Givens v. Anderson Columbia Co., Inc., 070820 TXCA4, 04-19-00435-CV

Docket Nº:04-19-00435-CV
Opinion Judge:Sandee Bryan Marion, Chief Justice
Party Name:Jerold GIVENS and Dinah Givens, Individually and as Representatives of the Estate of James Douglas Givens, Deceased; Beverly Brown, Johnny Scott Brown, and Andrew Brown, Individually and as Representatives of the Estate of Johnnie Lee Brown; Shannon Brown; and Wesley Brown, Appellants v. ANDERSON COLUMBIA CO., INC., Appellee
Judge Panel:Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice
Case Date:July 08, 2020
Court:Court of Appeals of Texas
 
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Jerold GIVENS and Dinah Givens, Individually and as Representatives of the Estate of James Douglas Givens, Deceased; Beverly Brown, Johnny Scott Brown, and Andrew Brown, Individually and as Representatives of the Estate of Johnnie Lee Brown; Shannon Brown; and Wesley Brown, Appellants

v.

ANDERSON COLUMBIA CO., INC., Appellee

No. 04-19-00435-CV

Court of Appeals of Texas, Fourth District, San Antonio

July 8, 2020

From the 293rd Judicial District Court, Maverick County, Texas Trial Court No. 14-12-30420-MCV Honorable Maribel Flores, Judge Presiding 1

Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice

OPINION

Sandee Bryan Marion, Chief Justice

The appellants appeal a take-nothing judgment entered in favor of Anderson Columbia Co., Inc. based on a jury's verdict. The appellants challenge the factual sufficiency of the evidence to support the jury's findings. The appellants also contend the trial court erred in: (1) vacating an order granting a mistrial; (2) denying their motion for new trial; and (3) applying an order entered by this court in a prior mandamus proceeding. We affirm the trial court's judgment.

Background

James Douglas Givens, Johnnie Lee Brown, and Melissa Trevino died from injuries they sustained in an automobile collision. The van driven by Trevino and the pickup truck driven by Givens, in which Brown was a passenger, were struck from behind by an 18-wheel tractor-trailer driven by Salatiel Polanco.

Givens was slowing to a stop at a road construction site immediately behind Trevino's van when Polanco crashed into the rear of Givens's pickup truck. Polanco, who was consistently traveling at a speed of approximately 60 mph prior to the crash, did not apply his brakes until two seconds before the collision. The collision forced Givens's pickup truck into the rear of Trevino's van. Trevino's van was also struck by Polanco's tractor-trailer when the initial impact caused Givens's truck to move sideways, thereby allowing the tractor-trailer to also directly impact Trevino's van. At the time of the collision, Trevino's van was stopped immediately behind another 18-wheel tractor-trailer driven by Mark Patrick. Patrick's tractor-trailer, which also was damaged in the collision, was stopped behind a few other cars and a third tractor-trailer which were not impacted by the collision.

The collision occurred on a two-lane highway which had been reduced to one lane to accommodate the road construction. Road construction employees called "flaggers" were situated on both sides of the construction zone and would alternately stop traffic in one direction while allowing traffic from the other direction to drive past the construction zone in the one open lane.

The families of Givens, Brown, and Trevino sued Polanco and Anderson, the construction company engaged in the road construction, alleging their negligence caused the accident. Anderson was alleged to be negligent in failing to comply with the traffic control plan the Texas Department of Transportation prepared for the road construction project. Before trial, Trevino's mother settled her claims against Anderson, and the Givens/Brown families settled their claims against Polanco. After a two-week trial, the jury found Polanco's negligence caused the occurrence in question but Anderson was not negligent. The jury also found Anderson complied with the provisions of the traffic control plan that were "material to the condition or defect, if any, that was the proximate cause of the occurrence."

After the jury's verdict, the trial court granted a motion for mistrial filed by the Givens/Brown families. Anderson filed a petition for writ of mandamus in this court challenging the order granting the mistrial. Because a new trial judge assumed the trial court bench, this court abated the mandamus proceeding pursuant to rule 7.2 of the Texas Rules of Appellate Procedure and instructed Anderson to present to the successor trial judge "each issue made the subject of the pending petition for writ of mandamus and obtain a ruling on each." After a hearing, the successor trial judge entered an order vacating the order granting the mistrial which effectively denied the motion for mistrial. The successor trial judge also denied the motion for new trial filed by the Givens/Brown families who appeal.

