Gloria H. Marin v. Dolores M. Herron ( 2012 )

MEMORANDUM OPINION
No. 04-11-00352-CV
Gloria H. MARIN,
Appellant
v.
Dolores M. HERRON,
Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 361871
Honorable Irene Rios, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: August 8, 2012
AFFIRMED
Gloria H. Marin appeals the judgment rendered against her on Dolores M. Herron’s
trespass and negligence claims. Marin contends the trial court erred by not granting a
continuance. Marin also asserts the evidence is legally insufficient to support a finding of
proximate cause and the damages awarded by the trial court. We affirm the trial court’s
judgment.
04-11-00352-CV
BACKGROUND
Marin and Herron each own townhomes that share a common wall. In April 2011, after
extensive rain, Herron became aware that water had been leaking into her bedroom. Herron
alleged that as a result of the water damage a mold infestation developed, which she claims
caused her to suffer health problems. Herron contends the water intrusion was caused by the
disrepair of certain areas of Marin’s adjoining property.
Herron filed suit in justice court seeking damages in the amount of $10,000.00. On
August 10, 2010, Keith Baker, Justice of the Peace, entered a judgment against Marin in the
amount of $7,040.00, and Marin appealed the judgment to county court. The case was initially
set for trial on January 6, 2011. Marin filed a written motion for continuance and the case was
reset for January 27, 2011. On that date, Herron and her counsel appeared, but only Marin’s
attorney appeared. Marin’s attorney announced not ready; however, the case proceeded to a trial
to the bench. The trial court entered a judgment awarding Herron $14,040.00 in damages. No
findings of fact or conclusions of law were requested or filed.
DISCUSSION
Continuance
Marin contends the trial court erred in denying her a continuance of the January 27, 2011
trial setting. In her brief, Marin states she was not given notice of the “final hearing and was not
present to defend herself at trial.” She asserts her counsel was not aware she was not given
notice. Marin contends her counsel “requested a continuance which was immediately denied by
the presiding judge before the start of trial.” However, there is no written motion to continue the
second trial setting in the record or referenced on the docket sheet.
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“The granting or denial of a motion for continuance is within the discretion of the trial
court and will not be reversed unless the record shows a clear abuse of discretion.”
Higginbotham v. Collateral Prot., Inc., 859 S.W.2d 487, 490 (Tex. App.—Houston [1st Dist.]
1993, writ denied) (citing State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988)). “In
deciding whether a trial court abused its discretion, the appellate court does not substitute its
judgment for that of the trial court, but only decides whether the trial court’s action was arbitrary
and unreasonable.” Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986) (citing
Landry v. Travelers Ins. Co., 458 S.W.2d 649 (Tex. 1970)).
Texas Rule of Civil Procedure 251 provides: “No application for a continuance shall be
heard before the defendant files his defense, nor shall any continuance be granted except for
sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” TEX.
R. CIV. P. 251. An oral request for a continuance, unsupported by an affidavit or the opposing
party’s consent, does not satisfy the requisites of Rule 251. See TEX. R. CIV. P. 251; Favaloro v.
Comm’n for Lawyer Discipline, 13 S.W.3d 831, 838 (Tex. App.—Dallas 2000, no pet.). “When
the provisions of Rule 251 have not been satisfied, it will be presumed that the trial court did not
abuse its discretion in denying a continuance.” Phifer v. Nacogdoches Cnty. Cent. Appraisal
Dist., 45 S.W.3d 159, 173 (Tex. App.—Tyler 2000, pet. denied); Favaloro, 13 S.W.3d at 838.
Marin’s counsel did not file a motion for continuance of the January 27, 2011 trial
setting. The only indication that Marin requested a continuance of that setting is the following
statement by her counsel to the trial judge: “the defendant is not ready, but that motion has been
overruled by Judge Rodriguez [the presiding judge].” There is no further discussion or
explanation regarding a request for a continuance before the bench trial began. In light of the
record before us, the trial court did not abuse its discretion in not continuing the case. See
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Dempsey v. Dempsey, 227 S.W.3d 771, 776 (Tex. App.—El Paso 2005, no pet.); Phifer, 45
S.W.3d at 173; Favaloro, 13 S.W.3d at 838.
SUFFICIENCY OF THE EVIDENCE
Standard of Review
Under the legal sufficiency standard of review, we consider the evidence in the light most
favorable to the challenged finding and indulge every reasonable inference to support it. City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable
fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. at
827. If there is more than a scintilla of evidence to support the finding, the legal sufficiency
challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d
41, 48 (Tex. 1998). “[M]ore than a scintilla of evidence exists if the evidence ‘rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.’” Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998)).
