Mohammad Adnan Jamal and Mohammad Haris Khan v. Lina Hammad ( 2020 )

Affirmed and Memorandum Opinion filed April 9, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00945-CV
MOHAMMAD ADNAN JAMAL AND MOHAMMAD HARIS KHAN,
Appellants
V.
LINA HAMMAD, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2016-03324
MEMORANDUM OPINION
Appellee Lina Hammad sued Appellants Mohammad Adnan Jamal and
Mohammad Haris Khan (collectively, “Appellants”), alleging that Appellants
sexually assaulted her after the trio left a Houston nightclub. The parties
proceeded to trial; the jury found in favor of Hammad and assessed approximately
$1.68 million in damages. Appellants appealed the trial court’s final judgment
asserting procedural, sufficiency, and evidentiary challenges. For the reasons
below, we affirm.
BACKGROUND
Hammad sued Appellants in January 2016 and asserted claims for false
imprisonment, assault, intentional infliction of emotional distress, negligence, and
gross negligence. The parties proceeded to a jury trial.
Testifying at trial, Hammad said she met Jamal through her brother.
Hammad said Jamal asked her on a date and they agreed to meet at Khan’s
Houston apartment on December 10, 2015. Appellants met Hammad at the
apartment complex’s entrance and the group returned to Khan’s apartment.
Hammad testified that she had not met Appellants prior to this occasion. Hammad
said she did not have any alcoholic drinks that evening before arriving at Khan’s
apartment.
At Khan’s apartment, Appellants and Hammad waited for another girl,
Monica Interiano, to finish getting ready. Hammad said she was offered an
alcoholic drink and had a few sips. After spending a few minutes at Khan’s
apartment, the group departed to the Belvedere Lounge and arrived a few minutes
after midnight.
According to Hammad, Appellants ordered drinks for her and Interiano at
the Belvedere; Hammad said she consumed one tequila shot and a few sips from a
glass of wine. Hammad said she and Appellants walked outside to the Belvedere’s
patio and Khan proceeded to kiss her. Hammad said she “push[ed] him away” and
went to stand by Jamal. Hammad testified that Jamal started kissing her and she
kissed back. After that point, Hammad said she “blacked out.”
After blacking out, Hammad said she only had “three flashes” of memory:
(1) a man’s penis in her face; (2) Jamal putting her in the shower and laughing at
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her; and (3) Jamal sitting her on the bed and asking her if she “was okay,” while
there was a nude man in the background. According to Hammad, she woke up at
about 7:00 a.m. the next morning; she was lying in a bed naked, with blood on the
sheets and a naked Khan lying next to her. Hammad grabbed her things and left
Khan’s apartment. Hammad said she called Jamal to ask what had happened the
previous night; Jamal told her she was “drunk” and “throwing up everywhere.”
Hammad got in her car to drive away and said she was “dizzy” and had “blurry
vision.”
When Hammad returned to her home, she noticed there were bruises on her
body. She went to the emergency room the next day and photographs were taken
of bruises on her legs, arms, chest, and buttocks. The emergency room’s medical
records noted the following under “Clinical Impressions”:
Suspected sexual assault. Assault by bodily force.
Multiple contusions to the left chest, right buttocks, right upper arm,
right thigh, right knee and right lower leg and left thigh, left knee and
left lower leg.
Possible exposure to STD.
While she was cross examined by Jamal’s attorney, Hammad acknowledged that a
“rape kit” was performed at the emergency room and that it “showed no male
DNA.” Hammad said that she had showered three times between leaving Khan’s
apartment and the emergency room examination.
Describing the events that occurred on December 10, 2015, Jamal said he
invited Hammad to hang out with him, Khan, and Interiano but that “it was not a
date.” Jamal said everyone made their own drinks at Khan’s apartment before the
group left for the Belvedere. Jamal said he did not buy Hammad any drinks at the
Belvedere and was unsure who purchased the shots. According to Jamal, he did
not try to kiss Hammad at the Belvedere and did not see her black out.
