Opinion issued December 2, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00596-CV
———————————
CHRISONDATH BADALL, Appellant
V.
RUKMIN DURGAPERSAD, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF RAMDATH DURGAPERSAD,
SUSAN DURGAPERSAD, RESHMA DURGAPERSAD, AND REHKA
DURGAPERSAD, Appellees
On Appeal from the 75th District Court
Liberty County, Texas
Trial Court Case No. CV-70552
OPINION
Appellees, Rukmin, Susan, Reshma, and Rehka Durgapersad (collectively,
“the Durgapersads”) filed suit against appellant, Chrisondath Badall, asserting a
cause of action for the wrongful death of Ramdath Durgapersad. A jury found in
the Durgapersads’ favor, and the trial court entered judgment based on the jury’s
verdict. In five issues on appeal, Badall challenges the trial court’s judgment,
arguing that (1) the evidence is legally and factually insufficient to support the
jury’s finding that he was 100% liable for Ramdath’s death; (2) the evidence is
legally and factually insufficient to support the jury’s award of damages; (3) the
trial court erred in failing to allow evidence of a purported settlement agreement
between the Durgapersads and the hospital where Ramdath was taken following
the shooting; (4) the trial court erred in excluding his impeachment evidence
against Rukmin Durgapersad; and (5) the trial court erred in failing to dismiss the
Durgapersads’ suit for want of prosecution.
We affirm.
Background
In January 2004, Badall shot Ramdath Durgapersad in the tire shop Ramdath
owned and operated in Liberty County, striking him in the hand and abdomen.
Ramdath was taken to St. Elizabeth’s Hospital in Beaumont, where he died the
next morning. Following a police investigation, Badall was charged with murder.
In September 2005, a jury convicted Badall of Ramdath’s murder and assessed his
punishment at fifty-five years’ confinement. The court of appeals affirmed his
conviction, and the Court of Criminal Appeals refused Badall’s petition for
2
discretionary review. See Badall v. State, 216 S.W.3d 865, 866 (Tex. App.—
Beaumont 2007, pet. ref’d).
In January 2006, the Durgapersads filed suit against Badall, asserting a cause
of action for wrongful death.1 Rukmin brought the action “individually and in her
capacity as Administratrix of the Estate of Ramdath Durgapersad, the decedent,”
and Susan, Reshma, and Rekha, their children, were named as plaintiffs. The
amended petition alleged that Badall murdered Ramdath, who was fifty-six at the
time of his death, and stated that,
[a]s a result of [Badall’s] wrongful conduct which led to [Ramdath’s
death], [Ramdath] endured significant conscious pain and suffering
before his expiration on January 9, 2004; and Plaintiffs suffered
damages, including, but not limited to, pecuniary and statutory
damages as well as compensation for the pain and suffering endured
by [Ramdath] prior to his death.
The Durgapersads sought damages for Ramdath’s past medical bills and funeral
expenses; past and future loss of earning capacity; pain and suffering; mental
anguish; loss of consortium; loss of inheritance; punitive damages; and pre- and
post-judgment interest.
Badall asserted the affirmative defenses of assumption of the risk,
comparative responsibility, and self-defense. Subsequently, the Durgapersads
moved for summary judgment, arguing that Badall was collaterally estopped from
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–71.051 (Vernon 2008).
3
re-litigating issues decided in the criminal case. They provided affidavits
summarizing the damages that they sustained as a result of Ramdath’s wrongful
death. Badall argued, among other things, that summary judgment was improper
because his prior conviction did not preclude the possibility that Ramdath
attempted to shoot him, which would impact his civil liability, and because there
were fact questions regarding the Durgapersads’ damages.
The trial court granted the Durgapersads’ motion for summary judgment and
ordered that they recover $1,200,000 as damages. However, on appeal, the Ninth
Court of Appeals held that there were fact questions regarding damages and
reversed and remanded the case for a new trial. See Badall v. Durgapersad, No.
09-08-00188-CV, 2009 WL 857995, at *2–3 (Tex. App.—Beaumont Apr. 2, 2009,
no pet.) (mem. op.).
On remand, the trial court set the case for a new trial on March 14, 2011.
The Durgapersads failed to appear, and the trial court dismissed the suit pursuant
to Rule of Civil Procedure 165a. However, the Durgapersads moved to reinstate
the case on the ground that their failure to appear was the result of a
miscommunication with the trial court’s clerk. On April 8, 2011, the trial court
granted the Durgapersads’ motion to reinstate the case and set the case for a new
trial date. Badall moved again to dismiss the case for want of prosecution, but the
trial court denied his motion.
4
A trial on the merits occurred on June 11, 2013. Rukmin Durgapersad
testified that Badall shot and killed her husband. The trial court admitted into
evidence Badall’s judgment reflecting his conviction for Ramdath’s murder.
Rukmin testified that she and Ramdath were from Trinidad and were married in
Puerto Rico. She testified that she moved to the United States in 1971, and that
Ramdath came in 1973. Rukmin and Ramdath had four children: Ragis, their only
son, and daughters Susan, Reshma, and Rehka. Rukmin testified that the family
was close and that Ramdath regularly visited with his children. The family would
go on vacations together about once a year. Rukmin testified that the entire family
went to Trinidad in July before Ramdath died, that they enjoyed regular fishing
trips to the Gulf Coast, and they were all together for Christmas just weeks before
Ramdath’s murder.