When no findings of facts and conclusions of law are requested or filed, it is implied that
the trial court made all the findings necessary to support its judgment. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam); Toles v. Toles, 45 S.W.3d 252, 264 (Tex. App.—
Dallas 2001, pet. denied). “In determining whether some evidence supports the judgment and the
implied findings of fact, ‘it is proper to consider only that evidence most favorable to the issue
and to disregard entirely that which is opposed to it or contradictory in its nature.’” Worford, 801
S.W.2d at 109 (quoting Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (Tex.
1950)). The judgment must be affirmed if it can be upheld on any legal theory that finds support
in the evidence. Id.
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Proximate Cause
Marin contends there is legally insufficient evidence to show that damage to the soffit 1
under Marin’s roof was the proximate cause of the rain entering and flowing into Herron’s
bedroom. Marin also argues that it was not foreseeable that the hole would cause or did cause
damage.
Proximate cause consists of cause-in-fact and foreseeability. Travis v. City of Mesquite,
830 S.W.2d 94, 98 (Tex. 1992); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.
1985). Cause-in-fact means the act or omission was a substantial factor in precipitating the injury
and without it harm would not have occurred. City of Gladewater v. Pike, 727 S.W.2d 514, 517
(Tex. 1987). Foreseeability means a person of ordinary intelligence should have anticipated the
danger his negligent act or omission created for others. Travis, 830 S.W.2d at 98.
The evidence demonstrates Herron and Marin live in townhomes that share a common
wall. Herron testified that in February 2010, she noticed the soffit under the roof of Marin’s
property immediately adjacent to Herron’s bedroom wall was starting to sag and fall. She
testified that at that time she did not “consider” whether rain could go through the area. Herron
testified that on the night of April 17, 2010, there was a “terrific rainstorm,” which started that
night and carried through until the next day. She testified she was asleep in bed and water started
dripping on her bed.
Herron identified plaintiff’s exhibit 5 as a photograph of the sagging soffit, and testified
her bedroom was adjacent to that area. Although Marin only refers to a “hole” in the soffit in her
brief, exhibit 5 shows a large gaping area where a piece of the material making up the soffit is
1
A soffit is defined as “the underside of an architectural feature, as a beam, arch, ceiling, vault, or cornice.”
Dictionary.com Unabridged. Random House, Inc., http://dictionary.reference.com/browse/soffit (accessed: July 03,
2012). It covers the underside of the roof overhang and the opening between the roof and the joists.
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hanging at its installed location. Herron also testified the soffit actually fell completely off before
the April 17th rainstorm.
Herron testified she could tell by the area affected in her home that the water came in
through the opening in the soffit. She said two professional roofers and two adjusters inspected
the roof, and from her meeting with them she concluded the rain came in through the soffit
opening. Herron also testified her opinions were based on her experience working in property
management and that she “did actually do the type of work that it would take to repair a house.”
Herron testified that the initial water damage was confined to the corner of her interior wall
adjacent to the damaged soffit. She could see the wall in her bedroom “staining” as the rainwater
ran down the wall adjacent to the missing soffit. She testified that she suffered considerable
damage because the leaked water eventually penetrated through the sheetrock, was absorbed into
the insulation, and traveled into the ceiling and closet. Herron testified that as a result of the
water intrusion, mold developed in her bedroom. She identified several photographs admitted
into evidence as depicting the mold growth. Herron also testified Marin’s property had been
inspected by a representative from Bexar County. Herron’s exhibit 2, a report prepared by the
Bexar County Infrastructure Services Department, stated that Marin’s property was a public
nuisance and that the inspector found an outer opening, allowing rain to enter and flow to the
adjacent townhouse.
Marin contends Herron’s testimony is legally insufficient to support a finding of
proximate cause because Herron did not climb a ladder and inspect the soffit or go onto the roof
of her townhome. Marin also argues Herron’s testimony is no evidence of proximate cause
because she is not an expert. We disagree. A lay witness may testify to opinions “which are 1)
rationally based on the perception of the witness and 2) helpful to an understanding of his
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testimony or a determination of the fact at issue.” Havner v. E–Z Mart Stores, Inc., 825 S.W.2d
456, 464–65 (Tex. 1992); see TEX. R. EVID. 701. “Lay testimony is adequate to prove causation
in those cases in which general experience and common sense will enable a layman to determine,
with reasonable probability, the causal relationship between the event and the condition.”
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (citing Lenger v. Physician’s
Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)). “Generally, lay testimony establishing a
sequence of events which provides a strong, logically traceable connection between the event
and the condition is sufficient proof of causation.” Id. Herron’s testimony is proper lay opinion
testimony and is based on her observations and experience.
