Court of Appeals of Texas, Eighth District, El Paso
ZIMMERMAN TRUCK LINES, INC. and CHAD FRYMIRE, Appellants,
KATRINA PASTRAN, Appellee.
from the County Court at Law No. Three of El Paso County,
Texas (TC# 2012DCV04303)
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIUGEZ, JUSTICE
Zimmerman Truck Lines, Inc. ("Zimmerman") and Chad
Frymire ("Frymire") appeal from an adverse judgment
following a jury trial in a personal injury suit brought by
Appellee Katrina Pastran ("Pastran"). Appellants,
whom we will refer to collectively as "Zimmerman,"
assert error in the denial of their motion for new trial and
motion for judgment notwithstanding the verdict. We affirm.
was injured in a collision between the car she was driving
and an 18-wheeler driven by Frymire in the course and scope
of his employment with Zimmerman. The accident occurred in a
turn-around lane when Pastran's car became wedged
underneath the trailer portion of the 18-wheeler. The primary
factual issues concerned whether Pastran or Frymire entered
the turnaround lane first and whether Frymire made an
improper turn into that lane. The facts relating to these
issues are set out in detail below in conjunction with
Zimmerman's legal sufficiency challenge to the jury's
finding that Frymire was wholly at fault. Similarly, the
facts relating to Pastran's damages are set out below in
conjunction with Zimmerman's legal sufficiency challenges
to the jury's damage awards.
asserts numerous issues on appeal, grouped into two broad
categories (1) issues relating to the denial of its motion
for new trial, and (2) issues relating to the denial of its
motion for judgment notwithstanding the verdict.
the first category of issues, Zimmerman contends that the
trial court abused its discretion by denying its motion for
new trial because (1) Pastran referred in opening statements
to an inadmissible citation issued to Frymire after the
accident; (2) the trial court impermissibly instructed
Pastran to amend her pleadings to allege gross negligence;
(3) Pastran failed to demonstrate due diligence in serving
Frymire with process; and (4) the trial court allowed Pastran
to call Geoffrey Hosband, Zimmerman's corporate
representative and safety director, as an expert even though
he was not designated as an expert witness.
the second category of issues, Zimmerman contends that the
trial court erred by denying its motion for judgment
notwithstanding the verdict because the evidence is legally
insufficient to support both the jury's finding that
Pastran was not at fault for the accident and its assessment
of her damages.
addition to responding to these issues on their merits,
Pastran contends that, in several instances, Zimmerman failed
to preserve error for review and that the asserted errors,
even if meritorious, are harmless.
for new trial
of a motion for new trial is reviewed for abuse of
discretion." Waffle House, Inc. v. Williams,
313 S.W.3d 796, 813 (Tex. 2010). The test for abuse of
discretion is whether the court acted without reference to
any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
"Another way of stating the test is whether the act was
arbitrary or unreasonable." Id. at 242.
notwithstanding the verdict
denial of a motion for judgment notwithstanding the verdict
is reviewed under a legal sufficiency standard. Moore
Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 96
(Tex.App.-El Paso 2017, pet. denied). "A party
challenging the legal sufficiency of an adverse finding on an
issue upon which it did not have the burden of proof must
demonstrate that no evidence supports the finding."
Id. at 96. But "[a] party challenging the legal
sufficiency of an adverse finding on an issue on which that
party had the burden of proof at trial must demonstrate that
the evidence conclusively established all vital facts in
support of the issue, as a matter of law."
Nottingham Manor Owners Ass'n v. El Paso Elec.
Co., 260 S.W.3d 186, 192 (Tex.App.-El Paso 2008, no
reviewing court first examines the record for evidence
supporting the challenged finding, "crediting favorable
evidence, if a reasonable jury could, and disregarding
contrary evidence, unless a reasonable jury could not."
Id. (citing City of Keller v. Wilson, 168
S.W.3d 802, 807 (Tex. 2005)). If more than a scintilla of
evidence supports the jury's finding, denial of the
motion for judgment notwithstanding the verdict will be
upheld. Id. If, however, there is no evidence to
support the finding, then the court examines the entire
record to determine whether the contrary proposition is
conclusively established. Id.
sufficiency of the evidence supporting the jury's
assessment of liability
fifth issue, Zimmerman asserts that the trial court erred by
denying its motion for judgment notwithstanding the verdict
because the evidence is legally insufficient to support the
jury's finding that Pastran bore no responsibility for
the accident. It is expedient to address this issue first
because it is the basis for Zimmerman's assertion of harm
relating to many of its other issues on appeal. Zimmerman
argues that the finding that Pastran was not at fault
demonstrates that the jury ignored evidence conclusively
establishing her fault. It further argues that the jury
ignored this evidence because of other errors committed by
the trial court. The threshold question, then, is whether the
evidence conclusively establishes that Pastran was at least
partially at fault for the accident. See Austin v. Kroger
Texas, L.P., 465 S.W.3d 193, 210 (Tex. 2015)(whether
plaintiff is proportionately responsible is a defensive issue
on which defendant bears the burden of proof); Nottingham
Manor, 260 S.W.3d at 192 (legal sufficiency challenge to
issue on which defendant bears burden of proof requires
conclusive proof of issue).
