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Hopkins v. Phillips

Court of Appeals of Texas, Fifth District, Dallas

October 29, 2019

KATHERINE HOPKINS AND CHRISTOPHER GUETA, Appellants
v.
ROBERT MICHAEL PHILLIPS, Appellee

          On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-13853.

          Before Justices Burns, Whitehill, and Schenck.

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         The sole issue in this case is whether the trial court abused its discretion by denying a motion for new trial based on allegedly incurable improper jury argument attacking opposing counsel's honesty. Appellants, however, did not object or move for an instruction to disregard the argument, but rather, chose to address the comment during rebuttal. Because the argument was not so inflammatory and prejudicial as to be incurable, we conclude that the trial court did not abuse its discretion by denying appellants' new trial motion and affirm the trial court's judgment.

         I. Background

         Robert Phillips was involved in an automobile accident with Katherine Hopkins and Christopher Gueta (together, Hopkins unless otherwise indicated) who subsequently sued him for negligence and negligence per se. Phillips accepted liability, and damages were tried to a jury.

         During voir dire, Hopkins's counsel told the jury: "Because one of the most important things I want to share with you is, what I say is not evidence, and what defense counsel says is not evidence. Only what the Judge allows and a document is evidence or testimony is considered evidence. What we say is not."

         But Hopkins's counsel then added:

Despite that, I'll make a pledge to you, everything I tell you will be 100-percent accurate and truthful. I have been known to make a mistake. If I make that mistake, I'll own it in closing argument at the end of the case.

         Later, during closing argument, Phillips's counsel argued:

Do you remember the pledge that Plaintiffs' counsel made to you before this trial started? If there was a mistake, he would own it.
Okay. So, let's look at that. He puts up on that overhead what my client says, "I'm responsible for the damages." For the accident, yes. But what he doesn't remind you of, he also asked my client, "Do you know what their injuries are, what their treatments are?" He had no idea. So, to insinuate that my client is going to say, "I accept all of this," is ridiculous. That's dishonest."

         Hopkins's counsel did not object or move the court for an instruction to disregard. Instead, Hopkins's counsel addressed the "dishonest" comment in his closing rebuttal. Specifically, he suggested that Phillips's counsel was engaging in a "head fake," by "assassinating" him, calling Hopkins a liar and calling Dr. Bartholomew (the treating physician) a creep. Hopkins's counsel also suggested that Phillips's counsel was not being honest, saying, "It's a spin. It's not truthful. Trust your notepads. Trust your memory." Finally, counsel said, I have not misrepresented anything here to you today, and I resent any-as an Officer of the Court I resent that implication."

         The jury returned a verdict awarding $6, 000 to Gueta and $11, 000 to Hopkins and the ...


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