Living Centers of Texas, Inc. v. Penalver

217 S.W.3d 44, 2006 Tex. App. LEXIS 11241, 2006 WL 2612232
CourtCourt of Appeals of Texas
DecidedSeptember 13, 2006
Docket04-05-00565-CV
StatusPublished
Cited by12 cases

This text of 217 S.W.3d 44 (Living Centers of Texas, Inc. v. Penalver) 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
Living Centers of Texas, Inc. v. Penalver, 217 S.W.3d 44, 2006 Tex. App. LEXIS 11241, 2006 WL 2612232 (Tex. Ct. App. 2006).

Opinions

OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

This is an appeal from a judgment rendered on a jury verdict awarding survival and wrongful death damages to the estate of Maria Belia Peñalver and to her two sons, Augustine and Ramon Peñalver. Appellants’ complaints fall into two categories: (1) jury argument; and (2) sufficiency of the evidence supporting the damage awards. We affirm.

Background

The underlying wrongful death and survival lawsuit was filed by the Independent Executor of Maria Belia Peñalver’s estate and Peñalver’s two sons, Augustine and Ramon (collectively, “the plaintiffs”). The case has been tried twice and is on its second appeal. The evidence, considered favorably to the verdict, shows that Mrs. Peñalver was admitted to Silver Creek Manor nursing home in 1997 because she needed twenty-four hour care and the family could no longer care for her. In September 2000, Christina Bartek, a certified nurse’s aide, attempted, without assistance, to transfer Mrs. Peñalver from her wheelchair to her bed and dropped her. Mrs. Peñalver suffered injuries including a laceration to her earlobe, abrasions and contusions to the left side of her body, a subdural hematoma, and an intracerebral hemorrhage or bleeding in the brain. She died the next day. The medical examiner ruled the death accidental, caused by trauma from the fall.

Augustine and Ramon filed a wrongful death and survival suit against three defendants, Living Centers of Texas, Inc. d/b/a Silver Creek Nursing Home; Silver Creek’s administrator, Cyndi Brown; and Silver Creek’s director of nursing, Kim Bordovsky (collectively, “Living Centers” or “defendants”). The initial jury trial [48]*48resulted in a verdict in favor of the plaintiffs on their negligence claim, apportioning 50% of the fault to Living Centers, 25% to Brown, and 25% to Bordovsky. All parties appealed the judgment and this court reversed and remanded for a new trial. See Peñalver v. Living Centers of Texas, Inc., No. 04-02-00920-CV, 2004 WL 1392268 at *1, *5 (Tex.App.-San Antonio June 23, 2004, no pet.).

Before the second trial on remand, Living Centers, Brown, and Bordovsky stipulated “to their joint and several liability for negligence proximately causing the death of Maria Belia Peñalver” and the case went to trial on the amount of compensatory damages. The trial court signed a judgment in accordance with the verdict1, awarding the estate $510,000 and Augustine and Ramon each $300,000. In this appeal, Living Centers contends the plaintiffs’ attorney made an improper and incurable jury argument that requires reversal; the damage awards are not supported by legally or factually sufficient evidence; and without regard to the sufficiency of the evidence, the damage awards are so excessive they clearly resulted from passion and prejudice. The plaintiffs have cross-appealed, contending the appeal is frivolous.

Jury Argument

Living Centers asserts the trial court abused its discretion in denying defendants’ motion for new trial on the ground that plaintiffs’ counsel made an improper and incurable jury argument. The challenged closing argument referenced the T-4 Project of World War II as follows:

... But for some reason the defense is that this death is not significant because she is old and because she is impaired.
I disagree. Our society has not regressed to the point that we tolerate a wrongful death of anybody, of any age, or of any infirmity.
A factor in World War II — you heard me ask about — I asked Dr. Bauserman about the T — Four Project.2 In World War II the Germans had a project called T-Four. You probably heard about it in history books.
But what they did is they took all the people who they thought were inferior in society, primarily older people, impaired people, and they used them for experiments. They killed them. Over 400,-000. That culture 60 years ago didn’t consider the impaired and elderly valuable.
Our culture has never looked at that. We went to war to stop that, the biggest war in the history of the world to stop those atrocities that were going on. And we’re not at the point where we’re tolerant today, as the defense would like you to be, of this wrongful death.
The most significant gift we have from God is life itself. So shouldn’t the damages for the loss of that significant life also be significant? The defense says our society says no. I think you folks disagree.
[49]*49[[Image here]]
It’s the defense lawyers’ job — and you’ve got — seen very fine lawyering by the defense lawyers. Fulbright and Ja-worski, an excellent law firm, excellent lawyers. I respect their ability.
But their job here is to convince you that the damages are insignificant to minimize the damages. How have they done that? At the very beginning in opening statement [they] said they only have two defenses, if you want to call it defense. She is old and she is impaired.
That is not a defense to a wrongful death. Just like in the criminal justice system, if you murder someone, the fact they are young or old doesn’t make a difference. It’s a human being loved by God, loved by family, and protected by the laws of our society. Belia was protected by the laws of our society. And her death does make a significant difference to this family, and it should to our entire community.
[[Image here]]
So it really goes back to that, the initial issue, where are we as a society? Have we regressed to 1944,1945 Germany? Have we regressed or gone ahead so far now, 60 years later now, we have a different attitude, that a wrongful death of an elderly or impaired person is not every bit as significant and has every bit as significant damages as the wrongful death of anyone else?

Living Centers maintains that the above-quoted argument compares “defendants, them treatments, and defense to the Nazi Germany’s deplorable T-4 Euthanasia Program wherein the elderly and the infirm were calculatedly and brutally murdered.” As such, Living Centers contends the argument is both an impermissible appeal to ethnic unity and an attack on the integrity of defense counsel. Living Centers asserts that because the argument is “extremely inflammatory and intentionally crafted by Plaintiffs’ counsel to play on the jury’s prejudices,” it is incurable and necessarily harmful, requiring reversal of the trial court’s judgment.

The plaintiffs defend the argument by characterizing it as a reference to history in response to Living Centers’ “defense, throughout the trial, that Mrs. Peñalver was old and impaired, had no quality of life and no significant life expectancy and, therefore, fair and adequate compensation equated to an insignificant amount.” The plaintiffs further maintain that Living Centers has “exaggerated” the argument; that plaintiffs’ counsel never compared the defendants or their attorneys to Nazis; and that the words “Hitler,” “Nazi,” “brutally murdered” and “calculated murder” were never used by plaintiffs’ counsel in closing argument. Finally, plaintiffs assert that, even if improper, the argument was curable, and Living Centers waived error by failing to object.

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Bluebook (online)
217 S.W.3d 44, 2006 Tex. App. LEXIS 11241, 2006 WL 2612232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/living-centers-of-texas-inc-v-penalver-texapp-2006.