Carl Gavrel v. Mark Lieberman and George Onzo ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-414-CV
CARL GAVREL APPELLANT
V.
MARK LIEBERMAN AND APPELLEES
GEORGE ONZO
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Carl Gavrel sued Appellees Mark Lieberman and George Onzo,
as well as Lauren Young, John Doe, Kathleen Lieberman, and Spanish Gardens
Condominium Association (SGCA), for injuries he sustained during a SGCA
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 See Tex. R. App. P. 47.4.
meeting conducted at the Fort Worth Public Library. 2 The trial court granted
summary judgments for Mark and Kathleen Lieberman and for SGCA. Gavrel’s
suit against Onzo was tried to a jury. The jury returned a verdict for Gavrel,
finding Onzo negligent and awarding Gavrel $288,800 in damages. The trial
court granted Onzo’s motion for judgment notwithstanding the verdict (JNOV),
and Gavrel perfected this appeal. In two issues, Gavrel complains that the trial
court erred by granting Onzo’s motion for JNOV, by granting summary
judgment for Mark Lieberman, and by not granting Gavrel’s motion for new trial.
For the reasons set forth below, we will affirm the trial court’s judgment.
II. Factual Background
Gavrel brought documents with him to the July 2005 condominium
association meeting. Lauren Young snatched the documents from Gavrel and
delivered them to Mark Lieberman, who was presiding over the meeting. As
Gavrel retrieved his documents, Lieberman pushed Gavrel from behind, and
Onzo charged Gavrel, picked him up, slammed him to the ground, and sat upon
him. As Onzo sat on top of Gavrel, Gavrel felt his back snap. Gavrel was
injured and lay still on the ground. A video recorder set to tape the meeting
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 Lauren Young and John Doe were never served with citation, and
SGCA and Lieberman were dismissed from this appeal. Consequently, they are
not parties to this appeal.
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captured the escapade.3 Gavrel was taken by ambulance to John Peter Smith
Hospital (JPS). He suffered back and neck pain and, ultimately, underwent
back surgery. 4
III. Judgment Notwithstanding the Verdict
In his first issue, Gavrel argues that the trial court erred by granting
Onzo’s motion for JNOV on the jury’s finding that Onzo’s negligence
proximately caused Gavrel’s fall.
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 The videotape was forwarded to this court, and we have reviewed it.
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 Onzo contended at trial that the back surgery was not necessitated
by the events forming the basis of Gavrel’s suit, but by a pre-existing condition.
Onzo introduced into evidence a September 17, 2004 narrative letter by a JPS
doctor opining that Gavrel was fully disabled and that
Mr. Gavrel has a medical history significant for a traumatic spinal
cord injury which was obtained in 2001 when he was hit by a
drunk driver. As a result he had a surgical procedure to have a
fusion of his lumbar spine with metal hardware inserted. In
addition he has numerous complications as a result of this spinal
cord injury. He had attended physical therapy in an effort to
rehabilitate his lower extremities, however is unable to continue
due to chronic severe muscle spasms and sensory deficits due to
his spinal cord injury. In addition Mr. Gavrel has episodes of falling
due to gait disturbances caused by the muscle spasms which cause
his feet to invert and become unstable. He has recently had a fall
which caused one of the metal screws in the spine to break and
already has compression fractures with loose bone fragments in his
spine (these findings are confirmed on x-rays and MRI).
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A. Standard of Review
A trial court may disregard a jury’s verdict and render a JNOV if no
evidence supports the jury’s findings, or if a directed verdict would have been
proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine
whether a JNOV is appropriate, we apply the standards that govern a legal
sufficiency challenge. See Tex. R. Civ. P. 301; City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d
706, 709 (Tex. 2003).
A legal sufficiency point must be sustained (1) when there is a complete
absence of a vital fact; (2) when rules of law or evidence preclude according
weight to the only evidence offered to prove a vital fact; (3) when the evidence
offered to prove a vital fact is no more than a scintilla; or (4) when the evidence
conclusively establishes the opposite of the vital fact. City of Keller, 168
S.W.3d at 810. Under the legal sufficiency standard, we must credit evidence
that supports the judgment if reasonable jurors could, and we must disregard
contrary evidence unless reasonable jurors could not. See id. at 827. If the
evidence falls within the zone of reasonable disagreement, we may not invade
the fact-finding role of the jurors, who alone determine the credibility of the
witnesses, the weight to give their testimony, and whether to accept or reject
all or any part of that testimony. See id. at 822. Unless “there is no favorable
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evidence” to support the challenged finding or “if contrary evidence renders
supporting evidence incompetent . . . or conclusively establishes the opposite”
of the finding, we must affirm. See id. at 810–11.
