Deborah Frazier v. Wesley Roden ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-017-CV
DEBORAH FRAZIER APPELLANT
V.
WESLEY RODEN APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Deborah Frazier appeals a take-nothing judgment in favor of
Appellee Wesley Roden following a jury trial in a car accident case. In two
issues, Frazier argues that the trial court erred by including an instruction on
“emergency” in the jury charge and that the jury’s verdict is contradictory and
should be set aside. We will affirm.
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… See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
A. Roden’s Version of the Accident
Roden testified that on Friday, April 15, 2005, he was driving a Ford 250
truck north on Interstate 35E and was pulling a trailer with a horse in it. The
driving conditions were clear and dry. Traffic was slowing and starting to get
bumper to bumper. He was traveling at only twenty to twenty-five miles per
hour, following a dump truck that was approximately twenty-five feet in front
of him.
Roden had been traveling in the right-hand lane for approximately twenty
miles when Frazier’s vehicle entered his lane from the left, pulling in front of
him. Roden immediately braked and turned his steering wheel to the right to
avoid hitting Frazier, but he bumped the back of her vehicle, making minor
contact with the passenger-side tail light. Roden’s truck suffered no damage.
He testified that Frazier said that she was fine and that she told the police at
the scene that she was not injured.
Roden testified that there was nothing he could have done to prevent the
accident. He said that if he had jerked the steering wheel harder to the right,
he probably would have jack-knifed and flipped his truck and trailer. Roden said
that he did everything he could to avoid bumping Frazier’s vehicle; he felt like
Frazier should not have turned into his lane.
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B. Frazier’s Version of the Accident
Frazier testified that she was traveling north on Interstate 35E in the right-
hand lane. She denied changing lanes in front of Roden. Frazier said that as
traffic slowed and started to back up, she was behind an eighteen-wheeler.
Frazier said that she looked in her rear-view mirror and saw Roden coming
towards her at a high rate of speed. Frazier said that she could not move to the
left because there was a car there. Frazier said that Roden hit her and that they
both moved to the shoulder.
Frazier claimed that she told the police that her left groin, knee, and
ankle, as well as her neck, were sore. She sought treatment from her family
doctor on the Monday following the Friday accident. Frazier’s family doctor
referred her to Advanced Physical Therapy. Frazier also underwent an MRI, met
with an orthopedic surgeon, and sought chiropractic care. Frazier’s medical
bills totaled $10,241.72. On cross-examination, Frazier admitted that all the
imaging studies had benign findings and that the MRI indicated some
degeneration in her neck. Frazier also admitted that she had told the police
dispatch that there were no injuries as a result of the accident, that no
ambulance came to the scene, and that her doctor has not placed any
restrictions on her activities.
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C. Jury Charge and Verdict
Over Frazier’s objection, the trial court included an “emergency”
instruction in its charge to the jury. Ultimately, the jury returned a verdict
finding neither Frazier nor Roden negligent and awarding Frazier $416 in past
medical expenses. The trial court signed a take-nothing judgment in favor of
Roden, stating that it appeared that the jury’s verdict was for Roden and
against Frazier. This appeal followed.
III. E MERGENCY INSTRUCTION W AS P ROPER
In her first issue, Frazier argues that the trial court abused its discretion
by including the following emergency instruction in the jury charge:
If a person is confronted by an “emergency” arising suddenly and
unexpectedly, which was not proximately caused by any
negligence on his part and which, to a reasonable person, requires
immediate action without time for deliberation, his conduct in such
an emergency is not negligence or failure to use ordinary care if,
after such emergency arises, he acts as a person of ordinary
prudence would have acted under the same or similar
circumstances.
Frazier argues that submission of this instruction constituted error because no
evidence existed that Roden lacked time for deliberation before he took action.
To warrant the submission of an instruction on sudden emergency, there
must be evidence that (1) an emergency situation arose suddenly and
unexpectedly, (2) the emergency situation was not caused by the defendant’s
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negligence, and (3) after the emergency situation arose, the defendant acted
as a person of ordinary prudence would have acted. Thomas v. Oldham, 895
S.W.2d 352, 360 (Tex. 1995); McDonald Transit, Inc. v. Moore, 565 S.W.2d
43, 44–45 (Tex. 1978). If evidence exists raising a fact issue regarding these
elements, the trial court should submit the requested instruction. Jordan v.
Sava, Inc., 222 S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); DeLeon v. Pickens, 933 S.W.2d 286, 294 (Tex. App.—Corpus Christi
1996, writ denied). Actions by other vehicles may create a sudden emergency.
See DeLeon, 933 S.W.2d at 294.
We review the trial court’s decision to include a sudden emergency
instruction in its charge for an abuse of discretion. See Dew v. Crown Derrick
Erectors, Inc., 208 S.W.3d 448, 456 (Tex. 2006). “If an instruction might aid
the jury in answering the issues presented to them, or if there is any support
in the evidence for an instruction, the instruction is proper.” Louisiana-Pacific
Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998).
Frazier focuses on the portion of the jury charge defining an emergency
as something that requires immediate action without time for deliberation and
argues that Roden’s testimony—that if he had jerked the steering wheel to the
right, he probably would have jack-knifed and flipped his truck and
trailer—establishes that Roden did have time to deliberate. Frazier argues that,
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in light this deliberation by Roden, no emergency occurred and that the
emergency instruction should not have been submitted.
Roden, however, did not testify that he had time to deliberate or that he
did deliberate prior to the accident.2 Instead, Roden testified that Frazier’s
vehicle entered his lane from the left and that he “immediately put on [his]
brakes, and . . . turned the wheel to the right to try to avoid hitting her.”
Roden testified that he did not see Frazier’s vehicle until she came into his lane.