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When Appellants and Hammad returned to Khan’s apartment, Jamal said
Hammad began throwing up. Jamal said he left the apartment to get food for the
group; he called Khan and Hammad to see what kind of food they wanted but they
did not answer their phones. Jamal said he went home and did not return to Khan’s
apartment. Jamal denied assaulting Hammad.
Khan also testified that everyone made their own drinks at his apartment
before the group left to the Belvedere. Khan denied buying Hammad any drinks.
Khan said Hammad was throwing up when they returned to his apartment and
Jamal left to get food. Khan said he slept on his apartment sofa and Hammad
stayed on the bed; Khan said there was vomit on his bed in the morning. Khan
denied assaulting Hammad.
The jury also watched excerpts from the video deposition of Dr. Susan
Meixner, Hammad’s psychiatrist. Dr. Meixner testified that Hammad suffers from
post-traumatic stress disorder (“PTSD”) and stated that Hammad regularly
experiences a depressed mood and memory problems. On cross examination,
Jamal’s counsel had the following exchange with Dr. Meixner:
Q. Okay? And we’re not talking about her being drugged. She
had two drinks voluntarily, correct?
A. Right.
Q. We don’t have the evidence of her being drugged. You didn’t
see any evidence, correct?
A. Right.
After this exchange, Hammad’s counsel asserted that the line of questioning
opened the door to the remainder of Dr. Meixner’s testimony regarding the
possibility that Hammad was drugged. The trial court agreed with Hammad’s
counsel and permitted him to introduce additional excerpts from Dr. Meixner’s
deposition.
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Testifying regarding her discussions with Hammad, Dr. Meixner stated that
Hammad was “pretty sure someone put something in her drink, but she doesn’t
know which one.” Dr. Meixner again was asked if she had “seen any evidence
whatsoever that there were any drugs in [Hammad’s] bloodstream or in her urine,”
to which Dr. Meixner replied: “Well, no, but the point of date-rape drugs is that
they don’t show up.” Dr. Meixner also stated that Hammad’s symptoms were
consistent with someone who was given a date-rape drug.
After the close of evidence, the jury was instructed with respect to the
following claims: false imprisonment; assault; sexual assault; intentional infliction
of emotional distress; negligence; and gross negligence. For all claims, the jury
responded “Yes” for each of the Appellants. The jury also found that Appellants
“conspire[d]” to damage Hammad. The jury assessed $685,300 in compensatory
damages. The jury also assessed $500,000 in exemplary damages against Jamal
and $500,000 in exemplary damages against Khan.
The trial court signed a final judgment on August 14, 2018, awarding
Hammad $340,648.25 in compensatory damages and $1 million in exemplary
damages. Appellants filed a motion for new trial one week later. In September
2018, Hammad filed a “Motion for Judgment Nunc Pro Tunc Under Texas Rule of
Civil Procedure 316.” Asserting the trial court’s August 2018 final judgment
incorrectly reflected the jury’s verdict, Hammad stated the final judgment
incorporated a clerical error in the damages calculation that mistakenly was
included in Hammad’s proposed judgment. Hammad’s motion asked the trial
court to correct its final judgment and award Hammad $685,296.50 in
compensatory damages.
The trial court denied Appellants’ motion for new trial in an order signed
September 21, 2018. The trial court signed a second final judgment on October 10,
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2018, awarding Hammad $685,296.50 in compensatory damages and $1 million in
exemplary damages. Appellants timely appealed.
ANALYSIS
Requesting that this court reverse the trial court’s final judgment, Appellants
assert seven issues:
1. Hammad “has presented no evidence, or insufficient evidence that
Appellants drugged her drink while at Belvedere.”
2. “The trial court erroneously found that the Nunc Pro Tunc was a
clerical error.”
3. Hammad “has presented no evidence, or insufficient evidence that
appellants owed [her] a duty.”
4. “Did the trial court abuse its discretion by denying to exclude Dr.
Meixner and, if so, is this reversible error?”
