Carol Ann Gibbons and Virginia Floyd v. Luby's Inc., Luby's Restaurants Limited Partnership, and Luby's Management, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00202-CV
CAROL ANN GIBBONS AND APPELLANTS
VIRGINIA FLOYD
V.
LUBY’S INC., LUBY’S APPELLEES
RESTAURANTS LIMITED
PARTNERSHIP, AND LUBY’S
MANAGEMENT, INC.
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 348-241100-09
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MEMORANDUM OPINION 1
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1. Introduction
Anaphylaxis reactions 2 resulting from food allergies cause an estimated
30,000 emergency room visits and 150 deaths in the United States every year. 3
1
See Tex. R. App. P. 47.4.
This case arose out of an anaphylaxis reaction suffered by Appellant Carol Ann
Gibbons after dining with her cousin Appellant Virginia Floyd at a Luby’s
cafeteria-style restaurant (the restaurant) owned and operated by Appellee
Luby’s Restaurants, L.P. (Restaurants). Restaurants is a subsidiary of Appellee
Luby’s Management, Inc. (Management) and Appellee Luby’s Inc., and
Management is the general partner of Restaurants.
Gibbons and Floyd sued Restaurants, Management, and Luby’s Inc.
(collectively the Luby’s entities). After a jury trial, the trial court signed a
judgment awarding damages of $12,623.30 to Gibbons in accordance with the
jury’s verdict.
In 106 issues, Gibbons and Floyd complain of the trial court’s final
judgment and of its earlier orders setting aside a default judgment in their favor
and granting a new trial, granting a directed verdict on some of Gibbons’s claims,
denying a directed verdict for Gibbons on the question of proportionate
responsibility, denying their motion for judgment notwithstanding the verdict and
other post-trial motions, and granting summary judgment for the Luby’s entities
2
See National Institutes of Health, U.S. National Library of Medicine,
Anaphylaxis, Medline Plus Medical Encyclopedia (explaining that anaphylaxis is
a severe, life-threatening, whole-body type of allergic reaction to a substance),
available at http://www.nlm.nih.gov/medlineplus/ency/article/000844.htm (last
updated May 11, 2014).
3
FDA, Food Allergies: What You Need to Know (June 2010), available at
http://www.fda.gov/downloads/Food/ResourcesForYou/Consumers/UCM220117.
pdf.
2
on Floyd’s bystander claim. Because we hold that summary judgment was
proper, that Gibbons cannot appeal from the granting of the new trial, and that
sufficient evidence supports the judgment, we affirm.
2. Background
Gibbons and Floyd dined at the restaurant on October 26, 2007. Gibbons,
who was visiting from Pennsylvania, is allergic to whitefish. 4 Gibbons ordered a
salmon croquette, which she believed did not contain whitefish. Shortly after
starting to eat, Gibbons’s throat began feeling scratchy, and her face began to
turn red. At Floyd’s request, Restaurants employee Nicole Huffman checked
with the kitchen staff to find out the croquette’s ingredients. Huffman reported to
Floyd that the ingredients included whitefish.
Certain that Gibbons was experiencing an allergic reaction, Gibbons and
Floyd left the restaurant and headed toward the closest hospital. Fearing the
hospital was too far away, Floyd stopped at a fire station, and paramedics there
were able to treat Gibbons until an ambulance could arrive. By that time,
Gibbons was unconscious. Gibbons was taken by ambulance to the hospital
where she was admitted and diagnosed with anaphylactic shock, hypoxemia,
4
See Jennifer Lee Johnson, Of Darwin’s Dreams and Nightmares: The
Concealed Violence of a Global Whitefish Commodity 2 n.ii (Apr. 2008) (thesis,
University of Michigan) (stating that the term “whitefish” “is used by the seafood
fish industry to refer to easily substitutable fish species, such as cod, catfish,
tilapia[,] and Nile perch” and that the term is “an economic category” rather than
a biological one), available at http://deepblue.lib.umich.edu/handle/2027.42/
58200?show=full.
3
and acute respiratory failure. She was sedated, intubated, and put on life
support. After being treated, Gibbons recovered and was discharged two days
after her admission.
Three days after the incident—that is, the day after Gibbons’s discharge—
she and Floyd went to the restaurant and discussed the incident with a manager
there. The day after that, Gibbons discussed the incident over the telephone with
Patricia Boudreaux, a risk manager working for the Luby’s entities who called
Gibbons to discuss what happened.
Gibbons and Floyd subsequently sued the Luby’s entities. Gibbons
asserted claims for negligence, gross negligence, violations of the Deceptive
Trade Practices Act (DTPA), 5 breach of contract, and products liability. Floyd
asserted a bystander claim for mental anguish.
Restaurants filed an answer that contained a special exception stating that
it had been sued in the wrong name because it “was sued as LUBY’S, INC.,
LUBY’S RESTAURANTS LIMITED PARTNERSHIP, AND LUBY’S
MANAGEMENT, INC.,” when its “correct name is simply LUBY’S
RESTAURANTS LIMITED PARTNERSHIP.” Luby’s Inc. and Management did
not file answers.
5
Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (West 2011 & Supp. 2014)
(amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1023, § 1, 2015 Tex.
Sess. Law Serv. 3576 (West), and by Act of May 26, 2015, 84th Leg., R.S., ch.
1080, § 1, 2015 Tex. Sess. Law Serv. 3721 (West)).
4
Gibbons and Floyd filed a motion for default judgment against Luby’s Inc.
and Management. After a hearing, a visiting judge signed a default judgment
awarding Gibbons $2,870,998.61 in damages and $3,641,997.22 additional
damages under the DTPA for knowing and intentional conduct, awarding Floyd
$600,000 plus $1,200,000 additional damages under the DTPA, and awarding
attorney’s fees of $1,465,198.33 for Gibbons and $720,000 for Floyd.
Luby’s Inc. and Management filed a motion to set aside the default
judgment, and, after a hearing, the trial court granted the motion. The Luby’s
entities then filed a motion for summary judgment on Floyd’s bystander claim and
for no-evidence summary judgment on Gibbons’s claims. The trial court granted
the motion as to Floyd’s bystander claim but denied the motion as to Gibbons’s
claims.
The case proceeded to a jury trial, and, after the close of evidence, the trial
court granted a directed verdict on Gibbons’s gross negligence, breach of
contract, DTPA, and strict liability claims. The court submitted Gibbons’s
negligence claim against Management and Restaurants to the jury. The charge
asked the jury to find whether “Luby’s” or Gibbons were negligent and to
apportion what percentage of responsibility each bore, with “Luby’s” defined to
include Restaurants, Management, and the employees at the restaurant.
The jury returned a 10–2 verdict finding Gibbons and Luby’s each 50%
negligent and assessing Gibbons’s damages at $10,000 for past pain and mental
anguish, $1,050 for loss of earning capacity in the past, $10,000 for past physical
5
impairment, $3,996.61 in medical expenses, $100 for replacing the clothes
Gibbons was wearing at the time of the occurrence, and $100 for the cost of
changing her ticket for her return flight to Pennsylvania.
Management and Restaurants filed a motion for entry of final judgment.
They subsequently filed a motion to quash notices of deposition of jurors Bobby
Mayo, Brenda Webster, Tris Renee Fitzgibbon, and Elaine Whitman, which had
been sent by Gibbons and Floyd’s attorney. They also filed a motion to strike, for
sanctions, and for protection, asserting that despite the filing of the motion to
quash, Gibbons and Floyd’s attorney had deposed “various jurors.” Mayo and
Whitman also filed objections to the depositions.
Gibbons responded by filing a motion to compel the testimony of Mayo,
Fitzgibbon, and Whitman. Gibbons attached the affidavits of jurors John Bell and
James Parks and asserted that Mayo, Fitzgibbon, and Whitman had all made
comments to other jurors that they did not believe in awarding damages for pain
and suffering or mental anguish. After a hearing, the trial court signed an order
of protection ordering that Gibbons, Floyd, and their attorney were prohibited
from issuing any further deposition notices or subpoenas to Mayo and Whitman
without prior court order.
Gibbons filed a motion for mistrial and, in the alternative, for judgment
notwithstanding the verdict (JNOV). In the motion, Gibbons asserted among
other grounds that the Luby’s entities had in discovery misrepresented and
concealed the identity of the food server who had served Gibbons.
6
In light of the jury’s findings on proportionate responsibility, 6 the trial court
signed a final judgment ordering that Gibbons recover $12,262.30 from
Restaurants and Management. Gibbons and Floyd then filed a motion for new
trial, which the trial court denied. Gibbons and Floyd now appeal.
3. Discussion
The appellants’ brief in this case raises 106 issues, and “many of [the]
issues are repetitive and subsumed by, or overlap, other issues.” 7 The brief
contains 30,000 words over 180 pages. 8 Although the argument section includes
underlined text that appears in many (but not all) instances to serve as headings,
the headings do not clearly correlate with the issues, and not every change of
argument is prefaced with underlined text. We have structured this opinion to
address what we understand to be the complained-of actions by the trial court
and Gibbons and Floyd’s “contentions as they appear in the argument section of
6
See Tex. Civ. Prac. & Rem. Code Ann. § 33.012(a) (West 2015) (“[T]he
court shall reduce the amount of damages to be recovered by the claimant with
respect to a cause of action by a percentage equal to the claimant’s percentage
of responsibility”), 33.013(a) (West 2015) (“[A] liable defendant is liable to a
claimant only for the percentage of the damages found by the trier of fact equal
to that defendant’s percentage of responsibility”).
7
See Cruz v. Van Sickle, 452 S.W.3d 503, 511 (Tex. App.—Dallas 2014,
pet. filed) (citing Tex. R. App. P. 38.1).
8
This court allowed Gibbons and Floyd to file a brief that exceeded the
word count imposed by the rules of appellate procedure.
7
[their] brief, considering them only to the extent they are preserved for appellate
review and adequately briefed.” 9
3.1. Order Granting a New Trial and Setting Aside
the Interlocutory Default Judgment
Gibbons and Floyd’s first thirty-eight issues relate to the trial court’s
granting of Luby’s Inc. and Management’s motion for new trial and setting aside
the default judgment, as well as the trial court’s denial of their motion asking that
the default judgment be reinstated.
Aside from two limited exceptions not applicable here, “an order granting a
new trial rendered while the trial court has plenary power over the case is not
subject to appellate review, either by direct appeal from the order or from a final
judgment rendered after later proceedings.” 10 Accordingly, the trial court’s grant
of a new trial and setting aside of the default judgment is not reviewable in this
appeal. 11 For the same reason, neither may we review the trial court’s denial of
9
See Cruz, 452 S.W.3d at 513.