Roden agreed that there was nothing he could have done to prevent the
accident from occurring other than not be there.
This testimony by Roden, as well as the other evidence introduced at trial,
raises at least an issue of fact on every element of sudden emergency. See
DeLeon, 933 S.W.2d at 294; see also Carter v. Helicopter Ambulance Serv. of
N. Tex., Inc., No. 05-95-00468-CV, 1996 WL 403987, at *5 (Tex.
App.—Dallas July 19, 1996, writ denied) (not designated for publication).
Consequently, the trial court did not abuse its discretion by submitting the
sudden emergency instruction. See DeLeon, 933 S.W.2d at 288, 294 (holding
that trial court properly submitted sudden emergency instruction when
2
… The record reveals that Roden gave that answer—that he probably
would have jack-knifed and flipped his truck and trailer—in response to the
following question from plaintiff’s counsel at trial: “If you had just jerked it,
what would have happened?”
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conflicting testimony existed regarding whether defendant was following
plaintiff’s vehicle too closely and rear-ended plaintiff’s vehicle or whether
negligence of truck driver created sudden emergency causing defendant to
swerve into plaintiff’s lane and rear-end her vehicle).3 We overrule Frazier’s
first issue.
IV. W AIVER OF C OMPLAINT T HAT J URY V ERDICT W AS C ONTRADICTORY
In her second issue, Frazier argues that the jury’s verdict was
contradictory because the jury found that neither Frazier nor Roden were
negligent yet awarded Frazier $416 for past medical care. If the jury’s verdict
is “incomplete, or not responsive to the questions contained in the court’s
charge, or the answers to the questions are in conflict, the court shall in writing
instruct the jury in open court of the nature of the incompleteness,
unresponsiveness, or conflict, provide the jury such additional instructions as
3
… The cases cited by Frazier did not involve conflicting evidence raising
an issue of fact on every element of sudden emergency like the evidence here;
therefore, those cases are not controlling. See Deviney v. McLendon, 496
S.W.2d 161, 163, 166 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)
(holding sudden emergency instruction erroneous when both parties testified
that defendant rear-ended plaintiff’s car, which was stopped on Loop 410, and
no evidence was presented raising sudden emergency); Petty v. Children’s
World Learning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *4
(Tex. App.—Dallas May 31, 1995, writ denied) (not designated for publication)
(holding sudden emergency instruction erroneous but harmless when evidence
showed only that third party’s conduct was sole proximate cause of accident).
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may be proper, and retire the jury for further deliberations.” See Tex. R. Civ.
P. 295. Frazier did not raise any contention concerning conflicting jury findings
in the trial court before the jury was discharged, so the trial court did not have
the opportunity to provide the jury such additional instructions as may have
been proper and the jury did not have the opportunity to retire for further
deliberations. Accordingly, because Frazier did not advise the trial court of this
alleged conflict in the jury’s verdict, this issue is not preserved for our review.
See Tex. R. Civ. P. 295; Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11,
24 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Kitchen v. Frusher, 181
S.W.3d 467, 473 (Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g);
Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 861 (Tex.
App.—Fort Worth 2003, pet. denied).
Frazier argues in her reply brief that the Texas Supreme Court has never
applied the waiver or preservation doctrine to a purported conflict in jury
findings and that cases holding that waiver of an alleged conflict in jury findings
occurs if a party fails to object to the purported conflict before the jury is
discharged are erroneous and not well-founded. Frazier traces cases applying
this waiver doctrine and claims that they are not well-reasoned. However, the
origin of this waiver doctrine is Texas Rule of Civil Procedure 295, which was
promulgated by the Texas Supreme Court. See Tex. R. Civ. P. 295. That rule
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requires the trial court to provide instructions to the jury and requires the jury
to redeliberate in the event of conflicting answers in their verdict. See id. A
trial court cannot comply with Rule 295 unless it knows that a party believes
the jury has returned conflicting answers in its verdict. Consequently, we
decline Frazier’s invitation to revisit existing case law requiring a party to object
in the trial court to an alleged conflict in the jury’s verdict in order to preserve
that issue for appellate review.
Finally, in any event, no conflict exists in the jury’s verdict. Frazier claims
a fatal conflict exists between the jury’s failure to find either Roden or Frazier
negligent in Question No. 1 (by answering “no” as to both Frazier and Roden
in the liability question) and the jury’s answer to Question No. 3 (the damage
question) awarding Frazier $416 in past medical expenses. But Question No.
3, the damage question, was not conditionally submitted; the jury was required
to answer it regardless of its answer to Question No. 1. See Turner v. Precision
Surgical, L.L.C., 274 S.W.3d 245, 249 (Tex. App.—Houston [1st Dist.] 2008,
no pet.) (explaining that a jury question is conditionally submitted when the jury
is instructed to answer the question contingent upon its answer to some other
question). Because the jury was required to answer Question No. 3 regardless
of its answer to Question No. 1, no conflict exists in the jury’s verdict; the jury
simply found that the accident was not proximately caused by Frazier or by
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Roden and that Roden sustained past medical expenses of $416 as a result of
the accident that was not either party’s fault. See, e.g., Casualty Underwriters
v. Rhone, 134 Tex. 50, 54, 132 S.W.2d 97, 99 (1939) (explaining, “[i]t will
never be presumed that jurors intend to return conflicting answers, but the
presumption is always to the contrary. Courts properly refuse to strike down
answers on the ground of conflict, if there is any reasonable basis upon which
they may be reconciled”).
We therefore overrule Frazier’s second issue.
V. C ONCLUSION
Having overruled both of Frazier’s issues, we affirm the trial court’s take-
nothing judgment in favor of Roden.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: October 22, 2009
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