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Zimmerman Truck Lines, Inc. v. Pastran

Court of Appeals of Texas, Eighth District, El Paso

August 16, 2019

ZIMMERMAN TRUCK LINES, INC. and CHAD FRYMIRE, Appellants,
v.
KATRINA PASTRAN, Appellee.

          Appeal from the County Court at Law No. Three of El Paso County, Texas (TC# 2012DCV04303)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIUGEZ, JUSTICE

         Appellants 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.

         BACKGROUND

         Pastran 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.

         ISSUES

         Zimmerman 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.

         Under 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.

         Under 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.

         In 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.

         STANDARD OF REVIEW

         Motion for new trial

         "Denial 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.

         Judgment notwithstanding the verdict

         The 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 pet.).

         The 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.

         DISCUSSION

         Legal sufficiency of the evidence supporting the jury's assessment of liability

         In its 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).

         Pastran 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.

          The 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:

         (Image Omitted)

         Pastran 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 dragged.

         Lisa 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.

         Another 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.

         Frymire, the driver of the 18-wheeler, did not testify and was apparently not present at trial.

         The 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 constitutes negligence.

         The 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.

         Zimmerman 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.

         It is 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.

         Rascon's 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 collision.

         Pastran's 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.

         Zimmerman's fifth issue is overruled.

         Reference in opening statements to a traffic citation

         Prior 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.

         Zimmerman 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 ...


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