Rukmin testified regarding the effect Ramdath’s death had on herself and
her children. She stated that Ragis, her son, died of a heart attack at age thirty-
three on the first day of Badall’s murder trial. Ragis had two children.
Susan, who was thirty-six at the time of trial, is a dentist. Rukmin testified
that Ramdath “did everything for [Susan]” up until the time of his death, including
paying her way through dental school and buying her books. Rukmin testified that
after Ramdath’s death, she had to pay Susan’s car note until she graduated and that
she “did everything for graduation for her.” Ramdath also provided advice and
5
counseling to Susan about her schooling and her future. Rukmin testified that
Susan wanted her father to see her graduate, but he was murdered before she
completed her studies. Rukmin testified that Susan is married but “she still carries
[Ramdath’s] last name. She [doesn’t] want to give it up.” Susan also has three
children that Ramdath was never able to meet due to his untimely death.
Reshma, the middle daughter, also suffered because of her father’s death.
Reshma had a close relationship with her father. Reshma was pregnant with her
first child at the time of Ramdath’s death. Rukmin testified that on “January 8th
when Mr. Badall shot [Ramdath] and killed him, [Reshma] went in the hospital the
next day and had the baby. She couldn’t even be a part of the funeral. She didn’t
see her dad.” Ramdath provided advice, counsel, and financial support to Reshma.
Rekha, the youngest, was thirty at the time of trial and was teaching summer
school in Louisiana. Rukmin testified that all of her daughters wanted to be
present at the trial, but “they didn’t want to relive it like I am right now. They
didn’t want to relive what happened to their dad.” Like the other two daughters,
Ramdath provided advice, counsel, and financial support to Rekha. He paid for
Rekha to attend Louisiana State University and bought her a car in 2003.
Following Ramdath’s death, Rekha quit her studies for a time before returning to
the university.
6
Rukmin testified that all of her daughters suffered because of their father’s
death, especially Rekha. According to Rukmin, “They all suffered. They all took
it hard, and they still do. . . . My little daughter, it almost took her life.” Rukmin
testified that she did not keep photographs of the family around because she did
not want to see reminders of happier times. She testified, “I’m trying to get over it,
but I can’t.” Rukmin testified that Ramdath’s death left her “without a husband,
my soul mate, my friend, my everything,” but she also acknowledged that she and
Ramdath had some arguments and disagreements. As a result of Ramdath’s
murder, Rukmin testified that she suffered a heart attack and that she takes
medication for stress. She testified that she has not slept well since the murder,
that she has “been in and out of the doctor’s office or hospital,” and that she misses
her husband every day.
She testified that his death also impacted her financially. She testified that,
prior to his death, Ramdath “paid all the bills and did everything for us.” Rukmin
stated, “It’s very hard. I had to learn everything the hard way,” like learning to run
the tire shop. She testified that she did not know anything about it because
Ramdath “did everything” while she worked in Louisiana where Rekha was in
school. Rukmin testified that she came to Texas on the weekends and cooked and
cleaned for Ramdath for the six years she was working in Louisiana and that she
had retired just a few months before Ramdath’s death so that she could stay with
7
him in Texas. She testified that Ramdath “provided everything” for her and that it
was difficult for her to continue to meet her financial burdens, such as providing
money to her children and meeting living expenses, after Ramdath’s death.
Rukmin also testified that she paid between $8,000 and $9,000 to have Ramdath
cremated.
On cross-examination by Badall, Rukmin testified that she knew her
husband owned a firearm. She testified that she did not know her husband to carry
the weapon on his person and that he kept it in his bedroom closet, hidden under
some blankets so their grandchildren wouldn’t find it. Rukmin testified that she
did not see him with the firearm on the day he was murdered and that when police
asked her about any weapons Ramdath owned, she showed them the firearm in the
bedroom closet. Rukmin denied seeing Ramdath shooting at Badall, and she
testified that Ramdath came upstairs, bleeding, to ask her to call 9-1-1. When
Badall asked, “Do you have any knowledge what happened with your husband’s
handgun after he was shot?” Rukmin replied that she was “confused” by the
question because Ramdath’s firearm was always in the closet. Rukmin denied
taking the firearm from Ramdath after the shooting and hiding it in the closet.
Rukmin testified that she did not actually see Badall shoot Ramdath, but she
knew “[Badall] didn’t act in self-defense because [Ramdath] didn’t have a gun.”
She testified that Ramdath was transported to a local hospital following the
8
shooting, but she did not ride with him in the ambulance. She testified that she
was able to speak to him again at the hospital, where he died early the next
morning. Badall then asked about potential settlements Rukmin had reached with
the hospital, but Rukmin denied the existence of any other acts of negligence or
settlements with the hospital.
Badall argued, in his opening statement and in his closing argument, that he
shot Ramdath in self-defense. Badall asserted that Ramdath shot at him
repeatedly, putting Badall in fear of his life so that he had to shoot Ramdath.
