lee-cline-individually-and-on-behalf-of-the-estate-of-faye-clepper-v ( 2007 )

NUMBER 13-05-187-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LEE CLINE, INDIVIDUALLY, AND

AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FAYE CLEPPER,

DECEASED, Appellant,

v.

LIVING CENTERS OF TEXAS, INC.,

D/B/A WHARTON MANOR, AND

LIVING CENTERS OF AMERICA, INC., Appellees.

On appeal from the 329th District Court

of Wharton County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Vela Memorandum Opinion by Justice Vela

This is a medical malpractice and premises liability case. Appellant, Lee Cline, individually and as personal representative of the estate of Faye Clepper, filed suit against appellees, Living Centers of Texas d/b/a Wharton Manor and its parent company, Living Centers of America, Inc. ("Wharton Manor") for alleged mistreatment of his mother while she resided at appellees' nursing facility. A jury answered both the negligence and premises liability questions in favor of appellees. Cline raises two issues on appeal concerning exclusion of evidence and fundamental error. We affirm.

I. Background

Appellant Cline, the son of Faye Clepper, filed suit against Wharton Manor for alleged mistreatment of his mother while she resided at Wharton Manor nursing home. At the time of her admission, Mrs. Clepper was 89 and suffered from congestive heart failure and dementia. The parties disagreed on the stage and severity of her illness at the time of admission. Mrs. Clepper was admitted to Wharton Manor on July 2, 2001, and remained there until March 8, 2002, when she was hospitalized at Gulf Coast Medical Center. Mrs. Clepper died 12 days later from hypoxia and cerebral vascular accident.

Appellant introduced testimony at trial concerning the alleged negligent care received by his mother while a resident at the facility. The jury heard conflicting evidence on several issues, including whether Wharton Manor was liable for Mrs. Clepper's severe decubitus ulcer that did not heal, whether Wharton Manor failed to properly hydrate Mrs. Clepper, and whether Wharton Manor failed to keep her safe because of an incident in which a male resident inappropriately touched Mrs. Clepper. Appellant raises two issues in this appeal. First, he complains that the trial court erred in excluding evidence of subsequent bad acts of Robert Darden, the nursing home resident who inappropriately touched Mrs. Clepper. Second, he argues that the trial court fundamentally erred in going forward with the trial on the merits when there was an unresolved mandamus proceeding pending in the Texas Supreme Court concerning discovery of documents.

II. Exclusion of Evidence

At trial, testimony was presented that on September 20, 2001, Mr. Robert Darden, another resident of Wharton Manor, was seen inappropriately touching Mrs. Clepper. This event occurred while Darden was supposed to be on a seventy-two-hour watch because he had committed a similar act on another female patient the day before. The jury also heard that he had a history of being sexually inappropriate. Appellant complains that the trial court erred in refusing to admit evidence, including the Texas Department of Human Services' records, deposition testimony, and nursing home records, reflecting other incidents of inappropriate behavior by Darden on occasions subsequent to the incident involving Mrs. Clepper. The trial court excluded all evidence of Darden's subsequent bad acts.

A. Standard of Review for the Exclusion of Evidence

An appellate court reviews a trial court's decision to admit or exclude evidence to determine if the lower court abused its discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion if it acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241 (Tex. 1985). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error probably caused the rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992). A challenge to a trial court's evidentiary rulings will be successful only if, after a review of the entire record, an appellate court determines that the error was harmful because the judgment turns on the particular evidence excluded or admitted. Interstate Northborough P'ship v. State of Texas, 66 S.W.3d 213, 220 (Tex. 2001).

B. Premises Claim

During the pendency of this appeal, the Texas Supreme Court issued its opinion in Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005), which eliminated premises liability claims against health care providers in cases similar to this one. In Rubio, the plaintiffs sued a nursing home as the result of a sexual assault which occurred on a nursing home resident by another resident. Id. at 845. The plaintiff in Rubio argued that she should be allowed to recover under theories not covered by the Medical Liability and Insurance Improvement Act. See Id. at 847. The Rubio court noted that there was an important distinction in the relationship between a premises owner and invitee and health care facilities and their patients. Id. at 850. Because Rubio's complaint was the alleged failure of Diversicare to implement adequate policies to care for, supervise, and protect its residents who require special medical care, the supreme court determined that the case was a health care liability claim and not one for premises liability or ordinary negligence. See Id. at 850-1. The court concluded that Rubio's causes of action were for breaches of the standard of care for a health care provider because the supervision of Rubio and the patient who assaulted her, and the protection of Rubio, were inseparable from the health and nursing services provided. Id. at 849.

