Opinion
NO. 01-16-00158-CV
02-22-2018
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellant/Cross-Appellee v. BEVERLY BROOKS, Appellee/Cross-Appellant
On Appeal from the 269th District Court Harris County, Texas
Trial Court Case No. 2013-19862
MEMORANDUM OPINION
Appellant/cross-appellee, Metropolitan Transit Authority of Harris County, Texas ("METRO"), challenges the trial court's judgment, entered after a jury trial, in favor of appellee/cross-appellant, Beverly Brooks ("Brooks"), in her suit against it for negligence, vicarious liability, and negligent hiring, training, supervision, retention, entrustment, and undertaking. In one issue, METRO contends that the trial court erred in denying its new-trial motion, made on the ground that Brooks had made an improper jury argument, resulting in "an improper judgment." In her sole cross-point, Brooks contends that the trial court erred in not including an award of post-judgment interest in its final judgment.
We modify the trial court's judgment and affirm as modified.
Background
In her first amended petition, Brooks alleged that while riding in one of METRO's buses, the bus driver "was negligent in the operation of . . . [the] bus and proximately caused a sudden stop, throwing [Brooks] from her seat, causing her to sustain personal injuries requiring surgery and other damages." Brooks asserted claims against METRO for negligence, vicarious liability for its driver's negligence in operating the bus at the time of her injuries, and negligent hiring, training, supervision, retention, entrustment, and undertaking in regard to the driver. Brooks sought damages for "[m]edical expenses," "[p]hysical pain and mental anguish," "[p]hysical impairment," "[d]isfigurement," and "[l]ost wages."
In its second amended answer and affirmative defenses, METRO generally denied "all matters pleaded" by Brooks and asserted the affirmative defenses of sovereign immunity, statutory limitation of money damages pursuant to the Texas Tort Claims Act, and "emergency" in regard to the actions of its driver in "applying the brakes of the METRO [b]us."
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.023 (Vernon 2011).
At trial, METRO offered into evidence, without objection, four "courtesy cards" that had been filled out by bus patrons who had been on the bus at the time of the accident. In the courtesy cards, METRO asked, "Whose Fault Was the Accident?" And all four patrons answered that the accident was caused by a driver who cut in front of the bus, requiring the bus driver to suddenly stop. In response to the admission of the courtesy cards, Brooks offered into evidence affidavits from two of the bus patrons, Mr. Smith and Ms. Rodgers, (the "Smith and Rodgers affidavits") in which they allegedly contradicted the statements that they had made in the courtesy cards. The trial court excluded the affidavits as hearsay because Brooks attempted to introduce them through one of her expert witnesses, Roger Allen. Nonetheless, Allen proceeded to testify, without objection, as follows:
[Brooks's Attorney]:
Q. One of the statement -- one of the witness statements you reviewed was from a Vincent Smith; is that correct?
A. True.
Q. What did Vincent Smith say about how he understood the bus was cut off?
A. On the courtesy card, it's --
Q. I'm talking about --
A. Oh, the affidavit?
Q. I'm talking about what is your understanding about how he understood the bus was cut off? Did he see the bus get caught off?
A. No. He said that, according to his affidavit, that the driver told him that the bus was cut off.
Q. Was he in a position where he could see the vehicle cut him off?
. . . .
A. I'm sorry. Repeat, sir.
. . . .
Q. Sure. Was he in a position where he could see whether or not the bus was cut off?
A. He said he did not see a car cut him off.
Q. Okay. Did you have a -- you also have a statement from a Jean Rodgers, I believe?
A. Yes, sir.
Q. She said the driver of the car cut them off, I think in Paragraph 3. Mr. Allen, was she able to see whether or not the vehicle was cut off?
A. No. She says, I did not see what happened, but the bus driver told us that the vehicle pulled in front of him.
Q. Okay. So, for these two comment cards that the defense attorney provided you and these comments, these people filled out these comments; but, in fact, they got the information from the bus driver?
A. That's what they say, correct, sir.
After hearing the testimony and arguments from both parties, the jury found that METRO's negligence proximately caused Brooks's injuries and awarded her $288,000.00. Brooks filed a motion for entry of judgment, requesting, among other things, an award for $288,000.00 and post-judgment interest at five percent (5%) per annum. METRO opposed the motion, asserting that its liability is limited to $100,000.00 under the Texas Tort Claims Act. The trial court ultimately entered judgment in favor of Brooks for $100,000.00, but did not award any post-judgment interest. METRO then filed a motion for new trial in which, among other things, it asserted that Brooks had engaged in improper jury argument about the excluded Smith and Rodgers affidavits and the credibility of METRO's medical expert, Martin Steiner, M.D. The motion was overruled by operation of law.