Badall argued that, after he shot Ramdath, Ramdath ran upstairs to the bedroom
and stashed his weapon in the closet, or, alternatively, that he ran upstairs, handed
the weapon to Rukmin, and she hid the weapon in the closet. However, the only
testimony that Badall gave at trial was his admission that he shot Ramdath “in self-
defense.” He also testified that he was convicted of that murder and at the time of
trial was still serving his sentence for that crime. Badall testified that he submitted
his self-defense issue to the jury in the criminal case, but that jury rejected his
defense.
Badall also called two police officers to testify about the day of the shooting.
Officer E. Taylor testified that she arrived after other officers had already arrived
on the scene. She was not the investigator for the case, but she did collect a few
items of evidence, including the pieces of a broken watch that she found outside
9
the tire shop. She testified that she might also have collected some shell casing,
but she could not recall with certainty the type, number, or location. Officer
Taylor observed a large pool of blood at the foot of the stairs leading up to the
apartment above the shop, and she saw a trail of blood on the stairs leading toward
the office. Officer Taylor testified that she asked Rukmin Durgapersad whether
Ramdath had any weapons. Rukmin took her upstairs and showed her a firearm,
which was in a bedroom closet under a pile of blankets. Officer Taylor did not
recall seeing any blood in the bedroom or near the closet, and she did not collect
the firearm from the closet as evidence.
Officer M. Custer testified that he was the first officer who arrived on the
scene. He did not recall seeing a gun or any shell casings, and he did not collect
any evidence at all. He testified that he followed a trail of blood leading up a set of
wooden stairs, and he found Ramdath lying on the floor of the office area.
The jury found that Badall assaulted Ramdath. The jury also found that
Badall alone was negligent and that Badall’s failure to use ordinary care was the
proximate cause of “the occurrence in question.” The jury awarded Ramdath’s
estate $100,000 for pain and mental anguish suffered by Ramdath before he died
and $3,000 for burial expenses. The jury awarded Rukmin $66,000 and each
daughter $18,000 for “pecuniary loss sustained in the past,” and it awarded
Rukmin $66,000 for future pecuniary loss. The charge defined pecuniary loss as
10
“the loss of care, maintenance, support, services, advice, counsel, and reasonable
contributions of a pecuniary value, excluding loss of inheritance.”
The jury also awarded Rukmin $105,000 and each daughter $30,000 for past
and future loss of companionship and society. The jury charge defined “loss of
companionship and society” as “the loss of the positive benefits flowing from the
love, comfort, companionship, and society that [the Durgapersads], in reasonable
probability, would have received from Ramdath Durgapersad had he lived.” The
jury awarded Rukmin $41,250 and each daughter $11,250 for past and future
mental anguish, which the charge defined as “the emotional pain, torment, and
suffering experienced by [the Durgapersads] because of the death of Ramdath
Durgapersad.” Finally, the jury found that Badall acted with malice or gross
negligence and awarded exemplary damages of $50,000.
The trial court entered its final judgment based on the jury’s verdict,
awarding the Durgapersads a total of $753,885.50. This appeal followed.
Sufficiency of the Evidence
In his first two issues on appeal, Badall argues that the evidence was legally
and factually insufficient to support the jury’s finding that he was 100% liable for
Ramdath’s death or to support the jury’s award of damages to the Durgapersads.
11
A. Standard of Review
When conducting a legal sufficiency review, we credit favorable evidence if
a reasonable fact-finder could do so and disregard contrary evidence unless a
reasonable fact-finder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). We consider the evidence in the light most favorable to the
finding under review, and we indulge every reasonable inference that would
support the finding. City of Keller, 168 S.W.3d at 822. We sustain a no-evidence
point only when the record discloses one of the following situations: (1) 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 not more than a mere scintilla; or
(4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810.
In a factual sufficiency review, we consider and weigh all of the evidence
and set aside the finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. See Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Arias v. Brookstone, L.P., 265 S.W.3d
459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
When the parties have not objected at trial to the substance of the law set
forth in the jury charge, we review sufficiency of the evidence in light of legal
12
standards contained in the unobjected-to charge. See, e.g., Osterberg v. Peca, 12
S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other unidentified
law, that measures the sufficiency of the evidence when the opposing party fails to
object to the charge.”).
B. Evidence Supporting Badall’s Sole Liability
In his first issue, Badall complains that the evidence is legally and factually
insufficient to support the jury’s finding that he was “more than 51% liable for the
death of Mr. Ramdath Durgapersad.” He complains that the Durgapersads relied
primarily on the fact that Badall was charged with and convicted of Ramdath’s
murder. Badall argues that the Durgapersads “did not present any . . . evidence
whatsoever to establish by a preponderance of the evidence Mr. Badall did NOT
act in self-defense against [Ramdath’s] threat of harm.” He argues that the jury’s
finding in his criminal conviction that he did not act in self-defense is not
conclusive proof justifying the rejection of his self-defense argument under civil
standards.
The Durgapersads bore the burden of establishing their wrongful-death
claim. Civil Practice and Remedies Code section 71.002 provides a cause of action
for wrongful death: “A person is liable for damages arising from an injury that
causes an individual’s death if the injury was caused by the person’s or his agent’s
or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” TEX.
13
CIV. PRAC. & REM. CODE ANN. § 71.002 (Vernon 2008). The jury found that
Badall’s failure to use ordinary care was the proximate cause of Ramdath’s death,
and it declined to ascribe any liability to Ramdath himself.
