Wanda M. Page v. State Farm Lloyds ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00317-CV
WANDA M. PAGE,
Appellant
v.
STATE FARM LLOYDS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. C200400452
MEMORANDUM OPINION
In ten issues, appellant, Wanda M. Page, advancing pro se, challenges a final
judgment entered in favor of appellee, State Farm Lloyds. We affirm.
I. BACKGROUND
The dispute in this case is more than ten years old, and this is not the first time
this case has been before this Court. See generally Page v. State Farm Lloyds, 259 S.W.3d
257 (Tex. App.—Waco 2008), rev’d in part, 315 S.W.3d 525 (Tex. 2010). As the parties are
familiar with the facts in this case, we will only provide the highlights. See TEX. R. APP.
P. 47.1.
“State Farm Lloyds issued Page a Texas Standardized Homeowners Policy—
Form B (“HO-B”) to insure her dwelling and its contents.” Page, 315 S.W.3d at 526. “In
June 2001, Page discovered mold and water damage to her home and some of her
personal property.” Id. Page filed a claim under her homeowner’s policy with State
Farm Lloyds. After various assessments, it was determined that there were leaks in the
sanitary sewer lines that required remediation. Id. Thus, in January 2002, State Farm
Lloyds provided Page with a check in the amount of $12,644 to cover remediation and
repair of her dwelling and $13,631 to cover personal-property remediation and three
months living expenses while the work was performed. Id. In May 2002, Page
requested additional funds to repair damage to her carpet, which State Farm Lloyds
refused to pay. Id. “A dispute ensued over the amounts needed to fully remediate and
repair the home and its contents.” Id. at 526-27.
Later, Page filed suit against State Farm Lloyds asserting causes of action for
breach of contract, breach of the duty of good faith and fair dealing, fraudulent
misrepresentation, and DTPA and Insurance Code violations. Id. at 527. About a year
after she filed suit, Page provided State Farm Lloyds with an estimate for remediating
her attic, which resulted in State Farm Lloyds paying Page an additional $13,042. Id.
Thereafter, State Farm Lloyds filed no-evidence and traditional motions for
summary judgment, claiming entitlement to judgment as a matter of law on Page’s
breach of contract claim because the HO-B policy expressly excluded coverage for all
Page v. State Farm Lloyds Page 2
mold damage and because there was no evidence that Page was owed additional
money. Id. State Farm Lloyds also argued that summary judgment was proper as to
Page’s extra-contractual claims. Id.
The trial court initially denied State Farm Lloyds’s summary-judgment motions;
however, the trial court reversed course when presented with the Texas Supreme
Court’s opinion in Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006) on a motion for
reconsideration filed by State Farm Lloyds. Id. Page appealed the trial court’s granting
of the motions for summary judgment, and this Court reversed, holding that Page’s
HO-B policy covered mold damage to the dwelling and its contents. Id. (citing Page, 259
S.W.3d at 257).
Subsequently, State Farm Lloyds filed a petition for review in the Texas Supreme
Court. The Supreme Court analyzed Page’s HO-B policy and determined that “when a
plumbing leak results in mold contamination, the policy covers mold damage to
personal property but not to the dwelling.” Id. at 526, 531. Accordingly, the Supreme
Court concluded that Page’s contractual and extra-contractual claims pertaining to
alleged mold damage to her house could not survive and reversed that portion of this
Court’s judgment. Id. at 532-33. However, the Supreme Court also concluded that
Page’s contractual and extra-contractual claims relating to alleged mold damage to her
personal property survived and affirmed that portion of this Court’s judgment. Id. at
532-33. The case was then remanded to the trial court for further proceedings. Id. at
532-33.
Page v. State Farm Lloyds Page 3
On remand, the trial court conducted a jury trial on Page’s remaining claims. At
this time, Page was represented by two attorneys and an additional
consultant/attorney, who assisted trial counsel with voir dire. At the conclusion of the
evidence, the jury rejected all of Page’s claims. Thereafter, the trial court signed a
judgment that Page take nothing from State Farm Lloyds. The final judgment also
awarded State Farm Lloyds $16,869.83 in court costs. This pro se appeal followed.
II. THE RECORD
At the outset of our analysis of Page’s issues, we recognize that the record in this
case includes three reporter’s record volumes—one of which is labeled “Excerpts of
Voir Dire Proceedings.” In addition, the record includes three clerk’s record volumes.