Marin contends the County report, exhibit 2, should not be considered and does not
establish proximate cause. Marin attempts to discredit the content of the report by arguing there
is no evidence the statements in the report were made by the inspector because the report was
signed by someone other than the inspector. Marin also asserts the report does not establish the
inspector’s qualifications to render an expert opinion regarding the cause or source of the water
leaks in Herron’s bedroom. However, Marin stipulated to the admissibility of the report.
Although Marin may argue the report is not evidence of proximate cause, she cannot now
complain about the inspector’s qualifications or that the report was written or signed by someone
other than the inspector. An objection as to the qualifications of a witness to provide an opinion
must be raised in the trial court in order to preserve error. See Adams v. State Farm Mut. Auto.
Ins. Co., 264 S.W.3d 424, 429 (Tex. App.—Dallas 2008, pet. denied) (“An objection to an
expert’s qualifications must be raised in the trial court in order to preserve error.”); Sparks v.
Booth, 232 S.W.3d 853, 863 (Tex. App.—Dallas 2007, no pet.) (“A party must make a timely
objection to an expert’s qualifications to preserve for appeal his contention that the expert was
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unqualified.”); Paradigm Oil, Inc. v. Retamco Operating, Inc., 242 S.W.3d 67, 74 n. 4 (Tex.
App.—San Antonio 2007, pet. denied). Likewise, Marin’s complaint that the report was not
written by the inspector is waived because she did not object to the admission of the report on the
ground that it was not based on personal knowledge. See Garcia v. John Hancock Variable Life
Ins. Co., 859 S.W.2d 427, 433 (Tex. App.—San Antonio 1993, writ denied) (failure to object to
affidavit on the ground that it does not show personal knowledge results in waiver of the
complaint) (citing Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990)
(failure to object to the form of the affidavit on the ground that it does not show personal
knowledge results in waiver of the complaint.)).
In addition to Marin’s complaints regarding the inspector’s qualifications and the report
not being based on personal knowledge, Marin argues the one statement in the report, regarding
an outer opening that allowed rain to enter the adjacent townhouse, is insufficient to show how
the rain water entered through the damaged soffit. Marin also argues the report does not include
any personal notes or pictures attached to support a conclusion that any inspection took place.
Marin asserts the report is not evidence of proximate cause because it does not include a
description of an inspection of the damaged soffit or an explanation of how the lack of the soffit
caused the damage to Herron’s property. Marin contends exhibit 2 is not credible because it does
not state that the inspector or any other person personally inspected the soffit or the roof to
determine the source of the leak. Marin claims it can be inferred the statement in the report is
merely a recitation of the language in Herron’s complaint to the county. 2 However, the report
speaks for itself. The report states that an inspection took place and the inspector found an outer
opening that allowed water to flow into Herron’s property. Marin ignores the legal sufficiency
2
Marin also relies on her testimony and her expert’s testimony at the hearing on the motion for new trial to further
discredit the report. However, only the evidence admitted at trial is considered in a legal sufficiency review. See City
of Keller, 168 S.W.3d at 822.
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standard of review. As a reviewing court, we must consider the evidence in the light most
favorable to the verdict, and indulge every reasonable inference that would support it. City of
Keller, 168 S.W.3d 822. We assume the trier of fact credited evidence favorable to the verdict
and disbelieved evidence contrary to it. Id. at 833.
Marin also contends the damage to Herron’s bedroom was not foreseeable since the soffit
faces toward the ground. Marin argues “it is impossible for rain water fall down off the roof and
then flow upward into the hole.” Whether an injury or damage is foreseeable “involves a
practical inquiry based on ‘common experience applied to human conduct.’” Read v. Scott Fetzer
Co., 990 S.W.2d 732, 737 (Tex. 1998) (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 477 (Tex. 1995) and City of Gladewater, 727 S.W.2d at 517.). “Foreseeability does
not require an actor to anticipate the precise manner in which the injury will occur; instead, the
injury need only be of a general character that the actor might reasonably anticipate.” Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Foreseeability can be established by
circumstantial evidence. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.
1980).
Herron’s testimony establishes the soffit had completely fallen off in an area immediately
adjacent to where water entered her bedroom. Herron testified that beginning on the April 17th
and continuing to the 18th there was a “terrific rainstorm.” She testified that during this time
period water began to flow into her bedroom. Herron stated two adjusters and two professional
roofers inspected the roof and she concluded from her meeting with them there were no leaks in
the roof and the water came in through the soffit. Based on this testimony, the report from the
County, the proximity of the water damage to the missing soffit, and the absence of any other
explanation for the cause of the damage, it is a reasonable inference that rain water could enter
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through the opening in the soffit and cause damage to the adjacent property. It is not outside the
common experience to note that high winds often accompany rainstorms, and rainwater may be
blown into openings by the wind.