The Durgapersads presented evidence that Badall was responsible for
Ramdath’s death. Rukmin testified that Badall murdered her husband by shooting
him and that the gunshot wound was the cause of Ramdath’s death. The trial court
also admitted Badall’s conviction for Ramdath’s murder, and Badall himself
admitted that he shot Ramdath.
We conclude that the evidence was legally sufficient to support the jury’s
finding that Badall was solely responsible for Ramdath’s wrongful death. See id.;
City of Keller, 168 S.W.3d at 810.
Badall argues, however, that he shot Ramdath in self-defense. With the
exception of the rule of evidence that gives a person accused of a crime the benefit
of a reasonable doubt, the law of self-defense is the same in both civil and criminal
cases. Gibbins v. Berlin, 162 S.W.3d 335, 340 (Tex. App.—Fort Worth 2005, no
pet.) (citing Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.—Austin 2000, pet.
denied) and Foster v. H.E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex. Civ.
App.—San Antonio 1977, writ ref’d n.r.e.)). A person is justified in using force
against another when, and to the degree, such person reasonably believes the force
14
is immediately necessary to protect himself against the other’s use or attempted use
of unlawful force. Id. (citing TEX. PENAL CODE ANN. § 9.31 (Vernon 2011)).
We observe that self-defense is an affirmative defense. See id. (“[I]n civil
law [self-defense] is a plea in confession and avoidance. That is, it is an
affirmative defense.”). Badall—not the Durgapersads—bore the burden of
establishing that he acted in self-defense. See Zuliani v. State, 97 S.W.3d 589, 594
n.5 (Tex. Crim. App. 2003) (holding defendant bears burden of production in
establishing self-defense); see also Gibbins, 162 S.W.3d at 340 (holding that,
except for benefit of reasonable doubt standard applied to alleged criminals, law of
self-defense is same in both criminal and civil context).
Badall argues that he “clearly asserted the fact that [Ramdath] was in
possession of a firearm and had pulled it on Badall in an attempt to shoot Badall”
and that “he had no choice but to shoot [Ramdath], in fear of his life.” However,
comments that he made in his opening and closing statements are not proper
evidence. Badall’s only testimony on this issue was his statement, in response to
the Durgapersads’ counsel’s question, that he shot Ramdath “in self-defense.”
However, Rukmin testified that, although Ramdath owned a firearm, he was not
carrying the weapon on his person on the day of the shooting. Rukmin testified
that Ramdath’s firearm was in his closet, hidden under blankets so that their
grandchildren could not find it. She testified that during the police investigation of
15
the shooting one of the officers asked her about Ramdath’s firearm, and Rukmin
showed the weapon in the closet to the officer. Neither witness called by Badall
offered any testimony in support of his self-defense theory. The jury was free to
disregard Badall’s testimony and to credit that of Rukmin. We cannot say the
evidence is so contrary to the weight of the evidence as to render the verdict unjust.
See Jackson, 116 S.W.3d at 761.
Badall also argues that he established his affirmative defense of “assumption
of the risk” pursuant to Civil Practice and Remedies Code section 93.001(a)(1).
Section 93.001(a)(1) provides that “[i]t is an affirmative defense to a civil action
for damages for personal injury or death that the plaintiff, at the time the cause of
action arose,” was “committing a felony, for which the plaintiff has been finally
convicted, that was the sole cause of the damages sustained by the plaintiff.” TEX.
CIV. PRAC. & REM. CODE ANN. § 93.001(a)(1) (Vernon 2011). However, Ramdath
was never charged with or convicted of any felony for his actions at the time this
cause of action arose, and, thus, this provision may not be used as an affirmative
defense in this case. See Dugger v. Arredondo, 408 S.W.3d 825, 834 (Tex. 2013).
Badall contends that “the ‘felony, for which the plaintiff has been finally
convicted,’ language in section 93.001(a) should not apply in a situation where the
decedent dies so as to preclude a final conviction so as to bar application of the
affirmative defense set out in Chapter 93.” We construe this as an argument that
16
the common law unlawful acts doctrine ought to apply to his case. The Texas
Supreme Court has rejected this argument, holding that the common law unlawful
acts doctrine is not available as an affirmative defense in personal injury and
wrongful death cases. Id. at 835–36 (observing that legislature abrogated common
law defenses such as unlawful acts and assumption of the risk in Civil Practice and
Remedies Code Chapter 33 and that section 93.001 reflects legislative intent to
“resurrect only a small portion of the unlawful acts doctrine”).
We overrule Badall’s first issue.
C. Evidence Supporting Damages Award
Badall attacks various portions of the jury’s damages award. We address
each in turn.
1. Damages awarded to Ramdath’s Estate
Badall first argues that the award of damages to Ramdath’s Estate for
$100,000 for pain and mental anguish suffered by Ramdath before he died and
$3,000 for burial expenses was improper because the Durgapersads did not assert a
claim under the Survival Act statute in any of their pleadings.
However, the Durgapersads’ amended petition, which was the live pleading
at the time of trial, stated that Rukmin brought the action “individually and in her
capacity as Administratrix of the Estate of Ramdath Durgapersad, the decedent.”
