Bryan v. Dockery, No. 01-89-00330-CV

CourtCourt of Appeals of Texas
Writing for the CourtDUNN
PartiesTravis B. BRYAN, Jr., Heir-at Law, of the Estate of the Deceased, Ruth Bryan, Appellant, v. Raymond DOCKERY, Appellee. (1st Dist.)
Decision Date12 April 1990
Docket NumberNo. 01-89-00330-CV

Page 447

788 S.W.2d 447
Travis B. BRYAN, Jr., Heir-at Law, of the Estate of the
Deceased, Ruth Bryan, Appellant,
v.
Raymond DOCKERY, Appellee.
No. 01-89-00330-CV.
Court of Appeals of Texas,
Houston (1st Dist.).
April 12, 1990.

Page 448

Travis B. Bryan, Bryan, for appellant.

Jody K. Sims, Austin, for appellee.

Before WARREN, SAM BASS and DUNN, JJ.

OPINION

DUNN, Justice.

The jury found appellant, Ruth Bryan, 1 87% negligent and Michael Hejl 2 13% negligent for personal injuries sustained by appellee, Raymond Dockery, and awarded Dockery $13,000.00 in damages and $7,255.98 in pre-judgment interest.

On December 23, 1983, Dockery, a postal employee, was on the Bryan premises to deliver a package to Hejl, who lived in an upstairs garage apartment. Dockery stated that, because the package was too large to fit inside the mailbox, he went upstairs to attempt delivery, and no one was home; that as he started to descend the stairs, a portion of the stairs collapsed causing him to fall on his head and shoulders. Dockery testified that following the accident, he first reported the fall to Bryan, and then left the premises to seek medical treatment.

Hejl testified that in May 1980, he entered into an oral lease to rent a garage apartment from Bryan, in Bryan, Texas, on a month-to-month basis at a cost of $85.00 a month. Hejl stated that there was no written lease agreement or contract between him and Bryan, and that the only access to the garage apartment was by a wooden stairway. Hejl testified that he lived in the apartment until May 1984; that there was no agreement between him and Bryan concerning who would be responsible for repairs to the apartment; and that, if something needed to be repaired, he would call Bryan and she would notify someone to take care of the maintenance. Hejl further stated that about one to two weeks before Dockery was injured on the stairs, Bryan called and inquired about the condition of the steps, and he told her that they were in poor condition. Hejl told Bryan he would take care of them if she wanted him to do so, but nothing was done before Dockery fell. Hejl testified that, when he returned to the apartment on December 23 and saw that the steps had collapsed, he ordered lumber and began repairing the stairs. Hejl stated that he ordered the lumber without consulting Bryan, and Bryan paid him when he presented a bill for the cost of repairs. Hejl testified that he did not repair the steps right away because of the cold weather and because he was working full time.

On cross-examination, Hejl stated that he was a carpenter; that he had replaced two of the steps long before they collapsed; that he had not notified Bryan about the

Page 449

repair, nor asked to be compensated for the work. He further stated that he had once painted the inside of the premises and replaced a door lock, and that if something needed to be done, he would probably be the one to do it because Bryan relied on him.

Bryan, in her deposition, 3 stated that there was no agreement between she and Hejl as to who would make repairs to the property; that she was crippled; that she not been upstairs in the apartment for several years; that she asked Hejl if he wanted her to telephone another carpenter to repair the stairs, and he responded that he would make the repairs; that she was not sure if she learned of the condition of the stairs before or after Dockery fell; and that Hejl waited a while before repairing the stairs. Bryan also stated that she did not take care of ordinary repairs such as leaky faucets; that Hejl was on his own; that she did not have anything to do with him other than collecting his rent; that if anything did go wrong with the apartment, Hejl would repair it because he repaired everything; and that she depended on Hejl to inform her of repairs that were needed to the apartment, so that she could get them fixed. When asked whether Hejl was responsible for the collapse of the stairs that led to Hejl's apartment and for Dockery's injury, Bryan responded, "No, that's my responsibility, I own it,.... and I will take all the blame."

Dockery contends that Bryan waived her motion for directed verdict, and motion for new trial. It is a well-settled rule that a defendant who elects not to stand on its motion for an instructed verdict, and introduces its own evidence, waives its motion for directed verdict. Texas Steel Co. v. Douglas, 533 S.W.2d 111, 114 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.). In this case, Bryan waived her motion for directed verdict because she proceeded to put on evidence after she had made the motion for directed verdict, and she did not reurge the motion at the close of the case. Furthermore, Bryan did not present her motion for new trial; thus, it is overruled by operation of law. Although appellant did not preserve error on her motion for directed verdict and new trial, she preserved error on the judgment notwithstanding the verdict.