5. “There is no evidence, or alternatively, factually insufficient evidence
to support any of the damages awarded to [Hammad].”1
6. “There is no evidence, or alternatively, factually insufficient evidence
to support any of the claim of Gross Negligence.”
7. “There is no evidence, or alternatively, factually insufficient evidence
to support any of the claim of Intentional Infliction of Emotional
Distress.”
For ease, we consolidate these seven issues into three groups challenging (1) the
trial court’s October 2018 judgment; (2) the jury’s responses to certain claims; and
(3) the trial court’s admission of Dr. Meixner’s conclusion that Hammad suffers
from PTSD. We begin by addressing Appellants’ challenges to the trial court’s
final judgment and the jury’s responses; we then consider Appellants’ challenge to
Dr. Meixner’s testimony. See Tex. R. App. P. 44.3; Nat. Gas Pipeline Co. of Am.
1
Although the title of this issue appears to challenge the jury’s damages findings, the
argument contained within this issue challenges the jury’s finding with respect to Hammad’s
assault claim and asserts the evidence does not show Appellants made direct or indirect contact
with Hammad.
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v. Pool, 124 S.W.3d 188, 201 (Tex. 2003) (when an appellant asserts multiple
grounds for reversal of the trial court’s judgment, an appellate court first should
address all issues that would require rendition and then, if necessary, consider
issues that would result in remand).
I. The Trial Court’s October 2018 Final Judgment
In their second issue, Appellants challenge the trial court’s October 2018
final judgment and assert the trial court “erroneously found that the Nunc Pro Tunc
was a clerical error.”
A trial court may issue a judgment nunc pro tunc following the expiration of
its plenary power to correct a clerical error made in entering a final judgment.
Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); In re A.M.C., 491 S.W.3d
62, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But here, the trial court’s
October 2018 final judgment did not constitute a judgment nunc pro tunc because
it was granted while the trial court retained plenary power to vacate, amend, or
correct its judgment. See Tex. R. Civ. P. 329b(e), (f).
The trial court signed the first final judgment on August 14, 2018.
Appellants timely filed a new trial motion on August 21, 2018, and filed an
amended motion on August 22, 2018. The trial court signed an order denying
Appellants’ amended new trial motion on September 21, 2018. Because of these
actions, the trial court’s plenary power was extended to October 21, 2018. See id.
at (e) (“If a motion for new trial is timely filed by any party, the trial court . . . has
plenary power to grant a new trial or to vacate, modify, correct, or reform the
judgment until thirty days after all such timely-filed motions are overruled, either
by a written and signed order or by operation of law, whichever occurs first.”).2
2
The trial court’s signed order denying Appellants’ motion for new trial occurred before
the motion would have been overruled by operation of law on November 4, 2018. See Tex. R.
7
While it retains plenary power, the trial court can correct clerical and judicial
mistakes as well as vacate or set aside the judgment. Id. 329b(d); see also In re
Gillespie, 124 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 2003, orig.
proceeding) (“Plenary power refers to that period of time in which a trial court may
vacate its judgment by granting a new trial, or in which it may modify or correct its
judgment.”). Here, the trial court signed the second final judgment on October 10,
2018, before the expiration of its plenary power on October 21, 2018. The trial
court therefore had jurisdiction to modify its judgment and the October 10, 2018
judgment is a valid final judgment. See Mathes v. Kelton, 569 S.W.2d 876, 878
(Tex. 1978) (although the trial court’s judgment could not be upheld as a judgment
nunc pro tunc because it did not correct a clerical error, the judgment was signed
“within the trial court’s plenary power” and therefore was “a valid final
judgment”); see also Ferguson v. Naylor, 860 S.W.2d 123, 126-27 (Tex. App.—
Amarillo 1993, writ denied); Alford v. Whaley, 794 S.W.2d 920, 922 (Tex. App.—
Houston [1st Dist.] 1990, no writ). Appellants’ argument on this point — focusing
only on the judgment’s validity as a nunc pro tunc judgment — does not contend
that the trial court’s modification was in error.