The amended petition further stated that, “[a]s a result of [Badall’s] wrongful
17
conduct which led to [Ramdath’s death], [Ramdath] endured significant conscious
pain and suffering before his expiration on January 9, 2004; and Plaintiffs suffered
damages, including, but not limited to, pecuniary and statutory damages as well as
compensation for the pain and suffering endured by [Ramdath] prior to his death.”
The Durgapersads also specifically sought past medical bills and funeral expenses
in the amount of $35,000, and they sought $100,000 as damages for pain and
suffering.
A petition is sufficient if it gives fair and adequate notice of the facts upon
which the pleader bases her claim. Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 897 (Tex. 2000). The purpose of this rule is to give the opposing
party information sufficient to enable him to prepare a defense. Id. Here, where
the amended petition clearly stated that it was filed, in part, on behalf of Ramdath’s
Estate and alleged facts indicating a claim asserted on Ramdath’s behalf for
injuries suffered before his death, the Durgapersads satisfied this standard. See id.
(holding that pleading was sufficient even though it referred to incorrect version of
statute).
Furthermore, Badall failed to specially except to the Durgapersads’ failure to
cite the survival statute as a basis for a cause of action. When a party fails to
specially except, courts should construe the pleadings liberally in favor of the
pleader. Id. (stating that opposing party should use special exceptions to identify
18
defects in pleading so that they may be cured, if possible, by amendment).
Because we must construe the Durgapersads’ pleadings in their favor, and because
they pleaded information specific enough to provide Badall with notice of their
intent to pursue claims on behalf of Ramdath’s Estate, we conclude the pleadings
were sufficient. We reject Badall’s arguments on this issue.
2. Amount of Damages
Badall argues generally that the evidence is “legally and/or factually
insufficient to sustain the jury’s damage [award] of $753,885.50” because the
Durgapersads “presented their case solely on the testimony of Mrs. Rukmin
Durgapersad” and Rukmin did not introduce any supporting evidence or
documentation regarding the amount of damages incurred by the various parties.
He complains specifically of the amounts awarded to Rukmin and her daughters
for pecuniary loss, loss of society and companionship, and mental anguish.
(a) Pecuniary Loss
The jury awarded Rukmin $132,000 for past and future pecuniary loss, and
it awarded each daughter $18,000 for past pecuniary loss. The elements of
pecuniary damages in the wrongful-death context consist of more than just the lost
earning capacity of the decedent—they include also the value of advice, counsel,
services, care, maintenance, and support of the deceased. Moore v. Lillebo, 722
S.W.2d 683, 687 (Tex. 1986); Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122,
19
133 (Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.). Thus, “[p]ecuniary loss in a
wrongful-death case is not subject to precise mathematical calculation, and the jury
is given significant discretion in determining this element of damages.” Christus
Health v. Dorriety, 345 S.W.3d 104, 113 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied). Pecuniary losses may be recovered even in the absence of specific
evidence of the amount of contributions being made by the deceased before his
death or that he would have continued to contribute in the future. Id.; see also
John Deere Co. v. May, 773 S.W.2d 369, 379–80 (Tex. App.—Waco 1989, writ
denied) (upholding award of pecuniary loss damages to minor daughter for death
of her father despite absence of testimony placing specific monetary value on his
parental services). Thus, while the amount of damages awarded must be supported
by evidence, a jury determining pecuniary loss may look beyond evidence of
calculable financial contributions. See Saenz v. Fid. & Guar. Ins. Underwriters,
925 S.W.2d 607, 614 (Tex. 1996) (holding that there must be evidence of existence
and amount of damages); Dorriety, 345 S.W.3d at 113 (discussing evidence
required to support award of pecuniary loss damages in wrongful-death case).
Here, the unobjected-to charge defined pecuniary loss as “the loss of care,
maintenance, support, services, advice, counsel, and reasonable contributions of a
pecuniary value, excluding loss of inheritance.” See Osterberg, 12 S.W.3d at 55
(holding that we review sufficiency of evidence in light of legal standards
20
contained in unobjected-to charge). Jurors may apply their knowledge and
experience to estimate the value of services, such as household services, rendered
by a decedent, without proof of their value. Excel Corp. v. McDonald, 223 S.W.3d
506, 510 (Tex. App.—Amarillo 2006, pet. denied) (citing Mo.-Kan.-Tex. R.R. Co.
v. Pierce, 519 S.W.2d 157, 160 (Tex. Civ. App.—Austin 1975, writ ref’d n.r.e.)).
Likewise, “[a] parent’s services to a child, such as nurture, care, education, and
guidance, have a monetary value in addition to any financial contributions.”
Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 480 (Tex. App.—Houston [14th
Dist.] 1998, pet. denied).
Rukmin testified that Ramdath “did everything for [Susan]” up until the time
of his death, including paying her way through dental school and buying her books.
Ramdath also paid for Rekha to attend LSU and provided support, including
financial support, advice, and counsel to all three of his daughters. Rukmin
testified that she had retired, that Ramdath “provided everything” for her, and that
it was difficult for her to continue to meet her financial burdens, such as providing
money to her children and meeting living expenses, after Ramdath’s death.
