NO. 07-05-0004-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 19, 2005
______________________________
LAWRENCE HIGGINS,
Appellant
v.
RANDALL COUNTY SHERIFFS OFFICE,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 50,468C; HON. PATRICK A. PIRTLE, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Lawrence Higgins appealed an order dismissing his suit for want of prosecution. By
letter dated January 5, 2005, this Court notified him that the required filing fee of $125.00
had not been paid, and that if it was not paid within ten days from the date of the letter, his
appeal may be dismissed. Appellant responded by filing an untimely affidavit of indigence
with us.
Rule 20.1(c)(1) of the Texas Rules of Appellate Procedure provides that an affidavit
of indigence must be filed in the trial court with or before the notice of appeal. The notice
of appeal at bar was filed on September 3, 2004, while the affidavit was filed on January
14, 2005. Thus, it was untimely.
Moreover, Higgins failed to accompany his belated affidavit with a timely motion to
extend the deadline within which to establish his indigence. See Tex. R. App. P. 20.1(c)(3)
(permitting the late filing of an affidavit of indigence if done within 15 days after the deadline
and when accompanied by a motion requesting an extension of time in compliance with
appellate rule 10.5(b)). Thus, we have no basis on which to excuse the delay.
Finally, even if the affidavit were timely, it is insufficient to establish his purported
indigence. This is so because of its conclusory nature and failure to contain the information
mandated by appellate rule 20.1(b).
Although the filing of a notice of appeal invokes this Court's jurisdiction, if a party
does not follow the prescribed rules of appellate procedure, the appeal may be dismissed.
Tex. R. App. P. 25.1(b). Because the record before us failed to establish Higgins' status
as a pauper and because the $125.00 filing fee remains unpaid, we dismiss the appeal.
Tex. R. App. P. 42.3(c).
Per Curiam
n
A-6 coupler required a certain size hitch ball, that information was not displayed on the
coupler used in this incident. Paulson also used a safety chain to secure the trailer to his
truck but at the time of separation, it did not prevent the accident.
At trial, the jury answered "no" to the question "[w]as the coupler in question a Fulton
Coupler?" and to the question "[d]id the negligence, if any, of Bryan Keith Paulson
proximately cause the occurrence in question?" Based on those findings, the trial court
entered judgment in favor of Fulton and Paulson. On appeal, the Kingsleys contest the
jury's answers to both questions.
Type of Coupler
The Kingsleys contend the evidence was insufficient to support the jury's finding that
the subject coupler was not a Fulton A-6 coupler and that they proved as a matter of law
that it was. When a party attacks the legal sufficiency of an adverse finding on an issue
upon which he has the burden of proof, he must demonstrate that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co.
v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In making such a review, we must examine
the record for evidence that supports the jury finding while ignoring all evidence to the
contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002); Dow
Chemical Co. v. Francis, 46 S.W.3d at 241. No evidence supports the verdict when,
among other things, the record discloses a complete absence of evidence of a vital fact or
the evidence tending to prove the vital fact is no more than a scintilla. Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 727-28 (Tex. 2003). If there is no evidence to support the
finding, we will then examine the entire record to determine if the contrary proposition is
established as a matter of law. Dow Chemical Co. v. Francis, 46 S.W.3d at 242. In
attacking the factual sufficiency of the evidence, the Kingsleys must demonstrate that the
adverse finding is against the great weight and preponderance of the evidence, after a
consideration and weighing of all the evidence, and that such finding is clearly wrong and
manifestly unjust. Id.
With these principles in mind, we turn to the record before us. It was the Kingsleys'
burden to prove that the coupler was a Fulton coupler. Fulton's expert, John Abromavage,
director of engineering services for U-Haul International, testified that from the photographs
alone, the coupler could not be identified to any particular manufacturer. He buttressed
this opinion by referring to affidavits obtained by the Kingsleys from other coupler
manufacturers. One affidavit stated that the coupler was a Fulton 308 coupler but
Abromavage was able to distinguish that model coupler from the one in the photograph.
Another affidavit indicated the coupler was forged and made by either Fulton or Wallace
Forge. However, Abromavage concluded that the coupler in question was not forged, but
if it were, it could not be one of Fulton's since the latter did not make forged couplers. A
third affidavit merely stated it was not made by Atwood Mobile Products, and a fourth
indicated only that it was not made by Valley Industries. There was additionally evidence
from a Fulton catalog indicating that the A-6 coupler was not made after 1963, although
experts for the Kingsleys indicated the coupler in question was made in the 1970's.
