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Browder v. Peel

Court of Appeals of Texas, Twelfth District, Tyler

November 22, 2017

ALYSSA BETH BROWDER, APPELLANT
v.
DERRICK JACE PEEL, APPELLEE

         Appeal from the County Court at Law of Van Zandt County, Texas (Tr.Ct.No. CV04959)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley, Justice

         Alyssa Beth Browder appeals from a take nothing judgment rendered after a jury trial in her personal injury suit against Derrick Jace Peel. In her sole issue, Browder complains of the trial court's ruling on the admissibility of certain evidence. We affirm.

         Background

         Browder sued Peel alleging that she sustained personal injuries and property damage when Peel's vehicle struck Browder's vehicle from behind. The jury determined that both parties' negligence proximately caused the accident, attributing fifty-one percent of the negligence to Browder and forty-nine percent to Peel. The trial court rendered a take nothing judgment. Browder appeals.

         Deposition Testimony

         In her sole issue, Browder asserts that the trial court erred in failing to admit Peel's deposition testimony. Citing Rule of Evidence 107, the rule of optional completeness, she argues that she should have been allowed to offer into evidence Peel's entire deposition because the defense offered excerpts from the deposition. She further argues that when a party fails to appear at trial but does appear for a deposition, after the court rules on objections, all fairness dictates that his deposition should be admitted.

          Applicable Law

         The admission or exclusion of evidence is a matter within the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Rule of Evidence 107 provides in pertinent part that, if a party introduces part of a recorded statement, an adverse party may inquire into any other part on the same subject. Tex. R. Evid. 107. It further provides that an adverse party may introduce any other recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent. Id. Rule 107 is designed to guard against the possibility of confusion, distortion, or false impression that could be created when only a portion of evidence is introduced. Crosby v. Minyard Food Stores, Inc. 122 S.W.3d 899, 903 (Tex. App.-Dallas 2003, no pet.).

         When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time. Tex.R.Civ.P. 270. It is within the sound discretion of the court to allow a party to reopen his case after having rested. Smart v. Mo.-Kan.-Tex. R.R. Co., 560 S.W.2d 216, 217 (Tex. Civ. App.-Tyler 1977, writ ref'd n.r.e.). There must be a showing of diligence on the part of the moving party in making such a request. Id. In determining whether to grant a motion to reopen, the trial court also considers if the proffered evidence is decisive, reception of such evidence will cause undue delay, and granting the motion will cause an injustice. Karam v. Brown, 407 S.W.3d 464, 472-73 (Tex. App.-El Paso 2013, no pet.).

         Analysis

         Peel did not attend the trial. Browder did not call Peel to testify either live or by deposition. During presentation of evidence for the defense, Peel's counsel read part of Peel's deposition testimony, including the part where he described the accident. Counsel announced "that concludes the reading of Jace Peel's deposition for defendant." The court inquired of Browder's counsel, "your cross-examination of Mr. Peel's deposition?" Counsel responded, "No, [y]our Honor." Defendant rested and both sides closed. They discussed the charge and adjourned for the day.

         The following morning, they completed their charge conference and Browder's counsel raised the issue of admission of the proposed exhibits. He said that he "did offer all of the depositions." He further argued that, since defense counsel read from Peel's deposition, "for optional completeness, " he suggested that deposition should be in the record. He added that, "for appeal purposes, " Peel's complete deposition should be in the record. Counsel also explained that he was surprised that Peel did not appear at trial. In ...


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