Randy D. Greer and Keith D. Johnson v. Samuel Seales

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-001 CV ____________________ RANDY D. GREER AND KEITH D. JOHNSON, Appellants V. SAMUEL SEALES, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Cause No. CV-34932-02-01 MEMORANDUM OPINION Appellants Randy D. Greer and Keith D. Johnson sued appellee Samuel Seales, alleging his negligent operation of a motor vehicle caused appellants' personal injuries and property damage. (1) The jury found the accident was not proximately caused by the negligence of either driver. Pursuant to the jury's verdict, the trial court entered a final judgment in favor of Seales. Appellants filed this appeal, in which they raise four issues for our consideration. We affirm. Denial of Challenges for Cause In their first issue, appellants argue the trial court erred in failing to strike certain potential jurors for cause. Appellants contend numerous members of the jury panel expressed bias or prejudice against personal injury cases and awarding damages for pain and suffering. To preserve error on the overruling of challenges for cause, counsel must inform the trial court that the party will exhaust all of his peremptory challenges, that counsel has been forced to exhaust his peremptory challenges to exclude the juror to whom his challenge for cause was overruled, and that specific objectionable jurors will remain. Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 889-90 (Tex. 1985). Counsel must so inform the court before exercising his peremptory challenges. Id. at 890. The rationale behind the rule is that "[o]nce informed, the [trial] court is able to determine if the party was in fact forced to take objectionable jurors." Id. In this case, appellants moved to strike the following jurors for cause: 2, 3, 4, 5, 7, 9, 11, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 33, and 38. The court struck jurors 7, 17, 20, and 38 for cause, but denied appellants' other challenges for cause. Appellants complain of the denial of their challenges for cause of the seated jurors 2, 4, 5, 11, 14, 21, 22, 23, 26, and 27. (2) The record reveals appellants' counsel did not challenge juror 14 for cause below. Therefore, nothing has been preserved for review as to juror 14. See Tex. R. App. P. 33.1(a). Furthermore, after appellants' counsel made his challenges for cause, he informed the court that the objectionable jurors who would remain after his peremptory challenges were exhausted were jurors 26, 27, and 28. Appellants' counsel did not identify jurors 2, 4, 5, 11, 14, 21, 22, 23, and 24 as objectionable veniremembers who would remain after he exercised his peremptory challenges. Therefore, appellants did not preserve error as to these jurors. See id.; Hallett, 689 S.W.2d at 889-90. We now turn to the denial of appellants' challenges for cause of jurors 26, 27, and 28. A person is disqualified from serving on a jury if he has a bias or prejudice in favor of or against a party to the lawsuit. Tex. Gov't Code Ann. § 62.105(4) (Vernon 2005). This statutory disqualification extends to bias or prejudice against the subject matter of the suit as well as the litigants. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963). Once bias or prejudice is established as a matter of law, a potential juror is automatically disqualified. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963); Compton, 364 S.W.2d at 182. However, if prejudice is not established as a matter of law, the trial court makes a factual determination as to whether the veniremember is sufficiently prejudiced to be disqualified. Swap Shop, 365 S.W.2d at 154. Because trial judges are present during voir dire, they are "in a better position . . . to evaluate the juror's sincerity and his capacity for fairness and impartiality." Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 93 (Tex. 2005) (quoting Swap Shop, 365 S.W.2d at 154). This factual determination is within the trial court's sound discretion, and we will not overturn it absent a showing of abuse of discretion. Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998); Sullemon v. U.S. Fidelity & Guar. Co., 734 S.W.2d 10, 14-15 (Tex. App.--Dallas 1987, no writ). In reviewing the trial court's factual determination, we must consider all of the evidence in the light most favorable to upholding the trial court's ruling. Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 207 (Tex. App.