In appellant's first point of error, she contends that the trial court erred in denying her motion for directed verdict and motion for judgment notwithstanding the verdict, because there was no evidence to establish that she had a duty of care to Dockery, or was negligent.

In reviewing a "no evidence" point, the reviewing court considers only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding, and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). An appellate court is limited to reviewing only the evidence tending to support the jury findings in a "no evidence" point of error. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988). If there is any evidence of probative force to support the finding, the point must be overruled, and the finding upheld. Id.

Bryan relies on Yarbrough v. Booher, 141 Tex. 420, 422, 174 S.W.2d 47, 48 (1943), and argues that because there was no contractual agreement between her and Hejl, she is not liable for injuries that occurred on the premises. Dockery contends that Yarbrough is no longer applicable, given the statutory duty to repair. In Yarbrough, the supreme court held that absent a statute or...

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18 practice notes
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...writ denied) (trial court "may refuse to submit a question only if no evidence exists to warrant its submission"); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex.App.--Houston [1st Dist.] 1990, no writ) ("evidence must be considered in favor of the party against whom the questions were refused ......
  • El Paso Refining v. Scurlock Permian Corp., No. 08-99-00005-CV.
    • United States
    • Court of Appeals of Texas
    • April 18, 2002
    ...to have caused, the rendition of an improper verdict. Id. (citing TEX.R.APP. P. 81(b)(1) (new rule 44.1(a)(1))); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex.App.-Houston [1st Dist.] 1990, no writ). B. The Law. EPRI presents a somewhat unsettled question of law in Texas, and an issue which ha......
  • Star Houston, Inc. v. Shevack, No. 01-93-00440-CV
    • United States
    • Court of Appeals of Texas
    • September 8, 1994
    ...after denial of its motion for instructed or directed verdict, Star waived its complaint about that ruling. See Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex.App.--Houston [1st Dist.] 1990, no 3 A "scintilla" of evidence does no more than create a mere surmise or suspicion of its existence. Ki......
  • El Paso Refining v Scurlock Permian Corp., 089900005CV
    • United States
    • Court of Appeals of Texas
    • January 31, 2002
    ...to have caused, the rendition of an improper verdict. Id. (citing Tex. R. App. P. 81(b)(1) (new rule 44.1(a)(1))); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex. App.--Houston [1st Dist.] 1990, no B. The Law. EPRI presents a somewhat unsettled question of law in Texas, and an issue which has n......
  • Request a trial to view additional results
18 cases
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...writ denied) (trial court "may refuse to submit a question only if no evidence exists to warrant its submission"); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex.App.--Houston [1st Dist.] 1990, no writ) ("evidence must be considered in favor of the party against whom the questions were refused ......
  • El Paso Refining v. Scurlock Permian Corp., No. 08-99-00005-CV.
    • United States
    • Court of Appeals of Texas
    • April 18, 2002
    ...to have caused, the rendition of an improper verdict. Id. (citing TEX.R.APP. P. 81(b)(1) (new rule 44.1(a)(1))); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex.App.-Houston [1st Dist.] 1990, no writ). B. The Law. EPRI presents a somewhat unsettled question of law in Texas, and an issue which ha......
  • Star Houston, Inc. v. Shevack, No. 01-93-00440-CV
    • United States
    • Court of Appeals of Texas
    • September 8, 1994
    ...after denial of its motion for instructed or directed verdict, Star waived its complaint about that ruling. See Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex.App.--Houston [1st Dist.] 1990, no 3 A "scintilla" of evidence does no more than create a mere surmise or suspicion of its existence. Ki......
  • El Paso Refining v Scurlock Permian Corp., 089900005CV
    • United States
    • Court of Appeals of Texas
    • January 31, 2002
    ...to have caused, the rendition of an improper verdict. Id. (citing Tex. R. App. P. 81(b)(1) (new rule 44.1(a)(1))); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex. App.--Houston [1st Dist.] 1990, no B. The Law. EPRI presents a somewhat unsettled question of law in Texas, and an issue which has n......
  • Request a trial to view additional results

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