Patricia J. Sutton v. Kurt William Helwig, David R. Shoop, Shoop's Texas Termite & Pest Control and Shoop's Enterprises, Inc. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00525-CV
PATRICIA J. SUTTON APPELLANT
V.
KURT WILLIAM HELWIG, DAVID R. APPELLEES
SHOOP, SHOOP’S TEXAS
TERMITE & PEST CONTROL AND
SHOOP’S ENTERPRISES, INC.
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Pro se appellant Patricia J. Sutton filed the underlying negligence suit for
personal injuries in 2007 after appellee Kurt William Helwig, driving a Shoop’s
vehicle, allegedly hit her car in 2005. At the 2012 trial, Sutton represented
1
See Tex. R. App. P. 47.4.
herself pro se, and her testimony was the only evidence in her case in chief. At
the conclusion of her case in chief, the appellees—Helwig, David R. Shoop,
Shoop’s Texas Termite & Pest Control, and Shoop’s Enterprises, Inc.—moved
for a directed verdict, which the trial court granted.
II. Directed Verdict, Evidentiary, and Due Process Complaints
In five interrelated issues containing multiple subissues, Sutton complains
that the trial court erred by granting a directed verdict and abused its discretion
by sustaining the appellees’ evidentiary objections, limiting her opening
statement, and generally conducting an unfair trial.
A. Plaintiff’s Petition and Trial Testimony
In her petition, Sutton sought recovery for ―severe bodily injuries to her
head, neck, back, shoulders, torso, hips and legs,‖ as well as ―severe physical
pain and mental anguish‖ and damages so that she could ―receive proper
medical care for the injuries incurred in [the] incident.‖ Sutton specifically sought
recovery for medical expenses because she had ―become indebted to Medicare
for payment of medical services they [had] expended on her behalf and will have
additional medical expenses in the future as a result of said incident.‖ Finally,
Sutton also sought recovery for damage to her 1989 Buick Skyhawk, conceding
in her petition that Shoop’s insurer had paid for repairs to the vehicle but
complaining that it was no longer in the same condition that it had been before
the collision.
2
At trial, Sutton testified that she was born in 1943 and had many childhood
pre-existing medical conditions before she suffered several back and other
injuries in 1961, 1963, 1968, 1984, 1989, and 1990. At the time of the 2005
accident, Sutton was driving two people from her church on errands. She
stopped the car at a red light at an intersection. Sutton said that her car was in
the left-turn lane and that cross-traffic was three lanes. A white sports car was in
the cross-traffic’s inside lane, also making a left turn. An SUV was in the middle
lane, and a red car was in the outside lane. The red car executed a right-hand
turn and was out of her way.
Sutton stated that she ―should probably have started‖ when the light turned
green, but she needed to make a wide left turn to be able to get into the CVS
parking lot that was her destination. The little white sports car ―came out to turn
left into the Country Club shopping center,‖ and the SUV started to go at the
same time. Sutton said that because of a bad car accident she had experienced
in 1968, she did not go. Sutton then testified:
He [appellees’ lawyer] says I said I started to go, that I went, I—
honest, I don’t know. Whatever, I don’t know. So the next thing I
knew is that I—the next thing I knew is something had happened.
And so this—the car—the seat—the driver’s seat came off the
railing. He says the impact was light, but the impact was so hard
that it pushed my car all the way from back close to where I was
stopped out into the actual center, the direct center of the
intersection because when I got out of my car—I guess I sort of
passed out because then all of the sudden I realized, gee,
something has happened and my immediate reaction was thinking
back to—you know, is this a repeat of what happened in ’68? And I
did.
3
And then all of a sudden, I just knew I hurt and I had to try to
move again. So I got out of the car and I was standing in the middle
of the intersection in shock. And I thought, what are all of these
people doing around me? And so I had two people in the car with
me. I don’t think I’m allowed to talk about them, but I did have two
people in the car with me. And they were yelling to me to get back in
the car.