--Amarillo 1996, no writ); Sullemon, 734 S.W.2d at 15. We first determine whether jurors 26, 27, and 28 were disqualified as a matter of law. During voir dire, counsel for appellants asked juror 26 whether she agreed with another veniremember who had opined that "you're going to hire a lawyer because you get hit or whatever, all that is you trying to get money out of the insurance" and said he did nothing when he had an accident which was caused by a defective steering mechanism on his truck. Juror 26 simply responded, "Accidents happen." Counsel asked no further questions of juror 26. Appellants' counsel did not question jurors 27 and 28 individually, but jurors 27 and 28 raised their hands when appellants' counsel asked who agreed with another veniremember's opinion that damages for pain and suffering should be limited. For us to find that jurors 26, 27, and 28 were disqualified as a matter of law, the record must conclusively show that their states of mind led to the natural inference that they would not act with impartiality. See Compton, 364 S.W.2d at 182. "[T]he key response that supports a successful challenge for cause is that the veniremember cannot be fair and impartial, because the veniremember's feelings are so strong in favor of or against a party or against the subject matter of the litigation that the veniremember's verdict will be based upon those feelings and not on the evidence." Gant, 935 S.W.2d at 208. On this record, we cannot find that jurors 26, 27, and 28 were disqualified as a matter of law. See Compton, 364 S.W.2d at 182; Gant, 935 S.W.2d at 208; see also Sosa v. Cardenas, 20 S.W.3d 8, 12 (Tex. App.--San Antonio 2000, no pet.) (Venireperson's raising his hand in response to question was vague and insufficient to sustain a challenge for cause.). The trial court acted within its discretion in determining that these jurors could serve on the jury and denying appellants' motions to strike them for cause. See Swap Shop, 365 S.W.2d at 154. Appellants' first issue is overruled. Factual Sufficiency of the Evidence In their fourth issue, appellants contend the jury's verdict was against the great weight and preponderance of the evidence. When a party attacks the factual sufficiency of the evidence supporting an adverse finding on which he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a challenge to the factual sufficiency of the evidence, we must examine the record to determine if there is some evidence to support the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We then determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or whether the great preponderance of the evidence supports its nonexistence. Id.; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 665 (1952). The jury, as the finder of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury is free to believe one witness and disbelieve another, and to resolve inconsistencies in the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Appellant Randy Greer testified he and his cousin, appellant Keith Johnson, were traveling in foggy weather during the morning hours when the accident occurred. After they "got up over" a hill, they saw some deer, so Greer removed his foot from the accelerator, slowing his vehicle to thirty-five to forty-five miles per hour. Greer testified he then heard a loud noise from behind when his vehicle was struck. Greer denied being aware that anyone was traveling behind him. As Greer grabbed the steering wheel to keep his vehicle from leaving the road, he heard Johnson screaming. After stopping his vehicle, Greer got out of the car and spoke to Seales, who said, "I'm sorry. I'm sorry." Because the passenger seat broke and slammed into the dashboard, Johnson was unable to get out of the car until emergency personnel removed him. Emergency personnel placed Johnson on a board and took him to the hospital by ambulance. Johnson testified that the weather was "a little" foggy on the day of the accident. According to Johnson, as he and Greer approached a hill, they saw two deer. Johnson testified Greer "hesitated," and their vehicle was struck. Johnson's seat was jammed against the dashboard, and he was unable to get out of the car until emergency personnel arrived. Johnson testified he was taken to the hospital for treatment. Seales testified that when the accident occurred, he was driving a seventeen-foot moving truck he had rented from U-Haul. Seales testified he wears glasses, but he was not wearing them when the accident occurred because he only wears them at night. According to Seales, he was traveling on a two-lane road with a very small grass shoulder. Seales knew deer were frequently on the road and he needed to watch out for them. When Seales reached the top of a hill, the sun blinded him, so he raised his hands to block the sun and removed his foot from the gas. Seales testified, "And then as I was coming down, I seen something. . . . I jammed my brakes, and I slid into them, slid. Tried to miss them, but I hit them." Seales did not know exactly how fast he was traveling, but he stated, "I wasn't paying attention how fast I was going. I don't think I was going that fast." Seales testified he was "pretty sure" he was traveling the speed limit. Seales denied following Greer's vehicle too closely, and he testified, "the sun hit me and I couldn't see nobody. I didn't see that car. By the time I seen that car, it