10
In re N.G.K., No. 05-08-00789-CV, 2009 WL 2973665, at *1 (Tex. App.—
Dallas Sept. 18, 2009, no pet.) (mem. op.) (citing Wilkins v. Methodist Health
Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) and Cummins v. Paisan Constr.
Co., 682 S.W.2d 235, 236 (Tex. 1984) and recognizing that the only two
exceptions to the rule are when the trial court’s order was void or when the trial
court erroneously concluded the jury’s answers to special issues were
irreconcilably conflicting).
11
See Cummins, 682 S.W.2d at 235–36 (holding—in a case in which the
trial court granted a new trial after a default judgment and, after a jury trial,
rendered judgment for the defendant—that the trial court’s order setting aside the
default judgment was not reviewable on appeal). Cf. In re Columbia Med. Ctr. Of
Las Colinas, 290 S.W.3d 204, 209–10 (Tex. 2009) (orig. proceeding) (holding
8
Gibbons and Floyd’s motion to set aside the grant of the new trial, which asked
the trial court to reconsider its grant of the new trial. Accordingly, we overrule
Gibbons and Floyd’s first thirty-eight issues.
3.2. Floyd’s Bystander Claim
The next four issues challenge the trial court’s summary judgment for the
Luby’s entities on Floyd’s bystander claim. In the summary judgment motion, the
Luby’s entities asserted that a bystander claim requires the claimant to be
“closely related” and that Floyd and Gibbons were not closely related. Relying on
a standard first articulated by a California court and applied by the San Antonio
Court of Appeals, they argued that because Gibbons and Floyd are cousins and
Gibbons has lived in Pennsylvania her entire life while Floyd has lived in
Arlington, Texas since 1984, Gibbons and Floyd were, as a matter of law, not
closely related.
To their motion, the Luby’s entities attached excerpts of Gibbons’s
deposition in which she testified that she was sixty-three and has lived in
Pennsylvania her whole life and has never lived anywhere else, that her family
and Floyd’s lived together for a few years starting when she was one and Floyd
was three, that they talk often on the phone, and that she used to visit Floyd once
a year but now tries “to get here at least every other year.” They also attached
that mandamus review of the grant of a new trial after a jury trial was appropriate
because, under the circumstances, Columbia did not have an adequate appellate
remedy).
9
excerpts from Floyd’s deposition in which she stated that she moved away from
the city in which Gibbons lived in 1972 but that she tries to visit Gibbons in
Pennsylvania at least once a year. She stated that she and Floyd are “very
close.”
As stated by the Luby’s entities, Texas law permits a bystander to recover
for mental anguish that arises when the person witnesses a traumatic injury to a
close relative that was caused by the defendant’s negligent action. 12 The
bystander may recover only if the trial court determines that the injury was
reasonably foreseeable. 13 The determination of foreseeability is based on the
following three factors set out by the California Supreme Court in Dillon v. Legg
and adopted by the Supreme Court of Texas:
(1) The bystander was located near the scene of the accident as
contrasted with one who was a distance away from it.
(2) The shock resulted from a direct emotional impact upon the
bystander from the sensory and contemporaneous observance of
the accident, as contrasted with learning of the accident from others
after its occurrence.
(3) The bystander and the victim were closely related, as
contrasted with an absence of any relationship or the presence of
only a distant relationship. 14 [Emphasis added.]
12
Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 80 (Tex. 1997).
13
See Freeman v. City of Pasadena, 744 S.W.2d 923, 923–24 (Tex. 1988).
14
See id. (adopting elements of a bystander claim as set out in Dillon v.
Legg, 441 P.2d 912, 920 (Cal. 1968)).
10
Thus, the question of whether a claimant is “closely related” to the injured
party was included as a factor in determining foreseeability. “These factors are
to be interpreted flexibly.” 15 The factors should be applied on a case-by-case
basis, but “when the material facts are undisputed, . . . whether the plaintiff is
entitled to recover as a bystander is a question of law.” 16 It is the last factor in
dispute here.
In the same year that the Supreme Court of Texas adopted the Dillon
standard, the California Supreme Court refined its Dillon decision in Elden v.
Sheldon. 17 The Elden court concluded that “[t]he need to draw a bright line in
this area of the law is essential” because “[t]he temptation to give legal effect to
close emotional ties between unrelated or distantly related persons is often
strong” and “[t]he problems of multiplication of actions and damages that result
from such an extension of liability would place an intolerable burden on
society.” 18 A bright line satisfies the need both “to limit the number of persons to
whom a negligent defendant owes a duty of care” and to keep courts from
bearing the difficult burden of evaluating the sufficiency of the emotional
15
Edinburg Hosp. Auth., 941 S.W.2d at 80 (quoting Freeman, 744 S.W.2d
at 924).
16
United Servs. Auto. Ass’n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998).
17
Elden v. Sheldon, 758 P.2d 582, 586 (Cal. 1988).
18
Id. at 588 (internal quotation marks and citation omitted).
11
attachment between two relatives. 19 California has drawn such a bright line;
“[a]bsent special circumstances,” the term “closely related” includes only
“parents, siblings, children, and grandparents of the victim” or “relatives residing
in the same household.” 20
Our sister court has adopted this standard. In Garcia, the San Antonio
Court of Appeals discussed California law and observed,
To require mere emotional “closeness” would require constant ad
hoc line-drawing; courts would have to probe case-by-case the
genuineness of the relationship. Presumably when several people
were injured, courts would weigh the varying relationships and
decide which ones were close enough to justify bystander recovery
and which ones were not. We question whether it is in society’s
interest for courts and litigants to delve into family relationships to
this extent. 21
The San Antonio court held that the California standard “sets a reasonably bright
line that limits suits to a finite number of relatives while ensuring some degree of
closeness by requiring that they reside in the same household” or are members
of the immediate family. 22
19
Id. at 586–88.
20
Thing v. La Chusa, 771 P.2d 814, 829 n.10 (Cal. 1989).
21
Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78, 81 (Tex. App.—San
Antonio 1993, no writ).
22
Id.; cf. Tex. Civ. Prac. & Rem. Code Ann. § 71.004 (West 2008) (limiting
wrongful death actions to the surviving spouse, children, and parents of the
deceased). But see Garcia, 859 S.W.2d at 82–83 (Butts, J., dissenting) (stating
that the purpose of the third prong of Dillon is to determine whether the plaintiff’s
injury is foreseeable, that “it is the emotional attachments of the family
relationship and not legal status that are relevant to foreseeability,” and that
12
Floyd argues that the test set out by the San Antonio court in Garcia was
dicta. Because she argues we should not apply the standard used in Garcia, we
assume she means that part of Garcia is obiter dictum. 23 We disagree. The
Garcia court expressly adopted the California standard and relied on it in
reaching its holding. 24 The Corpus Christi Court of Appeals has also applied this
standard. 25
Floyd urges us to reject the standard adopted by the San Antonio court,
but she does not suggest an alternative standard for determining when two
people are closely related for purposes of bringing a bystander claim. She
argues only that the Supreme Court of Texas requires a person bringing a
bystander claim to be “closely related, as contrasted with an absence of any
relationship or the presence of only a distant relationship,” that she and Gibbons
lived together in the same home as very young children and have “maintained a
because “there must be a strong and close emotional attachment in a familial
relationship between the plaintiff and the injured person to establish the basis of
recovery for mental anguish,” an uncle’s residing in the same household as his
injured nephew, without more, is not sufficient to support a bystander claim).
23
See Lund v. Giauque, 416 S.W.3d 122, 129 (Tex. App.—Fort Worth
2013, no pet.) (distinguishing between obiter dictum and judicial dictum and
defining obiter dictum as “a statement not necessary to the determination of the
case and that is neither binding nor precedential”).
24
Garcia, 859 S.W.2d at 81.
25
See Rodriguez v. Motor Exp., Inc., 909 S.W.2d 521, 525 (Tex. App.—
Corpus Christi 1995) (holding that Rodriguez could not recover on a bystander
claim because the decedent was his cousin-in-law and they lived in separate
residences), rev’d on other grounds, 925 S.W.2d 638 (Tex. 1996).
13
close familial relationship,” and that “[t]his satisfies the requirement . . . that a
Plaintiff bringing a bystander claim must be ‘closely related.’”
Arguing that a close emotional relationship shows that she and Gibbons
are closely related, Floyd references the excerpt of her deposition testimony she
attached to her response to the motion. She does not tell us which testimony on
the cited record pages shows a close relationship, but on those pages, Floyd
testified that she was godmother to Gibbons’s son, that Gibbons was in her
wedding, and that they have “maintained a very close relationship all our lives.”
Floyd stated that they talk on the phone “a few times a month, once a week,
couple times a week. Totally depends on the schedules.” They have not lived in
the same city since the early 1970s. She visits Gibbons in Pennsylvania once or
twice a year. Gibbons used to visit her once a year, but for the previous five or
six years, it had not been that often.
We agree that generally, only parents, siblings, children, and grandparents
of the victim, or relatives residing in the same household, will be considered
closely related but that other relatives can, in special circumstances, satisfy that
factor of the foreseeability analysis. We do not today outline a general standard
by which a familial relationship should be measured to evaluate whether special
circumstances allow bystander recovery, but, without discounting the distress
that Floyd felt, we hold the trial court did not err by determining based on the
summary judgment motion and response that no special circumstances were
present as a matter of law. We overrule issues thirty-nine through forty-two.
14
3.3. Grant of Directed Verdict for Luby’s Inc.
Issues forty-three through forty-seven challenge the trial court’s grant of
the Luby’s entities’ motion for directed verdict. We begin our determination of
this group of issues with issue forty-three, under which Gibbons challenges the
directed verdict for Luby’s Inc. that disposed of all of Gibbons’s claims against it.
Other than citing the standard of review for a directed verdict, Gibbons cites no
authority, or inapplicable authority, for and makes no legal argument explaining
why Luby’s Inc. is liable to her for her product liability, breach of contract,
negligence, gross negligence, and DTPA causes of action against it.
Regarding her products liability claim, Gibbons cites no authority and does
not explain what elements must be met to establish products liability or how her
evidence was sufficient as to those elements to survive a directed verdict.
