William M. Dunn v. Jesus Lara Hernandez, Enrique III and Yessenia C. Caballero ( 2021 )

Opinion issued July 8, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00832-CV
———————————
WILLIAM M. DUNN, Appellant
V.
JESUS LARA HERNANDEZ, ENRIQUE CABALLERO III, AND
YESSENIA C. CABALLERO, Appellees
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1136391
MEMORANDUM OPINION
Appellant, William M. Dunn, appearing pro se, challenges the county court’s
judgment, rendered after a bench trial, in favor of Dunn in his suit for negligence
against appellees, Jesus Lara Hernandez, Enrique Caballero III (“Enrique”), and
Yessenia C. Caballero (“Yessenia”). In four issues, Dunn contends that the evidence
is legally and factually insufficient to support the county court’s damages award and
the county court erred in excluding certain evidence and dismissing Dunn’s claims
against Enrique and Yessenia (collectively, the “Caballeros”).
We affirm.
Background
Dunn filed, in Harris County justice court, his petition, alleging that he had
recently completed a “new custom fence.” Hernandez, while performing tree cutting
services for Dunn’s neighbors, the Caballeros, damaged Dunn’s fence when he
removed “several large[,] tall mature pine trees” from the Caballeros’ backyard.
According to Dunn, Hernandez negligently dropped a “large cut tree trunk directly
onto the new custom fence,” which caused extensive damage to the fence and its
supporting structure. Dunn brought a negligence claim against Hernandez, seeking
$9,909 in damages to repair and replace his fence.1 Dunn did not bring any claims
against the Caballeros.
Hernandez answered, generally denying the allegations in Dunn’s petition and
asserting the defense of contributory negligence.
After a bench trial, the justice court entered a judgment in favor of Dunn on
his negligence claim against Hernandez. The justice court awarded Dunn $500 in
1
According to Dunn, he obtained four estimates for the cost of repairing and
replacing his fence and $9,909 represented the average cost from those four
estimates.
2
damages and court costs. Dunn appealed the judgment of the justice court to the
county court for a trial de novo.2
In county court, Dunn filed an amended petition, continuing to allege that he
had recently completed a “new custom fence.” Hernandez, while performing tree
cutting services for the Caballeros, damaged Dunn’s fence when he removed
“several large[,] tall mature pine trees” from the Caballeros’ backyard. Hernandez
negligently dropped a “large cut tree trunk directly onto the new custom fence,”
which caused extensive damage to the fence and its supporting structure. Dunn still
asserted his negligence claim against Hernandez, but he also sought to “add” the
Caballeros to his suit and bring negligence claims against them. Dunn requested
$9,909 in damages to repair and replace his fence.
At trial, the county court initially addressed Dunn’s negligence claims against
the Caballeros. The court explained that although Dunn had attempted to add the
Caballeros as defendants to the case in county court and allege negligence claims
against them, Dunn had not brought any claims against the Caballeros in justice
court, and he could not add the Caballeros as defendants in his appeal to the county
court. The county court thus dismissed Dunn’s negligence claims against the
Caballeros.
2
See TEX. R. CIV. P. 506.1, 506.3.
3
As to his negligence claim against Hernandez, Dunn testified that he built a
fence in his backyard. The Caballeros are Dunn’s “backyard neighbors”—meaning
that Dunn’s backyard sits on one side of his fence and the Caballeros’ backyard sits
on the other side. The original fence had holes in it, and Dunn wanted to repair the
fence because he had dogs.
Dunn spent nearly a year building his fence. He testified that he used the “best
wood” that he could find to build the fence. He used stainless-steel fasteners and
stainless-steel screws instead of nails, and he used angle brackets “where the post
would come together with the rails.” He sealed the wood “with four coats of [a] top
quality stain.”
At some point after Dunn had completed his fence, the Caballeros hired
Hernandez to “cut several of the tall mature pine trees in [their] backyard.” While
Hernandez was cutting the trees, he “dropp[ed] the logs from way up
high . . . and they . . . hit[] the ground real hard.” One of the logs was dropped on
the center of Dunn’s fence. Dunn believed that the log that was dropped was eight
to ten feet long. The log damaged Dunn’s fence.
