Deann Marlett v. Donald Moyer

• Court: Court of Appeals of Texas
• Decided: March 25, 2021
• Docket: 09-19-00063-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00063-CV __________________

DEANN MARLETT, Appellant

V.

DONALD MOYER, Appellee __________________________________________________________________

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 16-08-08755-CV __________________________________________________________________

MEMORANDUM OPINION

Deann Marlett appeals from the take-nothing judgment in a case the parties

tried to a jury. The trial court signed a judgment based on the jury’s verdict after the

jury failed to find the defendant’s negligence proximately caused the defendant’s

truck to collide with Marlett’s SUV. In one issue, Marlett argues the evidence

overwhelmingly shows Donald Moyer’s negligence caused the collision. Because

the evidence allowed the jurors to decide that Marlett failed to meet her burden of

proof, we affirm.

1 Background

As Moyer approached an intersection controlled by a traffic light, he struck

Marlett’s SUV. The collision occurred on FM 1488 where it intersects with Spur

149 in Montgomery County. Marlett and Moyer were the only eyewitnesses to the

collision who testified in the trial. Their respective accounts describing what

happened are not entirely consistent.

Marlett testified that, just before the collision occurred, she was eastbound on

FM 1488. As Marlett approached the intersection between FM 1488 and Spur 149,

she saw the traffic light turn red. According to Marlett, she brought her SUV to a

stop. A short time later, she stated, Moyer’s truck rear-ended her SUV. According

to Marlett, Moyer apologized to her at the scene. Marlett testified she did not enter

the intersection before stopping her SUV. Marlett also testified the roadways were

wet the day the collision occurred.

Unlike Marlett, Moyer testified that Marlett entered the intersection before

stopping her SUV. According to Moyer, he was eastbound on FM 1488 and driving

with the other traffic on the roadway at around forty miles per hour while

approaching the intersection at Spur 149. Moyer testified:

As we were approaching the 149 Spur, we were in—we were in a pack, I mean, a group of cars, and the light—I mean, the light’s right there. I watched it turn from green to yellow, so it was a fresh yellow light. Mrs.

2 Marlett crossed the [stop line,] entered the intersection and then braked very hard. I did strike the rear of her vehicle. I got out and I apologized to her. And I said, you know, I braked as hard as I could, but my tires just slid.

About five minutes after the collision occurred, Jason Campbell, a State Trooper,

came to the scene. He spoke to Marlett and Moyer while he was there. Moyer

admitted Campbell told him he was going to issue Moyer a ticket for failing to

control his speed. Moyer testified he disagreed with Campbell’s claim he should be

ticketed, explaining that Campbell failed to ask him for any details about the wreck

or to explain what, from Moyer’s standpoint, caused the collision to occur. Campbell

was not called to testify in the trial. And while Marlett offered the police report into

evidence, the copy she offered is blank in the area where investigating officers

usually describe how collisions occur.1

Before the attorneys presented their closing arguments, the trial court read the

charge. The charge contains the instructions, definitions, and the questions the jury

needed to answer to reach a verdict. One of the questions in the charge asked the

jury to decide whether Moyer’s negligence proximately caused the collision. The

1 The trial court resolved objections to the exhibits in a pretrial proceeding. During that hearing, Moyer objected when Marlett advised the trial court that she intended to introduce an unredacted copy of the police report into evidence during the trial. Moyer argued that to the extent the report contained information that contained the officer’s opinions about the collision, those sections were inadmissible. To cure Moyer’s complaint about admitting the report, Marlett agreed to redact the officer’s opinions from it before offering it into evidence in the trial. 3 jury answered that question “No[.]” Based on that finding, the trial court signed a

judgment several weeks after the trial and ordered that Marlett recover nothing from

Moyer on her claims. In response to the take-nothing judgment, Marlett moved for

a new trial. In her motion, she argued the jury’s verdict was contrary to the greater

weight and preponderance of the evidence. The trial court denied the motion and

Marlett filed an appeal.

Standard of Review

In a single issue, Marlett contends the jury’s finding that Moyer was not

negligent is contrary to the overwhelming great weight of the evidence the jury was

asked to consider in the trial. “When a party attacks the factual sufficiency of an

adverse finding on an issue on which she has the burden of proof, she must

demonstrate on appeal that the adverse finding is against the great weight and

preponderance of the evidence.”2 In a factual sufficiency review, we “must consider

and weigh all of the evidence, and can set aside a verdict only if the evidence is so

weak or if the findings is so against the great weight and preponderance of the

evidence that it is clearly wrong and unjust.” 3 Of course, we recognize the fact that

the jurors that heard the case “are the sole judges of the credibility of the witnesses

and the weight to give their testimony.4 In discharging their duties as jurors, the jury

