Garen Keith Wyatt v. Turbo Restaurants, LLC

AFFIRMED and Opinion Filed August 31, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00456-CV
GAREN KEITH WYATT, Appellant
V.
TURBO RESTAURANTS, LLC, Appellee
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-00019
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Goldstein
Garen Keith Wyatt appeals the trial court’s judgment, following a jury trial,
that he take nothing on his negligence claims against Turbo Restaurants, LLC. In
two issues, Wyatt argues the jury’s verdict was against the great weight and
preponderance of the evidence, and multiple erroneous rulings and improper jury
arguments requires reversal under the cumulative-error doctrine. We affirm the trial
court’s judgment.
BACKGROUND
On March 7, 2016, Wyatt and his wife purchased a meal at a restaurant
operated by Turbo and sat in a booth to eat. As Wyatt exited the booth, he fell to the
concrete floor and was injured. In January 2017, Wyatt sued Turbo alleging he was
injured when the “unsecured bench seating collapsed beneath him.” Wyatt alleged
the bench seat was “unsecured and used for storage as well as customer seating” and
constituted a dangerous condition, which was known or reasonably should have been
known to Turbo. Wyatt asserted premises liability claims and sought damages for
medical expenses, physical pain and mental anguish, and physical impairment.
In December 2017, Turbo filed its first amended answer asserting, among
other things, enumerated affirmative defenses, theories of comparative
responsibility and that Wyatt’s claims were barred in whole or in part. Specifically,
Turbo asserted 1) Turbo’s acts and/or omissions were not the cause of Wyatt’s
damages; 2) any loss or damage was caused by Wyatt’s own conduct; 3) the
condition of the premises in question was open and obvious; 4) Wyatt failed to
mitigate his damages; 5) Wyatt’s claims were the result of an unavoidable accident;
6) Turbo was under no duty to inspect or repair the alleged condition made the basis
of Wyatt’s suit; 7) the acts and/or omissions alleged by Wyatt were not unreasonably
dangerous as a matter of law and/or fact; 8) Wyatt was contributorily/comparatively
negligent; and 9) Wyatt was liable to Turbo for proportionate and comparative
responsibility.
By January 2020, Wyatt had filed his fourth amended petition asserting that
his injuries occurred “as a direct result of the unsecured bench seating that was
proximately caused by the dangerous condition” described in the petition and Turbo
was negligent under the theory of res ipsa loquitur because (1) without a negligent
act, Wyatt’s injury would not have occurred and (2) the instrumentality that caused
the injury was exclusively controlled by Turbo.
Prior to trial, Wyatt served a subpoena in an effort to obtain the bench lid seat
at issue. Turbo filed for a protective order. At the hearing, Wyatt argued the merits
of a subpoena he served for the bench lid seat that Wyatt was sitting on at the
restaurant. Wyatt argued he did not want to introduce the seat into evidence but only
wanted to use it for “demonstrative purposes.” Turbo argued the trial court should
grant its motion for a protective order on the grounds that it was overly burdensome
to require production of the seat. At the conclusion of the hearing, the trial court
granted Turbo’s motion for a protective order.
At a jury trial in February 2020, Dustie Johnson testified she was the shift
manager at the restaurant at the time of the underlying incident. Johnson testified
the booth Wyatt sat in was hollow with a lid, utilized as a storage compartment for
cleaning supplies. Johnson testified this was true of “any of the booths,” and “they
were made for that.” When shown a picture of the booth at issue, Johnson confirmed
that the booth had braces to prevent the seat from sliding, and she testified that she
did not know of anyone at the restaurant that “ever went in there and checked the
safety of these braces.” When questioned, Johnson agreed the seat “came loose
somehow” and “became detached.”