See id. § 101.023.
Improper Jury Argument
In its sole issue, METRO argues that the trial court erred in denying its new-trial motion because Brooks made improper and incurable jury arguments when she "comment[ed] on excluded evidence," "[went] outside the record," and "comment[ed] on METRO's failure to produce equally available witnesses." It further asserts that these arguments were incurable "[b]y their very nature" and "caused the jury to render an improper verdict."
Generally, a complaint about an improper jury argument must, at the time the argument occurs, be preserved by a timely objection that is overruled and a request for an instruction that the jury disregard the improper remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840-41 (Tex. 1979). "Typically, retraction of the argument or instruction from the court can cure any probable harm, but in rare instances the probable harm or prejudice cannot be cured." Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678, 680 (Tex. 2008). If the argument is incurable, a complaint about the argument may be made for the first time on appeal, regardless of whether an objection was timely made. Id.
An improper argument is incurable if it, "by its nature, degree, and extent[,] constitute[s] such error that an instruction from the court or retraction of the argument could not remove its effects." Id. at 681. Incurable argument is rare and usually encompasses appeals to racial prejudice; unsupported charges of perjury; unsupported, extreme, and personal attacks on opposing parties and witnesses; or baseless accusations of witness tampering. Id. Also, unsupported charges that opposing counsel manufactured evidence, suborned perjury, or was untruthful are highly improper and are generally considered to be incurable. Id.; see also Reese, 584 S.W.2d at 840; Checker Bag Co. v. Washington, 27 S.W.3d 625, 643 (Tex. App.—Waco 2000, pet. denied). "The party claiming incurable harm must persuade the court that, based on the record as a whole, the offensive argument was so extreme that a 'juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that which he would have agreed but for such argument.'" Bramlett, 288 S.W.3d at 883 (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)). While counsel must confine argument strictly to the evidence and to the arguments of opposing counsel, and appeals to passion and prejudice are improper, improper argument is not incurable unless it is shown that "the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence." Reese, 584 S.W.2d at 840.
METRO first asserts that the following arguments by Brooks about the Smith and Rodgers affidavits were improper and incurable:
And we were able to track down two of [the people who filled out comment cards], Mr. Smith and Ms. Rodgers. And I think what Mr. -- what Mr. Allen read into the record for Ms. Smith [sic] was that the bus driver told us the car had pulled out in front of the bus and cut us off, so he slammed on the breaks to avoid the accident. He told us to write --METRO argues that these statements were improper because they "comment[ed] on excluded evidence" and discussed matters "outside the record." Although the trial court sustained METRO's objections to the admission of the Smith and Rodgers affidavits, Allen testified, without objection, that he reviewed the Smith and Rodgers affidavits and they both stated that they did not actually witness the accident, but instead relied on statements from METRO's bus driver in filling out their comment cards. As such, any complaint as to the admissibility of Allen's testimony concerning the content of the affidavits was not preserved at trial. Therefore, Brooks's argument constituted a reasonable inference and deduction from Allen's testimony at trial, and it was not improper. See TEX. R. CIV. P. 269(e) ("Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel."); see also Blevins v. Pepper-Lawson Constr., L.P., No. 01-15-00820-CV, 2016 WL 5942220, at *7 (Tex. App.—Houston [1st Dist.] Oct. 13, 2016, no pet.) (mem. op.) (holding jury argument permissible where appellant's challenge largely turned on unpreserved underlying complaint that evidence upon which jury argument based improperly admitted).
. . . .
What Mr. Allen testified to about Ms. -- Mr. Smith was that Mr. Smith had been instructed to write down that the bus had been cut off.
