VICTORIA MATA, INDIVIDUALLY AND ON BEHALF OF S.H., THE ESTATE OF SEAN HANNER AND INTERVENORS BETH KING AND JEFF HANNER, Appellants
COASTAL AGRICULTURAL SUPPLY, INC. AND BRIAN EVERETT HERALD, Appellees
Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2014-37366
consists of Chief Justice Radack and Justices Massengale and
Radack Chief Justice
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.
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.
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.
and Factual Sufficiency
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.
Standard of Review
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
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)
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).
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
"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
jury answered "no" as to Herald, and
"yes" as to Hanner.
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 ...