According to Dunn, the dropped log damaged the structure of his fence and
the fence was “stressed all the way from one end to the other.” Dunn stated that the
entire fence needed to be replaced. But he also testified that forty percent of the
fence was irreparable, and he should be awarded $4,000 in damages. Finally, Dunn
4
testified that Hernandez only broke two pickets of the fence when he dropped the
log, and the pickets only cost “a few dollars” plus “four coats of . . . extensive stain”
and the stainless-steel fasteners that Dunn had used.
The county court admitted into evidence Plaintiff’s Exhibit 1, which contained
four estimates for a replacement fence to Dunn’s specifications. The first estimate
from Aber Fence and Supply Company to “[r]eplace 60’L x 6’6H cedar fencing” is
$9,986. The second estimate from Fencemaster Houston for a “custom fence
project” is $9,850. (Internal quotations omitted.) The third estimate from
Montgomery Fencing & Exteriors, LLC for a “[n]ew [f]ence [i]nstallation” is
$10,000. And the fourth estimate from Texas Farm & Ranch Services for the
“longest lasting fence possible” is $9,800.
The county court also admitted into evidence Plaintiff’s Exhibit 2, which,
among other things, contains photographs of Dunn’s fence after the log had fallen
on it and shows the fence’s two broken pickets.
Finally, the county court admitted into evidence Defendant’s Exhibits 1–3,
which contain photographs of the damage to the two pickets of Dunn’s fence.
The county court rendered judgment in favor of Dunn, ordering Hernandez to
pay Dunn $250 in damages, post-judgment interest, and court costs. Dunn requested
findings of fact and conclusions of law.
5
The county court entered the following findings of fact and conclusions of
law:
1. On September 23, 2019, this court held a trial with all parties
present.
2. The Court determined that [Dunn] incorrectly and wrongfully
included two additional persons as defendants as part of [his]
appeal. These persons, [the Caballeros], were not parties or
defendants in the original justice court.
3. The court determined that [the Caballeros] were not proper
parties and dismissed them from th[e] appeal.
4. The Court heard testimony from [Dunn] and [Hernandez] and
reviewed exhibits submitted by [Dunn] for the first time and
which were not part of the record from the justice court.
5. [Dunn] sought recovery for damages to his entire fence in the
amount of NINE THOUSAND NINE HUNDRED NINE
DOLLARS ($9,909.00).
6. [Hernandez] submitted evidence that less than four (4) feet of the
approximately sixty (60) foot fence was damaged by a tree limb
that was cut by [Hernandez]. [Hernandez’s] and [Dunn’s]
picture exhibits both showed the same damage.
7. The Court determined that [Dunn] was not entitled to recover
NINE THOUSAND NINE HUNDRED NINE DOLLARS
($9,909.00) in damages for the construction and replacement of
a brand-new sixty (60) foot fence. Instead, the Court determined
that TWO HUNDRED FIFTY DOLLARS ($250.00) was the
reasonable cost to repair only the damaged portion of the fence.
8. Accordingly, the Court rendered judgment against [Hernandez]
in the amount of TWO HUNDRED FIFTY DOLLARS
($250.00) plus court costs – payable to [Dunn].
6
Dismissal
In his first issue, Dunn argues that the county court erred in dismissing his
negligence claims against the Caballeros because Dunn “added” the Caballeros as
defendants in his amended petition filed in county court and his claims against the
Caballeros should have been severed, not dismissed.
In his petition filed in justice court, Dunn named Hernandez as the sole
defendant. Dunn brought a negligence claim against Hernandez, alleging that
Hernandez had negligently dropped a “large cut tree trunk directly onto [Dunn’s]
new custom fence,” which caused extensive damage to the fence and its supporting
structure. After a bench trial, the justice court entered a judgment in favor of Dunn
on his negligence claim against Hernandez and awarded Dunn $500 in damages.
Dunn then appealed the judgment of the justice court to the county court for a trial
de novo.3
In county court, Dunn filed an amended petition. Dunn continued to assert
his negligence claim against Hernandez, but he also sought to “add” the Caballeros
as defendants to his suit and assert negligence claims against them.