Sutton said that she got back into the car so that she could move it out of
the street and then drove the car to a nearby parking lot. Helwig followed her in
his vehicle, got out, came over to her, and said, ―[M]y boss is going to take care
of everything.‖ Sutton testified that she called Shoop’s and asked to speak with
Mr. Shoop to tell him about the accident and what Helwig had said but was told
by Shoop’s employees that Mr. Shoop was out to lunch and unavailable. Sutton
then called her insurance company and reported the accident.
Sutton drove her passengers to their home, took their groceries out of the
car, took her car to the Buick dealership for repairs, and picked up a rental car.
She concluded her direct testimony by stating, ―My car received a lot of damage
and I was hurt. I have been hurt since that day and my life has never been the
same since that day.‖ After the appellees’ lawyer had no questions for her on
cross-examination, Sutton rested her case, and the appellees moved for an
instructed verdict on the grounds of no evidence of any reasonable and
necessary medical expenses and less than a scintilla of evidence on liability.
The trial court granted Sutton a brief recess to research the motion prior to
granting it. Because Sutton complains that some of her evidence was improperly
4
excluded, we will address these complaints next before analyzing whether the
directed verdict was proper and whether granting it denied her due process.
B. Evidentiary Objections
Sutton argues that the trial court erred by sustaining the appellees’
objections to her testimony about the law on eggshell skull, her pre-existing
conditions, her photographic exhibit of the accident location, and her use of
hearsay. We review all of these complaints for an abuse of discretion. See Serv.
Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011) (stating that a trial court’s
rulings admitting or excluding evidence are reviewable for an abuse of
discretion). A trial court abuses its discretion if it acts without reference to any
guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004).
We first note that, as the trial court explained to Sutton during the trial, it is
the trial court’s role to define the particular legal principles applicable to a case. 2
See Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 95 (Tex.
2
After the appellees objected to Sutton’s attempt to explain ―the eggshell
skull law‖ to the jury, the trial judge sustained the objection and told Sutton not to
―quote laws‖ to the jury. Sutton then asked, ―If I can’t quote law to the Jury, how
can I present facts that are on my side?‖ The trial judge replied, ―Facts are
different from the law. Just tell them the facts as you understand the facts.‖ The
trial judge reminded Sutton that he had told the jury that he would prepare the
charge and that it would have in it all of the law and instructions they needed to
make a decision based on the facts they would hear from the witness stand,
finally stating, ―I’m in charge of the law. You’re not.‖
5
App.—Houston [14th Dist.] 2004, no pet.) (stating that a legal expert cannot
usurp the trial court’s role in trying the case). Therefore, the trial court did not
abuse its discretion by sustaining the appellees’ objection to Sutton’s testimony
about the eggshell skull rule.
Further, the record does not reflect that the trial court actually sustained
any objections to Sutton’s testimony about her pre-existing conditions. To the
contrary, Sutton’s testimony about her pre-existing conditions since her birth in
1943 was uninterrupted until the appellees’ counsel began to object to what
appeared to be the beginning of a hearsay statement in the following portion of
Sutton’s testimony pertaining to severe injuries she sustained in 1968:
Ms. Sutton: . . . I went home and the next day I got up and I
went back to work. I looked pretty bad. A lot of—I was a
salesperson for a fabric company and a lot of people didn’t want to
look at me. They couldn’t stand to look at me, but I went to see one
of my customers and he said to me, he looked right at me and he
said, Pat—
Mr. Oldham: Your Honor, I object to –
Ms. Sutton: Okay. Never mind, okay.
Sutton then continued with her recitation about her pre-existing injuries from
1984 onward without another interruption until she attempted to explain the
eggshell skull rule. The trial court never ruled on the appellees’ incomplete
objection, which it would have had to sustain in order for Sutton to complain
about it on appeal. See Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(2)
6
(requiring the substance of the excluded evidence to be made known to the
court).
Furthermore, with regard to Sutton’s complaint that the trial court erred by
sustaining the appellees’ objections to her photographic exhibit of the accident
location, the following dialogue occurred at trial:
Ms. Sutton: . . . [C]an I show the picture of Midwestern
Parkway and Jacksboro Highway.
The Court: If there’s no objection to its admission into
evidence and if there’s an objection, I’ll rule on the objection. If I rule
that the pictures are admissible, then, yes, ma’am, you can show
them to the Jury.