2 Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). 3 Id. 4 City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 4 may “choose to believe one witness and disbelieve another.” 5 In reviewing the

evidence, we “cannot impose [our] own opinions to the contrary.” 6 And here, the

jury’s verdict rejecting Marlett’s negligence claim does not mean the jury found that

Moyer was not negligent. Instead, the jury’s finding of “No” on the issue that it

answered means the jury decided that Marlett failed to carry her burden of proving

Moyer’s negligence proximately caused the collision to occur.7 Stated another way,

a jury’s answer of “No” need not be supported by the preponderance of the evidence

or be supported by affirmative evidence showing no negligence occurred since

imposing that standard would improperly shift the burden of proof away from the

party that had it in the trial.8

Analysis

Under Texas law, a defendant in an auto-collision case is not strictly liable for

causing a collision merely because the defendant’s vehicle struck the plaintiff’s

vehicle from the rear. 9 Instead, the plaintiff must prove the defendant’s negligence

5 Id. 6 Id. 7 See Hebert v. Hebert, 754 S.W.2d 141, 144 (Tex. 1988) (“[C]ourts of appeals are not entitled to reverse merely because they conclude that the evidence preponderates toward an affirmative answer.”). 8 See In re E.I. duPont de Nemours & Co., 463 S.W.3d 80, 85 (Tex. App.— Beaumont 2015) (orig. proceeding) (citing Clophus v. General Motors Corp., 769 S.W.2d 669, 670 (Tex. App.—Houston [14th Dist.] 1989, no writ)). 9 See Benavente v. Granger, 312 S.W.3d 745, 749 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“[T]he mere occurrence of a rear-end collision does not establish negligence as a matter of law.”). 5 caused the collision, and not merely prove the defendant caused the collision. The

trial court provided the jury with several instructions to follow in reaching its verdict,

including ordinary care, negligence, and proximate cause. The charge defined these

terms as follows:

“Ordinary Care” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

“Negligence” means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

“Proximate Cause” means a cause that was a substantial factor in bringing about an occurrence, and without which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the occurrence, or some similar occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occurrence.

Since no one objected in the trial to these definitions, we measure the evidence the

jury considered against these definitions to evaluate whether the evidence in the trial

shows the jury’s verdict is clearly wrong and unjust. 10

At trial, the evidence conflicted on whether Moyer was negligent. Moyer’s

testimony indicates he was traveling with other traffic while approaching the

intersection where the collision occurred. He testified, and the jury was entitled to

10 See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (explaining that appellate courts are bound to review evidence in light of unobjected-to definitions submitted to jury). 6 believe, that Moyer was traveling at around ten miles per hour below the posted

speed. The evidence before the jury fails to show the distance between Moyer’s truck

and Marlett’s SUV when Moyer first saw and reacted to the brake lights on Marlett’s

SUV. There is also no testimony describing whether Moyer’s and Marlett’s vehicles

left skid marks on the roadway, and if so, their length. There is also no testimony

from any expert witnesses describing whether a driver exercising ordinary care could

have brought a truck to a stop given the traffic conditions on the road the day the

collision occurred.

Here, we must assume the jury chose to believe the account Moyer provided

regarding the collision. 11 A reasonable jury could view Moyer’s speed, given the

conditions, as reasonable and could also reasonably attribute Moyer’s failure to stop

to the timing of the change of the light and to the wet conditions of the road,

conditions that, according to Moyer, caused his truck to skid. Marlett also notes that

Moyer apologized to her at the scene. She argues this is evidence the jury could not

ignore. We agree the jury had no choice but to believe Moyer apologized given that

the evidence conclusively proves he apologized to her at the scene. Yet, the jury did

not have to view the apology as an admission of negligence. Instead, the jury could

view Moyer’s apology as an expression of remorse over hitting her SUV without

11 See City of Keller, 168 S.W.3d at 819 (“Jurors are the sole judges of the witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another.”). 7 viewing it as an admission that he negligently struck her SUV from the rear due to a

lack of ordinary care.12

So the question is whether reasonable humans could answer “No” when asked

whether Marlett proved Moyer’s negligence caused the collision.13 We conclude the

jurors could reasonably have done so by finding the preponderance of the credible

evidence did not support an answer of “Yes.”

Conclusion

We are not persuaded that reasonable jurors could not have found from the

evidence that Marlett failed to meet her burden of proving that Moyer’s negligence

caused the collision. We overrule Marlett’s sole issue. Accordingly, the trial court’s

judgment is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on August 17, 2020 Opinion Delivered March 25, 2021

Before Kreger, Horton and Johnson, JJ.

12 See Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980) (noting that judicial admissions are formal waivers of proof usually found in pleadings or stipulations). 13 Id. 8