At trial, the county court stated that Dunn was not allowed to add the
Caballeros as defendants in his appeal to county court, and it dismissed Dunn’s
3
See TEX. R. CIV. P. 506.1, 506.3.
7
negligence claims against the Caballeros. When the county court stated that it was
dismissing his claims against the Caballeros, Dunn responded, “Okay.”
We do not consider unpreserved complaints on appeal. See Fed. Deposit Ins.
Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012); see also Allright, Inc. v. Pearson,
735 S.W.2d 240, 240 (Tex. 1987) (“A point of error not preserved, is not before the
appellate court for review.”). Generally, to preserve a complaint for appellate
review, the record must show that the complaint was made to the trial court by a
timely request, objection, or motion and the trial court either ruled on the party’s
request, objection, or motion, or refused to rule, and the party objected to that refusal.
TEX. R. APP. P. 33.1(a). The complaint raised in the trial court must state the grounds
for the ruling sought “with sufficient specificity to make the trial court aware of the
complaint.” TEX. R. APP. P. 33.1(a)(1)(A); see also Patel v. Hussain, 485 S.W.3d
153, 174 (Tex. App.—Houston [14th Dist.] 2016, no pet.). If a 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); Harris v. Kareh, No. 01-18-00775-CV, 2020 WL 4516878, at
*10 (Tex. App.—Houston [1st Dist.] Aug. 6, 2020, pet. denied) (mem. op.); see also
Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (“[O]ne should not be permitted
to waive, consent to, or neglect to complain about an error at trial and then surprise
his opponent on appeal by stating his complaint for the first time.”). Without proper
presentation of an alleged error to the trial court, a complaining party never gives
8
the trial court any opportunity to correct the error. See Birnbaum v. Law Offices of
G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003, pet.
denied); Richard v. Towery, No. 01-11-00132-CV, 2013 WL 1694861, at *18 (Tex.
App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (“The purpose of [r]ule
33.1’s requirement that parties preserve error by raising their complaints in the trial
court in a timely and specific manner is to promote judicial efficiency by allowing
the trial court an opportunity to correct an error.”).
On appeal, Dunn argues that the county court erred in dismissing his
negligence claims against the Caballeros because the county court should have
severed those claims.4 But Dunn did not assert in the county court that he was
entitled to a severance, did not request a severance of his claims against the
Caballeros, and did not object when the county court dismissed his claims. See TEX.
R. APP. P. 33.1(a); Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 413 (Tex.
App.—Eastland 2002, pet. denied) (appellant did not preserve complaint trial court
erred in failing to sever his claim; appellant not entitled to raise complaint trial court
erred in failing to sever claim for first time on appeal); see also Smalling v. Gardner,
203 S.W.3d 354, 372 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (appellant
did not preserve complaint trial court erred in entering dismissal order where record
4
We need not decide whether Dunn was entitled to severance of his claims against
the Caballeros. See TEX. R. APP. P. 47.1.
9
did not show she brought her complaint to trial court’s attention); Macias v.
Schwedler, 135 S.W.3d 826, 831 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)
(appellant did not preserve complaint trial court erred in dismissing her claim, rather
than abating her case). We hold that Dunn has not preserved for appellate review
his complaint about the dismissal of his negligence claims against the Caballeros.5
Damages
In his third and fourth issues, Dunn argues that the evidence is legally and
factually insufficient to support the county court’s damages award of $250 because
Plaintiff’s Exhibit 1 contained the “estimates from four good professional insured
fence contractors” that the replacement cost for the fence would be, on average,
$9,909, Plaintiff’s Exhibit 2 contained photographs of the damage to the fence and
“some other details too,” Hernandez “submitted no estimates” or evidence of the
“actual dollar valuation of damages,”6 and the amount of damages awarded by the
county court was not “within the range of evidence presented at trial.”
5
A pro se litigant must follow the same rules and laws as a litigant represented by a
licensed attorney. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.
1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.
App.—Dallas 2008, no pet.). Otherwise, a pro se litigant would have an unfair
advantage over a litigant represented by a licensed attorney. Mansfield, 573 S.W.2d
at 184–85; Cooper, 254 S.W.3d at 693.
