Prati v. New Prime, Inc.

949 S.W.2d 552, 1997 WL 417470
CourtCourt of Appeals of Texas
DecidedAugust 25, 1997
Docket07-96-0359-CV
StatusPublished
Cited by55 cases

This text of 949 S.W.2d 552 (Prati v. New Prime, 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
Prati v. New Prime, Inc., 949 S.W.2d 552, 1997 WL 417470 (Tex. Ct. App. 1997).

Opinions

ON MOTION FOR REHEARING

REAVIS, Justice.

On original submission, we reversed the judgment of the trial court and remanded the cause. Appellees, New Prime, Inc. and Joseph V. Thomas filed a motion for rehearing. We overrule the motion, but withdraw our original opinion of May 22, 1997, and in lieu thereof, issue the following opinion expressing our rationale underlying our judgment. Appellees’ motion for en banc consideration is denied but their motion for publication is granted.

Appealing from a judgment rendered on a jury’s verdict in their favor, in their action [554]*554against New Prime, Inc. and Joseph V. Thomas, (New Prime and Thomas), for personal injuries sustained in a collision between the Winnebago in which they were traveling and a tractor/trailer owned by New Prime and operated by Thomas, appellants, B.C. DeMoss, Catherine DeMoss, and Charlotte DeMoss Prati, (herein DeMoss et al.), seek a new trial alleging that the jury’s findings of damages were against the great weight and preponderance of admissible credible evidence. DeMoss et al. contend that the trial court' erred (1) in excluding evidence and refusing to submit jury questions on negligent entrustment, negligent hiring and gross negligence claims, (2) in denying a trial amendment to allege gross negligence, (3) in rendering judgment based on the jury findings which were against the great weight and preponderance of the evidence, and (4) in rendering judgment and denying their motion for new trial because the damages were grossly inadequate. Also, they contend that (5) the jury’s failure to find that Mr. De-Moss’s injuries were not serious, permanent, or disabling, was against the great weight and preponderance of the evidence, and (6) that the trial court abused its discretion in overruling their motion to strike testimony of the so called “junk science” expert. Based upon the rationale and authorities expressed herein, we reverse and remand.

History

On August 27, 1993, DeMoss et al. were traveling in a Winnebago from Colorado to Houston by way of Clayton, New Mexico. At the time of the accident, Mrs. DeMoss was seated on a rear couch, Mr. DeMoss was seated in the front passenger seat and Prati was driving the Winnebago. Just before leaving Clayton, DeMoss et al. noticed a tractor/trailer owned by New Prime and operated by Thomas which was stopped in their lane. Apparently, Thomas had missed the entrance to a truck weigh station and was backing up with the intention of pulling into the weigh station, causing the collision with the Winnebago. Based upon jury findings, judgment was entered that Mr. DeMoss recover $50,100.00 plus interest, that Mrs. De-Moss recover $10,500.00, plus interest and that Prati recover $1,021.39 plus interest against New Prime and Thomas.

“Junk Science” Expert

In replying to the DeMoss et al. points of error in a logical, rather than a numerical sequence, we first consider the DeMoss et al. sixth point of error. DeMoss et al. contend the trial court abused its discretion in admitting the testimony of Dr. Thomas McNish, an expert witness called by New Prime and Thomas. By three subpoints, DeMoss et al. also complain that Dr. McNish’s testimony violated a limine order and that the qualifications, foundation and reliability of the opinions of the expert were placed at issue. We disagree for the following reasons.

In order to preserve a complaint for appellate review, a party must present a timely objection or motion to the trial court stating the specific grounds for the ruling the party desires the court to make and obtain a ruling upon the objection or motion. Tex.R.App. P. 52(a); Kershner v. State Bar of Texas, 879 S.W.2d 343, 347 (Tex.App.— Houston [14th Dist.] 1994, writ denied). A point of error cannot raise an objection to evidence for the first time on appeal which was not presented to the trial court. Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568-569 (Tex.App. — Houston [14th Dist.] 1990, writ denied). See also MWJ Producing Co. v. Sparkman, 655 S.W.2d 286, 290 (Tex.App. — Corpus Christi 1983, no writ) in which the court held that failing to object to a witness’s expert status did not preserve error for review when presented for the first time on appeal. Moreover, DeMoss et al. have the burden to present a sufficient record to this Court, Tex.R.App. P. 50(d), demonstrating alleged errors by making accurate references to the record to support their complaints on appeal. Russell v. City of Bryan, 919 S.W.2d 698, 706 (Tex.App.— Houston [14th Dist.] 1996, writ denied).

The direct examination of Dr. McNish included a detailed inquiry into his educational background and qualifications. However, we have been unable to find any objection to Dr. McNish’s qualifications and testimony. Although the DeMoss et al. brief does refer to portions of his testimony which DeMoss et [555]*555al. contend should not have been allowed, it does not point out any objections or the court’s rulings regarding the evidence.

Moreover, a trial court’s ruling on a motion in limine does not preserve error. Collins v. Collins, 904 S.W.2d 792, 798 (Tex.App. — Houston [1st Dist.] 1995), unit denied, 923 S.W.2d 569 (Tex.1996). A proper and timely objection by the party seeking to exclude evidence is necessary at the time the evidence is offered in contravention of a sustained motion in limine. Id. However, no objection was made to Dr. McNish’s testimony at the time it was offered. The motion in limine order, without a proper and timely objection, was insufficient to preserve error. We overrule point of error six.

Inadequate Damages Award

By their third, fourth and fifth points of error, DeMoss et al. contend that the trial court erred in denying their motion for new trial because the damages awarded were grossly inadequate. They claim that the jury’s failure to find that Mr. DeMoss’s injuries were not serious, permanent, or disabling, was against the great weight and preponderance of the evidence and/or established as a matter of law. We disagree.

The granting or denying of a motion for new trial is a matter of judicial discretion that will not be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Superior Packing v. Worldwide Leasing, 880 S.W.2d 67, 71 (Tex.App. — Houston [14th Dist.] 1994, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759, 761 (Tex.App. — Houston [14th Dist.] 1990, writ denied). In reviewing a factual sufficiency challenge, we must consider and weigh all the evidence in support of the award, and set it aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In considering great weight points complaining of a jury’s failure to find sufficient damages, we must be mindful that the jury was not convinced by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988);

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Bluebook (online)
949 S.W.2d 552, 1997 WL 417470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prati-v-new-prime-inc-texapp-1997.