Rukmin had to learn “everything the hard way,” including learning how to run the
tire shop after Ramdath’s death. We conclude that this is legally sufficient
evidence to support the jury’s award of pecuniary damages. See City of Keller,
168 S.W.3d at 810.
21
Badall argues that the Durgapersads failed to present any documentary
evidence supporting the award of damages. However, such evidence is not always
required. See Dorriety, 345 S.W.3d at 113; see also Cheatham, 977 S.W.2d at 480
(“[M]easuring a beneficiary’s pecuniary loss is inherently speculative and
imprecise and is therefore best left to the jury’s common sense and sound
discretion.”). Furthermore, the jury was entitled to apply its own knowledge and
experience to estimate the value of the services Ramdath provided to his daughters,
such as aiding them in their educational endeavors and providing them with
vehicles and other financial support appropriate to young adults. See McDonald,
223 S.W.3d at 510; Cheatham, 977 S.W.2d at 480. The jury awarded each
daughter $18,000 as “the loss of care, maintenance, support, services, advice,
counsel, and reasonable contributions of a pecuniary value” that Ramdath would
likely have made to each over the time between his death in January 2004 and trial
in June 2013. That means that the jury determined that Ramdath would have
provided approximately $2,000 worth of care, maintenance, and support to each
daughter per year for the nine years following his death. Likewise, the jury
determined that Ramdath’s “care, maintenance, support, services, advice, counsel,
and reasonable contributions of a pecuniary value” to his wife, Rukmin, in both
their business and their personal life would have totaled $7,333 per year between
the time of his death and the time of trial and $66,000 for Rukmin’s future. See
22
also McDonald, 223 S.W.3d at 510 (holding that jurors may apply their knowledge
and experience to estimate value of services, such as household services, rendered
by decedent without proof of their value); Cheatham, 977 S.W.2d at 480 (holding
that services such as nurture, care, and guidance have monetary value in addition to
any financial contribution).
Badall did not present any evidence rebutting Rukmin’s testimony. We
conclude, after considering and weighing all of the evidence, that the jury’s award
of $132,000 to Rukmin for past and future pecuniary loss and its award of $18,000
for past pecuniary loss to each daughter is not so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. See Jackson, 116 S.W.3d
at 761.
(b) Loss of Companionship and Society
The jury also awarded Rukmin $105,000 and each daughter $30,000 for past
and future loss of companionship and society. The jury charge defined “loss of
companionship and society” as “the loss of the positive benefits flowing from the
love, comfort, companionship, and society that [the Durgapersads], in reasonable
probability, would have received from Ramdath Durgapersad had he lived.” See
Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied) (defining loss of companionship and society as referring to “the
positive benefits flowing from the love, comfort, companionship, and society that
23
the beneficiary would have experience had the decedent lived”). “As compared
with mental anguish, which emphasizes the negative impact of the wrongful death
on the beneficiary, loss of companionship and society focuses on the removal of
positive benefits that the beneficiary once enjoyed but which were taken away by
the wrongful death.” Id. at 455–56 (emphasis in original) (citing Moore, 722
S.W.2d at 688). Although mental anguish is distinguishable from loss of
companionship and society, in awarding damages for both elements, the jury may
consider some of the same factors. Id. at 456 (identifying factors to be considered
as including relationship between decedent and beneficiary, living arrangements of
parties, any extended absence of deceased from beneficiary, harmony of family
relations, and parties’ common interests and activities).
Rukmin testified that their family was close and loving. They took a family
trip to Trinidad in July before Ramdath was murdered, and the family was together
for Christmas just weeks before Ramdath’s death. She testified that she and
Ramdath and various children would take trips to the Gulf of Mexico to fish and
that they all spoke on the phone regularly. She testified that their only son, Ragis,
had a heart attack and died at the age of thirty-three on the first day of the murder
trial, leaving behind two children. She also testified that Susan and Reshma both
had children whom Ramdath never got to meet because of his untimely death.
Rukmin also testified that Ramdath did not get to see Susan graduate from dental
24
school or Rekha graduate from LSU. Rukmin testified that all of the children
missed their father and that they missed the advice and counsel that he had always
given them.
Rukmin testified that for most of the six years preceding Ramdath’s murder
she had worked in Louisiana, where Rekha was in school, while Ramdath lived in
Texas and ran the tire shop. However, she also testified that she came home every
weekend to cook and clean for him and that she had just retired a few months
before Ramdath’s murder to spend all of her time with him.
We conclude that the evidence is legally sufficient to support the jury’s
award of damages for “loss of companionship and society,” and we conclude that
the award of $105,000 to Rukmin and $30,000 to each daughter does not weigh
against the great weight and preponderance of the evidence. See City of Keller,
168 S.W.3d at 810; Jackson, 116 S.W.3d at 761; see also Thomas, 290 S.W.3d at
456 (holding that award to wife of cab driver killed in collision of $550,000 for
past and future loss of companionship and society and $150,000 for mental anguish
was not “so against the great weight a preponderance of the evidence that it is
manifestly unjust, shocks the conscience, or clearly demonstrates the existence of
bias”).