Steve Condit, the general manager of the restaurant at the time of the incident,
testified that all the booth seating in the restaurant is used for the dual purpose of
customer seating and potential storage. Condit testified the wooden braces on the
seat lid were installed by a manufacturer and then shipped to the restaurant. Condit
confirmed that the bench seat at issue was missing a “long brace” and a “lip brace”
after the accident. Condit assumed the braces “broke off.” Condit agreed the seat
lid was “pretty heavy” and after the accident he repaired a “small brace” that went
into a lip and prevented the lid “from going up and down.” Condit testified he placed
three screws into the brace and reattached it to the booth seat. After the repair,
Condit tried to reproduce the accident by “jumping around” in the booth, but he
could not “get it to flip.” Condit also agreed that “the bench seat lid could not have
slid out if the braces were in place, secure, maintained and working correctly.”
Condit stated he opened five new restaurants and operated restaurants that were
“really old,” and they had the same dual-purpose booths. Condit attested that he
“never had a problem with those booths” and never had any other customers injured
inside the restaurant.
Gary Jackson, a forensic engineer, testified by video deposition that he
conducted a site inspection at the restaurant on August 17, 2017. Jackson
determined that the bench seating had two parts: “a secured base to the floor, and
then a lid with upholstered seating that sat on top of the base.” Jackson testified the
lid involved in the underlying accident had a “missing outside long big brace,” and
the “incident would not have occurred but for the fact that a brace was missing.”
After the incident, the lid had a “broken small brace” that Condit “flipped around
and resecured with three screws.” When asked how the seat cushion came off the
bench, Jackson testified that, without the outer brace, the seat cushion could slide
from its position and extend out over the edge of the booth. At that point, putting
weight on the extended portion could cause the cushion to rotate upward. Jackson
did not test the seat cushion to see whether it moved when it was placed on the
bottom portion of the booth. Jackson testified that, although Phillips-head screws
were used to make repairs to the underside of the bench seat, “square-drive screws
were the ones that were on everywhere else, and those were broken off.” In
Jackson’s report, he concluded the “design and construction of the bench seat
assembly was deficient in the number and/or strength of fasteners used to attach the
plywood . . . .”1
Wyatt’s wife, Kathy, the only eyewitness to the event, described the incident
as follows:
So Garen was here and he slid to the end of the bench. And he put a
hand on the table and then his hand on the seat to lift himself up out of
the seat, to raise up out of the seat. And when he did, the whole seat
come up, hit him, and he fell on the floor.
Kathy testified Wyatt’s shoulder and head were hit by the seat, and he hit his head
on the tile floor of the restaurant. Wyatt lay on the floor, he was shaking like he was
very cold, and his eyes were rolled back in his head. At that point, Kathy “hollered
for the lady to call 911.” Wyatt was taken to the hospital where he was diagnosed
with a head injury.
Wyatt testified he remembered “absolutely nothing” about the accident. The
first thing Wyatt remembered after the accident was being in the hospital. Wyatt
saw his wife come into the hospital and stand by his bed, and he did not “remember
maybe even the next couple of days.”
On cross-examination, defense counsel showed Wyatt a line from his medical
records that stated, “Per EMS report,” he was at the restaurant when he “stood up”
and “took the bench with him and fell with the bench.” Wyatt testified he did not
1
Jackson did not speak with Wyatt about the accident.
know whether that description of events was accurate. Counsel confirmed that
Wyatt had spoken to his wife about what happened, but he did not recall whether his
wife “ever described the bench as having collapsed” when Wyatt was sitting on it.
Wyatt also testified he was “not aware of anyone ever referring to the bench as
collapsing in any way.” Without identifying the document, counsel showed Wyatt
a prior pleading that Wyatt read, but Wyatt testified the document did not refresh his
recollection “as to whether or not there’s ever been a reference as to whether or not
the seating had collapsed.” Wyatt testified it was “pretty obvious the bench didn’t
collapse” because it was “whole when everybody found it.” Following a discussion
outside the presence of the jury, the trial court admitted the prior pleadings, Wyatt’s
first two petitions, over Wyatt’s objections.
Wyatt’s counsel moved to introduce Turbo’s interrogatory responses either as
physical evidence or by being read into the record. Counsel argued she did not need
a witness to testify in order to admit the interrogatory responses. Turbo’s counsel
objected that the interrogatories could not be introduced into evidence unless a
witness subject to cross-examination was questioned under oath about an answer and
affirmed that everything in the answer was true; at that point, the interrogatory
answer would become competent evidence. The trial court sustained Turbo’s
objection.