Abromovage indicated that couplers were copied in other countries, and it was possible
this particular coupler was a copy of a coupler. He also stated that the hand wheel style
and lever lock system on the coupler in the photos were commonly used by other
manufacturers and, because the photos did not show the ball clamp where there might be
some differences in the shape, he could not determine a manufacturer.
Additionally, Karl Richter, former vice-president of engineering at Fulton, testified
that Fulton stopped making couplers with a round hand wheel such as that in the
photographs sometime in the early 60's. He could not say who was the manufacturer of
the coupler, and he could not find any couplers in Fulton's catalog or brochures that were
configured the same as the coupler in this incident.
The foregoing is some evidence from which it could be concluded that the jury was
simply not convinced by a preponderance of the evidence that the coupler in question was
manufactured by Fulton. See Southwest Key Program, Inc., 79 S.W.3d 571, 580 (Tex.
App.--Corpus Christi 2000), rev'd on other grounds, 81 S.W.3d 269 (Tex. 2002) (holding
that, bearing in mind the jury was not convinced by a preponderance of the evidence that
the plaintiff's actions contributed to the injury, there was some evidence to support the
jury's failure to place any responsibility on plaintiff and the preponderance of the evidence
does not support an affirmative answer). Because there is some evidence to support the
finding, we cannot conclude that the Kingsleys established that the coupler was
manufactured by Fulton as a matter of law.
We must now decide if the jury's finding is clearly wrong and manifestly unjust in
light of all the evidence. The Kingsleys presented two experts on the subject of the
coupler. The first, Charles Powell, a materials engineer working in failure analysis, testified
that the coupling body length, hand wheel style, bolt style, and locking lever style on the
subject coupler were "all products of Fulton." Moreover, he had "looked at every available
source to try to see if there was any other hand wheeled coupler designed and shaped like
this that was from a different manufacturer, and there are none." In his opinion, the
coupling was not a forged coupler and was manufactured by the Fulton Company. His
best estimate was that the coupler was made in the 1970's.
Seth Davlin, who owns Pro-Trak Trailers, testified that based on his experience with
couplers and his perusal of a Fulton Catalog and blueprint and design drawings of a Fulton
A-6 coupler, he believed that the coupler was a Fulton A-6 coupler manufactured in the
middle 1970's. He also believed the coupler was forged. Davlin admitted there were more
brands on the market than the three (Bulldog, Fulton, and Atwood) with which he had
personal experience, and he had no familiarity with Fulton couplers manufactured in the
1950's or 1960's.
The Kingsleys argue that their experts presented opinions that the coupler was
manufactured by Fulton while Fulton's experts were unable to opine who manufactured the
coupler. However, given the conflicting testimony among the various experts as to whether
the coupler was forged, when it was manufactured, what model of coupler it was, and
whether it could be attributed to Fulton or any manufacturer at all, it was for the jury to
resolve the conflicts, determine the credibility of the evidence, and decide if the Kingsleys
met their burden of proof. We cannot say that the jury's finding was so against the great
weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The
Kingsleys' issues with respect to the jury finding as to the entity that made the coupler are
overruled.
Negligence of Paulson
The Kingsleys also challenge the jury finding that Paulson's negligence, if any, was
not a proximate cause of the accident. They contend he was negligent because he failed
to discern the proper size hitch ball to use, merely relied on what he was told by the
previous owner, failed to check the capacity of the safety chain, and failed to properly
secure it. Further, they argue, he admitted his negligence because he testified he had a
duty to use "common sense" and, because no one disputes that the trailer separating from
the truck was the proximate cause of the accident, the jury's finding was against the great
weight and preponderance of the evidence. We overrule the issue.
The elements of negligence are duty, breach of that duty, and damages proximately
caused by the breach. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex. 1995). We also note that the issue of Paulson's negligence was submitted to the jury
in broad form. Given this, the jury was not only asked to assess whether a duty was
breached but also whether the breach proximately caused the resulting injuries, if any. So,
the Kingsleys must illustrate why the evidence touching upon each element of the cause
of action was factually insufficient in order to win reversal.
