Cortez ex rel. Puentes v. Hcci-San Antonio

• Decision Date: 07 January 2004
• Docket Number: No. 04-02-00536-CV.,04-02-00536-CV.
• Citation: 131 S.W.3d 113
• Parties: Jesus M. CORTEZ, On Behalf of the ESTATE OF Carmen PUENTES, Deceased, Appellant, v. HCCI-SAN ANTONIO, INC., d/b/a Alta Vista Nursing Center; Alta Vista Nursing Center; Altman Nursing, Inc. d/b/a Alta Vista Nursing Center; Hunter Care Centers, Inc. d/b/a Alta Vista Nursing Center; and Jerry Tristan; Appellees.
• Court: Texas Court of Appeals

131 S.W.3d 113

Jesus M. CORTEZ, On Behalf of the ESTATE OF Carmen PUENTES, Deceased, Appellant, v. HCCI-SAN ANTONIO, INC., d/b/a Alta Vista Nursing Center; Alta Vista Nursing Center; Altman Nursing, Inc. d/b/a Alta Vista Nursing Center; Hunter Care Centers, Inc. d/b/a Alta Vista Nursing Center; and Jerry Tristan; Appellees.

No. 04-02-00536-CV.

Court of Appeals of Texas, San Antonio.

January 7, 2004.

From the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 1995-CI-12856; Janet P. Littlejohn, Judge Presiding.¹

Keith C. Livesay, Livesay Law Office, McAllen, J. Thomas Rhodes, III, Lyons & Rhodes, P.C., San Antonio, Stephen S. Hornbuckle and Thomas S. Hornbuckle, Law Office Of Thomas Hornbuckle, Houston, for Appellant.

Lori D. Proctor and Robert L. Quintanilla, Proctor & Nagorny, P.C., Houston, for Appellees.

Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

Opinion by SANDEE BRYAN MARION, Justice.

This is an appeal from a jury verdict in favor of appellant/plaintiff, Jesus M. Cortez. Plaintiff sued Altman Nursing, Inc.; Jerry Tristan; HCCI-San Antonio, Inc. d/b/a Alta Vista Nursing Center ("HCCI"), and other entities for negligence, gross negligence, common law assault, violations of the Penal Code, and intentional infliction of emotional distress. A jury found Altman Nursing, Inc., Tristan, and HCCI negligent; awarded $9 million in damages; and apportioned liability as follows: Altman Nursing, Inc. 40%, Tristan 20%, and HCCI 40%. The jury also found Altman Nursing, Inc. and Tristan liable for gross negligence, and HCCI liable for assault. Judgment was entered against HCCI and Tristan. A final judgment was also entered against Altman Nursing, Inc. based on a high/low settlement agreement entered into with plaintiff before trial. HCCI tendered its share of the judgment, which plaintiff refused. Plaintiff appeals only the judgment against HCCI and Tristan. We affirm the trial court's judgment as to HCCI-San Antonio, Inc. d/b/a Alta Vista Nursing Home Center. We reverse the trial court's judgment in part as to Jerry Tristan.

BACKGROUND

Plaintiff is the surviving heir of Carmen Puentes. Carmen was a sixty-two year old woman who was admitted to the Alta Vista Nursing Center ("the facility") on August 14, 1992. Tristan was an employee of the facility. Carmen fell in April 1995 while attempting to transfer herself from her commode to her wheelchair. Carmen sued on August 31, 1995, but died on February 18, 1996 while suit was pending. Altman Nursing, Inc. owned the facility until January 1, 1995 when it was purchased by HCCI.

DISCHARGE OF VENIREMEMBER

In his first issue, plaintiff asserts the trial court erred in not discharging a veniremember, Mr. Snider. Plaintiff contends the trial court should have discharged Snider as a matter of law because, as an insurance company claims adjustor, he prejudged the merits of the case. Plaintiff asserts the trial court's error harmed him because it forced him to use his final peremptory strike on Snider and accept another objectionable veniremember whom he otherwise would have stricken.²

Bias is an inclination toward one side of an issue rather than to the other. See Goode v. Shoukfeh, 943 S.W.2d 441, 453 (Tex.1997); Buls v. Fuselier, 55 S.W.3d 204, 209 (Tex.App.-Texarkana 2001, no pet.). This disqualification extends to bias or prejudice against the subject matter of the suit as well as against the litigants. See Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963); Molina v. Pigott, 929 S.W.2d 538, 541 (Tex.App.-Corpus Christi 1996, writ denied). To disqualify a potential juror for bias as a matter of law, the record must conclusively show that the potential juror's state of mind led to the natural inference that he or she would not act with impartiality. Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex.App.-San Antonio 2000, no pet.). A juror's indication that he cannot be fair and impartial because his feelings are so strong in favor of a party that he will base his verdict on those feelings and not the evidence supports a successful challenge for cause. Buls, 55 S.W.3d at 210; Sosa, 20 S.W.3d at 11. If a prospective juror's bias or prejudice for or against a party in a lawsuit is established as a matter of law, the trial court must disqualify that person from service. See Tex. Gov't Code Ann. § 62.105(4) (Vernon 2003); Malone v. Foster, 977 S.W.2d 562, 564 (Tex.1998). If bias or prejudice is not established as a matter of law, whether the juror is sufficiently biased or prejudiced to merit disqualification is a factual determination the trial court must make. Malone, 977 S.W.2d at 564; Buls, 55 S.W.3d at 209; Sosa, 20 S.W.3d at 11.

