurable argument may be asserted and preserved in a motion for new trial, even without a complaint and ruling during the trial. Phillips, v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).[1] To show an argument is incurable appellants must prove: (1) an improper argument was made; (2) that was not invited or provoked; (3) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial; and (4) that by its nature, degree, and extent, constituted reversibly harmful error based on an examination of the entire record to determine the argument's probable effect on a ...


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