The record shows that Paulson 1) owned the trailer about six months before the
accident, 2) washed it, painted it, and put tail lights, wheel bearings, new tires, and new
wheels on it after purchase, 3) was told by the prior owner that it had been towed with a
two inch ball, 4) did not observe any writing or warning on the coupler when he cleaned
it, 5) had towed the trailer three or four times prior to the accident using a two inch ball
without problem, and 6) believed the coupler had been maintained and was in good
condition. Furthermore, on the day of the accident, he 1) set the coupler on the ball,
tightened the wheel down with his hand, used a pair of channel locks to tighten the wheel
more, and picked up on the hitch to make sure it was coupled on "good and tight," 2)
hooked a chain (the capacity of which was unknown) on one side of the bumper, ran it
through the trailer hitch, and hooked it to the other side of the bumper, 3) stopped three
times prior to the incident approximately every 50 miles and checked the hand wheel both
with his hand and with the pliers, 4) had last checked the trailer 50-60 miles prior to the
accident, 5) had not perceived any problem with the hitch prior to the accident, 6) had not
backed the trailer or made any sharp turns prior to the accident, 7) was traveling on a
straight highway at 45 to 55 miles an hour prior to the accident, 8) checked the coupler
after the accident and it was still tight, and 9) observed the chain intact in the road after the
accident.
Powell opined that if Fulton had placed a warning on the coupler as to the proper
size of ball to use with it, Paulson should have been able to see it. However, there was no
evidence that such a warning was on this particular coupler. Powell also stated he had not
seen the safety chains or how they were used. Additionally, he opined that a person
exercising common sense could put the coupler on a two inch ball, twist it down as far as
it would go, pull up, and get a false sense of security that he had it on the right size ball.
Powell attributed the cause of the accident to the use of too big a coupler for too small of
a ball which caused separation due to insufficient strength.
Officer Brian Henry who responded to the accident determined that the hitch failed
and there was either no chain or a defective chain. However, he was unable to say
whether the accident was due to the hitch and chains themselves or due to the use of them
by the operator. He did state it was the responsibility of the operator to make sure the
trailer and vehicle towing it are correctly, properly, and securely attached.
Abromavage, however, testified that the only conclusion that could be reached as
to the cause of the accident was that the coupling was forced off the ball. Such could have
been caused by some correction made on the road such as running onto the shoulder.
A legal duty must exist before a defendant is liable for negligence. Reeder v.
Daniel, 61 S.W.3d 359, 364 (Tex. 2001). A duty is a legally enforceable obligation to
conform to a particular standard of conduct. Fitzpatrick v. Copeland, 80 S.W.3d 297, 302
(Tex. App.--Fort Worth 2002, pet. denied); San Benito Bank & Trust Co. v. Landair Travels,
31 S.W.3d 312, 317 (Tex. App.--Corpus Christi 2000, no pet.). Nowhere in the record do
we find any specific evidence as to what Paulson should have done differently other than
assure that the correct sized ball was used for a Fulton A-6 hitch. Again, the latter
purportedly utilized a 2 9/32" hitch ball, while the ball used by Paulson was two inches.
Yet, as can be seen, the Kingsleys' hypothesis about why Paulson was negligent is
dependent upon a finding that the hitch was a Fulton A-6. Since the jury refused to so find,
the foundation upon which the Kingsleys base their contention is non-existent. In short,
Paulson could not be negligent for failing to use a particular ball unique to a Fulton A-6
hitch when it was not determined that the hitch was of that manufacture. This and the
evidence that Paulson used care to assure that the trailer was securely attached to the ball
enabled the jury to conclude that he acted as a person of ordinary prudence under the
same or similar circumstances.
Again, here, there was extensive evidence as to the actions taken by Paulson which
actions the Kingsleys themselves admitted constituted some care. Additionally, some
evidence appeared of record illustrating that the chain used by Paulson did not break but
was intact after the incident. This supports the conclusion that the chain was not defective
or of a strength insufficient to perform as intended. And, we are pointed to no evidence
in the record as to the proper manner of securing a chain to a trailer and towing vehicle.
Based on the record before us, we cannot say that the jury's verdict was or is clearly wrong
or manifestly unjust.
Having overruled each issue, we affirm the judgment of the trial court.