Only Turbo’s negligence as to the condition of the premises was submitted to
the jury. No contributory negligence question was included in the jury charge.
During the charge conference, Wyatt requested that an instruction on res ipsa
loquitur be included in the court’s charge. Turbo objected, arguing that a res ipsa
loquitur instruction is “reserved for cases where the evidence can only basically
allow the jury to just infer that because an accident happened, it had to be the
defendant’s negligence.” The trial court sustained Turbo’s objection to the
instruction.
During closing arguments, Wyatt argued this lawsuit was not against the
particular restaurant where the incident occurred but was “a lawsuit against Turbo
Restaurants LLC, that owns 650” restaurants. Outside the presence of the jury,
Turbo objected that Turbo did not own 650 restaurants, and that fact had not been
entered into evidence. Turbo asked the court to instruct the jury that it should not
consider counsel’s statement in their deliberations. The trial court sustained Turbo’s
objection and stated that “the instruction will be provided to the jury.” The trial
court subsequently instructed the jury as follows:
[P]laintiff’s counsel represented that Turbo Restaurants, LLC, owns
650 restaurants. That was an inappropriate argument, and counsel’s
statement should not be considered in your deliberations.
The jury returned a verdict in favor of Turbo, answering “No” the question
whether the negligence, if any, of Turbo proximately caused the occurrence or injury
in question. On March 4, 2020, the trial court signed a judgment providing that
Wyatt take nothing. Wyatt filed a motion for new trial, which the trial court denied.
This appeal followed.
ANALYSIS
I. Legal and Factual Sufficiency Challenge
In his first issue, Wyatt challenges the legal and factual sufficiency of the
evidence to support the jury’s verdict. Wyatt argues the jury’s verdict was against
the great weight and preponderance of the evidence such that it was clearly wrong
and manifestly unjust and, as a matter of law, the evidence conclusively established
that Turbo’s negligence caused the harm to Wyatt.
When an appellant challenges the factual sufficiency of the evidence
supporting an adverse finding on an issue on which the appellant had the burden of
proof, it must show that the adverse finding is against the great weight and
preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (per curiam). We must consider and weigh all of the evidence, and we
set the finding aside only if the evidence is so weak or the finding is so against the
great weight and preponderance of the evidence that the finding is clearly wrong and
unjust. Id.When an appellant attacks the legal sufficiency of the evidence to support an
adverse finding on an issue on which it had the burden of proof, it must demonstrate
that the evidence establishes, as a matter of law, all vital facts in support of the
finding sought. Id. at 241. In reviewing a “matter of law” challenge, the reviewing
court must first examine the record for evidence that supports the finding, while
ignoring all evidence to the contrary. Id. If there is no evidence to support the
finding, the reviewing court will then examine the entire record to determine if the
contrary proposition is established as a matter of law. Id. The point of error should
be sustained only if the contrary proposition is conclusively established. Id. The
evidence is legally sufficient if it suffices to enable reasonable and fair-minded
people to reach the finding under review. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). In conducting our review, we view the evidence in the light most
favorable to the finding and indulge every reasonable inference that would support
it. Id. at 822. We must credit evidence favorable to the finding if a reasonable person
could, and we must disregard contrary evidence unless a reasonable person could
not. Id. at 827.
The jury is the exclusive judge of the credibility of the witnesses and the
weight to be given their testimony. Golden Eagle Archery v. Jackson, 116 S.W.3d
757, 761(Tex. 2003); see also City of Keller, 168 S.W.3d at 819. The jury may
believe one witness and disbelieve another and resolves any inconsistencies in any
witness’ testimony. City of Keller, 168 S.W.3d at 819; McGalliard v. Kuhlmann,
722 S.W.2d 694, 697 (Tex. 1986). A reviewing court may not impose its own
opinion to the contrary. City of Keller, 168 S.W.3d at 819; Golden Eagle, 116
S.W.3d at 76.