Marin also asserts that because Herron testified that she was not aware that rain could
come through the hole and cause damage, it was not foreseeable to Marin that rain could enter
through the soffit. This argument misstates the testimony. Herron testified that when she noticed
the sagging soffit “she didn’t even consider” whether rain water could enter through the gaping
soffit. She did not testify that it was not foreseeable.
Because there are no findings of fact, we imply that the trial court made the necessary
findings of cause-in-fact and foreseeability to support its judgment. See Worford, 801 S.W.2d at
109. Herron’s testimony and exhibits provided a logical connection between the missing soffit
and the water damage to her townhome. Herron testified not only to the sequence of events, but
also testified she had experience with home repair. Viewing all of the evidence in a light most
favorable to the trial court’s implied finding on causation and indulging every reasonable
inference to support it, we hold there is at least a scintilla of evidence on proximate cause. See
City of Keller, 168 S.W.3d at 822.
Damages
Marin contends the evidence is legally insufficient to support the $14,040.00 damage
award. Herron sought recovery of the cost to repair her townhome. Herron introduced into
evidence an estimate that provided the cost of repairs would be $7,040.00. Marin’s counsel
stipulated “the services described in [the estimate] are reasonable and necessary to repair the
damages in this case.”
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Herron also presented evidence of mental anguish. 3 The determination of a fair and
reasonable compensation for mental anguish is left to the discretion of the trier of fact. Saenz v.
Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). “In reviewing the jury’s
finding, we consider whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review, crediting favorable evidence if reasonable jurors could
and disregarding contrary evidence unless reasonable jurors could not.” Adams v. YMCA of San
Antonio, 265 S.W.3d 915, 917 (Tex. 2008). “[M]ental anguish awards will pass a legal
sufficiency review if evidence is presented describing ‘the nature, duration, and severity of [the
plaintiff’s] mental anguish, thus establishing a substantial disruption in the plaintiff’s daily
routine.’” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (citing Parkway Co. v.
Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).
Herron testified the damage to her home had an effect on her health and has caused her
anxiety. Herron stated she has lost sleep, has a loss of appetite and stomach problems, which
include diarrhea and vomiting. She testified her energy level is low, she is anxious, and has
“bouts of depression” because of the mold in her home. Herron also testified that due to the
damage in her bedroom she now sleeps on the couch in the family room, which she stated is very
uncomfortable.
We conclude Herron’s testimony is some evidence of compensable mental anguish. See,
e.g., Fifth Club, Inc., 196 S.W.3d at 797–98(holding plaintiff’s testimony he was depressed,
humiliated, non-communicative, unable to sleep, angry, and suffered from headaches and
nightmares and that his daily activities and family relationships were detrimentally affected was
legally sufficient evidence to support $20,000.00 mental anguish award); Bunton v.Bentley, 153
3
Although Herron did not specifically plead for mental anguish, under her negligence claim she pled for “damages
caused by Marin’s negligence.” Marin did not file special exceptions, nor did she object to Herron’s testimony
regarding her mental anguish.
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S.W.3d 50, 53 (Tex. 2004) (evidence the plaintiff was deprived of sleep, the experience caused
him embarrassment in the community, disrupted his family life, and distressed his children at
school and testimony the plaintiff had been depressed, his honor and integrity had been
impugned, and his family had suffered, was legally sufficient to support $150,000.00 mental
anguish award); Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998) (holding evidence that
defendant’s conduct made one plaintiff throw up, “[s]ick, nervous, mad[,]” “hurt [him] a lot[,]”
and broke other plaintiff’s heart, and left her “devastated” and feeling “physically ill” was some
evidence of a high degree of mental pain and distress.).
There was evidence that the repair costs for the damage to Herron’s property would be
$7040.00. Because there are no findings of fact, we infer the remaining $7000.00 in damages
was compensation for Herron’s mental anguish. Accordingly, we hold the evidence is legally
sufficient to support the judgment of damages in the amount of $14,040.00.
MOTION FOR NEW TRIAL
Marin contends the trial court abused its discretion in denying her motion for new trial.
The grounds for new trial were the denial of the motion for continuance and the sufficiency of
the evidence concerning proximate cause and the damage award. However, because we have
found against Marin on these issues, the trial court did not abuse its discretion in denying the
motion for new trial.
Accordingly, we affirm the trial court’s judgment.
Steven C. Hilbig, Justice
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