was too late." Seales denied seeing the taillights of Greer's vehicle. Seales testified he tried to avoid the accident, but he was unable to do so. Seales stated he could not pull over to the shoulder because he could not see. Seales testified, "If I could have pulled over, I would have. The sun was hitting me dead in the eyes, and - and I couldn't see nothing. I was just blind for a few minutes." After the accident, Seales got out of the truck, met Greer, and asked Greer if he was all right. Seales testified that Johnson was still in the front of the car. When the police and the ambulance arrived, Seales heard Johnson voicing pain. When asked whether he ever told anyone the accident was his fault, Seales testified, "I hit him. I assume it was my fault." Having reviewed the evidence which supports and which is contrary to the jury's finding, we are to set aside the finding only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. The jury was free to believe Seales's testimony that he was blinded by the sun and could not have avoided the accident. See Leyva, 358 S.W.2d at 549; McGalliard, 722 S.W.2d at 697. The evidence is factually sufficient to support the jury's verdict. Issue four is overruled. Instruction on Unavoidable Accident In their second issue, appellants argue the trial court erred by submitting an instruction on unavoidable accident. (3) Appellants contend instructions on unavoidable accident have fallen into disfavor due to the risk that the jury will be misled by the perception that the instruction is a separate issue distinct from general principles of negligence. See Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995); Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992). Appellants also argue the issue of unavoidable accident was not raised by the evidence, and the submission of the instruction probably caused the rendition of an improper judgment. Appellants further assert that the existence of sunlight during the day is not a sufficiently peculiar or unforeseeable occurrence to justify the inclusion of an "unavoidable accident" instruction. Lastly, appellants contend the instruction is improper because there was evidence of negligence of a party to the event. The court must submit as part of its charge "such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277. For an instruction to be proper, it must assist the jury, accurately state the law, and be supported by the pleadings and the evidence. Texas Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). The trial court has great discretion to determine what instructions are necessary and proper, and no abuse of discretion is shown unless submission of the instruction probably caused the rendition of an improper judgment. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998); Tex. R. App. P. 44.1(a). An unavoidable accident is "an event not proximately caused by the negligence of any party to it." Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952) (opinion on rehearing); Clark v. Cotten, 573 S.W.2d 886, 888 (Tex. Civ. App.--Beaumont 1978, writ ref'd n.r.e.). The sole purpose of the "unavoidable accident" instruction is to insure the jury will understand that "they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of." Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971). The instruction is usually used to inquire about the causal effect of some physical condition or circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of view, or when the case involves a very young child who is legally incapable of negligence. Hill, 849 S.W.2d at 803. However, the Supreme Court has recently held that the language of the instruction is not so limited. (4) See Dillard v. Texas Elec. Co-op., 157 S.W.3d 429, 433 (Tex. 2005); Comm. On Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges - General Negligence & Intentional Personal Torts, PJC 3.4 (2003). Rather, "[t]he instruction merely informs the jury that it may consider causes of the occurrence other than the negligence of the parties." Dillard, 157 S.W.3d at 433. Seales consistently testified that he was blinded by sunlight when the accident occurred. Seales also testified that he tried to avoid the accident but was unable to do so. In addition, Seales had pled unavoidable accident prior to trial. Therefore, both the pleadings and the evidence supported the inclusion of an instruction on unavoidable accident. See Mandlbauer, 34 S.W.3d at 912. Furthermore, in a case decided before Tex. R. Civ. P. 277 was amended to mandate broad-form submission whenever feasible, one of our sister courts of appeals found that the jury's finding of unavoidable accident was supported by evidence that the defendant driver was blinded by sunlight. Lofland v. Jackson, 237 S.W.2d 785, 787-91 (Tex. Civ. App.