K.J. v. USA Water Polo, Inc.

383 S.W.3d 593, 2012 Tex. App. LEXIS 6926, 2012 WL 3573877
CourtCourt of Appeals of Texas
DecidedAugust 21, 2012
DocketNo. 14-10-01188-CV
StatusPublished
Cited by15 cases

This text of 383 S.W.3d 593 (K.J. v. USA Water Polo, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 2012 Tex. App. LEXIS 6926, 2012 WL 3573877 (Tex. Ct. App. 2012).

Opinion

OPINION

JEFFREY V. BROWN, Justice.

In this appeal from the trial court’s judgment on a jury verdict against the plaintiffs on civil assault and other claims, appellants K.J. and V.J., individually and as next friends of E.J., raise eleven issues. In their third issue, appellants contend the jury disregarded conclusive evidence that an assault occurred and therefore judgment should be rendered in their favor on that claim. In their remaining issues, appellants. seek a remand on the rest of the case, contending that the trial court erred or abused its discretion by failing to record bench conferences, refusing to allow appellants to ask the jury panel about their ability to award large damages, failing to abate the case when notice of a Deceptive Trade Practices Act (DTPA) claim was not given, granting special exceptions on a pleading that had been amended, imposing sanctions, limiting appellants’ questioning of witnesses, and preventing them from making objections on the record. Lastly, appellants contend the cumulative effect of the trial court’s errors denied them a fair trial in violation of their due-process rights. We affirm.

I

In August 2008, appellants, on behalf of their minor son, E.J., sued USA Water Polo, Inc. (USAWP), the national governing body for the sport of water polo. Appellants also sued numerous other defendants, including two coaches and several next friends of minor boys who, like E.J., participated in water polo activities as members of entities affiliated with USAWP. Appellants alleged that, while in Salt Lake City, Utah, for a USAWP-sanc-tioned water polo tournament, the boys participated in sexually assaulting E.J. as part of a team initiation. Appellants also [599]*599alleged- that the coaches and chaperones took no action to prevent the team members from “hazing and assaulting” E.J. After amending their petition several times and dropping claims against some defendants, appellants asserted claims including assault and battery, negligence, fraud, and DTPA violations against the defendants.

The trial witnesses’ accounts of the alleged assault differed. E.J. testified that on Memorial Day weekend in May 2008, he was part of a team that traveled to Utah to compete in a water-polo tournament. The boys and the coaches stayed at the same hotel. According to E.J., some of his teammates, including B.R, W.G., N.K., K.K., T.G., and P.S, subjected him to an initiation or hazing without his consent. E.J. testified that the boys forced him to go to B.R.’s room, where they blindfolded him with a towel and placed a trash can over his head. As E.J. screamed, the boys pinned him down and spanked him with a belt. Next, the boys pulled EJ.’s pants down and gave him a “wedgie.” They then assaulted him by sticking something into his anus which he “believed” was fingers. T.G. then handed E.J. an ice cube that he claimed he had put down his pants and told E.J. to put the ice cube in his mouth. E.J. went in the bathroom and one or more of the boys came in after him with an iron and used it to squirt water at him. The next day, during the trip home, T.G. told E.J. that B.R. had said he stuck four fingers into E.J.’s anus, and T.G. held up his fingers to demonstrate.

B.R. acknowledged that he gave E.J. a “wedgie,” but he denied putting his fingers in E.J.’s anus or telling anyone he had done so. T.G. also denied telling E.J. that B.R. said he had inserted his fingers into E.J.’s anus. All of the other boys who were in the hotel room at the time denied any conduct constituting a sexual assault occurred. The boys’ accounts differed concerning the details of the incident, but most acknowledged that E.J. was blindfolded, held down on a bed, given a wedgie, and had his pants pulled down.

The first question in the jury charge asked the jury to determine whether T.G., N.K., or B.R. committed an assault against E.J. If they answered this question “yes” as to B.R., they were then asked to determine whether B.R. committed a sexual assault against E.J. The jury found against E.J. on his claims of assault and sexual assault, and so did not reach additional questions concerning whether other boys assisted or encouraged the acts.1 The jury also found that USAWP was not negligent and did not violate the DTPA.

The trial court entered a judgment on the jury’s verdict, ordering that appellants take nothing from appellees. The court later granted a motion by P.S.’s father to modify the final judgment to incorporate sanctions for frivolous pleadings and claims against EJ.’s mother, V.J., awarding $4,125.00 plus post-judgment interest. Appellants filed a motion for new trial, which was denied. This appeal followed.

II

In their third issue, appellants contend the uncontroverted evidence established that an assault took place, and the jury was not free to disregard it. Appellants ask us to reverse and render judg[600]*600ment that there was an assault and remand for new trial on all other issues.2

As an initial matter, appellees contend that appellants have failed to preserve this issue because they did not raise it in the trial court. See Tex. R. App. P. 38.1(a). To preserve a complaint of legal insufficiency of the evidence after a jury trial, a party must (1) move for an instructed verdict, (2) move for a judgment notwithstanding the verdict, (3) object to the submission of the jury question, (4) move to disregard the jury finding, or (5) move for a new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Appellants contend they presented the issue in a motion for new trial, but the motion for new trial recited only that the jury’s verdict was “against the great weight and preponderance of the evidence and is manifestly unjust” — a challenge to the factual sufficiency of the evidence. Moreover, appellants did not request rendition of judgment in their favor; they sought only a new trial. Therefore, we conclude that appellants did not raise a legal-sufficiency challenge in the trial court and thus have not preserved the issue for review. See Halim v. Ramchandani, 203 S.W.3d 482, 486-87 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Accordingly, we overrule appellants’ third issue.

Ill

In their second issue, appellants contend they were precluded from asking the venire panel whether they would be willing to award damages to E.J. of $2 million if the law and the credible evidence justified such an award. Further, because the trial court refused to permit the question, appellants contend they were denied the opportunity to exercise challenges for cause and peremptory challenges, depriving them of their due-process right to a fair trial.

On the first day of voir dire, the trial court informed the jury that the lawsuit involved allegations of assault and sexual assault against a teenage boy by some of his water-polo teammates at a tournament he was attending in Utah. Later, as appellants’ counsel questioned the panel members, he asked the following question, without objection, to the first eighty-one panel members:

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Bluebook (online)
383 S.W.3d 593, 2012 Tex. App. LEXIS 6926, 2012 WL 3573877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kj-v-usa-water-polo-inc-texapp-2012.