Merrill v. Sprint Waste Services LP

527 S.W.3d 663, 2017 WL 3484716, 2017 Tex. App. LEXIS 7701
CourtCourt of Appeals of Texas
DecidedAugust 15, 2017
DocketNO. 14-16-00006-CV
StatusPublished
Cited by12 cases

This text of 527 S.W.3d 663 (Merrill v. Sprint Waste Services LP) 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
Merrill v. Sprint Waste Services LP, 527 S.W.3d 663, 2017 WL 3484716, 2017 Tex. App. LEXIS 7701 (Tex. Ct. App. 2017).

Opinion

OPINION

Martha Hill Jamison, Justice

In three issues in his personal injury lawsuit, appellant Jason Michael Merrill challenges the trial court’s admission and exclusion of certain testimony regarding causation and the trial court’s admission of evidence regarding prior extraneous offenses. Concluding that Merrill waived two of his evidentiary challenges and the trial court’s exclusion of eyewitness testimony probably did not cause the rendition of an improper judgment, we affirm.

Background

Merrill was driving a motorcycle in Harris County, Texas in the right lane along a service road adjacent to the North Loop freeway when an eighteen-wheeler truck owned by appellee Sprint Waste Services LP and driven by appellee Jose Luis Gonzalez swung wide into the middle lane to [666]*666make a right turn. Merrill attempted to pass the truck on the right, and his path was cut off by the truck’s turning. Merrill steered the motorcycle into the curb and flew over the handlebars and under the truck’s tires. He was seriously injured. Merrill admitted he was speeding when he attempted to pass the truck, and Sprint but not Gonzalez admitted that Gonzalez’s right turn was wider than necessary.

The trial court excluded testimony from the sole eyewitness of the accident, Lisa Victory, that Merrill and Gonzalez were equally at fault. Officer Reginald Veal investigated the collision and concluded that Merrill had attempted to pass the truck unsafely. Both sides presented expert testimony from numerous witnesses regarding fault. After a two week trial, the jury assessed over seven million dollars in damages but found that Gonzalez was 25 percent negligent and Merrill was 75 percent negligent.. The trial court rendered a take-nothing judgment.1

Discussion

In three issues, Merrill complains of the trial court’s admission during trial of officer testimony as to “causation and relative fault,” exclusion of eyewitness testimony that Gonzalez was 50 percent at fault, and admission of evidence involving Merrill’s extraneous offenses and criminal record. We conclude that Merrill waived his first and third issues by affirmatively discussing and introducing the evidence at trial before it was introduced by. appellees. We further conclude that although the trial court abused its discretion in excluding eyewitness opinion testimony regarding fault, such error was harmless.

I. Waiver by Introducing Evidence at Trial

In' his first and third issues, Merrill asserts that the trial court abused its discretion by admitting (1) Officer Veal’s deposition testimony that Merrill caused the accident by passing unsafely on the right; (2) Veal’s field diagram, which Merrill contends was unreliable; and (3) evidence of Merrill’s prior bad acts, including four speeding tickets, two felony convictions for evading arrest with a motorcycle, and a probation violation for driving a motorcycle while his driver’s license was suspended. Sprint and Gonzalez argue Merrill waived these complaints because he opened the door by discussing this evidence during his opening statement and introducing it first at trial.

Merrill had filed pretrial motions to exclude this evidence, along with a motion in limine seeking to require the parties to obtain a ruling on the admissibility of the evidence outside the presence of the jury. The trial court denied the motion in limine. The parties dispute whether the trial court ruled on the motions to exclude. Sprint and Gonzalez argue that the trial court only ruled on Merrill’s limine points. Merrill concedes that a motion in limine preserves nothing for appellate review. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015) (“A motion in limine ... does not preserve error on evi-dentiary rulings at trial because it does not seek a ruling on admissibility.”). He argues, however, that he preserved error by obtaining a ruling on his motions to exclude. We need not decide whether Merrill obtained a ruling on his motions to exclude or preserved error in doing so, because we conclude that he nevertheless waived these issues by discussing and introducing the [667]*667evidence before it was introduced by ap-pellees.

In his opening statement to the jury, Merrill’s counsel said the following:

• Veal, without speaking to the only eyewitness, “automatically put down that Jason Merrill was passing unsafely to the right.”
• Merrill is “no Boy Scout.... When he was 19, he got four speeding tickets. [Ajbout a year after that, he got arrested for a felony, a felony for evading arrest on a motor vehicle.”
• “A couple of years later, ... he got another felony ... for evading arrest on a motorcycle.”
• “He wasn’t supposed to be on a motorcycle at [the] time [of the accident] .... [T]here was actually a court order from his probation ... that said, [y]ou should not ride a motorcycle. And he was on a motorcycle at that time.”
• “We own up to that. He’s taking responsibility for it.”

Merrill concedes that he introduced most of the evidence first but argues that he should have been able to reference it strategically during his opening statement or introduce it on direct examination without waiving error because the trial court had already determined that it was coming in. Merrill directed this argument only to the evidence of his prior bad acts, but our analysis applies also to Veal’s testimony and diagram in light of the record and Sprint and Gonzalez’s argument that all three issues were waived when Merrill opened the door to the evidence.

Merrill concedes that he introduced the evidence regarding prior bad acts. As to Veal’s diagram and testimony, before Sprint and Gonzalez elicited the information, Merrill introduced deposition testimony from Lisa Victory in which she discusses the positioning of the truck on Veal’s diagram. Merrill then introduced deposition testimony from Veal in which he references the field diagram and the "police report, which contains the notation that Merrill “failed to pass to the right safely.”

Merrill also introduced Veal’s testimony about the crash report, as follows:

• “So, unit 1 is showing to be Jason Merrill. He was the occupant on the motorcycle. And then unit 2 shows ... the only occupant to be a Jose Gonzalez. And he was the operator of the tractor-trailer.”
• “If there was a malfunction or defect with respect to the motorcycle that [he] believe[d] led to this incident,” Veal would have included it in the crash report.

In his report, Veal recorded only one “contributing” factor causing the accident: Merrill’s failure to pass safely on the right.2 Merrill referenced Veal’s conclusion in his opening statement, as referenced above.

[668]*668It is a longstanding rule that a party may not complain on appeal that the opposing side’s evidence was improperly admitted if the party introduced the same or similar evidence first. Harris Cnty. Flood Control Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting that a party cannot complain on appeal that testimony introduced by that party was erroneously admitted) (citing Sw. Elec. Power Co. v. Burlington N. R.R. Co.,

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Bluebook (online)
527 S.W.3d 663, 2017 WL 3484716, 2017 Tex. App. LEXIS 7701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merrill-v-sprint-waste-services-lp-texapp-2017.