Nevertheless, Page has filed a pro se “Optional Appendix,” wherein Page includes
several documents that were not formally included in the record. With regard to this,
we note that we may not consider matters outside the appellate record, and attachment
of documents as appendices to an appellate brief does not constitute formal inclusion in
the record. See TEX. R. APP. P. 34.1 (“The appellate record consists of the clerk’s record
and, if necessary to the appeal, the reporter’s record.”); see also Kuntze v. Hall, 371
S.W.3d 600, 601 (Tex. App.—Waco 2012, order); Poston v. Wachovia Mortg. Corp., No. 14-
11-00485-CV, 2012 Tex. App. LEXIS 3608, at *3 n.2 (Tex. App.—Houston [14th Dist.]
May 8, 2012, no pet.) (mem. op.) (citing Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer,
Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). With that in
mind, we review Page’s issues.
Page v. State Farm Lloyds Page 4
III. VOIR DIRE QUESTIONS ABOUT RELIGION
In her first issue, Page argues that her rights were violated by questions about
veniremembers’ religious practices. Specifically, Page asserts that she is a Seventh-Day
Adventist and that it was discriminatory to only mention the juror numbers of those
jurors who are also Seventh-Day Adventists.
The portion of voir dire that Page complains about in this issue involves the
following questions asked by State Farm Lloyds’s attorneys:
Is there anyone here who knows the Plaintiff, Ms. Page, 44 and
46[?] Anybody else? Okay. And by the way, I am going to ask some
questions, some of them may seem like that [sic] are personal questions, I
need to ask those questions so that we can figure out whether we can get a
jury that in this particular case is going to be fair and reasonable. So
please don’t hold that against us. The first thing I want to know just
please raise your—there are three churches I want to ask about. Please
raise your paddle if you are a Baptist. All right. Please raise your paddle
if you are a Seventh-Day Adventist. 1, 5, 6, 36, and then please raise your
paddle if you attend the Church of Christ. All right.
Though represented by three attorneys at trial, no objection was made to the foregoing
questions.
Normally, to preserve a complaint for appellate review, a party must have
presented to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the request,
objection, or motion. See TEX. R. APP. P. 33.1(a); Haryanto v. Saeed, 860 S.W.2d 913, 918
(Tex. App.—Houston [14th Dist.] 1993, writ denied) (concluding that appellant failed to
preserve error because he did not object to statements and questions made by appellee’s
counsel during voir dire); see also Parsons v. Greenberg, No. 02-10-00131-CV, 2012 Tex.
Page v. State Farm Lloyds Page 5
App. LEXIS 888, at *17 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.)
(holding appellant waived his complaint on appeal that voir dire questioning about
conspiracy theories was prejudicial because appellant did not lodge a specific
objection). If the party fails to do this, error is not preserved, and the complaint is
waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g); see also
Parsons, 2012 Tex. App. LEXIS 888, at *17.
Because Page did not object to the religion questions above, we conclude that
error is not preserved, and thus, the complaint is waived. See TEX. R. APP. P. 33.1(a);
Haryanto, 860 S.W.2d at 918; see also Parsons, 2012 Tex. App. LEXIS 888, at *17. Page’s
first issue is overruled.
IV. PAGE’S COMPLAINT ABOUT PANEL MEMBER #1
In her second issue, Page complains that State Farm Lloyds violated the
constitutional rights of veniremember #1 by using a peremptory strike. Page asserts
that veniremember #1 was stricken from the panel due to her religious beliefs. In this
issue, Page invokes Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
as it has been extended to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614,
111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).
Once again, the record reflects that Page did not object to State Farm Lloyds’s
usage of one of its peremptory strikes to remove veniremember #1 from the panel.
Texas courts have held that even constitutional complaints, including those of Batson
violations, may be waived by failing to object at trial. See Brumfield v. Exxon Corp., 63
S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); In re K.M.B., 91
Page v. State Farm Lloyds Page 6
S.W.3d 18, 27 (Tex. App.—Fort Worth 2002, no pet.) (“To preserve a Batson/Edmonson
challenge, the complaining party must object to the peremptory strike before the jury is
sworn.”); see also Ward v. Baylor Univ., No. 10-11-00066-CV, 2012 Tex. App. LEXIS 1437,
at *10 (Tex. App.—Waco Feb. 22, 2012, pet. denied) (mem. op.). Therefore, because Page
did not object, we conclude that this error has not been preserved and is therefore
waived. See TEX. R. APP. P. 33.1(a); Brumfield, 63 S.W.3d at 919; In re K.M.B., 91 S.W.3d at
27; see also Ward, 2012 Tex. App. LEXIS 1437, at *10. We overrule Page’s second issue.1
V. PAGE’S DENIED CHALLENGES FOR CAUSE
In her third, fourth, and fifth issues, Page argues that the trial court erred in
denying her challenges for cause as to veniremembers 6, 21, and 37 because each are
purportedly State Farm policyholders and entitled to receive a dividend from State
Farm. In her related ninth issue, Page complains that the trial court improperly
interpreted the policy at issue with regard to whether it allows for dividends.
