Porter v. Nemir

900 S.W.2d 376, 1995 WL 253604
CourtCourt of Appeals of Texas
DecidedJuly 12, 1995
Docket03-94-00219-CV
StatusPublished
Cited by69 cases

This text of 900 S.W.2d 376 (Porter v. Nemir) 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
Porter v. Nemir, 900 S.W.2d 376, 1995 WL 253604 (Tex. Ct. App. 1995).

Opinion

KIDD, Justice.

Appellants Jerry and Lisa Porter sued ap-pellees Patricio Castro (“Castro”) and Stuart S. Nemir and Associates, Inc., Renaissance Out-Patient Program for Chemical Dependency, and Texas Psychiatric Company, Inc. d/b/a HCA Shoal Creek Hospital (collectively, the “Renaissance defendants”) for negligence and gross negligence arising out of a sexual assault. The jury awarded damages for negligence, but failed to find that the appellees had committed gross negligence. The trial court subsequently granted the Renaissance defendants’ motion for judgment non obstante veredicto, and rendered judgment against Castro individually. By five points of error, the Porters appeal. We will affirm the trial court’s judgment in part and reverse the judgment in part.

BACKGROUND

In October 1988, the Porters entered the Renaissance Program, an out-patient drug and alcohol program. Jerry Porter was the patient and Lisa Porter entered the program as his spouse. The Renaissance Program consisted of four weeks of intensive out-patient treatment followed by fifty-two weeks of after care, involving a one-hour session once a week. At the time the Porters enrolled, the Renaissance Program employed Castro as a certified alcohol and drug abuse counselor (“CADAC” counselor). Castro, a recovering alcoholic, 1 led some of the sessions the Porters were in during the intensive program. The Porters then enrolled in the after-care program, but subsequently dropped out in August of 1989.

In March 1990, Castro contacted Lisa after unsuccessfully attempting to reach Jerry at his former place of employment. 2 Lisa informed him that Jerry had begun drinking again. During the next few weeks, Lisa and Castro talked several times over the phone and met for lunch once to discuss Jerry’s drinking problem. Lisa then invited Castro to her home on the evening of April 6, 1990, when Jerry Porter was out of town.

The facts concerning the April 6th sexual encounter that forms the basis of this lawsuit were hotly disputed at trial. Lisa testified that Castro sexually assaulted her against *380 her will, while Castro testified that Lisa consented to the sexual contact. 3 When Jerry returned home, Lisa broached the subject of possibly engaging in sex with other men; Jerry became enraged and physically attacked Lisa.

Lisa subsequently entered a hospital. She told Jerry about the incident with Castro when she left the hospital. The Porters notified the Renaissance Program, which fired Castro as a result. The Porters eventually divorced, and this lawsuit was filed. A jury found both Castro and the Renaissance defendants negligent, but not grossly negligent, and awarded damages of $2,400.00 to Jerry and $6,000.00 to Lisa. The trial court later granted the Renaissance defendants’ motion for judgment non obstante veredicto (“judgment n.o.v.”). See Tex.R.Civ.P. 301. The Porters appeal by five points of error, arguing that the trial court abused its discretion by excluding evidence, striking their Deceptive Trade Practices Act pleadings, and granting the Renaissance defendants’ motion for judgment n.o.v.

DISCUSSION

The Porters argue in their first point of error that the trial court abused its discretion in excluding evidence of Castro’s past sexual misconduct and his felony conviction for sexual assault of a child. The Porters contend that the jury probably would have found both Castro and the Renaissance defendants liable for gross negligence if it had known the full extent of Castro’s sexual history and, thus, the erroneous exclusion of the evidence was calculated to cause and probably did cause the rendition of an improper judgment. See Tex.R.App.P. 81(b)(1); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).

At trial, the Porters attempted to offer testimony of Castro’s conviction for sexual assault of his stepson in order to show that Castro had the intent to sexually abuse individuals who trusted him. They also offered the evidence to show the Renaissance defendants’ knowledge of this conviction, and their failure to investigate the underlying incident to assess Castro’s competence. This proffer was based on the fact that Ulysses “Mae” McLester, Castro’s supervisor at Renaissance, knew about the criminal conviction and testified at Castro’s sentencing hearing. 4 Despite Castro’s conviction and subsequent incarceration, Renaissance reemployed him at the time of his release. Neither McLester nor anyone else at the Renaissance Program investigated this criminal conviction further. If such an investigation had occurred, the full extent of Castro’s abuse would have been discovered. 5

The Porters assert that evidence of the criminal conviction and of other extraneous acts of sexual abuse was relevant to show knowledge on the part of the Renaissance defendants and was crucial to their claim for gross negligence, relying on Estate of Arrington v. Fields, 578 S.W.2d 173 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.), which held:

Where a master is charged with hiring or retaining in his employ an incompetent servant, the servant’s character is then in issue and may be proven by evidence of reputation or of specific conduct for the purpose of showing that the master knew or by exercising ordinary care should have known of the servant’s incompetence.

Id. at 179; see Tex.R.Civ.Evid. 405(b) (specific instances of conduct admissible when character is essential element of claim or defense). The trial court applied Rule 403, balancing the danger of unfair prejudice against the probative value, and concluded that evidence of Castro’s criminal conviction and extraneous acts of sexual abuse of his other stepchildren was not admissible at trial. See Tex.R.Civ.Evid. 403.

*381 The exclusion of evidence rests within the sound discretion of the trial court. New Braunfels Factory Outlet Ctr., Inc. v. IHOP Realty Corp., 872 S.W.2d 303, 310 (Tex.App.—Austin 1994, no writ). The trial court commits an abuse of discretion only when it acts in an unreasonable or arbitrary manner, or acts without reference to any guiding principles. Beaumont Bank, N. A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). The exclusion of evidence ordinarily does not constitute reversible error unless the complaining party can demonstrate that the whole case turns on the excluded evidence. Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex.App.—Dallas 1993, no writ); Turner v. Monsanto Co.,

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900 S.W.2d 376, 1995 WL 253604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-nemir-texapp-1995.