To recover on a premises liability theory, a plaintiff must establish that the
injury resulted from a condition of the premises. Keetch v. The Kroger Co., 845
S.W.2d 262, 264 (Tex.1992); Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589, 592
(Tex. App.—Dallas 2013, pet. denied). A plaintiff must prove: 1) actual or
constructive knowledge of some condition on the premises by the owner/operator;
2) that the condition posed an unreasonable risk of harm; 3) that the owner/operator
did not exercise reasonable care to reduce or eliminate the risk; and 4) that the
owner/operator's failure to use such care proximately caused the plaintiff's injuries.
Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). An owner or
occupier is not an insurer of injuries to its invitees2. CMH Homes, Inc. v. Daenen,
15 S.W.3d 97, 101 (Tex. 2000). Instead, the duty owed by an owner or occupier is
to exercise reasonable care to protect against dangerous conditions on the premises
that create an unreasonable risk of harm which it knew about, or by the exercise of
reasonable care, would have discovered. Id.The threshold requirement for a premises liability claim is the existence of
actual or constructive knowledge of a condition on the premises. See Motel 6 G.P.,
Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). “An owner/occupier cannot breach a
2
It is undisputed that Appellant was an invitee.
duty that it does not owe, and it does not owe a duty to correct an alleged dangerous
condition of which it is not aware.” Id. at 4.
Wyatt argues “the circumstances of the case are such that the outcome cannot
be that no one was negligent.” In making this argument, Wyatt asserts he
“conclusively established all elements necessary to prevail on his premise-liability
claim.” We disagree.
Here, Wyatt testified he remembered “absolutely nothing” about the accident.
Wyatt’s wife testified Wyatt slid to the end of the bench and, when he put a hand on
the table and a hand on the seat, “the whole seat come up, hit him, and he fell on the
floor.” Jackson testified that, without the outer brace, the seat cushion could slide
from its position and extend out over the edge of the booth and putting weight on the
extended portion could cause the cushion to rotate upward.
Nevertheless, the jury was free to disbelieve this version of events and
conclude that Wyatt simply fell out of the booth all on his own, and the bench seat
was not a contributing factor to his fall. See City of Keller, 168 S.W.3d at 819.
Moreover, even if the jury believed, as Wyatt’s wife testified, that the booth seat
came up and hit Wyatt, the jury could have believed that Turbo did not have actual
or constructive knowledge of the condition of the booth seat. See Lopez, 929 S.W.2d
at 3. In his report, which Turbo pointed out to the jury, Jackson concluded the design
and construction of the bench seat assembly was deficient in the number and/or
strength of fasteners used. Jackson also testified there were “square-drive screws”
that were broken off on the underside of the bench seat. Condit testified he “never
had a problem with those booths” and never had any other customers injured inside
the restaurant. In fact, the evidence showed that the same bench seat involved in
Wyatt’s accident was still in use at the restaurant at the time of Jackson’s site
inspection. From this evidence, the jury could have believed either that a design
defect unknown to Turbo existed in the booth’s construction or that the screws on
the underside of the bench seat were not broken off until Wyatt slid across the seat
immediately before his fall. See City of Keller, 168 S.W.3d at 819. In the absence
of evidence that Turbo had actual or constructive knowledge of a dangerous
condition on the premises, the evidence is legally and factually sufficient to support
the jury’s finding that no negligence on the part of Turbo proximately caused the
occurrence or injury in question. See id. at 827; Dow Chem. Co., 46 S.W.3d at 242.
We overrule Wyatt’s first issue.
II. Cumulative Error Challenge
In his second issue, Wyatt argues the trial court’s multiple erroneous rulings,
in conjunction with Turbo’s counsel’s improper jury argument outside the record
and the trial court’s admonishment of Wyatt’s counsel, require reversal under the
cumulative error doctrine. Specifically, Wyatt complains of (1) the trial court’s
granting of Turbo’s protective order denying Wyatt the “right to show the jury the
instrumentality that was the basis of the lawsuit”; (2) the introduction of two
superseded petitions but the refusal of Wyatt’s request to introduce a superseded
answer describing the dangerous condition as “open and obvious”; (3) the refusal to
include a res ipsa loquitur definition in the jury charge; and (4) the trial court’s
refusal to instruct the jury to disregard Turbo’s counsel’s representation that Turbo
is a single restaurant and admonishment to Wyatt’s counsel that the response to this
statement was “inappropriate.”