With regard to her third, fourth, and fifth issues, we recite the following
applicable law:
In civil suits in Texas district courts, each side has six peremptory
challenges—more than litigants in most other states. TEX. R. CIV. P. 233.
When a challenge for cause is denied, that error can be corrected by
striking the veniremember peremptorily. Thus, the error is only harmful
if this peremptory challenge would have been used on another
objectionable veniremember.
Accordingly, in Hallett v. Houston Northwest Medical Center, we held
that to preserve error when a challenge for cause is denied, a party must
use a peremptory challenge against the veniremember involved, exhaust
1 As an aside, we express no opinion regarding the merits of Page’s first and second issues.
Page v. State Farm Lloyds Page 7
its remaining challenges, and notify the trial court that a specific
objectionable veniremember will remain on the jury list. 689 S.W.2d 888,
890 (Tex. 1985). This ensures that “the court is made aware that
objectionable jurors will be chosen” while there is still time “to determine
if the party was in fact forced to take objectionable jurors.” Id.
Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 91 (Tex. 2005) (internal footnotes
omitted). In Hallett, the Texas Supreme Court noted:
The harm occurs only if the party uses all of his peremptory challenges
and is thus prevented from striking other objectionable jurors from the list
because he has no additional peremptory challenges. It is at this point
that any harmful error occurs, i.e., when the court is made aware that
objectionable jurors will be chosen. Thus, it is incumbent upon the
complaining party to inform the trial court at that time of the error. Once
informed, the court is able to determine if the party was in fact forced to
take objectionable jurors.
For these reasons[,] the complaining party waives any error by not
timely bringing such error to the attention of the trial court prior to
making his peremptory challenges. A party cannot wait until the trial is
finished, then seek to reverse an unfavorable verdict by complaining of an
error which the trial court could have corrected had it been timely
informed of the error.
689 S.W.2d at 890.
Here, Page made her objections to the above-mentioned veniremembers after
both parties had exercised their peremptory challenges and after Page knew of the
composition of the jury. Consequently, Page’s objections to the denial of her challenges
for cause were made too late. See Cortez, 159 S.W.3d at 90-91; Hallett, 689 S.W.2d at 890;
see also Union Pac. R.R. v. Legg, No. 03-07-00512-CV, 2009 Tex. App. LEXIS 6383, at **19-
20 (Tex. App.—Austin Aug. 12, 2009, no pet.) (mem. op.) (“Moreover, any such error is
waived if the party does not object in this manner until after the jury is selected. While
the Leggs did present their objections in a proper manner, the objections were made
Page v. State Farm Lloyds Page 8
after their peremptory strikes were exercised and after the jurors’ names were then
announced. This was untimely.”). As such, any error in the district court’s refusal to
strike the aforementioned veniremembers is waived. See Cortez, 159 S.W.3d at 90-91;
Hallett, 689 S.W.2d at 890; see also Legg, 2009 Tex. App. LEXIS 6383, at **19-20.
Accordingly, we overrule Page’s third, fourth, and fifth issues.
In her ninth issue, Page contends that the trial court improperly interpreted the
underlying policy regarding the issuance of dividends. However, in making this
argument, Page cites no authority in support of her position. Texas Rule of Appellate
Procedure 38 requires a party to provide the reviewing court with “a succinct, clear, and
accurate statement of the argument made in the body of the brief.” Tesoro Petroleum
Corp. v. Nabors Drilling U.S.A., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied); see TEX. R. APP. P. 38.1(i). “This is not done by merely uttering brief
conclusory statements, unsupported by legal citations.”2 Tesoro Petroleum Corp., 106
S.W.3d at 128. Because Page has merely uttered a brief conclusory statement without
legal support for this issue, we conclude that the issue has been inadequately briefed.
See TEX. R. APP. P. 38.1(i); see also Tesoro Petroleum Corp., 106 S.W.3d at 128. As such, we
overrule Page’s ninth issue.