Accordingly, her argument regarding the directed verdict for Luby’s Inc. on her
product liability claim is waived as inadequately briefed. 26
Regarding her breach of contract claim, Gibbons argues that “[a]n
agreement to purchase food at a restaurant is a valid contract and a food
server’s representations concerning the ingredients contained in food being sold
at a restaurant constitute warranties concerning same.” She cites case law for
the proposition that a contractual relationship may create duties under both
26
See Tex. R. App. P. 38.1(i); see also Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing the “long-standing
rule” that an appellate point may be waived due to inadequate briefing).
15
contract and tort law. 27 She does not, however, discuss the elements of a
breach of contract claim or explain how her evidence at trial related to those
elements and was some evidence that she and Luby’s Inc. had a contract. None
of the cases she cites involve a breach of contract claim under facts analogous to
this case. 28 Accordingly, she has not satisfied the briefing requirements for her
issue challenging the directed verdict on her contract claim against Luby’s Inc. 29
Gibbons also does not cite any authority to support her argument that her
evidence was some evidence that Luby’s Inc. was negligent or grossly negligent.
She references evidence that she asserts shows Luby’s Inc.’s liability—such as
an excerpt from a shareholder report of Luby’s Inc. stating that “[q]uality control
teams” work with restaurant staff “to confirm adherence to our recipes”—but she
does not cite any authority that explains under what circumstances a parent
company such as Luby’s Inc. is liable for the negligence of its subsidiaries. The
27
See Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986);
Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 510 (Tex. 1947)
(stating that a contract may give rise to a duty, and negligent breach of that duty
may constitute actionable negligence); Elliott v. Kraft Foods N. Am., Inc.,
118 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist] 2003, no pet.) (reviewing a
judgment against Kraft for a DTPA claim based on breach of implied warranty
that goods are fit for their ordinary purpose and observing that under the Uniform
Commercial Code, the warranty is generally implied in every contract for the sale
of goods and that “[t]he serving for value of food to be consumed elsewhere is a
sale of goods”).
28
See Reed, 711 S.W.2d at 618; Scharrenbeck, 204 S.W.2d at 510; Elliott,
118 S.W.3d at 56.
29
See Tex. R. App. P. 38.1(i).
16
one case she cites relating to an entity’s right to control another addresses
whether a person was an employee or an independent contractor of a
company. 30 It had nothing to do with a parent corporation’s control of
subsidiaries. Her brief is inadequate as to these claims against Luby’s Inc. 31
Her brief is likewise inadequate regarding her challenge to the directed
verdict on her DTPA claim against Luby’s Inc.; she cites to no authority under
which parent corporation Luby’s Inc. is responsible under the DTPA for the
representations of its subsidiary’s employees about the ingredients of the
restaurant’s products and does not explain how, under such authority, the
directed verdict was improper. 32 Instead, in an unrelated part of her brief she
asserts that a general partner is liable for a limited partner’s debts and
obligations. The evidence she cites under this issue relates to whether Luby’s
Inc. requires subsidiary restaurants to follow its recipes, but it does not relate to
the representations made to Gibbons about the ingredients of the salmon
croquettes or the legal basis under which a parent is liable for the acts of its
subsidiaries for those representations. 33 We overrule Gibbons’s forty-third issue.
30
Newspapers, Inc. v. Love, 380 S.W.2d 582, 584 (Tex. 1964).
31
See Tex. R. App. P. 38.1(i).
32
See id.
33
See Chartis Specialty Ins. Co. v. Tesoro Corp., 930 F. Supp. 2d 653, 667
(W.D. Tex. 2013) (noting “the general principle of corporate law that a parent
corporation is not liable for the acts of its subsidiaries”).
17
3.4. Directed Verdict for the Remaining Luby’s Entities on Gibbons’s Gross
Negligence, Breach of Contract, DTPA, and Product Liability Claims
Gibbons’s next group of issues (incorporated with her argument section as
to Luby’s Inc.) addresses the directed verdict for Restaurants and Management
granted by the trial court on all but Gibbons’s negligence claims against them.
She argues that she presented sufficient evidence at trial to support each
element of her gross negligence claims (issue forty-four), her breach of contract
claims (issue forty-five), her DTPA claims (issue forty-six), and her products
liability claims (issue forty-seven) against Restaurants and Management.
Directed verdict on products liability and breach of contract claims.
Gibbons’s arguments addressing the directed verdict for Restaurants and
Management’s on her claims for products liability and breach of contract have the
same deficiencies as her arguments on these claims as against Luby’s Inc.
Accordingly, her briefing is inadequate as to these claims. 34
In her reply brief, Gibbons cites American Tobacco Co. v. Grinnell for the
proposition that “[a]n article is unreasonably dangerous if it is dangerous to an
extent beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to its
characteristics.” 35 Although she does not specify, this argument appears to
relate to her products liability claim.
34
See Tex. R. App. P. 38.1(i).
35
951 S.W.2d 420, 426 (Tex. 1997).
18
This lone authority in a reply brief is not enough to overcome her briefing
defects on this issue; it is unclear from the single citation in her reply brief what
theory of product liability she believes the evidence supports. 36 From the pages
of Grinnell that she cites, we can speculate that she alleges products liability
based on a marketing defect. 37 But she does not explain how the evidence was
sufficient to overcome a directed verdict on a marketing defect products liability
claim against Restaurants or Management. We overrule Gibbons’s forty-fifth and
forty-seventh issues.
Directed Verdict on DTPA Claims.
Gibbons argues that the sale of food is a sale of goods under the DTPA
and that Restaurants and Management violated the DTPA by failing to disclose
that the croquette had whitefish. She asserts that they further violated the DTPA
by making affirmative representations (1) that the croquette had characteristics
that it did not have, (2) that it contained only certain ingredients when it contained
other ingredients, and (3) that it did not have whitefish. Gibbons contends that
she produced evidence that these representations were made and that they were
36
See id. (“A product may be unreasonably dangerous because of a defect
in marketing, design, or manufacturing.”).
37
See Wilson & Wilson Tax Servs., Inc. v. Mohammed, 131 S.W.3d 231,
242 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (declining to speculate as to
the arguments that could have been brought under a counter-point or attempt to
make those arguments for the counter-appellants).
19
false, misleading, or deceptive under section 17.46(b)(5) of the DTPA, 38 and she
argues that she was therefore entitled to recover mental anguish damages under
section 17.50(b).
DTPA section 17.49(e) bars a DTPA claim for bodily injury or mental
anguish except as provided under subsections 17.50(b) and (h). 39 Gibbons cites
to subsection (b) but does not explain how subsection (h) 40 applies to permit her
claims. Thus, we consider only if subsection (b) applies.
Subsection 17.50(b) allows a plaintiff to recover mental anguish damages
if a DTPA violation was committed knowingly. 41 Gibbons does not, however, tell
us what part of the record shows that the server she spoke with at the restaurant
about the croquette had actual awareness of the falsity or deceptiveness of his
representation that the croquette did not contain whitefish and contained only
38
Tex. Bus. & Com. Code Ann. § 17.46(b)(5) (defining “false, misleading,
or deceptive acts or practices” to include “representing that
goods . . . have . . . ingredients . . . [that] they do not have”).
39
See id. § 17.49(e).
40
Id. § 17.50(h) (West 2011) (“Notwithstanding any other provision of this
subchapter, if a claimant is granted the right to bring a cause of action under this
subchapter by another law, the claimant . . . may recover any actual damages
incurred by the claimant.”).
41
Id. § 17.50(b).
20
salmon. 42 To the contrary, she points out evidence that, according to her, shows
that at the restaurant, servers do not know the ingredients of the croquettes.
She further argues that under subsection 17.50(b), she was entitled to
recover her economic damages, including her medical bills, the cost of replacing
clothes that had to be cut off of her to render emergency medical treatment, and
the cost of changing the date of her plane ticket home. Assuming that she could
recover economic damages for a violation of this section, 43 the economic
damages Gibbons listed were submitted to the jury under her negligence claim.
She could not recover the same damages twice, 44 and, accordingly, she has not
shown how she was harmed by the trial court’s grant of directed verdict on her
DTPA claims. 45
42
Id. § 17.45(9) (defining “knowingly” as used in the DTPA to mean “actual
awareness, at the time of the act or practice complained of, of the falsity,
deception, or unfairness of the act or practice giving rise to the consumer’s
claim”).
43
See id. § 17.50(b)(1) (providing that “[i]n a suit filed under this section,
each consumer who prevails may obtain . . . the amount of economic damages
found by the trier of fact”). Contra Akin v. Bally Total Fitness Corp., No. 10-05-
00280-CV, 2007 WL 475406, at *4 (Tex. App.—Waco Feb. 14, 2007, pet.
denied) (mem. op.) (upholding summary judgment on a plaintiff’s DTPA claim
seeking lost wages and mental anguish damages on the ground that the DTPA
does not allow claims for damages for claims of bodily injury).
44
See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex.
2006) (“There can be but one recovery for one injury.”) (citation and internal
quotation marks omitted).
45
See Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 689 (Tex. App.—San
Antonio 2012, no pet.) (observing that in some circumstances, an erroneous
grant of a directed verdict is harmless); Cooper v. Lyon Fin. Servs., Inc.,
21
Gibbons further argues that she alleged a DTPA claim under section
46
17.46(b)(24), that representations about the ingredients of the salmon
croquette were made to her to induce her to buy the croquette, and that the trial
court erred by granting a directed verdict on this claim. That section, however,
involves a failure to disclose information that was known at the time of the
transaction, and the failure to disclose the information must be done with the
intention to induce the consumer into a transaction. Gibbons points us to no
evidence in the record that the employee who told her the croquettes contained
only salmon failed to disclose information the employee knew at that time or that
it was done to induce Gibbons to buy the croquettes. We overrule Gibbons’s
forty-sixth issue.
Directed verdict on gross negligence claim.
Gibbons discusses evidence in the record that she contends shows that
Restaurants and Management were grossly negligent. Gibbons does not,
however, explain (or cite authority that explains) what must be proven to
65 S.W.3d 197, 209 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that
any error in granting a directed verdict on plaintiff’s breach of warranty claims
was harmless because damages attributable to plaintiff’s breach of warranty
claims were the same as those for plaintiff’s DTPA claim, and the jury found no
damages on the DTPA claim).
46
Tex. Bus. & Com. Code Ann. § 17.46(b)(24) (defining the term “false,
misleading, or deceptive acts or practices” to include “failing to disclose
information concerning goods or services [that] was known at the time of the
transaction if such failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have entered had
the information been disclosed”).