6
At points in his brief, Dunn also asserts that Hernandez presented evidence that the
amount of Dunn’s damages was $500.
10
In an appeal from a bench trial, we review legal- and factual-sufficiency issues
under the same standards that are applied to review a jury’s verdict. Anderson v.
City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). Where, as here, the trial
court issued findings of fact and conclusions of law, the trial court’s findings of fact
have the same weight as a jury verdict. Merry Homes, Inc. v. Luu, 312 S.W.3d 938,
943 (Tex. App.—Houston [1st Dist.] 2010, no pet.). When a reporter’s record has
been filed, findings of fact are not conclusive and are binding only if they are
supported by the evidence. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190
S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
An appellant who attacks the legal sufficiency of an adverse finding on an
issue on which he had the burden of proof “must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When we consider a
legal-sufficiency challenge, we “must first examine the record for evidence that
supports the finding, while ignoring all evidence to the contrary.” Id.; see also City
of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005) (appellate court must “view
the evidence in the light most favorable to the verdict, crediting favorable evidence
when reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not”). Only if there is no evidence to support the finding will we
examine the entire record to determine if the contrary proposition is established as a
11
matter of law. Dow Chem., 46 S.W.3d at 241. We must uphold the fact finder’s
verdict if more than a scintilla of evidence supports the judgment. W & T Offshore,
Inc. v. Fredieu, 610 S.W.3d 884, 898 (Tex. 2020). We will sustain a challenge to
the legal sufficiency of the evidence only if (1) there is a complete lack of evidence
of a vital fact, (2) rules of law or evidence bar the court from giving weight to the
only evidence offered to prove a vital fact, (3) there is no more than a scintilla of
evidence offered to prove a vital fact, or (4) the opposite of the vital fact is
conclusively established. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903
(Tex. 2004).
To successfully challenge the factual sufficiency of the evidence to support
an adverse finding on an issue on which he bore the burden of proof at trial, the
appellant must demonstrate that the finding is against the great weight and
preponderance of the evidence. Dow Chem., 46 S.W.3d at 242; Pool v. Ford Motor
Co., 715 S.W.2d 629, 635 (Tex. 1986). We must consider and weigh all of the
evidence and will set aside a verdict only if it is so contrary to the overwhelming
weight of the evidence that it is clearly wrong and unjust. Dow Chem., 46 S.W.3d
at 242; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
As the fact finder in a bench trial, the trial court’s role is to evaluate the
credibility of the witnesses and reconcile any inconsistencies or conflicts in the
evidence. Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018); Golden Eagle
12
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The trial court may
believe or disregard all or any part of the testimony of any witness. Anderson, 550
S.W.3d at 616; Golden Eagle Archery, 116 S.W.3d at 774–75. We will not weigh
the witnesses’ credibility or substitute our judgment for that of the fact finder. See
Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019); City of Keller, 168 S.W.3d at
816–17.
The fact finder generally has discretion to award damages within the range of
evidence presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.
2002). While a fact finder may not arbitrarily assess an amount not authorized or
supported by evidence at trial by “pull[ing] figures out of a hat,” we will not
disregard the fact finder’s determination of damages merely because its reasoning in
reaching its figures may be unclear. Enright v. Goodman Distribution, Inc., 330
S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (internal
quotations omitted).
As to damages, the county court made the following findings of fact:
5. [Dunn] sought recovery for damages to his entire fence in the
amount of NINE THOUSAND NINE HUNDRED NINE
DOLLARS ($9,909.00).
6. [Hernandez] submitted evidence that less than four (4) feet of the
approximately sixty (60) foot fence was damaged by a tree limb
that was cut by [Hernandez]. [Hernandez’s] and [Dunn’s]
picture exhibits both showed the same damage.
13
7. The Court determined that [Dunn] was not entitled to recover
NINE THOUSAND NINE HUNDRED NINE DOLLARS
($9,909.00) in damages for the construction and replacement of
a brand-new sixty (60) foot fence. Instead, the Court determined
that TWO HUNDRED FIFTY DOLLARS ($250.00) was the
reasonable cost to repair only the damaged portion of the fence.