was injured when the car she was driving became wedged under
an 18-wheeler driven by Frymire in the course and scope of
his employment with Zimmerman. The parties offered
conflicting versions of how the accident occurred and, thus,
who was at fault. Pastran's version is that she was in a
turnaround lane when Frymire, who was in the next lane over,
suddenly turned his truck into the turnaround lane, colliding
with her car. Zimmerman's version is that Frymire was
already fully in the turnaround lane when Pastran tried to
squeeze her car past his truck, causing the collision.
accident occurred in a turnaround lane at the intersection of
North Desert and Transmountain. The area is illustrated by
this image contained in Plaintiffs Exhibit 1:
testified that she had exited IH-10 onto North Desert and was
traveling in the left-hand lane. At that point, the road had
only four lanes. Frymire's 18-wheeler was traveling in
the same lane, in front of Pastran's car. According to
Pastran, Pastran moved into the turnaround lane as soon as it
opened up to her left; the truck remained in the lane to her
right, which was designated as a left-turn-only lane. The
truck then suddenly and unexpectedly turned into
Pastran's lane, crossing a solid white line as it did so.
Pastran expressly denied that the truck was in the turnaround
lane first and that she tried to squeeze past it. She further
testified that she braked and turned to her left but could
not avoid the collision. Pastran's car ended up under the
trailer portion of the 18-wheeler, where it was crushed and
Rascon, an eyewitness, testified by deposition that Pastran
was in the turnaround lane and that the truck turned into
that lane from the left-turn-only lane. She did not, however,
believe it was wrong for the truck to turn from that lane.
Rascon also testified that the truck was already in the
turnaround lane and that she believed the collision would not
have occurred if Pastran had not moved her car forward.
eyewitness, Norma Ito, testified, "What I saw, the small
vehicle was also on the turn-around left lane, almost in the
back of the 18-wheeler. The 18-wheeler was already inside the
turn-around left lane, the tractor; and the trailer was
making the left turn." On cross-examination, Ito
acknowledged that she did not notice the truck until it was
already partially in the turnaround lane; she did not see how
it entered that lane or where it started its turn.
the driver of the 18-wheeler, did not testify and was
apparently not present at trial.
jury was asked whether the negligence of either Frymire or
Pastran proximately caused the accident. It was instructed
that the conduct of a person confronted with an emergency,
not caused by her own negligence, is not negligence if, after
the emergency arises, she acts as a reasonable person would
in the circumstances. It was also instructed that a vehicle
operator making a left-hand turn is required to approach the
intersection from "the extreme left-hand lane lawfully
available," and that turning from an improper lane
jury found that Frymire was negligent and Pastran was not.
Although it was unnecessary to do so because of its answers
to the liability question, the jury apportioned 100 percent
responsibility to Frymire.
does not dispute the jury's finding that Frymire's
negligence proximately caused the accident. Rather, it
disputes the jury's failure to find that Pastran was also
at fault. Because Zimmerman bore the burden of proof on this
issue, it must show on appeal that the evidence conclusively
established Pastran's fault. Nottingham Manor,
260 S.W.3d at 192. It argues that it sustained this burden
through the testimony of Rascon and Ito, as well as through
photographs of the scene showing the trailer of the
18-wheeler on top of Pastran's car.
well-settled that the jury is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony. Munoz, 545 S.W.3d at 96. It is within the
province of the jury to believe one witness and disbelieve
another, and this Court must assume that the jury decided all
credibility questions in favor of the verdict, if reasonable
jurors could do so. Id.
and Ito's version of the accident and their assessment of
whether Pastran could have avoided it was inconsistent, in
some respects, with Pastran's testimony. Nevertheless,
the jury was entitled to believe Pastran and disbelieve
Rascon and Ito. See id. Additionally, the
post-accident photographs on which Zimmerman relies do not
refute Pastran's account of the accident. Those
photographs show only where the vehicles ended up. They do
not show which vehicle entered the turnaround lane first,
whether the truck made an abrupt turn into that lane from the
left-turn lane, or whether Pastran could have avoided the
testimony, particularly in light of the instructions given to
the jury, supports the jury's verdict and precludes any
conclusion that the evidence conclusively establishes that
Pastran was at fault. The trial court therefore correctly
denied Zimmerman's motion for judgment notwithstanding
the verdict on liability.
fifth issue is overruled.
in opening statements to a traffic citation
to trial, Zimmerman filed a supplemental motion in limine
seeking to exclude evidence that Frymire had received a
traffic citation relating to the accident for making an
improper turn. At a hearing on that motion, Pastran
acknowledged that the citation was not admissible to prove
Frymire's negligence, but asserted that it was admissible
on the issue of Zimmerman's compliance with Federal Motor
Carrier Safety Regulations. Pastran argued that if a truck
driver is involved in an accident in which either driver is
taken away by ambulance or a car is towed from the scene, and
a citation is issued to the truck driver, the company is
required to have its driver take a drug and alcohol test
within two hours. If the test does not occur, the company
must maintain a record explaining why. These duties are not
triggered, however, unless a citation is issued.
sought to exclude evidence of the citation on the ground that
it was unduly prejudicial. It argued that the basis for the
citation-making a wide left turn-was the exact issue to be
presented to the jury and that, if the citation were
admitted, the jury would accept it as proof of Frymire's
negligence. Zimmerman also argued that the citation should be
excluded on the ground that whether Zimmerman complied with
the federal regulations was irrelevant because the fact ...