Lopez–juarez v. Kelly

• Decision Date: 27 September 2011
• Docket Number: No. 06–10–00082–CV.,06–10–00082–CV.
• Citation: 348 S.W.3d 10
• Parties: Gloria LOPEZ–JUAREZ, Individually and as Executrix of the Estate of Alejandro Juarez, Deceased, and as next friend of Gloria Alejandra Juarez, Appellant,v.Huey KELLY, d/b/a Kelly Tours, Appellee.
• Court: Texas Court of Appeals

348 S.W.3d 10

Gloria LOPEZ–JUAREZ, Individually and as Executrix of the Estate of Alejandro Juarez, Deceased, and as next friend of Gloria Alejandra Juarez, Appellant,

v.Huey KELLY, d/b/a Kelly Tours, Appellee.

No. 06–10–00082–CV.

Court of Appeals of Texas, Texarkana.

Submitted: June 8, 2011.Decided: Aug. 16, 2011.Rehearing Overruled Sept. 27, 2011.

David A. Ward, Jr., Peter S. Poland, The Ward Law Firm, The Woodlands, for appellant.Levon G. Hovnatanian, Martin, Disiere, Jefferson & Wisdom, LLP, Houston, Mark J. Dyer, Martin, Disiere, Jefferson & Wisdom, LLP, Dallas, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

Alejandro Juarez was traveling westbound on Interstate 20 in Gregg County when his vehicle was rear-ended by a vehicle driven by Michael A. Weisheit.¹ Juarez's vehicle careened to the left side of the median into the left eastbound lane of Interstate 20. Juarez, though, did not suffer any fatal or catastrophic injuries from the initial collision. Juarez's vehicle was then struck by an eastbound tour bus owned by Huey Kelly, d/b/a Kelly Tours, and being driven by Andrew Johnson, an employee of Kelly Tours. ² Juarez died as a result of this second collision.

Juarez's wife, Gloria Lopez–Juarez brought suit against Ford Motor Company, Huey Kelly, d/b/a Kelly Tours, Michael A. Weisheit, and Beverly Woolsey Goble, individually, as executrix of Juarez's estate, and as next friend of Gloria Alejandra Juarez, Juarez's daughter. Only the allegations against Huey Kelly, d/b/a Kelly Tours (Kelly Tours) proceeded to trial. Lopez–Juarez's suit, under the Texas Wrongful Death Statute and Texas Survival Statute, alleged negligence, negligence per se, gross negligence, negligent entrustment, and negligent hiring. The trial court admitted, over objection, the opinion testimony of Trooper Colby Hobbs, a police officer who investigated the accident. The trial court denied the requested instruction on negligence per se.³ The jury found Weisheit solely responsible for the accident. The trial court granted judgment in favor of Kelly Tours.

Lopez–Juarez raises two issues on appeal. She argues the trial court erred in admitting the expert testimony of Hobbs and erred in denying the instruction on negligence per se. Kelly raises a counter-issue that Lopez–Juarez failed to request the appropriate relief in her appellant's brief. We conclude that Lopez–Juarez could amend the relief originally requested in her appellant's brief. We also conclude the trial court abused its discretion in admitting the opinion testimony of Hobbs concerning causation and negligence because, under the facts of this case, Hobbs lacked the qualifications to testify as an expert. However, we affirm the judgment of the trial court because the error did not result in reversible error and the trial court did not err in denying the requested instruction on negligence per se.

I. Requested Relief May Be Amended

In her appellant's brief, Lopez–Juarez requests “that this court reverse and render judgment for her damages and attorney fees.” In his appellee's brief, Kelly argues this error prevents this Court from granting relief. Kelly also argues that Lopez–Juarez cannot amend her brief or request a remand in a reply brief. Lopez–Juarez has filed a motion requesting leave to file an amended brief, which requests a remand, and has requested a remand in her reply brief. Kelly has filed a response to the motion to amend objecting to Lopez–Juarez's request.