We overrule Appellants’ second issue.
II. The Jury’s Liability Findings
In their third, fifth, sixth, and seventh issues, Appellants challenge the
sufficiency of the evidence supporting the jury’s liability findings with respect to
Hammad’s claims for negligence, assault, gross negligence, and intentional
infliction of emotional distress. In their first issue, Appellants assert there is “no
evidence, or insufficient evidence that Appellants drugged [Hammad’s] drink
Civ. P. 329b(c) (if the trial court does not rule on a new trial motion, the motion is deemed
overruled by operation of law 75 days after the judgment was signed).
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while at Belvedere.” We measure the sufficiency of the evidence by the jury
charge when, as here, there has been no objection to it. See Romero v. KPH
Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005).
A. The Jury’s Findings in Response to Questions No. 1-7
The first four jury questions instructed the jury as follows, with separate
blanks after each question for each of the Appellants:
Question No. 1
Did either of [Appellants] falsely imprison [Hammad]?
* * *
Question No. 2
Did either of [Appellants] commit an assault against [Hammad]?3
* * *
Question No. 3
Did either of [Appellants] intentionally inflict severe emotional
distress on [Hammad]?4
* * *
Question No. 4
Did the negligence, if any, of [Appellants] proximately cause injury to
[Hammad]?5
The jury responded “Yes” to all questions for each of the Appellants. Questions
No. 5 and 6 inquired separately with respect to Appellants’ liability for conspiracy:
3
Appellants challenge the jury’s response to this claim in their fifth issue and assert that
Hammad did not present any evidence showing Appellants made direct or indirect contact with
her person as necessary to prove a claim for assault.
4
Appellants challenge the jury’s response to this claim in their seventh issue and assert
that an intentional infliction of emotional distress claim may only be used as a “gap filler” tort.
5
Appellants challenge the jury’s response to this claim in their third issue and assert that
Hammad did not present evidence showing that Appellants owed her a legal duty as necessary to
maintain a claim for negligence.
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Question No. 5
Was Mohammad Haris Khan part of a conspiracy that damaged
[Hammad]?
* * *
Question No. 6
Was Mohammad Adnan Jamal part of conspiracy that damaged
[Hammad]?
The jury responded “Yes” to Questions No. 5 and 6. Question No. 7 instructed the
jury with respect to damages:
If you answered “Yes” to any of Questions 1, 2, 3, 4, 5, or 6, then
answer the following question. Otherwise, do not answer the
following question.
Question No. 7
What sum of money, if paid now in cash, would fairly and reasonably
compensate [Hammad] for her injuries, if any, that resulted from the
occurrence in question?
Consider the elements of damages listed below and none other.
* * *
1. Physical pain and mental anguish sustained in the past.
2. Physical pain and mental anguish that, in reasonable
probability, Plaintiff Hammad will sustain in the future.
3. Medical care expenses incurred in the past.
4. Medical cause expenses that, in reasonable probability, Plaintiff
Hammad will incur in the future.
The jury awarded the following damages for each category: (1) $300,000 for past
physical pain and mental anguish; (2) $250,000 for future physical pain and mental
anguish; (3) $5,300 for past medical care; and (4) $130,000 for future medical
care.
Appellants assert on appeal legal sufficiency challenges to the jury’s “Yes”
responses to Questions No. 2 (assault), No. 3 (intentional infliction of emotional
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distress), and No. 4 (negligence).6 Appellants raised these sufficiency challenges
at the charge conference and in their motion for judgment notwithstanding the
verdict, preserving them for our review. See K.J. v. USA Water Polo, Inc., 383
S.W.3d 593, 600 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
When charge questions are submitted in a manner that allows the appellate
court to determine whether the jury’s verdict was based on a valid theory of
liability, any error associated with the inclusion of certain questions may be
harmless. Thota v. Young, 366 S.W.3d 678, 693-94 (Tex. 2012); see also City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995); Boatland of Houston,
Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980). When determining whether harm
occurred, we consider the charge as a whole. Thota, 366 S.W.3d at 694.