Next, METRO asserts that the following argument by Brooks about METRO's decision to not call Ms. Rodgers as a witness at trial was also improper and incurable:
So that's the reason why Ms. Rodgers didn't come to testify, because he had come to that conclusion in his investigation. And I knew that I would be able to examine Ms. Rodgers on the fact that she didn't witness anything. And that's when -- when the defendant found that out, they decided not to call her live.Since Ms. Rodgers was a witness equally available to both parties, Brooks's comment on METRO's failure to produce her as a witness at trial was improper. See First Interstate Bank of Bedford v. Bland, 810 S.W.2d 277, 289 (Tex. App.— Fort Worth 1991, no writ). And the trial court sustained METRO's objection to this argument. However, because METRO failed to request that the trial court instruct the jury to disregard Brooks's argument, it did not preserve the error and can only prevail on appeal if it shows that the remark was incurable. See Tanguy v. Laux, No. 01-13-00501-CV, 2015 WL 3908186, at *5 (Tex. App.—Houston [1st Dist.] June 25, 2015, pet. denied) (mem. op.) ("Because [appellant] did not, at the time of the complained-of arguments and testimony, request that the trial court instruct the jury to disregard the remarks, he did not preserve error.").
METRO argues that the argument is incurable because it "suggests that METRO is hiding evidence, proffering incompetent witnesses[,] and not being truthful with the jury." It asserts that "[e]ach of the improper arguments was a direct attack on the veracity of the bus operator as well as METRO's lawyer." However, not all personally critical comments concerning opposing counsel and witnesses are incurable. See Peñalver, 256 S.W.3d at 681. And to the extent that such attack can be implied from the complained-of argument, it does not rise to the level of arguments that have been held to cause incurable harm, which "compromise the basic premise that a trial provides impartial, equal justice." Id. (holding argument incurable where attorney compared opposing counsel to perpetrators of World War II German program of medical experimentation on elderly and infirm); c.f. Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding no incurable jury argument where attorney asked jury, regarding opposing counsel, "What kind of snake oil is he selling you?"); Casas v. Paradez, 267 S.W.3d 170, 184 (Tex. App.—San Antonio 2008, pet. denied) (holding counsel's misrepresentation opposing counsel prevented witness from testifying improper, but not incurable); Clark v. Bres, 217 S.W.3d 501, 511 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding curable argument implying defendant and his counsel engaged in conspiracy).
While it was improper for Brooks to comment on METRO's decision not to call Ms. Rodgers as a witness at trial, METRO's complaint here is still largely based on its underlying argument that the Smith and Rodgers affidavits were inadmissible. As discussed above, Allen testified, without objection, to the contents of the affidavits and that Mr. Smith and Ms. Rodgers did not actually see the accident. Therefore, any complaint in regard to this testimony was not preserved at trial. Further, Allen's opinion that METRO was negligent was based on other considerations which included testimony from the bus driver, testimony from Brooks, METRO's training materials and policies and procedures, and standard industry knowledge. Any harm resulting from the argument that METRO did not call Ms. Rodgers as a witness could have been easily cured by an instruction from the trial court and the argument is, therefore, curable. Peñalver, 256 S.W.3d at 680-81. Because METRO did not request any such instruction in response to this argument by Brooks, it did not preserve error on this point. See Tanguy, 2015 WL 3908186, at *5.
METRO argues that a jury question as to whether the Smith and Rodgers affidavits were in evidence constitutes proof that it was harmed by Brooks's arguments. However, this is not necessarily true. It is equally plausible that the question demonstrates that the jury was trying to make its decision solely based on the evidence admitted at trial, which would have included Allen's testimony about, among other things, the Smith and Rodgers affidavits, even if the affidavits themselves were excluded.
Finally, METRO asserts that the following argument regarding Brooks's medical expert was improper and incurable:
What you need to know about Dr. Steiner . . . . Mr. Steiner [sic] doesn't even have admissions to a hospital in the State of Texas.The trial court sustained METRO's objection to this argument and instructed the jury to disregard the statement. Brooks conceded that her comments about Dr. Steiner's admission privileges were outside of the record. However, counsel may generally comment on the credibility of a witness. See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 722 (Tex. App—Dallas 2011, pet. denied). And considering the "nature, degree, and extent" of the argument, it was not so prejudicial that an instruction from the court or retraction of the statement could not remove its harmful effects; it was, thus, curable. Peñalver, 256 S.W.3d at 680- 81. Thus, any harm resulting from the argument was cured by the trial court's instruction to disregard.
The jury arguments complained of by METRO on appeal were either permissible or curable. Accordingly, we hold that the trial court did not err in denying METRO's new-trial motion.
We overrule METRO's sole issue.
Post-Judgment Interest
In her sole cross-point, Brooks argues that the trial court erred in not including an award of post-judgment interest in its final judgment because post-judgment interest is not subject to the damages cap in the Texas Tort Claims Act. METRO argues that Brooks failed to preserve her complaint that she is entitled to post-judgment interest because she "never objected to any of the terms contained in the judgment" and did not "file any post[-]judgment motion to modify or correct" the trial court's judgment.