Texas courts recognize the doctrine of cumulative error, wherein a reviewing
court may reverse a lower-court judgment when the record shows a number of
instances of error, “no one instance being sufficient to call for a reversal, yet all the
instances taken together may do so.” Gregory v. Chohan, 615 S.W.3d 277, 314
(Tex. App.—Dallas 2020, pet. filed) (quoting Sproles Motor Freight Lines, Inc. v.
Long, 140 Tex. 494, 168 S.W.2d 642, 645 (1943)). To support reversal based on
cumulative error, a complaining party must show that “based on the record as a
whole, but for the alleged errors, the jury would have rendered a verdict favorable
to it.” Id. (quoting Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551,
570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998)). To
make that determination, this Court considers all errors in the case along with the
record as a whole to determine if the errors collectively were calculated to cause and
probably did cause the rendition of an improper judgment. Lakeside Vill.
Homeowners Ass’n, Inc. v. Belanger, 545 S.W.3d 15, 46–47 (Tex. App.—El Paso
2017, pet. denied). When there are no errors to be considered as a combined whole
for purposes of evaluating harm, we reject cumulative error arguments. Chohan,
615 S.W.3d at 314 (citing In re BCH Dev., LLC, 525 S.W.3d 920, 930 (Tex. App.—
Dallas 2017, orig. proceeding). Therefore, before errors can be cumulated, they
must first be shown to exist. In re E.R.C., 496 S.W.3d 270, 281 (Tex. App.—
Texarkana 2016, pet. denied). The cumulative error doctrine “has found little favor
with appellate courts.” Id.“A trial judge may exercise discretion in the granting of a protective order and
in controlling the nature and form of discovery.” Killingsworth v. Hous. Auth. of
City of Dallas, 447 S.W.3d 480, 496 (Tex. App.—Dallas 2014, pet. denied) (quoting
Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 466 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). Here, Wyatt’s counsel did not seek to introduce the
bench seat lid into evidence but sought its production for “demonstrative purposes.”
Counsel conceded she had “preserved pictures of the bench,” but she stated she
“want[ed] the jury to see it live at trial.” The record shows that Jackson, Wyatt’s
forensic engineer, was able to conduct a site inspection at the restaurant and viewed
the bench seat lid in question. Jackson testified extensively via video deposition
concerning his theory of how the accident happened. In support of Jackson’s
testimony, Wyatt introduced multiple photographs showing the bench seat lid from
various angles. Thus, even without production of the actual bench seat lid at trial,
Wyatt was not prevented from offering extensive evidence concerning the
construction and condition of the bench seat and its alleged failure that resulted in
Wyatt’s fall. Under these circumstances, we conclude the trial court did not abuse
its discretion in granting a protective order preventing the production of the bench
seat lid at trial. See id.Wyatt next complains that he was cross-examined about a superseded
pleading before his counsel was permitted to see the pleading, and the resulting harm
continued throughout the trial and into closing argument. Wyatt first points out that
he has no memory of how the underlying accident occurred. Next, he describes
Turbo’s counsel’s questioning of him concerning whether there had ever been a
reference to the seating collapsing and showing him a superseded pleading to refresh
his recollection. Wyatt then argues that Turbo’s counsel did not comply with rules
of evidence 612 and 613 because Wyatt had no memory of the incident, and his
memory therefore could not be refreshed, and use of the superseded pleading as a
prior inconsistent statement for impeachment purposes required that Turbo’s counsel
show the document to Wyatt’s counsel. See TEX. R. EVID. 612, 613(a)(2).
To the extent Wyatt complains of the trial court’s decision to admit or exclude
the superseded pleading, the decision whether to admit or exclude evidence is
committed to the sound discretion of the trial court. City of Brownsville v. Alvarado,
897 S.W.2d 750, 753 (Tex. 1995). “A trial court’s evidentiary ruling must be upheld
if there is a legitimate basis for it.” May v. Buck, 375 S.W.3d 568, 573–74 (Tex.