Ms. Sutton: Okay. Do I have to enter it as an exhibit?
The Court: Yes, ma’am.
Ms. Sutton: Do you need more than one copy of it, Your
Honor?
The Court: No, ma’am.
Ms. Sutton: I have a list of—
The Court: She can’t—I’m sorry. She can’t type down what
we’re staying [sic] and make an exhibit numbered, so when you
hand her an exhibit, you need to quit talking so she can mark the
exhibit.
(PLAINTIFF’S EXHIBIT NO. 1 MARKED.)
Ms. Sutton: It’s a small picture. You probably can’t see it.
Mr. Oldham: I object to showing it until it’s been introduced.
The Court: Yeah, that’s why I told you you need to offer it into
evidence. [Helwig] has an opportunity to object to it.
7
Ms. Sutton: Okay.
The Court: Then I’ll rule on its admissibility.
Ms. Sutton: Okay.
The Court: If I rule it’s admissible, you can then show it to the
Jury.
Ms. Sutton: I will not be showing any exhibits from this time
forward. . . .
Sutton did not ultimately offer the photographic exhibit of the accident location
into evidence, and the record does not contain it.3
The record reflects that the trial court followed the rules of evidence by
sustaining the appellees’ objection to Sutton’s showing the exhibit until it had
been admitted. See Tex. R. Evid. 103; Perez v. Lopez, 74 S.W.3d 60, 66 (Tex.
App.—El Paso 2002, no pet.) (―To preserve error concerning the exclusion of
evidence, the complaining party must actually offer the evidence and secure an
3
After offering herself for cross-examination and at the conclusion of her
testimony, Sutton stated, ―I have no further witnesses, Your Honor. So that’s my
case.‖ The appellees then moved for an instructed verdict on the reasonable and
necessary medical expenses. When the trial court asked for a response, Sutton
stated, ―I was frustrated over the fact that I knew that every – I have – look at
these – these are all of my exhibits. I have good exhibits that support my case,
and I wasn’t allowed – I panicked and I just decided not to do each one of them
individually.‖ Sutton did not ask the trial court to admit these exhibits, and even if
she had, the trial court was not required to permit additional evidence after she
rested. Cf. Tex. R. Civ. P. 270; Poag v. Flories, 317 S.W.3d 820, 828 (Tex.
App.—Fort Worth 2010, pet. denied) (stating that in determining whether to grant
a motion to reopen, the trial court should consider whether the movant showed
due diligence in obtaining the evidence, whether the proferred evidence is
decisive, whether the reception of such evidence will cause undue delay, and
whether granting the motion will cause an injustice).
8
adverse ruling from the court.‖). Sutton then never offered the exhibit itself into
evidence, providing the appellees with nothing to object to and providing us with
nothing to review. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2).
Finally, Sutton complains that the trial court improperly sustained the
appellees’ objections to hearsay during her description of the aftermath of the
accident. The objections occurred during the following testimony:
Ms. Sutton: . . . And so I had two people in the car with me. I
don’t think I’m allowed to talk about them, but I did have two people
in the car with me. And they were yelling to me to get back in the
car.
Mr. Oldham: I object to anything that the people said unless
they’re going to testify.
Ms. Sutton: I’m not saying—all right. I got back in the car
because I had to move the car out of the street. I waited seven
years for this trial, Your Honor, and this is the way Mr. Oldham has
been for seven years.
....
Ms. Sutton: . . . So I called my insurance company and told
them I had been rear-ended and then asked them what I should do
and they said that—
Mr. Oldham: Your Honor, I—I object to what people tell her.
It’s just hearsay and –
Ms. Sutton: It’s not hearsay.
The Court: I’ll –
Ms. Sutton: I have personal knowledge.
The Court: I’ll sustain the objection as to what someone else
told you as being hearsay.
9
Ms. Sutton: Me calling the insurance company isn’t hearsay.
I did that.
The Court: That’s exactly correct and he didn’t object to you
saying you called the insurance company. He objected when you
said, they told me. See, you’re about to say a statement made by a
party that’s not here in court to be cross-examined and to testify
under oath.