Here, under the facts presented, appellant was likewise limited to a medical negligence claim based on the supreme court's holding in Rubio. We hold that Rubio eliminated appellant's premises claim.

C. Negligence Claim

Appellant further argues that he sought the admission of subsequent acts committed by Darden because they were essential to proving his case for negligence. In fact, the jury was charged in such a way that Darden's acts were not to be considered in regard to the negligence claim, but were only to be considered as they related to appellant's premises claim. ⁽¹⁾ Appellant did not object to the submission of the negligence issue instructing the jury not to consider Darden's conduct as it related to the negligence of Wharton Manor. Therefore, any evidence concerning the actions of Mr. Darden, whether the conduct occurred before the incident involving Mrs. Clepper or after, is not a basis for reversal of the negligence claim as the jury was instructed not to consider any testimony regarding Darden with respect to that issue.

There is a presumption that the jury will follow the court's instructions. Turner, Collie & Braden, Inc. v. Brookhollow, 642 S.W.2d 160, 167 (Tex. 1982). Here, we presume that the jury followed the instruction included in the negligence charge and did not consider any of Darden's conduct in answering the negligence question. The exclusion of evidence regarding Darden's subsequent conduct is not error or reversible error because even if the jury had been allowed to hear such evidence, it was instructed not to consider any evidence regarding Darden in answering the negligence question.

Even if the trial court erred, our review of the entire record revealed that the error is not reversible because the judgment did not turn on the excluded evidence. Tex. R. App. P. 44.1(a)(1). The incident involving Darden was one of several alleged negligent acts that were heard by the jury. There was conflicting evidence on all issues which the jury ultimately balanced in favor of Wharton Manor.   

Appellant's first issue is overruled.

III. Fundamental Error

Appellant urges in his second point that the trial court committed fundamental error by proceeding to trial while an original proceeding based upon a discovery dispute between the parties remained pending in the Texas Supreme Court. The supreme court ruled on the mandamus after the case had been tried and while it was on appeal. In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex. 2005) (orig. proceeding). The court granted Wharton Manor's relief, holding that the trial court abused its discretion by using only superficial indicators to deny Wharton Manor's privilege claim. Id. at 262. In its opinion, the court also requested the trial court to determine whether any documents withheld by Wharton Manor were privileged. Id.

At the time the case was set for trial on January 31, 2005, Wharton Manor filed a motion for continuance, urging that the case should not go to trial because some of the documents at issue were subject to the stay pending before the Texas Supreme Court. At that time, appellant took the position that no error would occur unless the documents, subject to the supreme court stay, were entered into evidence during the trial on the merits. Appellant, in fact, opposed the continuance. Wharton Manor also presented the Texas Supreme Court with a motion to determine whether the trial court had usurped the supreme court's jurisdiction during trial. The motion was denied by the supreme court. Even though appellant informed the trial court that he was not waiving his position before the supreme court, he did not oppose proceeding to trial. Counsel for Wharton Manor asked the court to rule that all documents before the supreme court were within the jurisdiction of that court. Wharton Manor's request was overruled by the trial court.

Fundamental error applies only in rare circumstances where the record shows on its face that the court lacked jurisdiction or that the public interest is directly or adversely affected as that interest is declared in the statutes and the constitution. Mack Trucks v. Tamez, 206 S.W.2d 572, 577 (Tex. 2006); In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). A party should not be allowed to waive, consent to, or fail to complain about an error at trial and then complain about it on appeal. In re B.L.D., 113 S.W.3d at 350. Here, appellant could have complained about going forward on his trial setting. He also could have agreed to the continuance. He did neither. Appellant did not oppose going forward with the trial in the face of a pending mandamus proceeding. Likewise, the supreme court did not intervene when asked by Wharton Manor to enforce the emergency stay. Appellant's complaint could have easily been remedied had he agreed to a continuance. There is no fundamental error. Accordingly, the second issue is overruled.

The judgment of the trial court is affirmed.

__________________________ ROSE VELA

Justice

Memorandum Opinion delivered and

filed this 15th day of March, 2007.

1.

Question No. 1 read, as follows:

Did the negligence, if any, of the party named below proximately cause the injury in question? In answering this question do not consider the conduct of those below as it relates to the conduct of Robert Darden as that is addressed in Question 4.