App.—Dallas 2012, no pet.) (citing Owens–Corning Fiberglas Corp. v. Malone, 972
S.W.2d 35, 43 (Tex. 1998)). Even if the exclusion or admission of evidence is found
to be an abuse of discretion, it does not warrant reversal unless the error probably
caused the rendition of an improper judgment. See id.Here, although Wyatt did not remember anything about the accident, the
record shows Turbo’s counsel was not asking him about the accident itself. Instead,
Turbo’s counsel was asking about a statement contained in a prior pleading. Thus,
Turbo’s counsel was attempting to refresh Wyatt’s recollection concerning the
claims made in a prior pleading. When Wyatt testified his recollection was not
refreshed, in response to further questioning, Wyatt testified it was “pretty obvious
the bench didn’t collapse.” The trial judge called counsel to the bench, and a
discussion followed outside the presence of the jury. Turbo’s counsel asserted he
was trying to refresh Wyatt’s recollection, but he “was about to offer it for
impeachment.” Wyatt’s counsel argued that, when impeaching a witness with a
prior inconsistent statement, it must be shown to opposing counsel upon request.
Turbo’s counsel then offered the two superseded pleadings into evidence. The trial
court ultimately overruled Wyatt’s objection. Once the jury returned to the
courtroom, Turbo’s counsel continued with his cross-examination of Wyatt by
asking Wyatt if he was taking blood pressure medication at the time of the accident
and inquiring into Wyatt’s medical history. Following this questioning, the trial
judge once again asked counsel to approach the bench and, after excusing the jury,
admitted Wyatt’s two superseded pleadings into evidence. During the remainder of
his cross-examination, Turbo’s counsel did not ask Wyatt about statements in the
superseded pleadings about the bench collapsing and did not attempt to impeach
Wyatt with any such statements.
Thus, the record shows that Turbo’s counsel showed the superseded pleadings
to Wyatt to refresh his recollection and was then interrupted by the trial judge. In a
discussion outside the presence of the jury, Turbo’s counsel stated his intention to
impeach Wyatt, but he did not do so in the presence of the jury. Moreover,
statements in superseded pleadings are considered admissions by a party-opponent
and are not hearsay. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d
231, 235 (Tex. 2007). Under these circumstances, we conclude the trial court did
not abuse its discretion in admitting the superseded pleadings. See Alvarado, 897
S.W.2d at 753.
Wyatt complains the trial court erred in refusing to admit a prior answer filed
by Turbo claiming that the dangerous condition was “open and obvious.” Wyatt
argues the admission of this prior answer was necessary to refute Turbo’s statement
in closing argument that Turbo had no knowledge of a dangerous condition. The
answer Wyatt sought to introduce contained a general denial followed by affirmative
defenses, including the allegation that Wyatt’s claims were barred because the
alleged condition of the premises in question was open and obvious.” Unlike
statements by a plaintiff in a superseded pleading, “[a]n affirmative defensive
pleading following a general denial is not a judicial admission.” Jespersen v.
Sweetwater Ranch Apartments, 390 S.W.3d 644, 661 (Tex. App.—Dallas 2012, no
pet) (quoting McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299, 303 (Tex.
Civ. App.—Dallas 1968, writ ref’d n.r.e.)). Thus, we conclude the trial court did not
abuse its discretion in admitting Wyatt’s superseded pleadings but refusing to admit
Turbo’s prior answer. See Alvarado, 897 S.W.2d at 753; Jespersen, 390 S.W.3d at
661.
Wyatt also argues the trial court abused its discretion in sustaining Turbo’s
objection to the admission of Turbo’s interrogatory responses. Wyatt argues the
interrogatory responses would have shown that Turbo “did not contend that any of
the damages or injuries made the basis of the suit were not caused by the incident at
issue” and that Turbo was the operator of the restaurant where Wyatt was injured.
Turbo did not dispute the occurrence of the incident that led to Wyatt’s injuries or
assert that it was not the owner and operator of the restaurant where the incident
occurred. We conclude the trial court did not abuse its discretion in excluding the
interrogatories that would have merely reemphasized these uncontroverted facts.
See Alvarado, 897 S.W.2d at 753.
