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Ginn v. Pierce

Court of Appeals of Texas, Fourteenth District

September 19, 2019

GARY GINN, Appellant
v.
ROBERT PIERCE, Appellee

          On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2016-04894

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.

          OPINION

          Kem Thompson Frost, Chief Justice

         The plaintiff in this automobile-accident case appeals the trial court's denial of his motion for directed verdict, asserting that the trial evidence conclusively proved that the defendant's negligence proximately caused the two-vehicle collision. Concluding that the trial court erred in denying the motion for directed verdict, we reverse the trial court's judgment and remand.

         I. Factual and Procedural Background

         Appellee/defendant Robert Pierce was driving his Ford F-150 truck on Eldridge Parkway when an accident occurred that blocked Pierce from proceeding. Pierce stopped his truck, and appellant/plaintiff Gary Ginn stopped his vehicle behind Pierce's truck in the same lane. Pierce decided he did not want to wait for the traffic jam to clear, so he put his truck in reverse and backed up, causing his truck to hit Ginn's stationary vehicle.

         Ginn sued Pierce asserting a negligence claim and seeking to recover damages based on personal injuries Ginn allegedly suffered as a result of the accident. At the jury trial, Pierce admitted that the accident "was totally his fault," but argued that fault is different from negligence and that Pierce had not been negligent.

         After the close of the evidence, Ginn moved the trial court to grant a directed verdict on the liability portion of his negligence claim. The trial court denied the motion.

         The trial court asked the jury whether Pierce's negligence proximately caused the occurrence in question. The jury answered "no," and did not answer the damages question, which the court had predicated on an affirmative answer to the liability question. Ginn did not file any post-verdict motions. Based on the jury's verdict, the trial court rendered judgment that Ginn take nothing.

         II. Issues and Analysis

         A. In determining whether the trial court erred in denying Ginn's motion for directed verdict, do we measure the sufficiency of the evidence against the charge given?

         In his first issue, Ginn does not challenge any trial-court ruling; instead, Ginn attempts to set the stage for his arguments under the second and third issues that the trial court erred in denying his directed-verdict motion. Under the first issue, Ginn notes that no party objected to the liability question submitted to the jury. Ginn then argues that because this question contained a reference to "the negligence of [Pierce]" rather than "the negligence of [Pierce], if any," the question contained a finding by the trial court that Pierce was negligent, and the only issue submitted to the jury in the question was proximate cause. Ginn asserts that this court should measure the sufficiency of the evidence against the charge given to the jury, and he devotes the first issue to arguing the nature of the charge. Thus, we must determine whether in reviewing the trial court's denial of Ginn's directed-verdict motion, we should measure the sufficiency of the evidence against the charge submitted to the jury.

         In a jury case, to preserve error on a "matter of law" issue or a "no evidence" issue, a party must raise the issue in one or more of the following procedural devices: (1) a motion for directed verdict, (2) an objection at the charge conference to the submission of the question to the jury, (3) a motion for judgment notwithstanding the verdict, (4) a motion to disregard the jury's answer, or (5) a motion for new trial. See United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Ginn preserved error on his "matter of law" issue only by raising it in his motion for directed verdict and obtaining an adverse ruling. He did not attempt to preserve error under any of the other four means. In reviewing the trial court's ruling in cases in which appellant preserved error in one of these other ways, we measure the sufficiency of the evidence against the charge given if no party objected to the wording of the charge. See Laxson v. Giddens, 48 S.W.3d 408, 411 (Tex.App.-Waco 2001, pet. denied).

         But, if an appellant preserves error on a "matter of law" issue or a "no evidence" issue only by a motion for directed verdict, the trial court rules on the motion before the court has decided what charge it will submit to the jury and before the jury has rendered its verdict. An appellate court's review of the merits of a trial court's ruling is limited to the record in the trial court when the trial court ruled, and the appellate court does not consider events that occurred after the trial court's ruling. See Perry Homes v. Cull, 258 S.W.3d 580, 596 n.89 (Tex. 2008); Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961); Stephens Cnty. v. J.N. McCammon, Inc., 52 S.W.2d 53, 55 (Tex. 1932); Baty v. Bowen, Miclette & Britt, Inc., 423 S.W.3d 427, 435 (Tex.App.-Houston [14th Dist.] 2013, pet. denied); Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 827, n.7 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). In this appeal, we are reviewing the trial court's denial of Ginn's motion for directed verdict. When the trial court denied this motion, the trial court had not determined what charge it would submit to the jury. Because the charge conference had not yet occurred, the trial court had not yet given the parties an opportunity to object to the charge that the trial court proposed for submission to the jury. In this context, we conclude that we do not review the "matter of law" issue asserted in the directed-verdict motion against the jury charge. See Perry Homes, 258 S.W.3d at 596 n.89; Univ. of ...


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