Ms. Sutton: It’s my insurance company though.
The Court: That’s hearsay. It doesn’t make any difference
who[se] insurance company it is. I have sustained his objection.
The record does not reflect that the trial court ruled on the appellees’ first
hearsay objection or improperly excluded Sutton’s evidence by sustaining their
second. See Tex. R. Evid. 103; Tex. R. App. P. 33.1; see also Tex. R. Evid.
801(d) (defining ―hearsay‖ as a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted). We overrule all of Sutton’s evidentiary complaints contained
within her five issues.
C. Directed Verdict
A directed verdict is proper only under limited circumstances: (1) when the
evidence is insufficient to raise a material fact issue, or (2) when the evidence
conclusively establishes the right of the movant to judgment or negates the right
of the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284
S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet. denied). In reviewing a
10
directed verdict, we follow the standards for assessing legal sufficiency of the
evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact, (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In a
directed-verdict review, we review the evidence in the light most favorable to the
person suffering the adverse judgment, and we must credit favorable evidence if
reasonable jurors could and disregard contrary evidence unless reasonable
jurors could not. City of Keller, 168 S.W.3d at 827; see also Exxon Corp. v.
Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).
In a negligence case, the plaintiff must establish the existence of a duty, a
breach of that duty, and damages proximately caused by that breach. Salinas v.
Allen, 366 S.W.3d 842, 846 (Tex. App.—Amarillo 2012, no pet.) (citing W. Invs.,
Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)). The mere fact of injury does
not prove compensable pain and mental anguish. Grant v. Cruz, 406 S.W.3d
358, 364 (Tex. App.—Dallas 2013, no pet.). Further, a claim for past medical
expenses must be supported by evidence that such expenses were reasonable
11
and necessary as a result of the injury. Whitaker v. Rose, 218 S.W.3d 216, 223
(Tex. App.—Houston [14th Dist.] 2007, no pet.). A plaintiff can prove
reasonableness and necessity of past medical expenses through either expert
testimony on the issues of reasonableness and necessity or an affidavit prepared
and filed in compliance with civil practice and remedies code section 18.001. Id.
Here, Sutton offered nothing into evidence to support her claim for
damages for physical injuries caused by the collision other than to state that she
had been hurt, even though she had alleged in her petition that she had suffered
injuries to her ―head, neck, back, shoulders, torso, hips and legs,‖ in addition to
physical pain and mental anguish and indebtedness to Medicare. She offered no
medical records or receipts for medical treatment into evidence. Cf. Haddard v.
Rios, No. 13-07-00648-CV, 2012 WL 1142779, at *3 (Tex. App.—Corpus Christi
Apr. 5, 2012, pet. denied) (mem. op.) (noting that plaintiff provided legally
sufficient evidence to support her award of past medical damages when she
offered her medical records and bills into evidence and had chiropractic expert
testify on her behalf that her injuries were caused by the vehicle accident); Byrd
v. Delasancha, 195 S.W.3d 834, 835–38 (Tex. App.—Dallas 2006, no pet.)
(reversing directed verdict on causation when plaintiff had testified that she had
no injuries before the accident but had them afterward and gave very specific
testimony about her accident-related injuries, which were documented in the
medical records admitted into evidence); Pilgrim’s Pride Corp. v. Smoak, 134
S.W.3d 880, 893–94 (Tex. App.—Texarkana 2004, pet. denied) (noting in low-
12
speed car collision case that the jury had the direct testimony of accident
witnesses as well as photographs and diagrams of the scene). And she provided
neither expert testimony on the issues of reasonableness and necessity for
services nor an affidavit prepared and filed in compliance with section 18.001.4
See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b) (West 2008 & Supp. 2013);
see also id. § 41.0105 (West 2008) (providing that recovery of medical or health
care expenses incurred is limited to the amount actually paid or incurred on
behalf of the claimant); Haygood v. De Escabedo, 356 S.W.3d 390, 391 (Tex.