Wyatt further complains that Turbo’s counsel relied on the superseded
pleadings to “invoke the sympathy of the jury” and to show Wyatt had initially sued
Condit and pled an amount of damages that would permit him to stay in a particular
court. We review the trial court’s ruling on an objection to closing argument for
abuse of discretion. In re Commitment of Hill, 621 S.W.3d 336, 344 (Tex. App.—
Dallas 2021, no pet.). Generally, proper jury argument falls into one of these areas:
(1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3)
an answer to an argument made by opposing counsel, or (4) a plea for the
enforcement of a law. Id. Counsel must be given great latitude to argue the facts
and the issues. Id. at 345. Once the superseded pleadings were properly admitted,
it was within the trial court’s discretion to give Turbo’s counsel latitude to argue
reasonable deductions that could be drawn from the contents of those pleadings. See
id. at 134–35.
Wyatt also complains that, during closing argument, Turbo’s counsel
misrepresented Turbo as a “small single restaurant,” and the trial court not only
overruled his objection to this “false” argument outside the record but also
admonished Wyatt’s counsel for “attempting to correct the false representation.”
Wyatt argues his reference to Turbo owning 650 restaurants was invited by Turbo’s
counsel’s assertion that Turbo owned only a single restaurant, and the trial court’s
calling Wyatt’s argument “inappropriate” violated his right to a fair trial. The record
shows the “650 restaurants” statement was made in response to the following
statement by Turbo’s counsel:
So when you make decisions in cases like this, I think [Wyatt’s counsel]
said, “It’s a drop in the bucket.” You haven’t heard any evidence on
that. You haven’t heard any evidence about how much money my one
Arby’s in Saginaw, Texas, makes or how much it can afford or how
much it pays its employees. She just threw that in so you’d think, oh,
these numbers won’t matter to them. They’re a company. They're a
business. You can just assign a number. It’s a, quote, as she said, “drop
in the bucket.”
We note that Wyatt’s counsel did not object to this argument at the time it was made.
Further, Turbo’s counsel did not make the argument that Turbo owned only one
restaurant; the reference can be understood as referring to the one restaurant where
an incident occurred. Under these circumstances we conclude the trial court did not
abuse its discretion in sustaining Turbo’s objection to Wyatt’s “650 restaurants”
statement and instructing the jury to disregard this “inappropriate” statement. See
id. at 134–35.
Wyatt complains of the trial court’s refusal to include a res ipsa loquitur
definition in the jury charge. A plaintiff seeking to apply res ipsa loquitur must
establish “(1) the character of the accident is such that it would not ordinarily occur
in the absence of negligence and (2) the instrumentality causing the injury is shown
to have been under the management and control of the defendant.” Sanders v. Naes
Cent., Inc., 498 S.W.3d 256, 258 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(quoting Jones v. Tarrant Cnty. Util. Co., 638 S.W.2d 862, 865 (Tex. 1982)). We
review a trial court’s decision to submit or refuse a particular instruction under an
abuse of discretion standard of review. In re V.L.K., 24 S.W.3d 338, 341 (Tex.
2000). We have already concluded that the evidence in this case showed the accident
could have occurred in the absence of negligence, thus defeating the first element
required for a res ipsa loquitur instruction. See Sanders, 498 S.W.3d at 258.
Accordingly, we conclude the trial court did not abuse its discretion in refusing to
include a res ipsa loquitur definition in the jury charge. See In re V.L.K., 24 S.W.3d
at 341.
Because there are no errors to be considered as a combined whole for purposes
of evaluating harm, we reject Wyatt’s cumulative error arguments. See Chohan, 615
S.W.3d at 314. We overrule Wyatt’s second issue.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
200456F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GAREN KEITH WYATT, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-20-00456-CV V. Trial Court Cause No. DC-17-00019.
Opinion delivered by Justice
TURBO RESTAURANTS, LLC, Goldstein. Justices Pedersen, III and
Appellee Smith participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee TURBO RESTAURANTS, LLC recover its
costs of this appeal from appellant GAREN KEITH WYATT.
Judgment entered this 31st day of August 2022.