25
(c) Mental Anguish
The jury awarded Rukmin $41,250 and each daughter $11,250 for past and
future mental anguish, which was defined as “the emotional pain, torment, and
suffering experienced by [the Durgapersads] because of the death of Ramdath
Durgapersad.” To support an award of mental anguish, a party must present either
direct evidence of the nature, duration, and severity of her mental anguish, thereby
establishing a substantial interruption in her daily routine, or circumstantial
evidence of a high degree of mental pain and distress that is greater in degree than
mere worry, anxiety, vexation, embarrassment, or anger. See Serv. Corp. Int’l v.
Guerra, 348 S.W.3d 221, 231 (Tex. 2011); Parkway Co. v. Woodruff, 901 S.W.2d
434, 444 (Tex. 1995). Thus, proof of mental anguish can include painful emotions
such as grief, severe disappointment, indignation, wounded pride, shame, despair,
public humiliation, or a combination of any or all of those feelings. Thomas, 290
S.W.3d at 455.
Here, Rukmin testified that she had suffered a heart attack because of the
stress of her husband’s murder and that she was taking medication for stress. She
further testified that she was in and out of the hospital and doctor’s offices. She
testified that she could not sleep well and that she did not like to have any pictures
or reminders of what her family was like before Ramdath died. Rukmin testified
that her son, Ragis, died of a heart attack at age thirty-three on the first day of
26
Badall’s murder trial. She further testified that her daughter Reshma went into
labor the day that Ramdath died and, as a result, was not able to come to
Ramdath’s funeral. She testified that Susan still had not given up Ramdath’s
name, even though she had married, because she does not want to give up her
maiden name. Susan also has three children that Ramdath was never able to meet
due to his untimely death. Rukmin also testified that Rekha took Ramdath’s death
very hard and that it “almost took her life.” Rekha took a break from her studies at
LSU while she mourned the loss of her father. Rukmin testified that they all
suffered because of Ramdath’s murder and “still do.”
We conclude that this is evidence of substantial interruption in the daily
routines of the Durgapersads as a result of Ramdath’s murder and that they
presented evidence of mental pain and distress that is greater in degree than mere
worry, anxiety, vexation, embarrassment, or anger. See Guerra, 348 S.W.3d at
231; Woodruff, 901 S.W.2d at 444. Thus, the jury’s award of mental anguish
damages totaling $41,250 to Rukmin and $11,250 to each daughter was supported
by legally and factually sufficient evidence. See Sanchez v. Schindler, 651 S.W.2d
249, 250–53 (Tex. 1983) (upholding mental anguish award of $102,500 to mother
of child killed in collision with pick-up truck, stating, “The destruction of the
parent-child relationship results in mental anguish, and it would be unrealistic to
separate the injury to the familial relationship from emotional injury”); Thomas,
27
290 S.W.3d at 455–56 (upholding mental anguish award of $150,000 as well as
awards totaling $550,000 for past and future loss of companionship and society to
wife of cab driver killed in collision where wife “testified at some length” about
relationship she shared with husband and impact of his death on her, including
plans they had made for future).
We overrule Badall’s second issue.
Evidentiary Complaints
In his third and fourth issues, Badall challenges the trial court’s ruling
excluding certain evidence.
A. Standard of Review
We review a trial court’s admission or exclusion of evidence for an abuse of
discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234
(Tex. 2007) (per curiam). A trial court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to any guiding principles. Bowden v. Philips
Petroleum Co., 247 S.W.3d 690, 696 (Tex. 2008). We will not reverse a trial court
for an erroneous evidentiary ruling unless the error probably caused the rendition
of an improper judgment. See TEX. R. APP. P. 44.1; Nissan Motor Co. v.
Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). To preserve error concerning the
exclusion of evidence, a party must, among other steps, actually offer the evidence,
state the purpose for which the evidence is offered, give the trial court reasons why
28
the evidence is admissible, and obtain an adverse ruling. See Comiskey v. FH
Partners, LLC, 373 S.W.3d 620, 629–30 (Tex. App.—Houston [14th Dist.] 2012,
pet. denied); Rhey v. Redic, 408 S.W.3d 440, 458 (Tex. App.—El Paso 2013, no
pet.); see also TEX. R. APP. P. 33.1 (requiring, to preserve error, timely request that
“stated the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context”).
B. Evidence of Settlement Agreement
In his third issue, Badall argues that the trial court erroneously excluded
evidence of the Durgapersads’ settlement agreement with St. Elizabeth Hospital.
He identifies the following exchange as presenting reversible error:
[Badall]: Ms. Durgapersad, do you know of any other reason why
your husband may have died besides the injury from the
gunshot wound?
....
[Rukmin]: No. He died from the gunshot wound. No other reason.
[Badall]: Do you have any knowledge whether or not any
allegation was made against—
[counsel]: Objection, Your Honor. He’s trying to bring in anything
that there is absolutely no evidence of in this trial. I
would object as to irrelevant as well as potentially
prejudicial.
[Court]: I will let him ask the question. . . .
29
[Badall]: Do you have any knowledge whether or not any
allegation was made against certain medical personnel of
St. Elizabeth Hospital?
[Rukmin]: No.
[Badall]: That your husband’s death was caused by improper
medical treatment by medical personnel of this hospital?
[counsel]: Objection, Your Honor. Same objection. There has been
no evidence whatsoever of this. [I]t’s irrelevant first of
all; and second there is no evidence of it.