“Generally, error in the submission of an issue is harmless when the findings
of the jury in answer to other issues are sufficient to support the judgment.”
Boatland of Houston, Inc., 609 S.W.2d at 750. But an exception exists when the
erroneously-submitted issue confuses or misleads the jury as to all of the issues or
theories that are sufficient to support the judgment. Id.; see also Hatfield v.
Solomon, 316 S.W.3d 50, 63 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Here, Appellants’ legal sufficiency challenges address only three of the
claims that underlie the jury’s damages assessment — Appellants do not challenge
the jury’s “Yes” response to Question No. 1, which submitted Hammad’s false
imprisonment claim. Per the jury charge’s instructions, a “Yes” response to this
question was sufficient to support the trial court’s judgment awarding damages
6
Appellants also appear to assert factual sufficiency challenges with respect to some of
these findings. To the extent Appellants raise factual sufficiency challenges, we conclude these
issues are waived because they were not raised in Appellants’ new trial motion. See Tex. R. Civ.
P. 324; see also Reule v. M & T Mortg., 483 S.W.3d 600, 609 (Tex. App.—Houston [14th Dist.]
2015, pet. denied).
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against Appellants. Appellants do not argue, and our review of the record fails to
show, that an erroneous submission of the challenged claims would have confused
or misled the jury with respect to its determination in response to Question No. 1.
Appellants also do not challenge the damages question’s predication on a “Yes”
answer to any of the submitted theories of liability. Absent any evidence that the
alleged errors probably caused the rendition of an improper judgment, we must
affirm the trial court’s judgment. See Boatland of Houston, Inc., 609 S.W.2d at
750 (alleged error in the submission of an issue is harmless when the findings of
the jury in answer to other issues are sufficient to support the trial court’s
judgment).
We overrule Appellants’ third, fifth, and seventh issues challenging the
jury’s liability findings with respect to Hammad’s claims for negligence, assault,
and intentional infliction of emotional distress.
B. The Jury’s Findings in Response to Questions No. 8-9
Question No. 8 instructed the jury as follows with respect to Hammad’s
gross negligence claim:
Question No. 8
Do you find by clear and convincing evidence that the harm to
[Hammad] resulted from gross negligence?
“Clear and convincing evidence” means the measure or degree of
proof that produces a firm belief or conviction of the truth of the
allegations sought to be established.
“Gross negligence” means an act or omission by either of those
defendants named below,
1. Which when viewed objectively from the standpoint of Defendant
at the time of its occurrence involves an extreme degree of risk,
considering the probability and magnitude of the potential harm to
others; and
2. Of which the Defendant has actual, subjective awareness of the
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risk involved, but nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of others.
The jury answered “Yes” for each Appellant in response to Question No. 8.
Question No. 9 was predicated on an affirmative answer to Question No. 8 and
asked the jury to assess a “sum of money” that “should be awarded to Plaintiff
Hammad as exemplary damages for the conduct found in response to Questions 1,
2, 3, 4, 5, or 6”. The jury assessed $500,000 in exemplary damages against each of
the Appellants.
Appellants challenge the jury’s responses to Question No. 8 in their sixth
issue and summarily assert that “[w]ithout a showing of ‘Negligence’ [Hammad] is
not entitled to a claim for Gross Negligence.” We construe this challenge in
conjunction with the argument raised in Appellants’ third issue, in which they
contend that the evidence is insufficient to show that Appellants owed Hammad a
duty of care.
To establish liability for negligence, a plaintiff must prove the existence and
violation of a duty owed to her by the defendant. Greater Houston Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Kukis v. Newman, 123 S.W.3d 636,
639 (Tex. App.—Houston [14th Dist.] 2003, no pet.). The existence of a duty is a
question of law for the court to decide from facts surrounding the occurrence in
question. Finley v. U-Haul Co. of Ariz., 246 S.W.3d 185, 187 (Tex. App.—
Houston [14th Dist.] 2007, no pet.).