At trial, Dunn testified that the Caballeros hired Hernandez to “cut several of
the tall mature pine trees in [their] backyard.” While Hernandez was cutting the
trees, a log was dropped on the center of Dunn’s fence, damaging it. Dunn stated
that the structure of the fence had been damaged and that the fence was “stressed all
the way from one end to the other.”
The county court admitted into evidence Plaintiff’s Exhibit 1, which contained
four estimates for a replacement fence to Dunn’s specifications. The estimates for
the cost of a new fence ranged from $9,800 to $10,000.
Dunn also testified that he believed that forty percent of the fence was
irreparable and that he should be awarded $4,000 in damages. Yet, he further
testified that the log that Hernandez dropped broke only two pickets of the fence,
which cost “a few dollars” plus “four coats of . . . extensive stain” and the
stainless-steel fasteners that Dunn had used.
Dunn acknowledges on appeal that the county court had broad discretion to
award damages within the range of evidence presented at trial. But he asserts that
the evidence required the county court to award him damages between $500 and
$9,909. Here, Dunn testified that it would only cost “a few dollars” to fix the two
14
pickets of the fence that were broken by the log. See Gulf States, 79 S.W.3d at 566
(property owner may testify about value of his personal property); Yazdani-Beioky
v. Tremont Tower Condo. Ass’n, No. 01-10-00107-CV, 2011 WL 1434837, at *5
(Tex. App.—Houston [1st Dist.] Apr. 14, 2011, no pet.) (mem. op.) (“Generally, a
property owner is qualified to testify to the value of her property even if she is not
an expert and would not be qualified to testify to the value of other property.”). The
county court’s damages award of $250 falls within the range of evidence presented
at trial. See Gulf States, 79 S.W.3d at 566; see also Macready v. Salter, No.
02-11-00026-CV, 2011 WL 5515500, at *4 (Tex. App.—Fort Worth Nov. 11, 2011,
no pet.) (mem. op.) (“Because the trial court was free to award [plaintiff] any amount
of damages within the range presented[] . . . [and] its award was within the range
presented at trial, . . . it did not abuse its discretion.”).
Because more than a scintilla of evidence supports the county court’s finding
that the reasonable cost to repair the “only . . . damaged portion of the fence” was
$250, we hold that the evidence is legally sufficient to support the county court’s
damages award. And because the county court’s finding that the reasonable cost to
repair the “only . . . damaged portion of the fence” was $250 was not contrary to the
overwhelming weight of all the evidence, we hold that the evidence is factually
sufficient to support the county court’s damages award.
We overrule Dunn’s third and fourth issues.
15
Exclusion of Evidence
In his second issue, Dunn argues that the county court erred in excluding from
evidence Plaintiff’s Exhibit 3, a typed three-page document, titled “Cause of
Action – Details – Statement of Facts,” because the exhibit contained Dunn’s
“critical oral statement that the fence couldn’t be fixed and it would have to be
rebuilt” and the exclusion of the exhibit resulted in the county court’s award of
inadequate damages to Dunn.
We review the trial court’s decision to admit or exclude evidence for an abuse
of discretion. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007); D & M Marine, Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion if it acts
arbitrarily or unreasonably without reference to guiding rules or principles. Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We uphold a trial court’s
admission or exclusion of evidence unless (1) there was no legitimate basis for the
court’s ruling, and (2) the error probably caused the rendition of an improper
judgment. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); Tex. Dep’t of Transp. v. Able, 981 S.W.2d 765, 770–71 (Tex. App.—Houston
[1st Dist.] 1998), aff’d, 35 S.W.3d 608 (Tex. 2000); see also TEX. R. APP. P.
44.1(a)(1); Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001).
16
Any error by the trial court in not admitting Plaintiff’s Exhibit 3 from evidence
is reversible only if Dunn can show that the error was harmful, meaning that it
probably caused the rendition of an improper judgment. Diamond Offshore Servs.
