Jeanette Billington v. William Mark Lamberson

NO. 07-04-0370-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A DECEMBER 8, 2005 ______________________________ JEANETTE BILLINGTON, APPELLANT V. WILLIAM MARK LAMBERSON, APPELLEE _________________________________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 90,763-E; HONORABLE ABE LOPEZ, JUDGE _______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. OPINION Appellant Jeanette Billington (1) challenges the trial court's order granting summary judgment that she take nothing against appellee William Mark Lamberson on her common law cause of action seeking damages for mental anguish she alleges she sustained as a bystander to an accident caused by Lamberson in which her grandmother sustained fatal injuries. Presenting a sole issue, (2) Billington contends that under the common law of Texas, a grandchild should be allowed to recover for mental anguish suffered as a bystander to the death of a grandparent. We affirm. Twanda Billington, appellant's grandmother was killed in an accident on May 5, 2001, when Lamberson failed to yield the right of way. Appellant Billington, the adult granddaughter of the decedent, and Billington's mother had attended a function with the deceased prior to the accident. They departed in separate cars and, as Billington was following her grandmother, she heard what she thought was an accident. When she turned a corner, she saw that her grandmother's car had been in an accident. Billington did not see the accident, but did witness the immediate aftermath. At the time of the accident, Billington was residing with her husband and two minor children on a ranch north of Amarillo. Billington did not contend that she had ever lived with her grandmother or that a loco parentis relationship had ever existed. By traditional motion, Lamberson sought summary judgment on two grounds. First Ground. Billington was not a person "closely related" as is required to maintain a bystander claim. Second Ground. Billington had no viable cause for a bystander claim based on her pleadings. Responding to the motion, Billington alleged (1) there was no evidence that she was not "closely related" and 2) the absence of any case law denying a granddaughter the right to recover on a bystander claim. Standard of Review for a Traditional Motion for Summary Judgment In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985), which are: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). When a summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ). Billington's Pleadings Second Ground A summary judgment should not be based on a pleading deficiency that can be cured by amendment of pleadings. See In Interest of B.I.V., 870 S.W.2d 12, 13 (Tex. 1994). Here, the record does not show the trial court ruled on Lamberson's special exception. Accordingly, the summary judgment may not be affirmed on the basis of the second ground. Alashmawi v. IBP, Inc., 65 S.W.3d 162, 173-74 (Tex.App.--Amarillo 2001, pet. denied). The judgment does not specify the grounds relied on. Thus, we are required to determine if the judgment can be affirmed on the first ground presented in the motion for summary judgment. See Carr, 776 S.W.2d at 569. Accordingly, we continue our analysis by focusing on Lamberson's first ground that Billington was not a person "closely related." Person "closely related." First Ground In Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex. 1993), the Court restated that status as a bystander requires determinations of (1) whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. (Emphasis added). See also Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988) (adopting bystander recovery theory in Dillon v. Legg, 68 Cal.2d 728, 740, 441 P.2d 912, 920, 69 Cal Rptr. 72, 80 (1968)). Regarding the third factor, unlike an action under section 71.004 of the Texas Civil Practice and Remedies Code which allows recovery of damages by a surviving spouse, children, and parents of a deceased, the Court did not define "closely related." The summary judgment evidence presented by Lamberson included Billington's oral deposition and her grandmother's death certificate. According to the evidence offered in support of the motion for summary judgment: •at the time of her death, the deceased, age 77, resided in Amarillo, Potter County; •at the time of the accident, Billington was married, lived and worked with her husband on a ranch in Moore County; •Billington was the mother of two children; •Billington had a twin brother and other relatives who lived in the vicinity; •Billington had never resided in the home of her grandmother; and •Billington did not see the accident, but did see the wrecked vehicle and her grandmother with injuries shortly after the accident. By response to the motion for summary judgment, Billington contended there was no evidence proving she was not closely related to the deceased; however she did not present any summary judgment evidence, by affidavit or otherwise, to establish a fact issue on the question of whether she and her grandmother were "closely related." See Clear Creek Basin Authority, 589 S.W.2d at 679. Citing Garcia v. San Antonio Housing Authority, 859 S.W.2d 78, 81 (Tex.App.