Each person has a general duty to exercise reasonable care to avoid a
foreseeable risk of injury to others. El Chico Corp. v. Poole, 732 S.W.2d 306, 311
(Tex. 1987), superseded by statute on other grounds as stated in F.F.P. Operating
Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007); see also Aguirre v.
Vasquez, 225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
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(“To establish breach of a duty, the plaintiff must show either that the defendant
did something an ordinarily prudent person exercising ordinary care would not
have done under those circumstances, or that the defendant failed to do that which
an ordinarily prudent person would have done in the exercise of ordinary care.”).
Here, Hammad alleges that Appellants owed her a duty to refrain from sexually
assaulting her. Appellants do not cite any case law or other authority to support
their argument against the imposition of this duty or to show that this would fall
outside the duty of reasonable care. Based on the facts surrounding the occurrence
in question, the trial court did not err in its legal conclusion that Appellants owed
Hammad a duty of care.
We overrule Appellants’ sixth issue challenging the jury’s gross negligence
finding.
C. Evidence That Appellants Drugged Hammad’s Drink
In their first issue, Appellants assert Hammad “presented no evidence, or
insufficient evidence that Appellants drugged her drink while at Belvedere.”
The jury never made an express finding that Appellants drugged Hammad’s
drink. To the extent Appellants seek to challenge an implied finding, we conclude
that this is not a threshold finding necessary to support the jury’s responses to any
of the submitted claims. See Latham v. Burgher, 320 S.W.3d 602, 606 n.1, 608-
610 (Tex. App.—Dallas 2010, no pet.) (court considered the appellant’s challenge
to the jury’s implied finding when the implied finding was necessary to support the
jury’s finding of alter ego). Therefore, we need not determine whether the
evidence supports the finding that “Appellants drugged [Hammad’s] drink while at
Belvedere.” We overrule Appellant’s first issue.
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III. Dr. Meixner’s Conclusion That Hammad Has PTSD
In their fourth issue, Appellants summarily assert that “Dr. Meixner makes a
conclusory statement about Mrs. Hammad having PTSD.” Because Appellants did
not raise this objection in the trial court or challenge the methodology underlying
Dr. Meixner’s conclusion, we limit our review of this issue to the face of the
record. See Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d
380, 388-89 (Tex. 2008).
If an expert provides no basis for her opinion, or if the basis offered provides
no support, the opinion is merely a conclusory statement and cannot be considered
probative evidence. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.
2009). Conclusory or speculative opinion testimony “is not relevant evidence,
because it does not tend to make the existence of a material fact more probable or
less probable.” Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d
227, 232 (Tex. 2004) (internal quotation marks omitted). When evaluating
whether an expert’s testimony is conclusory, we look to the entire record, not just
to the expert’s statements in isolation. See Morrell v. Finke, 184 S.W.3d 257, 279
(Tex. App.—Fort Worth 2005, pet. denied); United Servs. Auto. Ass’n v. Croft, 175
S.W.3d 457, 464 (Tex. App.—Dallas 2005, no pet.).
Here, Dr. Meixner provided an adequate basis to support her opinion that
Hammad suffers from PTSD. Dr. Meixner testified that she has been a licensed
psychiatrist for approximately 30 years and has treated “many” patients
experiencing severe mental trauma and PTSD. Dr. Meixner said she visited with
Hammad six-to-seven times and administered a PTSD checklist. To qualify for a
PTSD diagnosis under the checklist, Dr. Meixner explained that a patient would
need to exhibit six-to-seven of the listed symptoms, and that Hammad exhibited
more than required. Describing some of these symptoms, Dr. Meixner said
15
Hammad was experiencing a depressed mood, memory problems, and an elevated
fight-or-flight response. This testimony provided a basis sufficient to support Dr.
Meixner’s opinion that Hammad suffers from PTSD.
We overrule Appellants’ fourth issue challenging Dr. Meixner’s testimony.
CONCLUSION
We overrule Appellants’ seven issues on appeal and affirm the trial court’s
October 10, 2018 final judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
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