....
[court]: Objection is overruled. You can answer.
[Badall]: Do you know what medical personnel was allegedly
responsible for your husband’s death?
....
[Rukmin]: No.
[Badall]: Do you know what improper medical treatment that was
performed that caused your husband’s death?
[counsel]: Your Honor, same objection. He’s assuming facts not in
evidence.
[Court]: Sustained.
[Badall]: Did anyone with St. Elizabeth Hospital provide you with
a settlement in regard to the death of your husband?
[counsel]: Objection, Your Honor. It’s irrelevant to this case.
[Court]: Sustained.
Badall argues, first, that the Durgapersads failed to provide any information
about their settlement with the hospital during discovery. However, he did not
30
present this argument to the trial court. Thus, this complaint is waived. See TEX.
R. APP. P. 33.1; U. Lawrence Boze’ & Assocs., P.C. v. Harris Cnty. Appraisal
Dist., 368 S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding
that to preserve error on discovery dispute, appealing party must obtain ruling by
trial court on discovery issue).
Badall also argues that “the record is clear [that] [Rukmin] was well aware
of other reasons that led to her husband’s death and did not want the jury to
become aware of the fact that she collected a substantial amount of money from St.
Elizabeth Hospital, as part of a settlement agreement for causing her husband’s
death.” However, the record demonstrates only that Rukmin did not know of any
other negligence besides Badall’s that caused Ramdath’s death, nor did she know
of any claims that she or anyone else had made on behalf of Ramdath’s Estate.
Badall did not present to the trial court a settlement agreement or any evidence of
the existence of a settlement agreement between any of the Durgapersads and the
hospital. Thus, we conclude that Badall did not preserve his complaint that the
trial court improperly excluded evidence of a settlement agreement. See TEX. R.
APP. P. 33.1; Comiskey, 373 S.W.3d at 629–30; Rhey, 408 S.W.3d at 458.
We overrule Badall’s third issue.
31
C. Impeachment Evidence
In his fourth issue, Badall argues that the trial court erred in ruling that he
could not offer certain impeachment evidence against Rukmin. Rukmin testified
that she did not see Ramdath with a weapon on his person on the day he was
murdered, and Badall attempted to impeach her, apparently by referring to the
prior criminal proceedings and arguing that she “testified under oath in a jury trial
that [she saw] her husband with a handgun coming from the bedroom on that day.
It is in the transcript, ma’am.” The trial court interjected, “Hold on a second. Mr.
Badall, there are proper procedures. If you’re attempting to impeach this witness,
there are proper procedures. I would suggest you follow the correct procedure.”
Badall “request[ed] to have the video statement to be shown in court today.”
However, Badall never produced the video statement.
Badall argues that he should have been permitted to introduce Rukmin’s
video-recorded statement for impeachment purposes. However, he has not clearly
identified which video-recorded statement he is referring to, and he produced no
such statement to be considered by the trial court. Thus, we conclude that Badall
did not preserve his complaint that the trial court improperly excluded evidence of
the video-recorded statement that allegedly would have impeached Rukmin’s
testimony. See TEX. R. APP. P. 33.1; Comiskey, 373 S.W.3d at 629–30; Rhey, 408
S.W.3d at 458.
32
We overrule Badall’s fourth issue.
Dismissal for Want of Prosecution
In his fifth issue, Badall argues that the trial court erred in reinstating the
case and failing to dismiss it for want of prosecution. He argues that, “although
[he] made requests for dismissal for want of prosecution, the court allowed the suit
to remain pending from January 6, 2006, to June 11, 2013, not only causing [him]
to lose contact with defense witness(es), but also causing the interest calculation
rate to be unreasonable and excessive.”
We review a trial court’s ruling on a motion to reinstate under Rule of Civil
Procedure 165a for an abuse of discretion. Smith v. Babcock & Wilcox Constr.
Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). Rule 165a provides that a
“court shall reinstate the case upon finding after a hearing that the failure of the
party or his attorney was not intentional or the result of conscious indifference but
was due to an accident or mistake or that the failure has been otherwise reasonably
explained.” TEX. R. CIV. P. 165a(3).
The trial court dismissed the case for want of prosecution when the
Durgapersads failed to appear at the March 14, 2011 trial setting. However, the
Durgapersads moved for reinstatement, asserting that their failure to appear was
not intentional or the result of conscious indifference. They asserted that it was the
result of a miscommunication with the trial court’s clerk, who, they argued, told
33
them that the trial had been reset. They supported their motion to reinstate with a
printout from the trial court’s webpage showing a trial setting in April 2011.
Furthermore, we observe that many of the delays in this case were beyond
the control of the Durgapersads or the trial court. The case was filed in 2006, but
Badall’s criminal conviction did not become final until 2007 when the Court of
Criminal Appeals refused his petition for discretionary review. The Durgapersads
then obtained a final summary judgment that was appealed to the Ninth Court of
Appeals. The case was remanded for a new trial in 2009.
We conclude that the trial court acted within its discretion by finding that the
Durgapersads’ explanation for why they failed to appear was not due to conscious
indifference. We further conclude that the trial court did not abuse its discretion in
denying Badall’s subsequent motions to dismiss pursuant to Rule 165a.
We overrule Badall’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
34