The appropriate relief for both issues raised by Lopez–Juarez would be a remand. If the admission of Hobbs' testimony is reversible error, the appropriate relief would be a reversal and remand for new trial. See, e.g., In re Estate of Arndt, 187 S.W.3d 84, 88 (Tex.App.-Beaumont 2005, no pet.). If the trial court committed reversible error in denying the requested instruction on negligence per se, the appropriate relief would be a reversal and remand for a new trial. See, e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000). A court should not grant relief which has not been requested by the prevailing party. Horrocks v. Tex. Dep't of Transp., 852 S.W.2d 498, 499 (Tex.1993); In re Estate of Wilson, 252 S.W.3d 708, 715 (Tex.App.-Texarkana 2008, no pet.). When a party has only requested rendition, but the appropriate relief for a party's issue is a remand for a new trial, an appellate court cannot grant a new trial. Stevens v. Nat'l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex.2000); W. End API, Ltd. v. Rothpletz, 732 S.W.2d 371, 374 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

The Texas Rules of Appellate Procedure provide that a brief “may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.” Tex.R.App. P. 38.7. The sole change in the amended brief is that Lopez–Juarez is now requesting a remand. Kelly argued in the appellee's brief that the appellant's brief cannot be amended, citing seventeen cases which hold new issues cannot be raised in a reply brief. ⁴ In his response, Kelly argues justice does not require amendment and argues he has been prejudiced because he has spent time briefing the issue.

The cases relied upon by Kelly are distinguishable because these cases concern new issues, not new prayers. A prayer is a formality—albeit an important formality. The Austin Court of Appeals has considered this exact issue and concluded the prayer could be amended. See Majeed v. Hussain, No. 03–08–00679–CV, 2010 WL 5575954, 2010 Tex.App. LEXIS 8477 (Tex.App.-Austin Oct. 22, 2010, no pet.) (mem. op.) (concluding failure to request appropriate relief could be cured). The Austin court reasoned the prayer could be amended because the rules provide briefs can be amended,⁵ briefing requirements should be construed “liberally” and “substantial compliance” is sufficient,⁶ Rule 43.3 instructs appellate courts, “[w]hen reversing a trial court's judgment,” to “render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for a new trial,” ⁷ and the rules contemplate that appellate courts afford parties the opportunity to cure any formal or substantive briefing defects before disposing of the appeal based on such a defect rather than the merits.⁸

We agree with the Austin Court of Appeals that a prayer can be amended. We grant Lopez–Juarez's motion for leave to amend her appellant's brief and overrule Kelly's counter-issue.

II. Hobbs' Opinion Testimony as Expert Testimony

Lopez–Juarez's first issue challenges the admissibility of Hobbs' testimony concerning the causation of the accident. Lopez–Juarez argues Hobbs was not qualified ⁹ to testify as an expert on accident causation and the error in admitting Hobbs' testimony was reversible error.

Prior to trial, Lopez–Juarez filed a trial brief challenging the admissibility of Hobbs' testimony. Lopez–Juarez argued Hobbs was “not qualified to offer lay or expert testimony as to any opinions regarding the accident.” Outside the presence of the jury, Lopez–Juarez objected to the admissibility of Hobbs' testimony and obtained a ruling. See Tex.R. Evid. 103. The trial court sustained Lopez–Juarez's objection in part and restricted Hobbs' testimony to opinions unrelated to vehicle speed. The trial court, however, overruled the remainder of Lopez–Juarez's objection and held that Hobbs' testimony as to causation was admissible. The trial court stated,

I have read the case law, read the complete deposition of Trooper Hobbs. Case law indicates that somebody with Trooper Hobbs' training, and he does—while he does limit it at first, he later talks about over the numerous accidents and fatality accidents he's investigated in his career, starting in Bay City and also with training through the Smith County Sheriff's Department.

Based on the case law, which a couple of cases say a Level 2 is sufficient, I'm going to have to allow his testimony on those issues. I am going to limit—I don't think he has training to do the speed calculations, but as to the rest of it, he can give his opinion. And then there's lots of cross-examination material available for Trooper Hobbs through those depositions. So I'm going to allow it.

The trial court later clarified that “how [Hobbs] believes the accident happened” was admissible.

At trial, Kelly introduced deposition excerpts, during which Hobbs testified concerning the causation of the accident. Hobbs testified ¹⁰ that Johnson had only seconds to react to a “sudden emergency” and that Hobbs “believe[d] he did the right thing....” Hobbs opined that Johnson's actions did not contribute to or cause the accident and that Weisheit was responsible for the collision.

This case requires consideration of two different Rules of Evidence—Rule 701, which governs lay opinions, and Rule 702, which governs expert opinions. Rule 701 provides:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Tex.R. Evid. 701. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Tex.R. Evid. 702. We note that opinion testimony is not objectionable because it embraces an ultimate issue.¹¹ Tex.R. Evid. 704.A. Hobbs' Testimony Contained Opinions

We begin by noting that not all of Hobbs' testimony was opinion testimony. Most of the testimony involves descriptions of witness statements and descriptions of the physical evidence,...