-- San Antonio 1993, pet. denied), Billington contends that by a majority opinion, the San Antonio Court held that a grandparent constituted a person "closely related"; however, that reference is misplaced because in Garcia the plaintiff claiming bystander status was an uncle of the victim, not a grandparent. Adopting the California Supreme Court's definition of "closely related," the court reversed a summary judgment that the uncle take nothing and remanded the case for a determination of whether the uncle resided in the same household as the injured victim. (3) Id. Although the court did not state that sharing a common residence was essential, based upon its disposition of the case, we conclude that the majority considered that a determination of whether the uncle and the victim shared a common residence was an important factor to be considered in determining whether the uncle and victim were "closely related." See also Rodriguez v. Motor Exp., Inc. 909 S.W.2d 521, 525 (Tex.App.--Corpus Christi 1993), rev'd on other grounds, 925 S.W.2d 638 (Tex. 1996) (noting that two cousins-in-law resided in separate residences, the court affirmed a summary judgment denying a bystander claim). Pleadings do not constitute summary judgment proof and are not to be considered in determining whether fact issues are expressly presented in summary judgment proceedings. Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971). Further, "the non-movant must expressly present to the trial court any reasons seeking to avoid the movant's entitlement . . . and he must present summary judgment proof when necessary to establish a fact issue." Clear Creek Basin Authority, 589 S.W.2d at 678. "No longer must the movant negate all possible issues of law and fact that could be raised by the non-movant in the trial court but were not." Id. Considering that Lamberson's summary judgment evidence established Billington never shared a common residence with her grandmother, was married and lived on a ranch in an adjoining county, and other summary judgment evidence, in the absence of evidence by Billington raising a fact question as to the "closely related" ground, we conclude the trial court did not err in rendering summary judgment for Lamberson. Billington's issue is overruled. Accordingly the trial court's judgment is affirmed. Don H. Reavis Justice 1. According to her deposition, appellant's name is Jeanette Kiser, formerly Jeanette Billington. 2. Billington does not present a general issue as suggested in Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 3. The Texas Supreme Court did not adopt the reference to the California rule. STYLE="font-family: Arial" STYLE="font-size: 10pt"> Issues Five and Six -Failure to Grant Mistrial Through his fifth and sixth issues, appellant claims that the trial court abused its discretion in failing to grant his motions for mistrial. He believed himself entitled to same when the court sustained his objections to several questions by the prosecutor directed to appellant's uncle. The first involved whether the uncle had "ever seen him [appellant] use drugs when he was living with you" and the second concerned whether the witness was scared of appellant. We overrule the issues. As previously mentioned, the trial court sustained appellant's objections to each question. So too did it instruct the jury to disregard them. Furthermore, our review of the record fails to illustrate that the objectionable matter and its alleged prejudicial affect was beyond cure via the timely instruction to disregard. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (stating that a prompt instruction to disregard will cure error associated with an improper question). Issues Seven and Eight - Extraneous Robberies Lastly, appellant alleges that the trial court abused its discretion in admitting evidence of the 7-11 and KFC robberies. However, he does not complain about the evidence evincing the Phillips 66 robbery. Nor does he contend that the evidence was irrelevant or inadmissible as proof of character conformity. Rather, he argues that it should have been excluded under Rule 403 simply because the "State had strong direct evidence to show that the [a]ppellant committed the [E-Z Mart] robbery . . . and the proffered jury instruction was unlikely to be effective . . . ." (3) We overrule the issues. First, we cannot ignore the fact that appellant's attempt to apply the circumstances at bar to the law he mentions consists of no more than the quotation set forth in the immediately preceding paragraph. That is not the substantial analysis contemplated by Rule 38.1(h) of the Texas Rules of Appellate Procedure. Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App. - - Amarillo 2000, no pet.) (stating that an appellant must accompany his issue with substantial analysis to comply with Rule 38.1(h)). Why the instruction was supposedly insufficient to be effective goes unexplained. Nor does he explain why the supposed lack of need for the evidence should outweigh every other factor favoring its admission, such as relevance and tendency to prove identity. And, given this lack of analysis, he waived the point. Id. Second, assuming arguendo that admission of the evidence was error, we find it harmless. Analyzing harm involves a two step process. First, we determine whether a substantial right is involved and then assess whether the error had more than a "slight" effect on the outcome. Hastings v. State, 20 S.W.3d at 792. It is beyond dispute that an accused has a substantial right to be tried only for the offense alleged in the indictment. Id. at 792. Thus, the prosecution's injection of extraneous offenses into the trial implicated a substantial right. Id. Now, we must determine whether the error had more than a slight impact on the outcome of the trial. In doing so, we first consider the weight of the evidence establishing appellant's guilt, other than that about which appellant complains. And, in assessing it, we find that such evidence militates strongly against a finding of harm. Simply put, it is overwhelming. Not only did the store clerk positively identify appellant, so did his uncle after seeing a video of the robbery. Furthermore, the videotape and a picture of the robbery depicting both appellant and the clothes he wore were admitted in evidence and published to the jury. So too were various distinct items of clothing identified as those worn by the robber found in appellant's home and admitted into evidence. In short, appellant's culpability for the E-Z Mart robbery was virtually indisputable, and this renders it difficult to conclude that any extraneous evidence could have had more than a slight impact on the finding of guilt. (4) Next, the evidence in question was made the subject of hearings outside the jury's presence, and only after the trial court ruled it admissible was it tendered by the State. "Thus, it cannot be said that the State acted with evil motive . . . or that it would act with impunity in the future if we were to affirm the judgment." Hastings v. State, 20 S.W.3d at 792. Additionally, of the three extraneous robberies, appellant complains of only two on appeal. Thus, we have before us a situation wherein substantial aspects of the purported harm which the appellant decries will remain in the case irrespective of what we do regarding the 7-11 and KFC crimes. This circumstance is not unlike that wherein one is left with assessing whether a different outcome would have occurred if two malignant tumors were removed from a body when nothing was done about a third of purportedly similar kind and affect. If each is injurious in their own right but the patient allows one to remain, we cannot say with any degree of reasonable probability that the patient would have experienced a different outcome than the one encountered. See Hastings v. State, 20 S.W.3d at 791-92 (noting the failure of the appellant to complain about all the inadmissible extraneous offenses in assessing probable harm). And, that is the circumstance before us. In appellant complaining on appeal about only two of the three instances of purportedly inadmissible evidence, we are not in a position to say that the removal of two cancerous growths would have achieved a different outcome when a third is left to spread havoc. Next, each of the three extraneous robberies was evidence susceptible to admission during the punishment phase under art. 37.07 of the Texas Code of Criminal Procedure. See Padron v. State, 988 S.W.2d 344, 346 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (holding that the trial court may admit evidence of other crimes to aid the jury in assessing punishment). Thus, it cannot be said that they somehow induced the trial court to assess undue punishment. Having overruled each issue, we affirm the judgment entered below. Brian Quinn Justice Do not publish. 1. The Court of Criminal Appeals stated in Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988) that "[p]rearrest silence is a constitutionally permissible area of inquiry." Id. at 755. The witness at bar testified that appellant had not been arrested at the time appellant allegedly refused to talk about something. And, we say "something" because the witness was prevented from completing his answer by appellant's objection. So, we do not know with certainty what the suspect allegedly refused to talk about while purportedly undergoing questioning before his arrest. 2. That the trial court sentenced appellant, as opposed to the jury, is of consequence. This is so because an indicia considered in determining whether the instruction to disregard sufficed to cure harm involves the likelihood that the comment affected the sentence imposed by the jury. Waldo v. State, 746 S.W.2d at 757. If the jury did not levy the punishment, then the comment could not have affected a sentence it did not levy. Furthermore, without evidence to the contrary appearing of record, we will not infer that the trial court ignored its own admonishment to disregard when it determined punishment. 3. Texas Rule of Evidence 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." 4. This is not to say that the State is free to parade before the jury matters of tenuous value but extreme prejudice affect merely because the accused's guilt is clear. Again, the weight of the evidence is but one factor, though an important one, in assessing harm. Garza v. State, 963 S.W.2d 926, 929-30 (Tex. App. - - San Antonio 1998, no pet.) (holding that the overwhelming weight of the evidence is but one factor in assessing harm).