Factual Sufficiency

In their first issue, the Givens/Brown families contend the evidence is factually insufficient to support the jury's findings in favor of Anderson.

"When a party attacks the factual sufficiency of an adverse finding on an issue on which [the party] has the burden of proof, [the party] must demonstrate on appeal 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). "The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id.

"A factual sufficiency challenge concedes the existence of conflicting evidence, yet maintain[s] that the evidence against the jury's findings is so great as to make the finding erroneous." Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198, 209 (Tex. App.- San Antonio 2013, pet. denied) (internal quotation marks omitted). In conducting a factual sufficiency review, a reviewing court "must not merely substitute its judgment for that of the jury." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Instead, the reviewing court must remain mindful that "the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony." Id. Similarly, it is the jury's role, not the reviewing court's, "to resolve inconsistencies within or conflicts among the witnesses' testimony." Lamont, 421 S.W.3d at 209-10 (internal quotation marks omitted).

In their brief, the Givens/Brown families cite evidence that could have supported a jury finding that Anderson was negligent in failing to comply with the traffic control plan, including evidence that all required traffic control signs and rumble strips were not properly positioned at the time of the accident. The brief, however, ignores or attempts to discredit the conflicting evidence that the required traffic control signs and rumble strips were properly positioned. In doing so, the brief disregards it is the jury's role, not this court's, to assess the credibility of the witnesses and to resolve conflicts in the evidence. The Givens/Brown families also cite evidence that: (1) measurements of the distances between the required traffic control signs and rumble strips after the accident established a few variations from the distances required by the traffic control plan; and (2) flags were not attached to the first traffic control sign required by the traffic control plan which was the sign farthest away from the site of the collision. The jury, however, was asked whether Anderson was in compliance with the provisions of the plan "material to the condition of defect, if any, that was the proximate cause of the occurrence." Based on its finding, the jury either believed the testimony that the traffic control signs and rumble strips were properly placed or that the variations in the required distances and missing flags were not material. Such a finding is supported by evidence that Polanco failed to slow his speed in response to any of the traffic control signs and rumble strips and failed to brake until two seconds before the collision. Having reviewed all of the evidence and deferring to the jury's assessment of the credibility of the witnesses and the weight of the evidence, and further deferring to the jury's resolution of the conflicts in the evidence, we hold the evidence is factually sufficient to support the jury's findings.

The Givens/Brown families' first issue is overruled.

Rule 7.2

In their fourth issue, the Givens/Brown families assert the trial court erred in its application of this court's abatement order in original proceeding cause number 04-18-00852-CV. Specifically, the Givens/Brown families contend the successor judge erred in independently ruling on the motion for mistrial as opposed to deferring to the prior judge's ruling in reconsidering that ruling. We disagree.

Rule 7.2 of the Texas Rules of Appellate Procedure requires an appellate court to abate an original proceeding if a public officer ceases to hold office before the original proceeding is finally disposed. Tex.R.App.P. 7.2. Pursuant to rule 7.2, the successor must "reconsider the original party's decision." Id. In this case, the "decision" to be reconsidered was the ruling on the motion for mistrial. Accordingly, the successor judge properly reconsidered whether the motion for mistrial should have been granted and effectively denied the motion by vacating the prior order.

Although the Givens/Brown families are critical of the successor judge making a decision based on a "cold record," the Texas Supreme Court has recognized a successor judge may be "disadvantaged" in reconsidering rulings under rule 7.2. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009). However, the court noted "successor trial judges are disadvantaged in many, if not most, instances when they are called upon to step into pending cases." Id. The court then concluded, "Part of being a trial judge is having to make difficult rulings in pending matters." Id. at 214.

The Givens/Brown families' fourth issue is overruled.

Mistrial

In their second issue, the Givens/Brown families contend the trial court erred in...

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