Pam Sahualla and Tracy Sahualla v. Guseman Construction, LLC ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-14-00342-CV
________________
PAM SAHUALLA AND TRACY SAHUALLA, Appellants
V.
GUSEMAN CONSTRUCTION, LLC
Appellee
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-190,068
__________________________________________________________________
MEMORANDUM OPINION
Appellee Guseman Construction, LLC (“Guseman”) sued pro se appellants
Pam Sahualla and Tracy Sahualla 1 for breach of contract pertaining to an
agreement to pour a concrete driveway. The jury found that Guseman failed to
comply with the agreement but awarded the Sahuallas no monetary damages, and
the trial court signed a judgment in accordance with the jury’s verdict. In two
1
The Sahuallas were represented by counsel at trial, but they are pro se in
this appeal.
1
appellate issues, the Sahuallas challenge the admission of expert testimony
regarding testing of the concrete, and Guseman’s counsel asking leading questions
during direct examination. 2 We affirm the trial court’s judgment.
ISSUE ONE
In their first issue, the Sahuallas challenge the admission of expert testimony
regarding testing of the concrete. At trial, professional engineer Tyler Henneke
testified regarding core sampling of the concrete. The Sahuallas did not object to
the admission of Henneke’s report into evidence, nor did they object to Henneke’s
testimony that the concrete passed the core sampling test. During Henneke’s
testimony, three video clips depicting the removal of core samples for testing and
the laboratory where the testing was done were shown to the jury and admitted as
exhibits. The Sahuallas did not object to the admission of the video clips into
evidence. Guseman’s counsel offered into evidence the three core samples of
2
The Sahuallas seem to also complain of alleged bias in the “court system.”
The Sahuallas allege that Guseman has “a family member of very high power in
our court system” which led to a mistrial in July 2013. The case was retried in
April 2014 and the trial court signed the judgment from which the Sahuallas now
appeal. As support for their argument, the Sahuallas cite this Court to the
November 25, 2013, hearing on their trial counsel’s motion to withdraw, at which
the Sahuallas seemed to contend that trial counsel’s performance was deficient and
complained of their difficulties finding an attorney to represent them. The record
does not reflect that the Sahuallas raised their claim of bias in the “court system”
before the trial court and obtained a ruling; therefore, we may not now address that
argument on appeal. The Sahuallas did not demonstrate that bias affected the
outcome of their case. See Tex. R. App. P. 33.1(a).
2
concrete that were tested. The Sahuallas lodged a relevancy objection to the
admission of the three core samples of the concrete into evidence, contending that
“based on the expert’s testimony, all that shows is strength of the concrete. It
didn’t show whether there was a cold slab or any other defects.” The trial court
overruled the objection, stated that the core samples were admissible “for the
limited purpose of the jury being able to examine what was tested,” and admitted
the samples into evidence. As discussed above, the Sahuallas did not object to
Henneke’s qualifications, his testimony regarding the core sampling process, the
admission of Henneke’s report into evidence, or the admission of the video clips
into evidence. Therefore, the Sahuallas did not preserve those complaints for
appellate review. See Tex. R. App. P. 33.1(a).
We now turn to the Sahuallas’ complaint concerning the admission of the
concrete samples into evidence. We review the trial court’s evidentiary rulings for
an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
The trial court abuses its discretion when it acts without reference to any guiding
rules or principles such that its ruling is arbitrary or unreasonable. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007). The Sahuallas have failed to demonstrate that
the trial court abused its discretion by admitting the core samples into evidence. In
3
addition, even if admitting the core samples into evidence had been erroneous, the
Sahuallas have not shown that the admission of the samples into evidence led to
the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Accordingly,
we overrule issue one.
ISSUE TWO
In their second issue, the Sahuallas complain of leading questions
Guseman’s counsel asked witnesses for Guseman. A leading question is one that
suggests the desired answer or puts words into the witness’s mouth to be echoed
back. GAB Business Servs., Inc. v. Moore, 829 S.W.2d 345, 351 (Tex. App.—
Texarkana 1992, no pet.). Leading questions should not be used during direct
examination except as necessary to develop the witness’s testimony. Tex. R. Evid.
611(c). Failure to object to a leading question waives any error. Cheng v. Wang,
315 S.W.3d 668, 672 (Tex. App.—Dallas 2010, no pet.); Tex. R. App. 33.1(a). The
decision to permit a leading question lies within the sound discretion of the trial
court. Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 568 (Tex.
App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). To obtain
reversal, the Sahuallas must demonstrate that the error probably caused the
rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Malone, 916
S.W.2d at 568.
4
The Sahuallas do not point out in their brief any specific instances of leading
questions. Any instances of leading questions to which the Sahuallas did not object
at trial are not preserved for appellate review. See Tex. R. App. P. 33.1(a); Cheng,
315 S.W.3d at 672. Our review of the record reveals several instances when the
Sahuallas’ counsel objected to leading questions by Guseman’s counsel, and the
trial court sustained many of the objections. The Sahuallas have not demonstrated
that the trial court abused its discretion by overruling any of their objections to the
leading questions, nor have they demonstrated that the leading questions probably
led to the rendition of an improper judgment. See Tex. R. Evid. 611(c); Malone,
916 S.W.2d at 568; see also Tex. R. App. P. 44.1(a). Accordingly, we overrule
issue two and affirm the trial court’s judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on April 9, 2015
Opinion Delivered May 7, 2015
Before McKeithen, C.J., Kreger and Horton, JJ.
5