22
establish gross negligence, and she does not explain how her evidence relates to
those elements. 47 We overrule Gibbons’s forty-fourth issue.
3.5. Rulings Related to Comparative Negligence
In issues forty-eight and forty-nine, Gibbons challenges the trial court’s
denial of her motion for an instructed verdict on the Luby’s entities’ affirmative
defense of comparative negligence. She argues that no evidence or insufficient
evidence supports a finding that she proximately caused the occurrence in
question. In her fiftieth issue, she argues that the trial court erred by submitting
comparative negligence questions to the jury because no evidence or insufficient
evidence supported its submission. Because these three issues relate to the
sufficiency of the evidence of Gibbons’s responsibility for her allergic reaction, we
consider them together. 48
At the close of all evidence, Gibbons asked for an instructed verdict on the
issue of her comparative negligence. The system of comparative negligence
replaced contributory negligence, and comparative negligence was then replaced
with the comparative responsibility framework in civil practice and remedies code
47
See Tex. R. App. P. 38.1(i).
48
See Rocor Inter’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 77
S.W.3d 253, 262 (Tex. 2002) (stating that a jury’s finding must be sustained if it is
supported by more than a scintilla of evidence, that is, “if the evidence furnishes
some reasonable basis for differing conclusions by reasonable minds about a
vital fact’s existence”); Kitchen v. Frusher, 181 S.W.3d 467, 477 (Tex. App.—Fort
Worth 2005, no pet.) (stating that a directed verdict is improper if more than a
scintilla of evidence exists on the question presented).
23
chapter 33. 49 In 1995, “the Legislature modified Chapter 33 by replacing
comparative responsibility with proportionate responsibility,” and further changes
were made to chapter 33 in 2003. 50
Proportionate responsibility is broader than and encompasses the older
concept of contributory negligence. 51 “A plaintiff’s own risky conduct is now
absorbed into the allocation of damages”; 52 “[t]he same facts that tended to
prove . . . contributory negligence may now be used to diminish a plaintiff’s
recovery by demonstrating that the plaintiff bore some portion of the
responsibility for [her] own injuries.” 53
Because proportionate responsibility involves measuring a party’s
responsibility in causing or contributing to cause the plaintiff’s injuries, it
49
Dugger v. Arredondo, 408 S.W.3d 825, 830 (Tex. 2013); see Tex. Civ.
Prac. & Rem. Code Ann. §§ 33.001–.017 (West 2015).
50
Dugger, 408 S.W.3d at 831; JCW Elects., Inc. v. Garza, 257 S.W.3d 701,
703 (Tex. 2008).
51
See Tex. Civ. Prac. & Rem. Code Ann. § 33.02(a) (West 2015) (applying
chapter 33 to any cause of action based on tort and to any action brought under
the DTPA); Austin v. Kroger Tex., L.P., No. 14-0216, 2015 WL 3641066, at *10
(Tex. June 12, 2015) (stating that proportionate responsibility encompasses the
concept of contributory negligence); see also Nabors Well Servs., Ltd. v.
Romero, 456 S.W.3d 553, 560–62 (Tex. 2015) (holding that chapter 33 requires
a jury to consider relevant evidence of a plaintiff’s pre-occurrence injury-causing
conduct, including evidence of the plaintiff’s negligence or violation of an
applicable legal standard).
52
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 772 (Tex. 2010).
53
Austin, 2015 WL 3641066, at *10.
24
necessarily requires a finding that the party was in some way responsible for
those injuries. 54 As such, the usual method for submitting proportionate
responsibility to the jury has been to include a question in the court’s charge
asking about liability, followed by a second question asking the jury to apportion
the parties’ responsibility. 55 Gibbons complains of the submission of both the
liability question and the apportionment question.
Whether a plaintiff “bore some portion of the responsibility for his own
injuries” is a defensive issue “on which defendants, not plaintiffs, bear the burden
of proof.” 56 Accordingly, the Luby’s entities bore the burden of producing
evidence of Gibbons’s responsibility. If the evidence at trial included more than a
scintilla of evidence that Gibbons contributed to causing her allergic reaction, the
trial court was correct to deny the instructed verdict and to submit the question of
Gibbons’s liability to the jury. 57
With respect to Gibbons’s complaint about the jury’s finding, we note that
the Supreme Court of Texas has recently clarified that proportionate
responsibility is based on each parties’ pre-occurrence conduct that causes or
54
See Moore v. Kitsmiller, 201 S.W.3d 147, 151 (Tex. App.—Tyler 2006,
pet. denied) (writing about comparative responsibility).
55
See Gregory J. Lensing, Proportionate Responsibility and Contribution
Before and After the Tort Reform of 2003, 35 Tex. Tech L. Rev. 1125, 1132
(2004) (citing the Texas Pattern Jury Charge on proportionate responsibility).
56
Austin, 2015 WL 3641066, at *10.
57
See Rocor Inter’l, 77 S.W.3d at 262; Kitchen, 181 S.W.3d at 477.
25
contributes to causing the plaintiff’s injuries, rather than causing or contributing to
the occurrence that resulted in the injuries. 58 The trial court and the parties in
this case did not have the benefit of that recent opinion, and at trial, the jury was
asked whether each parties’ negligence proximately caused the occurrence in
question.
In her brief, Gibbons mentions but does not explain the concept of
contributory negligence, does not discuss proportionate responsibility, does not
cite any authority explaining those legal concepts, and does not explain how the
evidence at trial relates to those concepts. She does not cite or mention chapter
33 of the civil practice and remedies code. Nevertheless, we have reviewed the
record to see if it contains evidence sufficient to avoid an instructed verdict and to
submit the issue to the jury.
The record, as discussed more fully under Gibbon’s next group of issues,
includes varying evidence about whether Gibbons acted prudently in her
treatment of the possibility of cross-contamination of the croquettes from the
whitefish and in making sure that the croquettes were safe for her to eat. The
testimony on that subject largely came down to the credibility of the witnesses,
and the factfinder is the sole judge of the credibility and demeanor of the
58
See Nabors, 456 S.W.3d 560–62 (discussing whether proportionate
responsibility relates to causing the occurrence or to causing the harm from the
occurrence and stating that “the proportionate-responsibility statute specifies the
apportionment should ultimately be based on responsibility for the damages
suffered”).
26
witnesses and of the weight to be given to their testimony. 59 We hold that the
evidence as discussed below was more than a scintilla of evidence that Gibbons
was negligent. Accordingly, we overrule her forty-eighth, forty-ninth, and fiftieth
issues.
Issues fifty-one through fifty-four challenge the sufficiency of the evidence
to support the jury’s answers to the comparative negligence questions finding
Gibbons negligent and apportioning to her fifty percent of responsibility for the
occurrence. Gibbons argues that there was no evidence or insufficient evidence
to support the answers, or, alternatively, that the answers were against the great
weight and preponderance of the evidence.
Floyd’s testimony provided background information about the
circumstances giving rise to Gibbons’s allergic reaction. She explained that as
she and Gibbons went through the cafeteria line, they asked the servers about
the options.
And I said, “What are the square things?”
And they said, “Fish, fried fish.”
And I said, “Oh, [Gibbons] cannot have fish.”
And she’s like, “No, I can’t have fish. I’m allergic to whitefish.”
And there were these round, kind of oblong things beside it,
and we said, “What is that?”
And they said, “It’s salmon croquettes.”
59
In re S.P., 444 S.W.3d 299, 303 (Tex. App.—Fort Worth 2014, no pet.).
27
And we said, “Just salmon? Because she’s allergic to the
whitefish.”
“Yes, it’s salmon.” [Emphasis added.]
Floyd was questioned on and gave testimony about what she and Gibbons
said to the servers and what they said to her. Both sides questioned her
extensively on the matter, and her testimony evolved in some respects through
the course of her testimony. She made the following assertions in her testimony:
• When, a few days after the occurrence, Gibbons talked to Luby’s
investigator Boudreaux, Gibbons was asked if she had asked the server
about the ingredients of the croquettes, and Gibbons replied, “Why should
I have to ask?”;
• In the background of that phone call between Gibbons and the Luby’s
employee, Floyd—who could hear the conversation—said, “We asked if
there was whitefish”;
• Gibbons asked if there was whitefish in the salmon;
• Floyd asked, “Is this just salmon? She cannot have the whitefish.
She’s allergic to it.” Floyd was mistaken in her earlier testimony, and
they did not specifically ask about whether there was whitefish in the
croquettes, but they asked if the croquettes were “just salmon” and
reiterated that Gibbons was allergic to whitefish;
• They did not reiterate that Gibbons was allergic to whitefish; instead, in
response to being told that the breaded squares were fish, they said that
Gibbons was allergic to whitefish, they asked what the croquettes were,
then made comments about Gibbons being able to eat salmon, then asked
if the salmon croquettes were “just salmon.” [Emphasis added.]
Thus, Floyd’s assertions on the matter, though not wildly contradictory of
each other, changed over the course of her testimony from the two having
specifically asked if the croquettes had whitefish, to them having asked only if the
croquettes were “just salmon” with an added statement that Gibbons had a
28
whitefish allergy, to having said that Gibbons had a whitefish allergy and then
shortly thereafter asking if the croquettes were “just salmon.”
The evidence was similarly variable regarding the identity of the server
with whom the two spoke about the croquettes. Luby’s employee Huffman, the
checker on that day, stated in a deposition that she could not say for sure
whether there were any male servers working that day, but to her knowledge
there were none, and at trial she identified two women as the servers. Gibbons
stated at trial that the server was a man. Floyd stated unequivocally that the
server she and Gibbons spoke to about the croquettes was a middle-aged, thin,
white male. In a 2010 pre-trial deposition, however, she was asked who told her
the croquettes were just salmon: “Do you remember who said that, whether it
was the man or the woman?” She replied, “I don’t recall specifically.” She was
asked, “Do you remember what the man and the woman [servers] looked like?”
She responded, “I would only be guessing if I were to answer.” The attorney
continued, “Do you remember whether either of them were short or tall, hair
color, skin color, eye color?” And she replied, “Like I said, I would be guessing.”