2012) (holding that section 41.0105 limits the evidence at trial to expenses the
health care provider has a legal right to be paid). Sutton also offered no
evidence to support her claim for property damage to her vehicle.5 Under the
4
We also note that as set out above, although Sutton generally alluded to a
car collision, her only direct testimony that Helwig, driving a Shoop’s vehicle, had
hit her vehicle was, ―I asked to talk to Mr. Shoop to tell him that one of his
employees had hit me and that he told me he’d take care of everything and I
needed to know what to do,‖ that she had told her insurance company that she
had been rear-ended, and ―I got hit.‖
In her opening statement, Sutton told the jury that Helwig, driving a
Shoop’s pickup truck, rammed her so hard that she wound up in the middle of the
intersection. However, as the trial judge explained to Sutton before trial began,
opening statements are not evidence. Fort Worth Hotel Ltd. P’ship v. Enserch
Corp., 977 S.W.2d 746, 756 (Tex. App.—Fort Worth 1998, no pet.) (op. on reh’g);
see also Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 898 n.6 (Tex.
App.—El Paso 1993, no writ) (citing Tex. R. Evid. 603, which requires testimony
under oath or affirmation).
5
Sutton testified that she had purchased her vehicle new in 1989 and that it
was in good shape and ―didn’t have a scratch on it.‖ However, she did not testify
about what sort of damage it incurred in the collision other than her driver’s seat
being dislocated or how much it would cost to repair that damage.
13
facts in the record here, we conclude that the trial court did not err by granting
the appellees’ motion for instructed verdict, and we overrule Sutton’s complaint.
See Prudential Ins. Co., 29 S.W.3d at 77 (stating that a court may instruct a
verdict if no evidence of probative force raises a fact issue on the material
questions in the suit).
D. Due Process
After the trial court granted a recess for Sutton to review the law on
instructed verdicts, Sutton argued that an instructed verdict was improper for
insufficient evidence because she had ―presented all of [her] evidence in a
complaint that is on file with the Court‖ and that no one had rebutted her
statement that she had been rear-ended and hurt. After the trial judge granted
the instructed verdict, Sutton had the following conversation with him:
Ms. Sutton: Did I make you mad, Your Honor?
The Court: Not at all, why would you think you’d made me
mad? I gave you about 30 minutes longer to look at that than I
would have given an attorney. Why would you think you made me
mad?
Ms. Sutton: Well, because of the fact that you didn’t allow me
to present—properly present my case.
The Court: Yes, ma’am, I did. I even told you how to admit
those photographs in evidence.
Ms. Sutton: Yes.
The Court: And because he had objected, you didn’t even try
to present them after that. I told you exactly how to proceed with the
photographs. I didn’t prevent you from presenting anything. I tried
to help you see how to present the things.
14
Ms. Sutton: Yes, sir, I understand that, but you don’t
understand that I’m sick and adversity upsets me and he played into
that.
The Court: Well, I—I have to be an impartial arbiter here and I
helped you as much as I could by telling you what you needed to do
to get these photographs in evidence. And you just quit. I—I don’t
know why. I mean, I—I can’t be responsible for why. All I can do is
what I can do under the circumstances. I owed the Defendant a fair
trial also.
Ms. Sutton: Yes, but he didn’t even have to present a trial.
While Sutton bases part of her argument on the fact that the defense did
not present a case or allow her to cross-examine their witnesses, there is nothing
in the rules of civil procedure that requires a defendant to put on evidence after a
plaintiff’s case. Cf. Tex. R. Civ. P. 268 (providing for a motion for directed
verdict). To the contrary, the plaintiff has the obligation to present evidence
during his or her case in chief to meet the burden of proof on his or her claims.
Tex. R. Civ. P. 265(b) (requiring party upon whom rests the burden of proof on
the whole case to introduce his evidence). Further, a due process complaint,
which requires not only a showing of an interest entitled to procedural due
process protection but also a showing of what process is due, must still comply
with our rules of preservation of error. See In re L.M.I., 119 S.W.3d 707, 711
(Tex. 2003) (stating that it must be apparent from context that appellant was
attempting to raise a due process challenge); Univ. of Tex. Med. Sch. at Houston
v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (discussing due process). At a
15
minimum, due process requires notice and an opportunity to be heard at a
meaningful time and in a meaningful manner. Than, 901 S.W.2d at 930.
