Vicki O'Kelley Craft v. Charlie A. Salvato ( 2012 )

Affirmed and Memorandum Opinion filed March 6, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00550-CV
VICKI O'KELLEY CRAFT, Appellant
V.
CHARLIE A. SALVATO, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 957039
MEMORANDUM OPINION
In this car accident suit, appellant, Vicki O’Kelley Craft, appeals from a jury
finding her negligent in a traffic accident in which she and appellee, Charlie A. Salvato,
were involved. She challenges the legal and factual sufficiency of the evidence to
support the jury’s finding that she was sixty percent at fault in the accident. We affirm.
BACKGROUND
On February 4, 2010, Craft and Salvato were involved in a two-car accident on
South Gessner Road between Westheimer Street and Memorial Drive in Houston. At the
location of the accident, South Gessner runs north/south with two lanes of traffic in each
direction and a center median, with openings for turning vehicles. Craft, who was exiting
a parking lot on the west side of South Gessner intending to turn left onto South Gessner,
claimed that Salvato rapidly exited from a street on the east side of South Gessner, also
turning left, and hit her car as she crossed the road. She asserted that Salvato did not stop
in the opening in the median of the road. Salvato, on the other hand, stated that he was
heading westbound on Wood Lake Lane towards South Gessner, intending to turn left
onto South Gessner. According to Salvato, after stopping at the intersection of Wood
Lake Lane and South Gessner, he waited for northbound traffic on South Gessner to pass
and then drove across the northbound lanes of South Gessner and stopped in the opening
in the median. Salvato testified that he waited for several southbound vehicles to pass on
South Gessner before he started turning left into the southbound lanes of South Gessner.
He stated he hit Craft’s vehicle almost immediately as he began his turn.
Craft sued Salvato for negligence based on this accident., seeking repair costs of
$1,489.01, rental car reimbursement in the amount of $353.44, and dimunition in value to
her vehicle of $500.00.1 Salvato responded, asserting the affirmative defense of
contributory negligence. At trial, both Craft and Salvato explained their versions of
events, described above. Craft introduced into evidence photographs of the damage to
their vehicles that she alleged supported her version of the accident and made Salvato’s
version impossible. These photographs showed damage to the left front wheel of Craft’s
vehicle and the left front bumper of Salvato’s vehicle.2 The jury returned a verdict
finding that Craft was sixty percent negligent and Salvato was forty percent negligent in
the accident. Based on this verdict, the trial court entered a take-nothing judgment in
favor of Salvato. Following a motion for new trial, Craft timely appealed the judgment.
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Salvato counter-sued, but non-suited his negligence claim before trial.
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Salvato testified that his left front turn signal light was also damaged in the accident. The
photographs do not depict this damage, however, because Salvato immediately drove his vehicle to have
this signal repaired because he did not want to risk getting a traffic ticket for having a hanging turn signal.
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ANALYSIS
A. Standard of Review
When, as here, an appellant attacks the legal sufficiency of an adverse finding on
an issue on which she did not have the burden of proof, she must demonstrate that no
evidence supports the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
We review the evidence presented at trial in the light most favorable to the jury’s verdict,
crediting evidence favorable to that party if reasonable jurors could and disregarding
evidence unless reasonable jurors could not. Guevara v. Ferrer, 247 S.W.3d 662, 665
(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Anything more
than a “scintilla of evidence” is legally sufficient to support the jury’s finding. Cont’l
Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). To be more than a
scintilla, the evidence must rise “to a level that would enable reasonable and fair-minded
people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25
(Tex. 1994).
When reviewing a factual sufficiency challenge, we consider, weigh, and examine
all of the evidence in the record, both supporting and against the finding, to decide
whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d
442,445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629,635 (Tex. 1986). A
finding should be set aside if the evidence is so weak or if the finding is so against the
great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Sufficiency of the evidence must be reviewed using the definitions and
instructions contained in an unobjected-to jury charge. Soto v. Seven Seventeen HBE
Corp., 52 S.W.3d 201, 204 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing
Larson v. Cook Consultants. Inc., 690 S.W.2d 567, 568 (Tex. 1985). Finally, we
emphasize that “[j]urors are the sole judges of the credibility of the witnesses and the
weight to be given their testimony. They may choose to believe one witness and
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disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.”
City of Keller, 168 S.W.3d at 819 (footnotes omitted).
B. Application
In her sole issue, Craft contends that the evidence is neither legally nor factually
sufficient to support the jury’s finding regarding her negligence. According to Craft, the
existence of her photographic evidence regarding the damage to the two vehicles
demonstrates a fatal inconsistency in Salvato’s testimony. She asserts that the
photographic evidence of the damage makes his version of events impossible.
This photographic evidence, however, only shows the specific location where both
vehicles were damaged; there was no conflict regarding the location of the damage to the
vehicles. In fact, Salvato admitted that he hit Craft’s vehicle. He testified repeatedly that
he was stopped in the median opening, watching for traffic coming from his right, and
once the traffic cleared, he began his left turn onto South Gessner and bumped into
Craft’s vehicle. He could not explain how Craft’s vehicle arrived at the intersection
because, as he testified, he was watching for traffic coming from his right and believed
that, because he arrived at the median when no other cars were present, he had the right-
of-way to turn left. Although Craft asserts that Salvato’s failure to explain how her
vehicle arrived at the median intersection indicates there is no evidence of her negligence,
the jury was entitled to believe Salvato’s version of events. Further, her claim that the
photographic evidence of damage to the vehicles supports her version of events and
makes his version of events impossible is not availing. Salvato could have bumped her
left front tire with his left front bumper as she was approaching the opening in the median
to turn left when he began his turn to the left.
This case involved a “swearing match” between the two parties. The jury, as the
sole judge of the credibility of the witnesses, believed that Craft was sixty percent
negligent and Salvato was forty percent negligent in this accident. There is simply
nothing in this record that supports disturbing the jury’s findings. After reviewing the
evidence presented at trial in the light most favorable to the jury’s verdict, crediting
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evidence favorable to Craft if reasonable jurors could and disregarding evidence unless
reasonable jurors could not, we conclude that the evidence is legally sufficient to support
the jury’s verdict. Guevara, 247 S.W.3d at 665. Further, after examining all the
evidence, we conclude that it is not so weak nor is the jury’s finding so against the great
weight and preponderance of the evidence that it is clearly wrong and unjust; 3 hence, the
evidence is factually sufficient to support the jury’s verdict.
Accordingly, we overrule Craft’s sole issue on appeal and affirm the trial court’s
judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
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Dow Chem. Co., 46 S.W.3d at 242.
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