Gibbons testified as follows:
• She has ordered salmon croquettes at other restaurants without
problem, and she has always asked the servers at those restaurants
“if there was anything in the croquette other than salmon”;
• When asked if, when she orders salmon croquettes at restaurants,
she asks what the ingredients are, Gibbons stated, “Not the
ingredients”;
29
• On the day in question, after turning down the whitefish, Floyd
pointed out a beef dish, which Gibbons said she did not want, and
then they saw and asked about the croquettes;
• Gibbons attempted to explain away her statement to Boudreaux that
she had not asked about the ingredients by explaining that she
“didn’t ask the ingredients. . . . [She] asked if there was anything but
salmon in the croquettes”; and
• Gibbons acknowledged on cross-examination that what she told
Boudreaux was, “Why would I ask when [it] said it on the sign?”
There is some evidence that Gibbons asked what was in the salmon but
did not remind the servers that she was allergic to whitefish. There is also some
evidence from which the jury could have found that Gibbons said she was
allergic to whitefish but did not ask what the croquette’s ingredients were. The
jury could have decided that if Gibbons did ask if the croquettes were “just
salmon,” from the context, the statement was too ambiguous to have conveyed a
question about whitefish. Or the jury could have decided that Gibbons’s and
Floyd’s memories of the day four years earlier were not accurate and their
testimony therefore not worth much weight. We hold that, in light of the evidence
and given that the question of negligence came down primarily to the credibility
of the witnesses and the weight to be assigned to their testimony, there is some
evidence from which the jury could have found Gibbons negligent. We further
hold that the jury’s finding of negligence was not against the great weight and
preponderance of the evidence.
As for her complaint about the jury’s finding of apportionment, Gibbons
argues that there was no evidence upon which the jury could have found her “in
30
any way negligent,” or, alternatively, that the evidence supporting the finding was
so weak so as to make the verdict clearly wrong and unjust. From her briefing,
we construe her complaint to the jury’s answer to the apportionment question to
be an extension of her challenge to the liability question. In other words, we see
her argument as asserting not that the number the jury found should have been
some amount less than fifty percent but that it could not have been more than
zero percent. We further hold that there is more than a scintilla of evidence that
she was somewhat negligent, that the allocation of responsibility was within the
jury’s discretion, and that the jury’s allocation was not against the great weight
and preponderance of the evidence. 60 We overrule Gibbons’s fifty-first through
fifty-fourth issues.
3.6. Damages Award
Issues fifty-five through fifty-seven challenge the jury’s damages findings
and the trial court’s denial of Gibbons’s motion for JNOV. She argues that the
jury’s findings of $10,000 for past physical pain and mental anguish, $10,000 for
past physical impairment, and $0 for future pain and mental anguish were
against the great weight and preponderance of the evidence.
60
See Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.—
Texarkana 2004, no pet.) (stating that “[t]he determination of negligent parties’
proportionate responsibility is a matter soundly within the jury’s discretion,” and “it
is not the place of this Court to substitute its judgment for that of the jury, even if
a different percentage of allocation could be supported by the evidence”).
31
In this section of her brief, Gibbons cites to one case, which sets out the
factually sufficiency standard of review. 61 She does not cite any cases
discussing what kind of evidence establishes pain or mental anguish or the jury’s
discretion in awarding such damages and does not explain how such case law
applies to the evidence at trial. 62
At the end of her argument related to these issues, she argues that the trial
court “erred and/or abused [its] discretion” by denying her motion for JNOV.
Gibbons does not at this point in her brief cite any law or other authority relating
to the standard for granting JNOV. 63 If she cites any such authority elsewhere in
her 180-page brief, we were unable to find it.
“A trial court may disregard a jury verdict and render [JNOV] if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper.” 64 If a trial court determines that a jury’s answer is
against the great weight and preponderance of the evidence, the court cannot
disregard a jury’s answer and render a JNOV; “[i]n such a situation, the trial court
61
See Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 813–14
(Tex. App.—Dallas 2003, pet. denied).
62
See Tex. R. App. P. 38.1(i).
63
See id.
64
Dallas Area Rapid Transit v. Agent Sys., Inc., No. 02-12-00517-CV, 2014
WL 6686331, at *6 (Tex. App.—Fort Worth Nov. 26, 2014, pet. filed) (mem. op.)
(citing Tex. R. Civ. P. 301 and Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003)).
32
may only grant a new trial.” 65 Gibbons preserved her factual insufficiency point
below and raised it on appeal, and we will consider her issues to be a challenge
to both the legal and factual sufficiency of the evidence supporting the damages
findings. 66
“[A]n award of mental anguish damages will survive a legal sufficiency
challenge when the plaintiffs have introduced direct evidence of the nature,
duration, and severity of their mental anguish, thus establishing a substantial
disruption in the plaintiff[’s] daily routine.” 67 “When claimants fail to present direct
evidence” to support these factors, we “determine whether the record reveals any
evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere
worry, anxiety, vexation, embarrassment, or anger’ to support any award of
damages.” 68 “When the existence of some pain and mental anguish is
established, the jury is given considerable discretion in determining the amount
of fair and reasonable compensation for the [claimant’s] pain and mental
suffering.” 69
65
Id. at *5.
66
See id.
67
Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).
68
Id.
69
Cunningham v. Haroona, 382 S.W.3d 492, 507 (Tex. App.—Fort Worth
2012, pet. denied).
33
A summary of the relevant testimony is as follows. Gibbons testified that
when she realized the reaction was serious, she was scared. She could not
breathe, and she was sure she was going to die. She was worried about who
would take care of her husband, who has Alzheimer’s. She continued to be
afraid that she would die until sometime in the next evening. She blacked out
after leaving the restaurant, woke up at the fire station, and then went in and out
of consciousness. She did not remember the ride to the hospital, the emergency
room, or seeing a doctor. She remembered nothing until she woke up the next
day. She continued to drift in and out of consciousness, and she remembered
her cousin telling her that she would be okay. She remembered “just bits and
pieces.” She did not “really wake up” until the day after that. She described the
feeling of being hooked up to machines that were breathing for her as frightening,
although she “wasn’t awake that much.”
Gibbons stated that the intubation tube created a burning sensation in her
chest that lasted for close to two weeks after the tube was removed. For three or
four days after the tube was removed, she could barely swallow, and she threw
up blood. She had a sore throat for four or five days. She also developed a
urinary tract infection from the catheter that had been put in while she was at the
hospital.
For about a week after she got out of the hospital, she felt “very tired, very
tired,” “[t]ired, weak, . . . like . . . a dishrag that somebody just kept beating.” The
34
first week was the worst, and by the middle of the second week, she “was feeling
pretty good.”
Initially, after the incident, she had “a lot of nightmares.” She would wake
up feeling like she could not breathe and like the intubation tube was stuck down
her throat. By the time of trial, she had the dream about once a month.
When she returned home from her trip to Texas, she saw her primary care
physician, who prescribed Cymbalta for the stress she was feeling from her
experience. She stayed on the medication for three years. But she then clarified
that the medication was not only for the stress arising from the incident: She
stated that she “ha[s] a lot of stress in [her] life,” and “when [she] came back,
[she] was more stressed.” She explained, “I can’t remember if [the doctor]
increased the dose or changed the name of the brand I was using. . . . And then
he kept me on that dose after that.” The increased stress from the incident went
on “about two weeks.” She missed two weeks of work due to the occurrence.
In 2006, she had been put on an antidepressant because she was under
“multiple stressors,” and the sleep medication she was taking did not help her
sleep; she agreed that prior to the incident she had been having trouble sleeping.
In 2007, she was put on a prescription pain patch for severe osteoarthritis. About
a month before the incident, her doctor noted that she was having episodes of
heart palpations, she had problematic arthritic pain, and she “does not sleep
particularly well.” At that time, the doctor put her on Cymbalta “for depression
and chronic pain” and referred her to a pain clinic. He also noted that she had a
35
problem with chronic obstructive pulmonary disease; Gibbons stated that no
doctor had ever told her that she had that condition, but she admitted that she
had a history of smoking and was still a smoker at the time of trial. On redirect,
Gibbons stated that prior to the incident, she did not have similar nightmares to
the ones she has now.
We have no doubt that Gibbons’s experience was frightening and that, in
the immediate aftermath, she suffered pain. But we cannot say that the jury’s
award of damages to compensate her for her pain and mental anguish had no
evidence to support it or that it was against the great weight and preponderance
of the evidence. 70
Gibbons argues that the weakness of the evidence supporting the jury
verdict is illustrated by affidavits signed after the verdict by two of the jurors
stating that they did not believe that the verdict was just and that they regretted
agreeing to it. The statements in the affidavits on which Gibbons relies discuss
the deliberations of the jury, and we may not consider them, even assuming that
statements made during jury deliberations are relevant to the question of whether
evidence supports the verdict. 71 We overrule Gibbons’s fifty-fifth through fifty-
seventh issues.
70
See Cunningham, 382 S.W.3d at 507.
71
See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370, 371
(Tex. 2000).
36
3.7. Denial of Motion for Judgment Notwithstanding the Verdict
Motion for Mistrial, and Motion for New Trial
In issues fifty-eight through seventy, Gibbons complains of the trial court’s
denial of her motion for JNOV, motion for mistrial, and motion for new trial. In
issue fifty-nine, Gibbons argues that the trial court erred and abused its discretion
by denying her motion for JNOV on the issue of comparative negligence. We are
unable to discern any argument on this issue in her brief, but we point out that we
have already held that some evidence supported the jury’s findings on the
matter. 72 We overrule this issue.
Under the remainder of this group of issues, Gibbons argues that the trial
court should have granted these motions because the Luby’s entities’ committed
various discovery abuses concerning the identity of the server to whom Gibbons
and Floyd spoke about the croquettes. She asserts that Luby’s violated a
number of procedural rules, 73 and she lists some actions she claims the trial
court should have taken in light of those alleged violations. As far as we can tell,
other than citations to those rules, she does not cite a single case or any other
authority to explain how the actions she complains of violated discovery rules,
what the proper remedy is for those violations, why the failure to comply with
72
See Dallas Area Rapid Transit, 2014 WL 6686331, at *6 (setting out the
standard for reviewing a ruling on a motion for JNOV).
73
See Tex. R. Civ. P. 193.3(c) (relating to withholding privileged
communications), 215.1 (providing that a party may apply for sanctions or an
order compelling discovery in accordance with the rule), 215.2(b)(3), (4)
(discussing sanctions by a court in which an action is pending).
37
pretrial discovery rules entitled her to a JNOV, mistrial, or new trial, or why the
trial court’s failure to grant her motions was reversible error. 74 We overrule these
issues as inadequately briefed. 75
3.8. Rulings on Gibbons’s Evidentiary Objections
In issues seventy-one through seventy-three, Gibbons complains of
evidentiary rulings by the trial court relating to Floyd’s testimony and to an
excerpt of Luby’s Inc.’s shareholder statement.