In addition to several hearings over the course of the case, Sutton had the
opportunity to conduct voir dire and did so, and she had the opportunity to
present her case at trial on the elements of negligence. See id. It is also clear
from the record that during and after trial, the trial judge attempted to give her
what guidance he could without prejudicing the other side. See id. Therefore, to
the extent that Sutton has raised and preserved a due process complaint, based
on the record before us and our analysis of the directed verdict set out above, we
hold that the trial court did not deprive Sutton of due process, and we overrule
her complaint. See Amrhein v. La Madeleine, Inc., No. 06-12-00107-CV, 2013
WL 839227, at *2 (Tex. App.—Texarkana Mar. 6, 2013, pet. stricken) (mem. op.)
(describing pro se appellant’s brief ―as a fifty-page denunciation of perceived
slights by the legal system and her belief that because she has not prevailed, the
system has treated her unfairly at every turn‖).
E. Opening Statement Limitation
Sutton complains that the trial court abused its discretion by limiting both
parties’ opening statements to five minutes without warning on the morning of
trial. As noted by Sutton in her April 29, 2013 letter to this court, which we
address below, the record does not reflect any discussion between the trial court
and the parties with regard to such a limitation or that Sutton objected to it other
than stating to the jury during her opening statement, ―I have five minutes to tell
16
you this,‖ and during her own testimony, ―I was given a very short time to say
something. I didn’t say everything.‖
Nonetheless, assuming both that the trial court had abused its discretion
by limiting Sutton’s opening statement to five minutes and that Sutton had
preserved this complaint on the record for our review,6 Sutton has not explained
how the limitation probably caused rendition of an improper judgment or probably
prevented her from properly presenting the case to this court. See Tex. R. App.
P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex.
2005); see also In re Commitment of Camarillo, No. 09-12-00304-CV, 2013 WL
6
Although Sutton argues that there is no time limitation in the rules of civil
procedure and that it would not have taken long for her to present her twenty-
one-page opening statement, rule 265 states that ―[t]he party upon whom rests
the burden of proof on the whole case shall state to the jury briefly the nature of
his claim or defense and what said party expects to prove and the relief sought.‖
Tex. R. Civ. P. 265(a) (emphasis added). Further, as one of our sister courts has
noted,
Rule 265(a) does not afford counsel the right to detail to the
jury the evidence which he intends to offer, nor to read or describe in
detail the documents he proposes to offer. The practice of detailing
the expected testimony in the opening statement places matters
before the jury without the trial court[’s] having had an opportunity to
determine the admissibility of such matters. We are of the further
opinion that such a practice sometimes has the effect of misleading
or confusing the jurors as between the expectations of counsel and
evidence actually admitted. The proper limitation of the opening
statement is a matter necessarily resting in the discretion of the trial
court subject to review for abuse of discretion.
Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. Civ. App.—Austin 1975,
writ ref’d n.r.e.) (citations omitted); see also Guerrero v. Smith, 864 S.W.2d 797,
800 (Tex. App.—Houston [14th Dist.] 1993, no writ) (stating that the abuse of
discretion standard gives trial courts wide latitude in limiting opening statements).
17
2732662, at *2 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem. op.)
(concluding that even if the trial court had improperly restricted appellant’s
opening statement, appellant did not show harm); Tacon Mech. Contractors, Inc.
v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 675 (Tex. App.—Houston [14th Dist.]
1994, writ denied) (overruling complaint regarding restricted opening statement
when appellant failed to establish a clear abuse of discretion, failed to preserve
its objection, and failed to show harm). We overrule her issues pertaining to the
limitation of her opening statement.
F. Remaining Arguments
Sutton argues that the appellees and the trial court treated her unfairly
during the litigation process and complains that the court reporter omitted many
of her statements because they would show how prejudiced appellees’ counsel
and the trial judge were against her. Sutton also contends that the proposed
order for directed verdict that the appellees sent to her to approve differed from
the one that the trial court signed, that the trial court was hostile to her, that the
court reporter ―put words in [her] mouth‖ that she never spoke, and that the
appellees’ attorney harassed and tried to intimidate her. She further complains
that the case unnecessarily dragged on for five years after the appellees had
already admitted liability.
