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Bell v. Gilfour

Court of Appeals of Texas, Second District, Fort Worth

July 20, 2017






         In three issues, Appellant Lesley Bell, individually and on behalf of Sam Bell, appeals from the trial court's take-nothing judgment entered in this wrongful death case. We affirm.

         I. BACKGROUND

         Lesley Bell and Joanna Dobbs were married in 1995 and had a son, Sam Bell. The three lived in Colorado for a few years before moving to Montana. Lesley and Joanna divorced in 2003 but continued to live together in Montana with Sam until Joanna became involved with, and then married, Peter Dobbs. Peter, Joanna, and Sam ultimately moved to Fort Worth. Jamie Abrams lived a couple of houses down from Joanna's new house in Fort Worth, and she also had a son, Ethan Abrams, who was one year younger than Sam. When Joanna was mowing her lawn one day, Jamie decided to introduce herself to Joanna. Joanna and Jamie became instant friends, as did Sam and Ethan. Peter was a truck driver whose job required him to travel extensively, and when he was out of town, Joanna's sister, Dolly Anderson, would often travel to Fort Worth to stay with Joanna and Sam. As a result of these circumstances, Joanna, Sam, Dolly, Jamie, and Ethan would often get together for dinner, sometimes at Joanna's house and sometimes at Jamie's.

         Joanna and Sam met Appellee Roy Gilfour in the summer of 2011 when he came to a garage sale Joanna and Peter held at their Fort Worth home. After the garage sale, Joanna, Sam, and Gilfour began to socialize together, and eventually Gilfour met Dolly when she was on one of her visits to see Joanna and Sam. Joanna, Sam, Dolly, and Gilfour frequently got together for dinner. And when Joanna hosted dinner at her house for Sam, Dolly, Jamie, and Ethan, Gilfour would often join them. Pertinent to this case, over time, Gilfour and Sam in particular became very close. When Gilfour came over to Joanna and Sam's house, he and Sam would talk a lot. Gilfour occasionally gave Sam gifts, such as a football, a knife, and a pool stick. Gilfour also took Sam to play pool with the pool stick he had given Sam. Sam liked being around Gilfour and looked up to him. And according to Gilfour, Sam constantly asked Gilfour to get him a handgun.

         On February 22, 2012, Joanna hosted dinner at her home for Sam, Dolly, Jamie, Ethan, and Gilfour as she had done many times before. Gilfour was the last to arrive, and he brought with him a gift for Sam: an unloaded .22 caliber revolver. Sam was given possession of the revolver, although there is some dispute over exactly how it happened, who was present when it did, and whether Joanna consented.

         Sometime later, Gilfour found Sam and Ethan in the garage, and Sam had the revolver in his hand. Gilfour saw that some .22 caliber long bullets had been loaded in the revolver's cylinder.[2] Gilfour told Sam that the .22 caliber long bullets were the wrong kind of ammunition for the revolver and that only .22 caliber short bullets would fit in it.[3] Gilfour then walked out of the garage and back into the house, leaving Sam and Ethan behind. Joanna, Dolly, and Jamie were still inside the house, but Gilfour did not tell them what had just transpired in the garage. Sam and Ethan eventually came back inside the house, and Jamie, Ethan, and Gilfour left later that evening. That night, when Sam was in bed, he shot himself in the head with the revolver, an injury from which he later died. The bullet that had discharged from the revolver was a .22 caliber long bullet.

         Lesley sued Gilfour for wrongful death, alleging negligence and negligence per se claims against him. The case was tried to a jury, which returned a verdict finding no negligence on the part of Gilfour. Lesley appeals.


         In his first issue, Lesley contends that the trial court erred by submitting to the jury one broad-form negligence-per-se liability question rather than submitting separate questions for each penal statute he alleged Gilfour violated. We conclude that Lesley failed to preserve this complaint for our review.

         "Negligence per se is a common-law doctrine in which a duty is imposed based on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims." Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). Lesley asserted that three provisions of the penal code created separate standards of conduct that Gilfour violated: penal code sections 46.06(a)(2), 46.13(b)(1), and 46.13(b)(2). Before trial, Lesley moved for partial summary judgment on his negligence per se claim. The trial court granted that motion as to Lesley's section-46.13(b)(2) liability theory but denied it as to his section-46.06(a)(2) and section-46.13(b)(1) theories. However, despite having granted Lesley summary judgment on his section-46.13(b)(2) liability theory, the trial court nevertheless submitted to the jury a broad-form negligence-per-se question that included instructions on all of Lesley's liability theories, including his section-46.13(b)(2) theory.

         Lesley argues that the trial court's inclusion of all three of his negligence per se liability theories in one broad-form jury question was erroneous because doing so effectively allowed the jury the opportunity to supersede the trial court's previous summary judgment ruling. He contends that the trial court's interlocutory order granting summary judgment on his section-46.13(b)(2) liability theory effectively rendered that particular theory "invalid" for jury-charge purposes.[4] See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000) ("When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant's objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury's finding."). Thus, Lesley contends, it was error to include his section-46.13(b)(2) liability theory alongside his other two liability theories in one broad-form question because it cannot be determined whether the jury in any way based its no-negligence finding on a determination that, contrary to the trial court's summary judgment, Gilfour did not violate section 46.13(b)(2).

The complaint that the submission of a broad-form liability question was erroneous because it included an invalid liability theory is one that must be preserved in the trial court. See Casteel, 22 S.W.3d at 387-89; Duradril, L.L.C.v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157-58 (Tex. App.-Houston [14th Dist.] 2017, no pet.). To preserve such a complaint, a party must timely and specifically object to the broad-form submission. See Casteel, 22 S.W.3d at 387-89; Duradril, 516 S.W.3d at 157-58. Lesley did not object to the broad-form submission of the negligence-per-se liability question on the ground that it contained an invalid liability theory, and therefore his first issue is not preserved for our review. See Casteel, 22 S.W.3d at 387-89 (explaining that timely and specific objection is necessary to preserve complaint that broad-form liability question erroneously commingled valid and invalid liability theories); Duradril, 516 S.W.3d at 157-58 (holding ...

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