Optional completeness
Her first argument under this group of issues relates to the fact that, after
the Luby’s entities’ attorney read an excerpt of Floyd’s deposition testimony and
questioned her about it, Gibbons and Floyd’s attorney was not allowed to
immediately read the rest of that part of Floyd’s deposition testimony. The
testimony had to do with what Gibbons asked the server at the restaurant about
the croquettes.
The attorney for the Luby’s entities asked Floyd about her deposition:
Q. So did she ask them whether there was whitefish in the
salmon? Which is correct, your testimony in August 2010 or your
testimony today?
Floyd’s answer to this question was objected to by the Luby’s entities as
nonresponsive. The trial court sustained the objection, and Gibbons’s attorney
74
See Tex. R. App. P. 38.1(i).
75
See Fredonia State Bank, 881 S.W.2d at 284–85.
38
asked to read Floyd’s answer to the very next question from the deposition “for
optional completeness.” The trial court responded, “You can do that on redirect.”
Opposing counsel began again to ask Floyd about her answer from the
deposition:
Q. . . . Back in August of 2010, under oath you were asked:
“Did she ask them whether there was whitefish in the salmon
croquette?”
Your answer then was: “I believe so, yes.”
Am I reading that correctly?
A. Yes, you are.
Gibbons’s attorney objected, “It is clear from the following question and answer
that that is a mischaracterization of her testimony.” The trial court responded,
“And you can fully redirect on that.”
The opposing attorney then continued to question Floyd about the
deposition, including the following exchange:
Q. . . . I just want to know whether—which one it is. Did she
ask them, as you said here, whether there was whitefish in the
salmon or did she not, as you just [testified] today?
A. I believe it’s what I said today.
Q. To me?
A. To [our attorney], my last—where I re-parsed it, that she did
not specifically ask.
Q. Okay. So your statement under oath in 2010 where you
said that she did ask was incorrect?
A. Yes.
39
Gibbons complains that under evidence rule 106, 76 the trial court’s ruling that she
could not read the next part of the deposition when requested was an abuse of
discretion.
At the time of the trial, rule 106 provided (and still provides, in slightly
different wording) that when one party has introduced part of a deposition, the
adverse party may introduce at that time any other part of the deposition that in
fairness should be considered contemporaneously. 77 “The rule is based on two
considerations: (1) the danger that material may be made misleading by being
taken out of context, and (2) the inadequacy of a delayed repair.” 78
On redirect, Gibbons and Floyd’s attorney asked Floyd about the next part
of her deposition testimony, as he had wanted to during the Luby’s entities’
questioning. He asked,
Q. . . . [T]he question [opposing counsel] asked you now was:
“Did she ask them whether there was whitefish in the salmon
croquettes?” And your answer was what?
A. “I believe so, yes.”
76
Tex. R. Evid. 106, 61 Tex. B.J. 374 (1998, amended 2015).
77
Id.; see Jones v. Colley, 820 S.W.2d 863, 866 n.2 (Tex. App.—
Texarkana 1991, writ denied) (setting out the prior version of the rule).
78
Jones, 820 S.W.2d at 866; see also Lynch v. Noram Energy Corp.,
No. 06-99-00073-CV, 2000 WL 708419, at *10–11 (Tex. App.—Texarkana May
30, 2000, pet. denied) (mem. op., not designated for publication) (discussing the
policy behind rule 106 and noting that although courts sometimes refer to rule
106 when discussing the rule of optional completeness, that rule, which is
codified in rule 107, is broader than rule 106).
40
Q. And then the next question was: “What did she say?” And
your answer was what?
A. “I’m allergic to whitefish. Is this just salmon? Is there
anything else in here besides salmon? And they said, No, it’s just
salmon.”
Although Gibbons and Floyd’s attorney was not allowed to read this part of
the deposition as soon as the first section of the deposition had been read, he
was allowed to ask as soon as the Luby’s entities finished asking Floyd about her
depo answers. This questioning by the attorney for the Luby’s entities came near
the end of Floyd’s trial testimony, and the redirect by her own attorney came very
close in time to the questioning by the Luby’s entities. Floyd’s testimony covered
approximately seventy-nine pages of the reporter’s record. On twenty-three of
those pages, she talked or was asked about what exactly she and Gibbons had
said to and heard from the server regarding the croquette’s ingredients and
Gibbons’s allergy. 79
As we noted above, over the course of those twenty-three pages, Floyd
had given slightly different versions of what was said to the servers that day.
Floyd testified at trial that they had asked if there was whitefish in the salmon.
But then when asked specifically whether Gibbons had asked, “Is there whitefish
in the salmon?” or had instead asked, “Is there anything else in the salmon?”
79
See Tex. R. Evid. 611 (stating that “[t]he court should exercise
reasonable control over the mode and order of examining witnesses and
presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from
harassment or undue embarrassment”).
41
Floyd responded, “I believe both, but it’s kind of out of context.” And she
explained that she did not believe Gibbons had specifically asked the question,
“is there whitefish in the salmon,” but instead had said that she was allergic to
whitefish, followed up by asking what the croquettes were, asked if there was
anything other than salmon in the croquettes, and then saying “I can have
salmon.”
The Luby’s entities relied on her testimony to show that while she had
previously asserted that they had asked the server a specific question of whether
the croquettes contained whitefish, she had changed her testimony at trial. The
rest of the excerpt that Gibbons wanted to read at that time explained that what
she meant was that she had raised the allergy and then asked if the croquettes
were “just salmon.” The jury had already heard Floyd say that Gibbons had
asked specifically about whitefish in the croquettes, then change her testimony
and clarify that, essentially, what she meant was that Gibbons had impliedly
asked this question by asking if there was anything but salmon in the croquettes
after having stated that she was allergic to whitefish. We hold that Gibbons has
not shown harm from not being allowed to immediately read the excerpt in
question, and as, such, any error is not grounds for reversal. 80 We overrule
issues seventy-one through seventy-three.
80
See Tex. R. App. P. 44.1; Tex. R. Evid. 611.
42
Annual shareholder report
In issues seventy-four through seventy-six, Gibbons argues that the trial
court abused its discretion by sustaining the Luby’s entities objections to the
admission of Luby’s Inc.’s annual shareholder report. In her brief, Gibbons
complains of the exclusion of two exhibits: exhibit 31 and exhibit 44. Gibbons
has not shown that she preserved her complaints about the failure to admit these
exhibits.
Regarding exhibit 31, when Gibbons sought to admit the entire report, the
Luby’s entities objected that it was hearsay, irrelevant, and would improperly
throw Luby’s Inc.’s finances and revenues into the case. But the Luby’s entities
had no objection to a specific paragraph in the report that Gibbons’s attorney
wanted to have admitted. From the record, however, we cannot tell to which
paragraph of the report Gibbons’s attorney referred, and in any case, her
attorney did not at that time have the paragraph admitted.
Instead, Gibbons’s attorney argued that there were other statements in the
report that he wished to have admitted. The trial court responded that the entire
report could not be admitted because “[t]his is a huge report” and the court could
not admit it until it had been redacted.
The two sides’ attorneys then agreed to the admissibility of a portion of the
report, but, again, it is not clear from the record which additional excerpts were
agreed to, and those paragraphs were not, at that point, introduced for admission.
Gibbons’s attorney stated that he would have to make a copy of the relevant
43
parts of the report during lunch, “and then I can determine if there’s other
excerpts of this that I need. . . . So we’ll come back to that.” Gibbons does not
tell us what part of the record shows that her attorney came back and asked to
have those particular paragraphs admitted during her case and obtained a ruling.
Gibbons does, however, complain about the trial court’s refusal to admit
exhibit 44. Exhibit 44 consists of excerpts of the shareholder report. We cannot
determine from the record, however, whether these are the same sections that
were discussed when exhibit 31 was offered and to which the Luby’s entities had
no objections. The trial court admitted exhibit 44 for purposes of the record after
Gibbons’s case in chief. But Gibbons does not tell us where in the record the
trial court previously ruled that exhibit 44 was not admissible. 81 All we have
before us is a record that shows that Gibbons sought admission of part of the
report, that some parts of the report were not objected to by the Luby’s entities,
and that Gibbons did not provide redacted excerpts with those parts and ask that
they be admitted during her case in chief. We cannot tell from this record to what
parts of the report Gibbons preserved her objections.
Further, even if the complaint had been preserved, the excerpts in exhibit
44 show statements related to improving restaurant profitability and managing
expenses. Gibbons argues that the report “reveals the profit motive” that led
Luby’s Inc. “to require its subsidiary restaurants . . . to secretly chop up and mix”
81
See Tex. R. App. P. 38.1(i).
44
leftover scraps of various types of fish into the croquettes “and deceptively
market same to the public as ‘salmon croquettes.’” This statement shows that
Luby’s Inc. wanted to improve its profits, as many businesses do, but nothing in
the statement suggests that Luby’s Inc. required its subsidiaries to secretly use
fish scraps in its croquettes and then deceive the public into believing that the
croquettes contained no type of fish but salmon. We overrule these issues.
3.9. Ruling on Motion to Determine When Appellees Anticipated Litigation
In Gibbons’s seventy-seventh issue, she argues that the trial court abused
its discretion by denying her request for a determination of when the Luby’s
entities reasonably anticipated litigation. She argues that the Luby’s entities
“improperly claimed that they anticipated litigation on or about October 29, 2007,
i.e., three days after the occurrence giving rise to this lawsuit.” She contends
that this was done “in an apparent effort to thwart discovery of the investigation
they did and statements they must have taken from the food servers who were
actually working and served [Gibbons and Floyd].”
Gibbons wholly fails, however, to explain why, under the law or rules of
procedure, it matters when the Luby’s entities claimed to have anticipated
litigation. She cites to no authority relating to when a party may claim to have
anticipated litigation or what effect such a claim has. Accordingly, we hold that
she waived this issue by inadequately briefing it. 82
82
See id.; Fredonia State Bank, 881 S.W.2d at 284–85; see also Tex. R.
App. P. 44.1.
45
3.10. Rulings on Juror Testimony
Issues seventy-eight through ninety-six all relate to Gibbons’s assertions of
juror misconduct and Gibbons’s attempts to obtain juror testimony in support of
her motion for new trial. All of her arguments under these issues are included in
the same section of her brief, although for some of her arguments, it is not readily
apparent to which issue an argument relates. In this section we also address
issues 104 and 105, pertaining to alleged due process violations related to juror
testimony.