VI. PAGE’S REQUEST FOR ADDITIONAL PEREMPTORY STRIKES
2 We also recognize that Page elected to represent herself on appeal. Under Texas law, pro-se
litigants, as Page is here, are held to the same standards as licensed attorneys with regard to compliance
with applicable laws and rules of procedure. See In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas
2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (“There cannot be
two sets of procedural rules, one for litigants with counsel and the other for litigants representing
themselves. Litigants who represent themselves must comply with the applicable procedural rules, or
else they would be given an unfair advantage over litigants represented by counsel.”)).
Page v. State Farm Lloyds Page 9
In her sixth issue, which consists of a paragraph and a quote without any legal
authority, Page argues that the trial court erred by refusing to allow her additional
peremptory strikes because she had to use some of her six strikes to exclude
veniremembers 6, 21, and 37 that should have been excluded for cause. Because Page
has merely uttered brief conclusory statements without legal support for this issue, we
conclude that the issue has been inadequately briefed. See TEX. R. APP. P. 38.1(i); see also
Tesoro Petroleum Corp., 106 S.W.3d at 128. As such, we overrule Page’s sixth issue.
VII. PAGE’S COMPLAINTS ABOUT VENIREMEMBERS 14 AND 23
In her seventh and eighth issues, Page alleges that the trial court erred by
allowing veniremembers 14 and 23 to serve on the jury because they are State Farm
policyholders who are eligible to receive a dividend from State Farm.
In the present case, the record reflects that Page did not challenge either
veniremember for cause. Moreover, Page does not cite us to portions of the record
indicating that veniremembers 14 and 23 were eligible to receive a dividend from State
Farm. Instead, she assumes that because these veniremembers are State Farm
policyholders, they are entitled to dividends.
The Texas Supreme Court has mentioned the following with regard to error
preservation:
Important prudential considerations underscore our rules on
preservation. Requiring parties to raise complaints at trial conserves
judicial resources by giving trial court an opportunity to correct an error
before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).
In addition, our preservation rules promote fairness among litigants. A
party “should not be permitted to waive, consent to, or neglect to
complain about an error at trial and then surprise his opponent on appeal
Page v. State Farm Lloyds Page 10
by stating his complaint for the first time.” Pirtle v. Gregory, 629 S.W.2d
919, 920 (Tex. 1982) (per curiam). Moreover, we further the goal of
accuracy in judicial decision-making when lower courts have the
opportunity to first consider and rule on error. Not only do the parties
have the opportunity to develop and refine their arguments, but we have
the benefit of other judicial review to focus and further analyze the
questions at issue.
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).
Because Page chose to forego challenging veniremembers 14 and 23 for cause,
she cannot now argue for the first time on appeal that the trial court erred by failing to
exclude veniremembers 14 and 23. See TEX. R. APP. P. 33.1(a); In re B.L.D., 113 S.W.3d at
350; see also In re Olshan Found. Repair Co. of Dallas, LLC, 192 S.W.3d 922, 927 (Tex.
App.—Waco 2006, orig. proceeding) (Gray, C.J., dissenting) (“Generally, judges are
limited to answering the question presented, and only the question presented. Another
well-recognized concept is that the lawyers, as advocates for the parties, give their
clients the advice and counsel that the lawyers believe is appropriate, and work with
the clients to implement a litigation strategy. When they choose to forego a position,
argument, or objection, it is forfeited or waived.”). Accordingly, we conclude that Page
waived her complaints in these issues. See TEX. R. APP. P. 33.1(a); In re B.L.D., 113
S.W.3d at 350; see also In re Olshan Found. Repair Co. of Dallas, LLC, 192 S.W.3d at 927. As
such, we overrule Page’s seventh and eighth issues.
VIII. COURT COSTS
In her tenth issue, Page complains that she did not get a fair and honest trial;
thus, she should not have to pay State Farm Lloyds’s court costs. However, in making
this argument, Page does not cite any facts or portions of the record, nor does she cite
Page v. State Farm Lloyds Page 11
any authority supporting her contention. Because Page has merely uttered a brief
conclusory statement without legal support for this issue, we conclude that the issue
has been inadequately briefed. See TEX. R. APP. P. 38.1(i); see also Tesoro Petroleum Corp.,
106 S.W.3d at 128. Accordingly, we overrule Page’s tenth issue.
IX. CONCLUSION
Having overruled all of Page’s issues on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 5, 2013
[CV06]
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