Ltd. v. Williams, 542 S.W.3d 539, 551–52 (Tex. 2018); Interstate Northborough, 66
S.W.3d at 220; see TEX. R. APP. P. 44.1(a)(1). In determining whether the erroneous
admission of evidence was harmful, we review the entire record. Interstate
Northborough, 66 S.W.3d at 220; Sundance Energy, Inc. v. NRP Oil & Gas LLP,
No. 01-18-00340-CV, 2019 WL 3819523, at *7 (Tex. App.—Houston [1st Dist.]
Aug. 15, 2019, pet. denied) (mem. op.). “Typically, a successful challenge to a trial
court’s evidentiary ruling[] requires the complaining party to demonstrate that the
judgment turns on the particular evidence excluded or admitted.” Interstate
Northborough, 66 S.W.3d at 220; see also In re N.F., No. 09-19-00435-CV, 2020
WL 2070286, at *20 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem. op.)
(“Evidentiary rulings do not usually cause reversible error unless an appellant can
demonstrate that the judgment turns on the particular evidence that was admitted or
excluded.”). A party cannot establish harm, i.e., that the error was reasonably
calculated to cause and probably did cause rendition of an improper judgment, if the
substance of the excluded evidence was before the court through other evidence. See
Bartosh v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 439 (Tex. App.—
Houston [14th Dist.] 2005, no pet.); Able, 981 S.W.2d at 770–71; see also In re
17
R.H.W. III, 542 S.W.3d 724, 740 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(“When evidence identical or similar to the objected-to evidence is admitted
elsewhere without objection, there is no harm.”); Pyle v. S. Pac. Transp. Co., 774
S.W.2d 693, 695 (Tex. App.—Houston [1st Dist.] 1989, writ denied).
Plaintiff’s Exhibit 3 is a typed, unsigned, and unsworn three-page narrative
statement, presumably written by Dunn, discussing the construction of Dunn’s
fence, the damage to the fence when Hernandez dropped “a very large cut tree
trunk . . . onto the center area” of the fence, and the purported post-damage
interactions between Dunn, Hernandez, and the Caballeros. When Dunn sought to
admit Plaintiff’s Exhibit 3 into evidence at trial, he described the exhibit as
“[b]asically stating the facts.”
We will presume for purposes of this opinion that the county court erred in
excluding Plaintiff’s Exhibit 3 from evidence. But Dunn’s testimony at trial covered
much of the content contained in Plaintiff’s Exhibit 3. Plaintiff’s Exhibits 1 and 2,
which the county court admitted into evidence, also contained evidence similar to
the content of Plaintiff’s Exhibit 3. See Able, 981 S.W.2d at 770–71; see also In re
R.H.W. III, 542 S.W.3d at 740 (“When evidence identical or similar to the
objected-to evidence is admitted elsewhere without objection, there is no harm.”);
Pyle, 774 S.W.2d at 695. Dunn cannot establish that he was harmed by the exclusion
of Plaintiff’s Exhibit 3 from evidence without demonstrating that Plaintiff’s Exhibit
18
3 is not cumulative of other evidence. See Bartosh, 178 S.W.3d at 439; see also
Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (exclusion of
cumulative evidence cannot constitute harmful error).
Further, to the extent that any portions of Plaintiff’s Exhibit 3 are not
cumulative of other evidence presented at trial, we cannot say that the county court’s
judgment turns on this particular evidence excluded by the county court. In his brief,
Dunn asserts that the exclusion of Plaintiff’s Exhibit 3 from evidence probably
resulted in the county court’s award of inadequate damages to him.
At trial, Dunn testified that he believed that his entire fence needed to be
replaced, and Plaintiff’s Exhibit 1 contained four estimates that Dunn had received
for a replacement fence to Dunn’s specifications. The estimates range from $9,800
to $10,000. But Dunn also testified that Hernandez only broke two pickets of the
fence, which cost “a few dollars.” And we have already held that the evidence is
legally and factually sufficient to support the county court’s damages award in this
case.
Dunn has not established that the purported error by the county court in not
admitting Plaintiff’s Exhibit 3 into evidence was reasonably calculated to cause and
probably did cause the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a)(1). We hold that the county court did not commit reversible error in
excluding Plaintiff’s Exhibit 3 from evidence.
19
We overrule Dunn’s second issue.
Conclusion
We affirm the judgment of the county court.
Julie Countiss
Justice
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
20