Issues ninety-one through ninety-six address whether an outside influence
affected the jury verdict. The “outside influence” alleged by Gibbons is “in the
form of a perceived obligation to reach a verdict,” even though a juror considers
the verdict unjust. Gibbons contends that jurors John Bell and James Parks
were both affected by this influence, causing each to agree to a verdict “with
which he disagreed and which he considered unjust!”
In support, Gibbons directs our attention to Bell’s testimony at the hearing
on her motion for new trial. The trial court sustained the Luby’s entities’ objection
to the testimony but allowed Bell to testify for the record. 83 Bell testified as
follows:
A. . . . [W]e all kind of thought it was our job to come to an
agreement[.] . . . [W]e were actually divided down the middle of the
table, so half of us didn’t agree with lawsuits at all, and the other half
of us agreed with lawsuits if . . . they were just . . . . [I]n order for us
83
See Tex. R. Evid. 103, 61 Tex. B.J. 374 (1998, amended 2015).
46
to come to an agreement, we all started negotiating, and this is the
result[] of that negotiation.
Q. Okay. Did you feel an obligation to reach a verdict even if it
was a verdict that you did not consider to be just?
A. Yes.
....
. . . “[H]ung jury” never came to mind, and . . . all of us didn’t
know what a hung jury was and how long that would take and what
all it would entail, and so we just—we wanted to come to a verdict,
and that became kind of the—the point or the focus.
Gibbons argues that Bell’s affidavit, which Gibbons attached to her motion
for new trial, is also evidence of the same outside influence. Bell stated in his
affidavit that during deliberations, jurors Tris Fitzgibbon, Brenda Webster, and
Bobby Mayo said that they did not believe in awarding damages for mental
anguish; that Mayo said that she did not believe in awarding damages for pain
and suffering and that she did not believe in bringing lawsuits; that either
Fitzgibbon or Webster said that awarding any damages for pain, mental anguish,
or physical impairment went “against what [she] believe[d] in”; and that Webster
and Mayo agreed with statements by Fitzgibbon that a dollar value could not be
put on pain.
Bell averred that he regretted agreeing to what he believed was an unjust
verdict and that he “agreed to the verdict primarily out of a desire to reach a
consensus with jurors who stated that they did not believe in awarding damages
for mental anguish, pain or physical impairment, so that [the jurors’] time on the
47
jury would not be wasted.” Parks’s affidavit made the same assertions, except
that he further alleged that juror Carrie Whitman also said that she did not believe
in awarding damages for mental anguish.
Gibbons cites no authority for the proposition that a perceived obligation to
reach a verdict constitutes an outside influence on a juror, 84 and the law is
against her. Evidence rule 606(b) allows a juror to testify about outside
influences. 85 The Supreme Court of Texas has held that “[t]he rules contemplate
that an ‘outside influence’ originates from sources other than the jurors
themselves.” 86 The court has further held that civil procedure rule 327(b)
“operates to prohibit jurors from testifying about matters and statements
occurring during deliberations,” and thus, evidence of jury misconduct, including
evidence of juror bias and a failure of a juror to disclose that bias, must come
from some source other than testimony by jurors about their deliberations. 87
84
See Tex. R. App. P. 38.1(i).
85
See Tex. R. Evid. 606(b); see also Golden Eagle, 24 S.W.3d at 370.
86
See Golden Eagle, 24 S.W.3d at 370; see also Wooten v. S. Pac.
Transp. Co., 928 S.W.2d 76, 79 (Tex. App.—Houston [14th Dist.] 1995, no writ)
(noting “it is well-established that, to constitute outside influence, information
must come from outside the jury, [that is], from a non-juror who introduces
information to affect the verdict, and not from within the jury’s deliberations or as
part of the jury’s mental process” (emphasis added)).
87
See Golden Eagle, 24 S.W.3d at 370.
48
Jurors in civil trials are flatly prohibited from testifying about their
deliberations. 88 The testimony of Bell and Parks that Gibbons asked the trial
court to consider related to jurors’ statements made during deliberations and to
beliefs held by jurors during deliberations. Accordingly, the trial court was correct
not to consider the testimony. 89 We overrule issues ninety-one through ninety-
six.
Gibbons argues in this section of her brief that the trial court abused its
discretion by ruling that the depositions of Fitzgibbon, Whitman, and Mayo were
stayed by the Luby’s entities’ filing of a motion to quash those depositions,
because the motion did not object to the time or place of the depositions under
civil procedure rule 199.4. 90 Based on her seventy-eighth through eight-fourth
issues, Gibbons wanted to depose the jurors to gather evidence of the jurors’
biases.
The motion to quash cited rule 199.4 and asserted that the motion had
been filed within three days of service of the deposition notices in accordance
with that rule. Gibbons makes no argument for why the invocation of rule 199.4
was not sufficient to raise an objection under that section or for how she was
88
Id.
89
See id. But see McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim.
App. 2012) (deciding that under rule 606(b), a court may hear testimony that a
juror conducted private internet research on an issue in the trial and discussed
that research during deliberations, as evidence of an outside influence).
90
See Tex. R. Civ. P. 199.4.
49
harmed by the quashing of the depositions given that, as explained below, the
trial court could not have considered evidence of how those biases affected the
verdict in this case. 91 We overrule her issues under this section of her brief to
the extent that they are based on this argument.
Gibbons further argues that the trial court “unlawfully prohibited [her] from
contacting any jurors,” a prohibition that was later modified to apply only to Mayo
and Whitman, who had filed objections to the depositions. Other than her
argument about rule 199.4 and an unavailing argument based on Castillo
(discussed below), she does not explain why the trial court’s order was
unlawful. 92 We overrule her issues to the extent they are based on this argument.
Gibbons argues in issues 104 and 105 that, given the testimony of Bell and
Parks, her due process rights were violated by the trial court’s judgment.
Gibbons does not, however, explain how her due process rights were violated,
nor does she cite any authority to support her position. 93 The evidence she cites
relates to Bell’s and Parks’s testimony about jury deliberations, which under rule
327(b), the trial court could not consider. The Supreme Court of Texas has
91
Tex. R. App. P. 38.1(i).
92
See id.
93
See id.
50
specifically held that rule 327(b) does not fail to afford litigants due process. 94
We overrule issues 104 and 105.
Gibbons relies on Ford Motor Co. v. Castillo 95 to support her argument that
she was entitled to take juror depositions. In Castillo, the parties reached a
settlement while the jury was deliberating after the presiding juror sent out a note
asking, “What is the maximum amount that can be awarded?” 96 Defendant Ford
later sought to avoid enforcement of the settlement agreement by Castillo
because it believed that an outside influence may have swayed the presiding
juror and led to the sending of the note. 97 Ford sought to conduct discovery to
“‘determine the motivation of the presiding juror’s actions and any outside
influences that possibly swayed her.’” 98 The Supreme Court of Texas held that
the trial court abused its discretion by entirely depriving Ford of discovery. 99
Castillo does not help Gibbons because that case did not involve a motion
for new trial after a jury verdict or the validity of a jury verdict; the issue of
obtaining juror testimony in that case arose in the context of a defendant seeking
94
See Golden Eagle, 24 S.W.3d at 375.
95
279 S.W.3d 656, 666–67 (Tex. 2009).
96
Id. at 659.
97
Id.
98
Id. at 660.
99
Id. at 666.
51
discovery to defend against a pending claim for breach of a settlement
agreement. 100 The Supreme Court of Texas specifically held that under the
circumstances, rule 327(b) did not strictly apply. 101 In the context of this case,
however, that rule does strictly apply and prohibits the testimony of the jurors
about the jury’s deliberation, including what was said during deliberations or how
any beliefs the jurors held influenced their votes. 102
Regarding jurors Mayo, Fitzgibbon, and Whitman, Gibbons argues under
issues eighty-five through eighty-nine that they failed to disclose during voir dire
a bias against awarding damages for mental anguish and against negligence
cases. She argues under issue ninety that the trial court abused its discretion by
denying her the opportunity “to obtain and/or present evidence that one or more
jurors failed to disclose material information they were asked during jury
selection.”
For Fitzgibbon and Whitman, to support her argument that they failed to
disclose biases, she relies on allegations in Bell’s and Parks’s affidavits that
Fitzgibbon and Whitman disclosed these biases during deliberations. The trial
court could not consider such testimony. 103 Nor could the court consider such
100
Id. at 659.
101
Id. at 666.
102
See Tex. R. Civ. P. 327; Golden Eagle, 24 S.W.3d at 370.
103
See Golden Eagle, 24 S.W.3d at 370–71.
52
testimony for the purpose of determining whether any such biases influenced
their vote. 104 Further, Whitman arguably disclosed her beliefs during voir dire
when she admitted that she thought that in life “bad things happen,” that money
damages do not rectify “that something bad happened,” that there was a limit to
what she could award, and that in some cases, it bothers her somewhat when
her employer, a railway company, is sued in personal injury cases.
As for Mayo, Gibbons further asserts that after trial, Mayo disclosed her
bias to Gibbons’s attorney during a telephone call. She relies on her attorney’s
affidavit as evidence that Mayo made such statements.
Gibbons’s attorney asked questions during voir dire about whether the
panel members understood that the law does not require that a person have an
intent to injure for the person to be liable in negligence and whether anyone
would not be able to award damages for mental anguish, pain and suffering, or
physical impairment. Mayo made no affirmative representations during voir dire,
other than a statement that she might in the future file a personal injury lawsuit
against Johnson & Johnson. 105 Some of the panel members were asked directly
104
See Golden Eagle, 24 S.W.3d at 371; see also Fitz v. San Antonio
Hospitality Invs., Inc., No. 04-03-00251-CV, 2004 WL 840609, at *3 (Tex. App.—
San Antonio Apr. 21, 2004, no pet.) (mem. op.) (stating that a court could only
speculate as to whether a juror was influenced by her own bias when it came to
calculating damages because learning of such influence would involve delving
into the juror’s thought processes during deliberations).
105
See In re Zimmer, Inc., 451 S.W.3d 893, 903 (Tex. App.—Dallas 2014,
no pet.) (stating that “[a]n erroneous answer by a juror during voir dire warrants a
new trial only if there is concealment by the juror” and that “[b]efore concealment
53
if they could award money damages for mental anguish and pain and suffering;
Mayo was not one of those panel members.