We review the evidence in the light most favorable to the trial court's finding, and we do not reverse on appeal in the absence of an abuse of discretion. See Buls, 55 S.W.3d at 210; Sosa, 20 S.W.3d at 11. The need for deference to the trial court is especially critical when reviewing a record that demonstrates uncertainty in a venireperson's responses because the trial court is in the best position to evaluate the prospective juror's sincerity and ability to be fair and impartial. Goode, 943 S.W.2d at 453; Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 207-08 (Tex.App.-Amarillo 1996, no writ).

Here, Snider was somewhat equivocal on whether he would favor one side over the other. He said that because he was a claims adjustor, he "would be very uncomfortable" sitting on a case that involved an insurance claim and that he might have "preconceived notions" on the nature of the case. However, he said he felt the case "could almost go either way"; and although he would "feel bias," he could not "answer anything for certain." When the court asked Snider if one party started ahead of the other, he replied, "In a way, yes." However, he then stated he was not familiar with this type of case "so that's not a bias I should have." Snider said he would try to listen to all the evidence, follow the court's instructions, and decide the case on the law and evidence.

The record does not conclusively show that Snider's feelings were so strong in favor of a party that he would base his verdict on those feelings and not on the evidence. Therefore, any bias or prejudice on his part was not established as a matter of law. Instead, Snider's responses were equivocal. Accordingly, we defer to the trial court and find no abuse of discretion.

EXCLUSION OF PLAINTIFF'S EVIDENCE

In his second issue, plaintiff asserts the trial court erred in excluding three Texas Department of Health and Human Services ("TDHHS") records (exhibits 35, 37, and 38). Plaintiff contends these records show the mistreatment Carmen received was not an isolated event and the records were necessary to contradict HCCI's assertion that it was unaware of any mistreatment and that no abuse had ever occurred at the facility.

At trial, plaintiff asked Laurence Abshire, the nursing home administrator at the time Carmen was a patient,³ whether he knew his staff would threaten patients who used their call lights. Abshire said he was not aware of that ever happening. Plaintiff's counsel attempted to introduce into evidence exhibits 35 and 38. Exhibit 35, an internal investigation report, indicated that on December 23, 1994(1) an unidentified employee threatened to put poison in the food of an "unknown" patient if the patient used the call light again, (2) the unidentified employee spoke "roughly" to the "unknown" patient, and (3) the unidentified employee failed to promptly answer call lights. Exhibit 38, a TDHHS report dated December 23, 1994, indicated an unidentified nurse's aide often spoke harshly to patients and had a rough manner with patients. Next, plaintiff asked Abshire whether it had been brought to his attention that the staff was taking excessive time in responding to call lights, and he answered he could not remember. Plaintiff's counsel then attempted to introduce into evidence exhibit 37, a TDHHS report dated March 18, 1994 indicating a failure to answer call lights. Each time plaintiff attempted to offer these three documents, the trial court sustained HCCI's objection and did not allow the documents into evidence.

We review the exclusion of evidence under an abuse of discretion standard. McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 27 (Tex.App.-San Antonio 1998, pet. denied). If error exists, the party asserting the error has the burden to show the error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1). To show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence. See Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995) (per curiam).

Assuming without deciding the trial court erred in excluding the exhibits, we must examine the whole record to determine if the erroneous exclusion harmed the plaintiff. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Plaintiff had the burden to show the trial court's rulings prejudiced him. Id. Plaintiff has not demonstrated how the trial court's ruling harmed him in view of the jury's finding that HCCI was negligent and committed assault, and its award of $9 million in his favor.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In his third issue, plaintiff asserts the trial court erred in granting a directed verdict on his intentional infliction of emotional distress claim against HCCI and Tristan.

Survival Cause of Action

We first address HCCI's argument that such a claim does not survive Carmen's death. Under the Texas Survival Statute, "[a] cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person...." Tex. Civ. Prac. & Rem.Code Ann. § 71.021(a) (Vernon 1997). The purpose of the statute is to continue a decedent's cause of action beyond death to redress...