B. Onzo’s Motion for JNOV
Over Onzo’s objection that no evidence existed supporting a negligence
question (because the evidence established that his conduct was intentional),
the court’s charge asked the jury in question number one whether “the
negligence, if any, of George Onzo proximately caused the occurrence in
question?” The jury answered, “Yes.” Onzo moved for JNOV on the jury’s
answer to question number one on two grounds. First, Onzo argued that he
intentionally and purposefully pushed Gavrel; he argued that the evidence
conclusively established that he “ran like a mad dog straight at” Gavrel and that
his conduct was not an accident, it was with intent. Second, Onzo asserted
that no evidence existed that his conduct was a proximate cause of any
damages to Gavrel. Onzo argues on appeal that the trial court correctly granted
JNOV because the evidence conclusively established that he acted
“intentionally,” and no evidence exists supporting the jury’s finding that he was
merely negligent.
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C. JNOV Proper on Negligence Issue
The fundamental difference between a claim for negligence and an
intentional tort is not whether the defendant intended the action, but whether
he intended the resulting injury. Reed Tool Co. v. Copelin, 689 S.W.2d 404,
406 (Tex. 1985). Intent generally means that the actor desires to cause the
consequences of his act or that he believes the consequences are substantially
certain to result from his act. Id. A plaintiff may not recover for an intentional
tort by proving only negligence. See, e.g., Doe v. Mobile Video Tapes, Inc., 43
S.W.3d 40, 54 (Tex. App.—Corpus Christi 2001, no pet.) (refusing to recognize
negligent invasion of privacy action); Childers v. A.S., 909 S.W.2d 282, 291
(Tex. App.—Fort Worth 1995, no writ). Likewise, a plaintiff may not recover
in negligence when he proves only an intentional tort. See, e.g., Fulmer v.
Rider, 635 S.W.2d 875, 881 (Tex. Civ. App.—Tyler 1982, writ ref’d n.r.e.);
Nat’l Union Fire Ins. Co. v. Bourn, 441 S.W.2d 592, 595 (Tex. Civ. App.—Fort
Worth 1969, writ ref’d n.r.e.); accord Carlson v. Trans Union, LLC, 261 F.
Supp. 2d 663, 665 (N.D. Tex. 2003). That is, a plaintiff may not recast an
intentional tort as mere negligence. Bourn, 441 S.W.2d at 596 (recognizing
plaintiff could not recast intentional tort of assault and battery as negligence to
bring claim within coverage of homeowner’s policy); see also Fulmer, 635
S.W.2d at 882 (“There is, properly speaking, no such thing as a negligent
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assault.”) (citing Prosser, The Law of Torts, ch. 2, sec. 10 at 40–41 (4th ed.
1971)). An assault is an intentional tort; it occurs when a person intentionally,
knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code
Ann. § 22.01 (Vernon Supp. 2009); Hogenson v. Williams, 542 S.W.2d 456,
458 (Tex. Civ. App.—Texarkana 1976, no writ) (explaining the definition of an
assault is the same whether it is the subject of a criminal prosecution or a civil
suit for damages and applying the penal code definition of assault).
Onzo did not testify at trial. But Gavrel testified that Onzo had charged
him like a mad dog, had picked him up and had thrown him to the ground, and
had hit and kicked him as he lay on the ground. Gavrel testified that Onzo’s
conduct was “on purpose.” Gavrel testified, “Well, when you hit somebody
and knock them down and start hitting them, yeah, that’s an intentional act to
me.” Several eyewitness testified that they had seen Onzo punching and
kicking Gavrel as he lay on the ground.
We have carefully reviewed the evidence, and no evidence exists that
Onzo was merely negligent. See City of Keller, 168 S.W.3d at 823. No
evidence exists that Onzo did not intend the consequences of his conduct in
slamming Gavrel to the floor, punching Gavrel, and kicking Gavrel. See Reed
Tool Co., 689 S.W.2d at 406. In fact, as reflected in the record, the nature of
the act of fighting, slamming someone to the ground, and punching or kicking
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him is performed with an intent to cause injuries; people engage in fights for the
express purpose of causing injury to their opponents. Additionally, the evidence
presented at trial conclusively established that Onzo had committed the
intentional tort of assault on Gavrel. See Tex. Penal Code Ann. § 22.01;
Hogenson, 542 S.W.2d at 458; see also, e.g., Tex. Dep’t of Pub. Safety v.
Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding, in context of Tort Claims Act
exclusion set forth in section 101.057, that plaintiff’s claim that officer was
merely negligent in ignoring police procedure did not obviate fact that officer’s
conduct was intentional; officer hit car window, aimed gun, blocked in car with
police cruiser, and fired at car’s tires); Medrano v. City of Pearsall, 989 S.W.2d
141, 144 (Tex. App.—San Antonio 1999, no pet.) (holding officer’s beating of
handcuffed driver was intentional tort). Thus, because there is a complete
absence of evidence that Onzo acted negligently and because the evidence at
trial, including the videotape of the event, conclusively establishes that Onzo
acted intentionally, the trial court properly granted JNOV for Onzo on the jury’s
negligence finding. See City of Keller, 168 S.W.3d at 827; see also Tex. R.
Civ. P. 301; Wal-Mart Stores, Inc., 102 S.W.3d at 709.
We overrule Gavrel’s first issue.
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IV. No-Evidence Summary Judgment
In his second issue, Gavrel claims that the trial court erred by granting no-
evidence summary judgment Mark Lieberman. 5
A. Standard of Review
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must
grant the motion unless the nonmovant produces summary judgment evidence
that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.;
Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
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 In his second issue, Gavrel also challenges the no-evidence summary
judgment granted for SGCA. Gavrel and SGCA subsequently filed a joint
motion to dismiss this appeal as to SGCA, and this court granted it.
Consequently, the no-evidence summary judgment for SGCA is final, and we
do not address any challenges to it. See Tex. R. App. P. 42.1(a)(2), 43.2(f);
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).
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S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment
for evidence that would enable reasonable and fair-minded jurors to differ in
their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168
S.W.3d at 822). We credit evidence favorable to the nonmovant if reasonable
jurors could, and we disregard evidence contrary to the nonmovant unless
reasonable jurors could not. Timpte Indus., Inc., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that
raises a genuine issue of material fact, then a no-evidence summary judgment
is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).
B. No-Evidence Summary Judgment for Lieberman Proper
Lieberman sought a no-evidence summary judgment on the grounds that
there was no evidence that Leiberman caused Gavrel to lose his balance and
fall, no evidence that Lieberman caused Gavrel to suffer personal injuries, no
evidence that Lieberman was negligent, and no evidence that Gavrel suffered
damages. Gavrel filed a response to Lieberman’s no-evidence summary
judgment and attached excerpts from his own deposition as summary judgment
evidence. Gavrel’s deposition excerpts indicate that he took his papers from
Mark Lieberman, and as he was walking away,
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Mark Lieberman pushed me from behind. And out of the corner of
my eye, I saw George Onzo jump up from the table like a mad dog
and run straight at me, hit me, picked me up in the air, slammed
me down on the ground. And when he slammed me down on the
ground, my right leg went numb. He started beating on me and
beating on me . . . [Onzo’s nephew] came [running up and] he
jumped up in the air and . . . came down on my neck with his knee.
Then they commenced to keep kicking me and kicking me like a
pack of wild animals.
Gavrel also testified that Lieberman had “poked him” with a cane as he lay on
the ground.
Taking Gavrel’s summary judgment evidence as true, Gavrel has
nonetheless failed to come forward with any evidence that any of the injuries
he suffered were attributable to Mark Lieberman’s push, instead of attributable
to the beating he received from Onzo and Onzo’s nephew. On appeal, Gavrel
claims that as a result of Lieberman’s push, he experiences post-traumatic
stress syndrome, but Gavrel failed to offer medical causation testimony on this
issue. See In re R.O.C., 131 S.W.3d 129, 134, 138 (Tex. App.—San Antonio
2004, no pet.); see also Leitch v. Hornsby, 935 S.W.2d 114, 118–19 (Tex.
1996) (requiring plaintiff to plead and prove that defendant’s negligence was
proximate cause of injury); Smith v. Sw. Bell Tel. Co., 101 S.W.3d 698, 702
(Tex. App.—Fort Worth 2003, no pet.) (stating that causation cannot be
established by mere speculation). Because Gavrel failed to come forward with
evidence that Lieberman’s push proximately caused any of the damages he
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claims as a result of the incident, the trial court did not err by granting a no-
evidence summary judgment for Lieberman.
We overrule Gavrel’s second issue.
V. Conclusion
Having overruled Gavrel’s first and second issues, we affirm the trial
court’s no-evidence summary judgment for Mark Lieberman and the trial court’s
JNOV on the jury’s negligence finding against George Onzo. We thus affirm the
trial court’s judgment in all respects.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON and WALKER, JJ.
DELIVERED: April 1, 2010
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