Post-judgment interest compensates a "judgment creditor for the lost use of money due as damages." Ventling v. Johnson, 466 S.W.3d 143, 149 (Tex. 2015). "A money judgment of a court in this state must specify the post[-]judgment interest rate applicable to that judgment." TEX. FIN. CODE § 304.001 (Vernon 2016). However, "[p]ost-judgment interest is recoverable even if it is not specifically awarded in the judgment." DeGroot v. DeGroot, 369 S.W.3d 918, 926-27 (Tex. App.—Dallas 2012, no pet.); see also Office of the Attorney Gen. of Tex. v. Lee, 92 S.W.3d 526, 528 (Tex. 2002) (holding under predecessor statute code "does not require, as a prerequisite for accruing interest, that judgments specifically include an award of post[-]judgment interest."); Hot-Hed, Inc. v. Safehouse Habitats (Scot.), Ltd., 333 S.W.3d 719, 735 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (post-judgment interest accrues automatically, even when judgment contains no reference to post-judgment interest). And limitation of liability under the Texas Tort Claims Act does not negate the right to post-judgment interest on judgments. Tex. Dep't of Transp. v. Ramming, 861 S.W.2d 460, 469 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Harris Cty. v. Dowlearn, 489 S.W.2d 140, 147 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref'd n.r.e.) ("The Texas Tort Claims Act does not negate the right to interest on judgments against the State, but on the other hand gives the right of enforcement to the same extent as applied to ordinary judgments."); see also TEX. CIV. PRAC. & REM. CODE § 101.107 (Vernon 2011) ("A judgment in a suit under [the Texas Tort Claims Act] may be enforced only in the same manner and to the same extent as other judgments against the governmental unit are enforceable as provided by law . . . .").
METRO's argument that Brooks waived her claim for post-judgment interest is without merit. As an initial matter, post-judgment interest accrues automatically. Hot-Hed, Inc., 333 S.W.3d at 735. However, Brooks preserved her complaint that the judgment improperly excluded post-judgment interest by filing a motion for entry of judgment with an attached proposed judgment that included an award of post-judgment interest. Specifically, Brooks's proposed judgment requests that the "post-judgment interest . . . awarded herein shall bear interest at the rate of FIVE PERCENT (5%) per annum, on the amount of the judgment . . . , compounded annually, from the date of final judgment until the date the judgment is satisfied." The trial court's judgment does not include an award of post-judgment interest. Therefore, Brooks properly preserved her complaint. See Emerson v. Tunnell, 793 S.W.2d 947, 947-48 (Tex. 1990) (holding prevailing party's complaint judgment did not include recovery based on quantum meruit theory preserved for appeal where prevailing party filed motion for judgment on verdict which included request for recovery for quantum meruit); Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (holding prevailing party properly preserved complaint judgment should have included attorney's fees by submitting proposed final judgment including award of attorney's fees); Benjamin Franklin Sav. Ass'n v. Kotrla, 751 S.W.2d 218, 224 (Tex. App.—Houston [14th Dist.] 1988, no writ) (holding appellee's right to complain about denial of prejudgment interest in final judgment preserved by appellee's motion for entry of judgment and proposed judgment which contained award of prejudgment interest).
Accordingly, we modify the judgment of the trial court to clarify that Brooks is entitled to post-judgment interest by adding the following sentence: "Plaintiff, Beverly Brooks, shall also recover from METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS post-judgment interest at a rate of five percent (5%), compounded annually."
On the date of the trial court's judgment, December 4, 2015, the published post-judgment interest rate was five percent. Phillips v. Bramlett, 407 S.W.3d 229, 239 (Tex. 2013) ("[P]ostjudgment interest begins to run from the date of the trial court's judgment"); Pettus v. Pettus, 237 S.W.3d 405, 423 (Tex. App.—Fort Worth 2007, pet. denied) (taking judicial notice of the post-judgment interest rate on appeal); see also TEX. FIN. CODE § 304.003 (Vernon 2016) (directing the "consumer credit commissioner [to] determine the postjudgment interest rate" as set forth in the statute); "Judgment Rate Summary," Texas Office of Consumer Credit Commissioner at http://occc.texas.gov/sites/default/files/uploads/interest/judgement-rate-summary.pdf.
We sustain Brooks's sole cross-point.
Conclusion
We modify the trial court's judgment and affirm as modified.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Caughey.