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Mata v. Coastal Agricultural Supply, Inc.

Court of Appeals of Texas, First District

June 28, 2018

VICTORIA MATA, INDIVIDUALLY AND ON BEHALF OF S.H., THE ESTATE OF SEAN HANNER AND INTERVENORS BETH KING AND JEFF HANNER, Appellants
v.
COASTAL AGRICULTURAL SUPPLY, INC. AND BRIAN EVERETT HERALD, Appellees

          On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2014-37366

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.

          MEMORANDUM OPINION

          Sherry Radack Chief Justice

         Appellants, Victoria Mata, Individually and on Behalf of S.H., The Estate of Sean Hanner and Intervenors Beth King and Jeffrey Hanner, appeal the trial court's take-nothing judgment rendered in favor of appellees, Brian Herald and Coastal Agricultural Supply, Inc. In three issues on appeal, appellants argue that (1) legally and factually insufficient evidence supports the verdict and (2) the trial court erred in failing to strike the testimony of appellees' expert.

         We affirm.

         Background

         On the early, foggy morning of January 27, 2014, Coastal's employee, Herald, drove his 18-wheeler to a feed store for his first delivery of the day. Because the owner of the feed store did not want deliveries before 7 a.m., Herald waited at a gas station parking lot at the intersection of FM 1960 and County Road 686. Around 7 a.m., Herald exited the gas station and stopped at a stop-sign on County Road 686 before attempting a left-hand-turn and driving east on FM 1960. Because of the dense fog, Herald had limited visibility. Herald looked both ways, listened for traffic through his open window, and entered the intersection to make his turn onto FM 1960. Before Herald could complete the turn, Sean Hanner, who was riding a motorcycle westbound on FM 1960, collided with Herald's trailer. Herald stopped the truck and realized that a motorcycle had hit the trailer. Hanner died at the scene of the accident.

         Appellants filed suit against Herald and Coastal for negligence and gross negligence. At the conclusion of trial, the jury was asked whether the negligence, if any, of Herald or Hanner caused the occurrence in question. The jury answered "no" to Herald and "yes" to Hanner. The trial court then rendered a take-nothing judgment in favor of appellees. Appellants filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions and this appeal followed.

         Legal and Factual Sufficiency

         In their first and second issues on appeal, appellants argue that the evidence is legally and factually insufficient to support the jury's no-liability finding for Herald.

         A. Standard of Review

         When a party attacks the legal sufficiency of an adverse finding on an issue for which he bears the burden of proof, the party must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In reviewing a "matter of law" challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We may only sustain a legal-sufficiency challenge if the contrary position is conclusively established. Id.

         When a party attacks the factual sufficiency of an adverse finding on an issue for which he has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See Dow Chem., 46 S.W.3d at 242. We consider and weigh all of the evidence in a factual-sufficiency review, not just the evidence in support of the jury's findings. Id. We may only set aside a verdict for factually insufficient evidence if the jury's findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.-Houston [14th Dist] 2001, pet. denied). Therefore, we may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence also would support a different result. Id. When presented with conflicting evidence, a jury may believe one witness and disbelieve others, and it also may resolve any inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). If we determine that the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict; we need not do so when affirming a jury's verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

         To prevail on their negligence cause of action against Herald, appellants had to establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To establish breach of duty, the plaintiff must show either that the defendant did something an ordinarily prudent person exercising ordinary care would not have done under the particular circumstances or that the defendant failed to do something that an ordinarily prudent person would have done in the exercise of ordinary care. Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.-Dallas 2004, pet. denied); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex. App.-Fort Worth 1999, pet. denied).

         B. Analysis

         The court's charge asked the jury, "Did the negligence, if any, of those named below proximately cause the occurrence in question?" The charge further provided,

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
"Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
"Proximate cause" means a cause that was a substantial factor in bringing about an occurrence, and without which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the occurrence, or some similar occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occurrence. An occurrence may be an "unavoidable accident," that is, an event not proximately caused by the negligence of any party to the occurrence.

         The jury answered "no" as to Herald, and "yes" as to Hanner.

         At trial, Herald testified that when he arrived at the gas station, the fog was dense and everybody was driving blind. About an hour later, Herald proceeded to leave the gas station and stopped at the stop sign at the intersection of FM 1960 and County Road 686. Before making a left-hand turn into the intersection, he looked left, looked right, and looked left again but did not see any headlights. He also had his driver's window down and did not hear or see anything. He then decided based on his years of driving that he could safely make the turn. He further testified that "I didn't do anything wrong. I pulled out. I gave myself plenty of room in my best judgment." Herald testified that he had ...


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