A trial court may grant a new trial when provided with evidence that a juror
gave an incorrect answer in voir dire if the incorrect answer is material and “if it
reasonably appears from the evidence both on the hearing of the motion and the
trial of the case and from the record as a whole that injury probably resulted to
the complaining party.” 106 Thus, for the trial court to have abused its discretion
by failing to grant a new trial, the evidence would have to show that Gibbons was
probably injured by Mayo’s failing to speak up in voir dire.
Assuming that the questions asked by Gibbons’s attorney were specific
and direct and called for a disclosure about whether Mayo had a personal bias
against negligence claims and awarding non-economic damages, 107 Mayo’s
failure to speak up would not entitle Gibbons to a new trial. Mayo did not sign the
verdict; she was one of two jurors who did not agree to it. To the extent that Bell
and Parks compromised and agreed to a lower damages award to reach a
verdict, it was not a compromise with Mayo. There is no evidence that the trial
can be found, the questions asked [during voir dire] must be direct and specific
and call for disclosure”).
106
See Tex. R. Civ. 327(a) (emphasis added).
107
See Zimmer, 451 S.W.3d at 903.
54
court could consider that the opinion of the other jurors was colored by Mayo’s
beliefs (or, for that matter, the beliefs of Whitman and Fitzgibbons). 108
Juries often reach a verdict through compromise, and doing so is not
necessarily misconduct. 109 The extent to which any prejudices may have
affected the jury’s verdict is a matter about which the trial court could only
speculate. 110 We cannot say that the trial court abused its discretion by
determining that from the record as a whole, it did not reasonably appear that
injury probably resulted to Gibbons by a juror’s failure to speak up at voir dire.
We overrule Gibbons’s issues eighty-five through ninety.
Gibbons argues in issue eighty-four that she should be granted a new trial
because juror Fitzgibbon did not appear to testify at the hearing on Gibbons’s
motion for new trial, but she does not cite any authority for why Fitzgibbon’s
failure to appear required the granting of a new trial, nor does she expound upon
her assertion. 111 We overrule her eighty-fourth issue.
108
See Golden Eagle, 24 S.W.3d at 371; see also Fitz, 2004 WL 840609, at
*3.
109
See Pedernales Elec. Co-op., Inc. v. Pub. Util. Comm’n of Tex., 809
S.W.2d 332, 341–42 (Tex. App.—Austin 1991, no writ); see also Owens v.
Missouri Pac. Ry. Co., 4 S.W. 593, 595 (Tex. 1887) (“We presume that but few
verdicts are returned giving damages for a tort in which the amount is not the
result of a compromise between the members of the jury.”).
110
See Golden Eagle, 24 S.W.3d at 371; Fitz, 2004 WL 840609, at *3.
111
See Tex. R. App. P. 38.1(i).
55
Under the group of issues challenging the trial court’s orders related to
juror testimony, Gibbons makes various other assertions without any argument or
cited authority to support them. To the extent these assertions are made as part
of an argument under these issues, the remainder of these issues are overruled
as inadequately briefed. 112
3.11. Polling the Jury
Gibbons’s issues 97 through 102 complain of the trial court’s failure to
allow her attorney the opportunity to request a poll of the jury. 113
The right to poll the jury may be forfeited. 114 Here, the trial court read the
jury’s verdict, accepted it, and thanked the jurors for their service. The court then
told the jurors that they were free to talk or to refuse to talk to anybody about the
case or to provide affidavits to the attorneys about “things such as juror
misconduct.” The trial court wrapped up its words to the jurors by asking the
jurors to go to the jury room and telling them, “I’ll come in and I have a few last
words to say to you, and then you’ll be excused. So if you’ll go to the jury room,
112
See id.; Fredonia State Bank, 881 S.W.2d at 284–85.
113
See Tex. R. Civ. P. 294 (providing that a party has the right to poll the
jury).
114
Liberty Mut. Ins. Co. v. Transit Mix Concrete & Materials Co., No. 06-12-
00117-CV, 2013 WL 3329026, at *3 (Tex. App.—Texarkana June 28, 2013, pet.
denied) (mem. op.); Suggs v. Fitch, 64 S.W.3d 658, 660 (Tex. App.—Texarkana
2001, no pet.).
56
I’ll be in right after you. Thank you.” The record of the trial proceedings ends
there.
At the hearing on Gibbons’s motion for new trial, Gibbons’s attorney stated
that he had not been given a chance to poll the jury. Opposing counsel
countered that Gibbons’s attorney had not asked for a poll until it was too late.
The trial court stated,
Just for the record, you did not ask for the Court to poll the jury
while I was in the courtroom, and I even speak to the jury after I read
the verdict, and I give them their instructions required by law, and
you never stood and asked me. And just for the record, I always
allow polling of the jury when it’s requested, and it was never
requested.
Gibbons’s attorney responded that he had, in fact, requested a poll while the jury
was still present. The Luby’s entities’ attorney countered that the jury had
already been dismissed when Gibbons’s attorney requested a poll. The trial
court responded, “The record will reflect what it reflects.”
The record does not show an objection or request by Gibbons’s attorney,
and we may not take his word for it that the trial court was mistaken about
whether he had made a request, that any request was timely, or that he objected
to not being allowed to poll the jury. 115 We overrule Gibbons’s issues related to
polling the jury.
3.12. Further Rulings on Objections to Testimony
115
See Tex. R. App. P. 33.1(a).
57
Gibbons’s 103rd issue asserts that the trial court abused its discretion by
sustaining the Luby’s entities’ objection to Bell’s testimony at the hearing on
Gibbons’s motion for new trial. Her issue is based on the same arguments she
raised under issues 104 and 105. Bell’s testimony related to statements made
by jurors during deliberations and to Bell’s state of mind during deliberations. For
the same reasons we overruled issues 104 and 105, we overrule this issue as
well. 116
In Gibbons’s 106th issue, she complains of the trial court’s overruling of
her objections to Darlene Cole’s and Nicole Huffman’s testimony by deposition.
Like Huffman, Cole was an employee of the restaurant and present on the day of
the incident. Gibbons asserts that their addresses and telephone numbers were
not provided to her in discovery and that Cole was not listed as a person with
knowledge of relevant facts until around two weeks prior to trial, and so the trial
court abused its discretion by allowing them to testify over her objection.
In their responses to Gibbons’s and Floyd’s requests for disclosure, the
Luby’s entities identified “Nicole Huttman” and “Darlene Cook” as Restaurants
employees with knowledge of relevant facts. The response listed each
employee’s position at the restaurant and gave as their phone numbers and
addresses the phone number and address of the attorney for the Luby’s entities.
Less than thirty days before trial, the Luby’s entities supplemented their
116
See Golden Eagle, 24 S.W.3d at 371.
58
responses to provide correct last names; the same attorney’s address and phone
number was still listed as Cole’s and Huffman’s address and phone number.
Civil procedure rule 193.6 provides that a party may not offer the testimony
of a witness who was not timely identified unless the court finds that “there was
good cause for the failure to timely make, amend, or supplement the discovery
response” or that “the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the other parties.” 117
Under rule 193.5, an amended or supplemental response must be made
reasonably promptly, and it is presumed that the response was not made
reasonably promptly if it was made less than thirty days before trial. 118
Gibbons argues that the correct address for Cole and Huffman was never
disclosed, but she makes no argument for why the law firm’s address would not
suffice for purposes of the rule. 119 The cases she relies on are distinguishable.
In Morrow v. H.E.B., Inc., a witness’s address was listed in an interrogatory
117
Tex. R. Civ. P. 193.6(a).
118
Tex. R. Civ. P. 193.5(a).
119
See Tex. R. App. P. 38.1(i); see also In re C.S., 977 S.W.2d 729, 732–
33 (Tex. App.—Fort Worth 1998, pet. denied) (stating that the purpose of the rule
requiring disclosure of a witness’s identity or location in answers to
interrogatories is to “allow the opposing party to easily locate, interview, and
depose the proposed witness” and that, although a complete street address for
the witness at issue was not disclosed, under the facts of the case, the trial court
could reasonably have concluded that the witness could have been easily
located with the information provided, and therefore the witness had been
sufficiently identified).
59
response as simply “Missouri,” and when the party making the disclosure
discovered that the witness had moved to an address in San Antonio, the party
did not supplement or amend its disclosure. 120 In Braniff, Inc. v. Lentz, 121 no
address or telephone number was listed for the witness at issue. Clark v.
Trailways, Inc. also involved the total failure to provide an address. 122
Further, even assuming that the misspelling of the last names and the
attorney’s address and phone number did not satisfy disclosure requirements,
the cases cited by Gibbons all applied the former version of the rule amended in
1999 and now found at 193.6, under which failure to supplement or amend could
be excused only for good cause. 123 Under the current version of the rule, failure
to supplement or amend is also excused if the failure will not unfairly surprise or
unfairly prejudice the other party. 124
Gibbons cites a case for the proposition that “[t]he absence of surprise,
unfairness, or ambush does not alone satisfy the good cause exception to the
120
714 S.W.2d 297, 297 (Tex. 1986) (on reh’g).
121
748 S.W.2d 297, 299 (Tex. App.—Fort Worth 1988, writ denied).
122
774 S.W.2d 644, 646 (Tex. 1989).
123
See id. (discussing former rule 215.5, now at 193.6 as amended); Wal-
Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 671 (Tex. App.—Texarkana 1999,
pet. denied) (noting that former rule 215.5 is now rule 193.6).
124
Tex. R. Civ. P. 193.6(a).
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sanction of automatic exclusion.” 125 That case also applied the former version of
the rule requiring good cause for the failure to supplement or amend. Thus, the
witnesses did not need to be excluded if Gibbons was not unfairly surprised or
unfairly prejudiced.
Both witnesses were deposed, and Gibbons’s attorney attended the
depositions. And Gibbons introduced excerpts of Huffman’s deposition in her
case in chief. We decline to say that the trial court abused its discretion by
determining that the Luby’s entities had shown that Gibbons was not unfairly
surprised by the Luby’s entities failure to supplement their disclosures to correct
Huffman’s and Cole’s names or provide their personal addresses more than thirty
days before trial. 126 We overrule Gibbons’s 106th issue.
4. Conclusion
Having overruled each of Gibbons and Floyd’s issues, we affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; and DAUPHINOT, J. 127
125
Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671 (Tex. 1990)
(emphasis added).
126
See In re C.S., 977 S.W.2d at 732–33.
127
Justice McCoy was a member of the original panel but has retired in the
interim.
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DELIVERED: August 31, 2015
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