Jennifer Osagiede, as Representative of the Estate of Sule Osagiede v. Lazaro Aguilar ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00086-CV
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JENNIFER OSAGIEDE, AS A REPRESENTATIVE OF THE ESTATE OF
SULE OSAGIEDE, Appellant
V.
LAZARO AGUILAR, Appellee
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-191,687
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MEMORANDUM OPINION
Appellant Jennifer Osagiede, as a representative of the estate of Sule
Osagiede, appeals the trial court’s judgment in favor of appellee Lazaro Aguilar
following a jury trial. In her sole issue on appeal, Osagiede argues that the trial court
abused its discretion by admitting into evidence a written statement by Aguilar that
was not properly notarized. For the reasons set forth below, we affirm the judgment
of the trial court.
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I. Background
On the morning of January 21, 2010, Sule Osagiede (“Sule”), a student at
Tulane University, was driving west on Interstate 10 (“I-10”) from New Orleans to
Houston. At approximately 5:30 a.m., Lazaro Aguilar entered I-10 via the entrance
ramp at Martin Luther King, Jr. Parkway in Beaumont and began traveling west on
I-10 ahead of Sule’s vehicle. Shortly after Aguilar’s vehicle entered the highway,
Sule’s vehicle, which was traveling at a higher rate of speed than Aguilar’s vehicle,
approached Aguilar’s vehicle from behind. For reasons disputed by the parties,
Aguilar’s vehicle swerved to the right, struck the concrete barrier on the right side
of the interstate, and rolled over, landing upside down. Sule’s vehicle swerved to the
left, struck the concrete barrier on the left side of the interstate, and rolled, landing
on its side. No collision occurred between the two vehicles. Sule was ejected from
his vehicle during the accident and died at the scene.
In January 2012, Sule’s mother, Jennifer Osagiede, filed a wrongful death and
survival action against Aguilar, asserting claims for negligence and gross
negligence. In September 2014, the trial court granted partial summary judgment in
favor of Aguilar on Osagiede’s claims for exemplary damages and damages under
the survival statute. In December 2014, Osagiede’s claim under the wrongful death
statute was tried to a jury. At the conclusion of the five-day trial, the jury returned a
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verdict in favor of Aguilar. On December 30, 2014, the trial court entered a take
nothing final judgment in favor of Aguilar and against Osagiede. Osagiede’s counsel
filed a motion for new trial on January 28, 2015. Thereafter, Osagiede’s counsel
withdrew from representation of Osagiede, and on March 2, 2015, Osagiede,
proceeding pro se, filed an amended motion for new trial. Osagiede’s motions for
new trial were overruled by operation of law on March 16, 2015. See Tex. R. Civ.
P. 4, 329b(c). This appeal followed.
II. Admission of Aguilar’s Written Statement
In one issue, Osagiede contends that the trial court abused its discretion by
admitting into evidence a written statement that Aguilar made to the police on the
day after the accident. The record reflects that Beaumont Police Officer Melvin
Devaugh obtained the written statement at issue from Aguilar on January 22, 2010.
The statement purports to contain Aguilar’s recollection of events as they occurred
before, during, and after the accident. The statement is signed by Aguilar and
notarized by Officer Devaugh. However, the notary seal affixed to the statement
indicates that Officer Devaugh’s commission as a notary public expired on May 5,
2009—over eight months before Aguilar’s statement was signed and notarized.
In her brief, Osagiede argues that the trial court erred by admitting the written
statement into evidence at trial because the statement was notarized by a notary
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public whose commission had expired. Specifically, Osagiede contends that Officer
Devaugh’s act of notarizing the statement after the expiration of his commission
constituted “a [breach] of faith as a public servant” and that the trial court’s decision
to “allow[] [the statement] into evidence [was] an unlawful act.” The record,
however, reflects that Osagiede was the one who first offered the written statement
into evidence. At the beginning of Osagiede’s case-in-chief, Osagiede’s counsel
sought to pre-admit several exhibits, including Plaintiff’s Exhibit 1, into evidence at
trial. Plaintiff’s Exhibit 1 consisted of records obtained from the Beaumont Police
Department, including a copy of Aguilar’s written statement. After identifying the
exhibits to be pre-admitted, Osagiede’s counsel specifically requested that the trial
court admit the exhibits into evidence. Aguilar made no objection to the admission
of Plaintiff’s Exhibit 1, and the trial court admitted the exhibit into evidence as
requested by Osagiede’s counsel. Thereafter, Osagiede’s counsel called Aguilar as
its first witness and used Aguilar’s written statement in an effort to impeach his
credibility. Before questioning Aguilar about purported inconsistencies between the
written statement and other statements he made about the accident before trial,
Osagiede’s counsel specifically questioned Aguilar in detail about the fact that
Officer Devaugh’s notary commission was expired at the time Aguilar signed the
written statement.
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Now, on appeal, Osagiede argues that the trial court should not have admitted
Aguilar’s written statement into evidence. However, under the doctrine of invited
error, a party cannot request a specific action in the trial court and then complain on
appeal that the trial court committed error in granting that request. Tittizer v. Union
Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); Lamell v. OneWest Bank, FSB, 485
S.W.3d 53, 64 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). This rule,
“grounded in even justice and dictated by common sense,” is based on estoppel. Ne.
Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942); Neasbitt v.
Warren, 22 S.W.3d 107, 112 (Tex. App.—Fort Worth 2000, no pet.). Applying the
invited-error doctrine to the facts before us, we conclude that Osagiede is estopped
from arguing on appeal that the trial court erred in making the very ruling that she
requested at trial.1 See Tittizer, 171 S.W.3d at 862; see also Rivera v. 786 Transp.,
LLC, No. 01-14-00430-CV, 2015 WL 3981708, *6 (Tex. App.—Houston [1st Dist.]
June 30, 2015, no pet.) (mem. op.) (“A party may not complain on appeal that
evidence was improperly admitted when that party elicited the evidence.”); In re
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To the extent Osagiede contends that the invited-error doctrine does not
apply because Osagiede’s attorney, rather than Osagiede herself, offered the written
statement into evidence at trial, we cannot agree. It is well-settled that the attorney-
client relationship is an agency relationship and that an attorney’s acts and omissions
within the scope of his or her employment are regarded as the client’s acts. Gavenda
v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986).
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M.E.C., 66 S.W.3d 449, 455–56 (Tex. App.—Waco 2001, no pet.) (concluding that
because the appellant offered copies of certain temporary orders into evidence at
trial, he could not complain on appeal that their admission was error). We overrule
Osagiede’s sole issue and affirm the judgment of the trial court.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on May 3, 2016
Opinion Delivered February 16, 2017
Before McKeithen, C.J., Kreger and Johnson, JJ.
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