We first note that Sutton sent this court an eleven-page letter on April 29,
2013, complaining about ―typographical errors, errors of omission, [and] insertion
of statements Plaintiff In Pro Se/Appellant does not remember saying or agreeing
18
to‖ in the reporter’s record. In response, this court issued two letters on May 10,
2013. One letter contained our determination that the reporter’s record filed on
April 19, 2013 did not comply with the Uniform Format Manual for Texas
Reporters’ Records effective July 1, 2010, and we directed the court reporter to
send a corrected original and a corrected copy of the reporter’s record to the
court on or before May 20, 2013.
In our other May 10, 2013 letter, we noted that Sutton had identified
various alleged inaccuracies in the substantive contents of the reporter’s record.
Pursuant to rule of appellate procedure 34.6(e), we directed the parties to file
with this court on or before May 20, 2013: (1) a written, signed stipulation
including the agreed-upon text for each alleged inaccuracy that the parties could
resolve and (2) for each alleged inaccuracy that could not be resolved by the
parties, a statement that no agreement could be reached and a brief argument
discussing why that specific, challenged portion of the record is or is not relevant
to the resolution of the appeal. See Tex. R. App. P. 34.6(e). We specifically
stated in the letter, ―If the parties cannot agree on whether or how to correct the
reporter’s record so that the text accurately discloses what occurred in the trial
court, then we may submit the dispute to the trial court for resolution.‖ Id.
On May 14, 2013, the court reporter filed a corrected reporter’s record, and
on May 17, 2013, the appellees’ counsel replied to our directive by stating that he
did not see any matters raised by Sutton that pertained to the appeal but that if
Sutton advised him of any of the specific points she believed pertained to the
19
appeal on the issues before the court, he would review and comment on them.
Sutton did not file any response with this court, and on May 24, 2013, we issued
a letter to the parties in which we noted that Sutton had not responded to our
directive and stated that ―[a]fter reviewing appellees’ response, we have
determined that no abatement is necessary at this time.‖
Having provided Sutton with the opportunity to resolve her record-based
complaints prior to this case’s submission, see Tex. R. App. P. 34.6(e)(1)–(3),7
and having noted no apparent deficiencies in the corrected record that would
have affected the outcome despite Sutton’s general allegations to the contrary,8
we will not further address her reporter’s record complaints. See, e.g.,
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (noting, with regard
to a partial record case, that ―[t]he burden is on the appellant to see that a
sufficient record is presented to show error requiring reversal‖). We also will not
7
Had Sutton responded to our instructions, we would have abated this
appeal to the trial court to determine whether the reporter’s record was
inaccurate on the items that she and the appellees’ counsel could not agree on
that were relevant to the appeal’s resolution. See Taylor v. Taylor, No. 02-05-
00435-CV, 2007 WL 2460359, at *7 (Tex. App.—Fort Worth Aug. 31, 2007, pet.
denied) (mem. op.) (noting, after having abated appeal and remanded the case
to the trial court to determine whether the reporter’s record was inaccurate, that
appellant merely wanted to change his testimony).
8
For example, Sutton alleges on appeal that the reporter’s record ―omitted
important happenings,‖ including that she had tripped on the way to the witness
stand, that her knee had given way as she left the stand, causing her to drop
everything she was carrying, and that she remained close to tears on several
occasions. However, she does not explain the relevance of these and her other
allegations with regard to the case’s ultimate outcome. See Tex. R. App. P.
44.1(a).
20
consider any of the extraneous documents outside of the record that Sutton
included in the appendix to her appellate brief. See Tex. R. App. P. 34.1
(defining appellate record as the clerk’s record and the reporter’s record).
In her appellate brief, Sutton complains that the appellees sent her a copy
of an order on directed verdict that she received at her post office box on
December 14 and then sent a copy modified to add court costs (she does not
state on which day her post office box received this order); Sutton states that her
post office box received the signed order on December 19 and that she did not
receive either the modified copy or the signed order until December 30, 2012.