--Amarillo 1950, writ ref'd n.r.e.); Tex. R. Civ. P. 277. Issue two is overruled. Time Permitted for Voir Dire In issue three, appellants argue the trial court erred in failing to allow them additional time for voir dire. Generally, the scope of voir dire examination rests within the sound discretion of the trial court. Babcock v. Northwest Mem'l Hosp., 767 S.W.2d 705, 709 (Tex. 1989). The trial court has the right to reasonably limit the time permitted for voir dire. McCarter v. State, 837 S.W.2d 117, 119 (Tex. Crim. App. 1992). The trial court abuses its discretion when its denial of the right to ask proper questions on voir dire examination prevents a party from determining whether grounds exist to challenge for cause or denies a party intelligent use of his peremptory challenges. Babcock, 767 S.W.2d at 709. Appellants must demonstrate that the trial court abused its discretion and the error was calculated to cause and probably did cause the rendition of an improper judgment. See id.; Tex. R. App. P. 44.1. Three factors are relevant in reviewing whether the trial court abused its discretion: (1) whether a party's voir dire examination reveals an attempt to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions; and (3) whether the party was precluded from examining veniremembers who served on the jury. McCarter, 837 S.W.2d at 119; McCoy v. Wal-Mart Stores, Inc., 59 S.W.3d 793, 797 (Tex. App.--Texarkana 2001, no pet.). To preserve error when the trial court limits the time for voir dire, the objecting party must identify the specific questions it was not allowed to ask. Godine v. State, 874 S.W.2d 197, 200-01 (Tex. App.--Houston [14th Dist.] 1994, no pet.). Identifying general topics for questions is insufficient. S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.--Houston [14th Dist.] 1996, writ denied); Godine, 874 S.W.2d at 200-01. At the conclusion of the voir dire, appellants' counsel made the following objection to the time limitations placed upon his voir dire: Your Honor, prior to making my challenges for cause, I'd like to make a record on not having sufficient time for voir dire. . . . I think the case law requires me to tell the Court what issues I have not had a chance to voir dire on and why. I'd like to make a record on that to protect my record. . . . We are requesting more time for voir dire. Because of the answers from this panel, we have not had sufficient time to voir dire the jury. The jury panel had a great deal of folks who identified particular bias and mind sets that would normally exclude them, including pain and suffering, prior accidents, a great deal of things that we worked as fast as we could to identify those folks. As the Court is aware and, in my experience, the most efficient way to do that is identify those with a particular bias and mind set and then ask the excluding question that would exclude them and then see how many others agree to that. That took up a great deal of time with regard to pain and suffering. As a result of that, of no fault of Plaintiff, I was not able to voir dire the jury on many, many serious issues, including frivolous lawsuits, chiropractic care, burden of proof, pre-existing injury - all of which are issues in this case. As far as chiropractic, burden of proof, and pre-existing injuries, all of which are serious issues in this case, several different venirem[e]n . . . espoused an opinion about frivolous lawsuits that would make them biased. I did not, because of time constraints and not having enough time, have enough time to expound on that and see if there were other venirem[e]n that have problems with frivolous lawsuits. . . . I am requesting more time to voir dire the jury on those issues and others. . . . The trial court overruled the objection. Counsel's objection failed to identify to the trial court specific questions he was not permitted to ask. See Godine, 874 S.W.2d at 200-01. Rather, counsel merely identified general areas of inquiry he desired to pursue. See S.D.G., 936 S.W.2d at 380; Godine, 874 S.W.2d at 200. Therefore, this issue was not preserved for review. See S.D.G., 936 S.W.2d at 380; Godine, 874 S.W.2d at 200-01. Tex. R. App. P. 33.1(a). Issue three is overruled. The judgment of the trial court is affirmed. AFFIRMED. STEVE McKEITHEN Chief Justice Submitted on January 2, 2006 Opinion Delivered February 23, 2006 Before McKeithen, C.J., Gaultney and Horton, JJ. 1. Home State County Mutual Insurance Company, which intervened in the suit seeking recovery of funds paid to Greer in settlement of his property damage claim, is not a party to this appeal. 2. The other members of the seated jury were jurors 8, 16, and 18. 3. Appellants preserved error by objecting to the instruction at the charge conference. See Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). 4. The instruction given in this case was a verbatim recitation of that contained in the Pattern Jury Charges. See Comm. On Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges - General Negligence & Intentional Personal Torts, PJC 3.4 (2003).