She further complains that adding court costs had not been discussed or brought
up with her on the day of trial. However, she also asserts that she ―had a
complete melt down‖ after the December 12, 2012 trial and retired to her bed
until December 23, when she emerged to go to church, before returning to her
bed until December 30. Other than apparently alleging a lack of notice, Sutton
does not raise any other complaints with regard to the order on costs, and under
the circumstances presented on the face of this record, we cannot say that the
trial court abused its discretion by assessing costs against her as the losing party
or that any lack of notice harmed her when the trial court’s plenary power
remained in effect when she received the signed order.9 See Tex. R. Civ. P. 131,
329b.
9
When a party appears pro se, she is held to the same standards as a
licensed attorney and must comply with all applicable laws and rules of
21
Finally, the record does not reflect mistreatment of Sutton by either the
appellees or the various trial judges that presided over the case during the five
years it remained pending.10 To the contrary, Sutton stated to the trial judge that
the appellees had offered to settle the case ―on many occasions‖ and had
―actually paid for damages in this case,‖ and she frequently received more
explanations about rulings than the trial judge was obliged to give.
The record reflects that Sutton did not understand how to litigate a case,
how opening statements worked (despite explanation from the trial judge), how
or when to offer evidence (despite instructions from the trial judge), or how a
motion in limine (as opposed to a trial objection) functioned with regard to
evidence at trial (despite the trial judge’s efforts to explain). The record also
reflects that in 2009, Sutton twice moved for a continuance of the trial date and
that she again moved for a continuance in 2011, all of which the trial court
granted, extending the case’s duration. Prior to recessing so that Sutton could
research the appellees’ motion for instructed verdict, the trial judge attempted to
explain to her how that motion worked. The trial judge also specifically informed
procedure. Robb v. Horizon Communities Improvement Ass’n, No. 08-11-00236-
CV, 2013 WL 5352033, at *3 (Tex. App.—El Paso Sept. 25, 2013, no pet.). If pro
se litigants were not required to comply with applicable rules of procedure, they
would be given an unfair advantage over parties represented by counsel. Id.
Rule of civil procedure 131 provides for the successful party to a suit to ―recover
of his adversary all costs incurred therein, except where otherwise provided.‖
Tex. R. Civ. P. 131.
10
Two judges recused themselves over the course of the case.
22
Sutton, ―Wait for [the court reporter] to get on the record. You want everything to
be on the record if you’re going to have an appeal. She’s back on the record.
Tell me what you want to say now.‖
Even if the trial judge had been less helpful to Sutton, however, ―[a] trial
judge has broad discretion in conducting the proceedings before him.‖ In re
M.J.M., 406 S.W.3d 292, 299–300 (Tex. App.—San Antonio 2013, no pet.) (citing
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001)). Likewise,
judicial rulings alone almost never constitute a valid basis to allege bias or
partiality, and ―judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge.‖ In re A.E.A., 406 S.W.3d 404, 420
(Tex. App.—Fort Worth 2013, no pet.) (citing Dow Chem. Co., 46 S.W.3d at 240).
As we noted in A.E.A., ―expressions of impatience, dissatisfaction, annoyance,
and even anger do not establish bias or partiality,‖ and a judge’s ordinary efforts
at courtroom administration—even if they appear stern or short-tempered—
usually do not establish bias or partiality. Id. at 420–21. Moreover, to preserve a
complaint about judicial conduct for review, an objection to the conduct must be
made in the trial court at the time the conduct occurs. M.J.M., 406 S.W.3d at
300.
Therefore, even if the record reflected that Sutton had preserved a
complaint about any of the trial court’s alleged actions over the case’s five-year
course, we cannot say that its actions constituted an abuse of discretion. And
23
the record does not reflect that Sutton ever sought any recourse against the
appellees’ counsel under the rules of civil procedure or the civil practice and
remedies code for any procedural misbehavior that she perceived over the
course of the case. See Tex. Civ. Prac. & Rem. Code Ann. § 10.002 (West
2002); Tex. R. Civ. P. 13, 21b, 215.1. Therefore, we overrule the remainder of
Sutton’s five issues.
III. Conclusion
Having overruled all of Sutton’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: November 14, 2013
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