Salazar v. Payan
Docket Number | 08-22-00245-CV |
Decision Date | 04 August 2023 |
Parties | LORETTA SALAZAR, Individually, and on Behalf of the Estate of ERNEST SALAZAR, Appellant, v. HECTOR A. PAYAN, M.D., Appellee. |
Court | Texas Court of Appeals |
Appeal from the 120th Judicial District Court Of El Paso County Texas (TC# 2016DCV4437)
Before Rodriguez, C.J., Palafox, and Soto, JJ.
In a single issue, Appellant argues the trial court abused its discretion in admitting evidence of her settlement with former defendants. We affirm.
Appellant Loretta Salazar, Individually, and on Behalf of the Estate of Ernest Salazar (Salazar), initiated suit against Appellee Hector A. Payan, M.D. (Dr. Payan), and five other defendants on theories of medical negligence and vicarious liability for the death of her husband, Ernest Salazar. Salazar's live petition included the following named defendants: Nhu Nguyen T. Nguyen, M.D., Hospitalists Group of El Paso, Hector A Payan, M.D., Ric A. Bradford, D.O., The Hospitals of Providence Memorial Campus, and Zening He, M.D. Prior to trial, a mediation was held, and settlements were reached. Salazar proceeded to a jury trial against only Dr. Payan and Dr. Ric Bradford.
The jury returned a verdict in favor of Dr. Payan. The trial court issued its final judgment, finding no negligence on the part of Dr. Payan. Salazar filed a motion for new trial. This appeal followed.
Salazar contends the admission of testimony relating to the settlement with other defendants rendered an improper judgment and requests reversal. We disagree.
We review an evidentiary ruling for an abuse of discretion. Graham v. Scott, 547 S.W.3d 245, 249 (Tex. App.-Houston [1st Dist.] 2017, no pet.). A trial court abuses its discretion when its ruling on the admission or exclusion of evidence is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law." Id. In making this determination, we review the entire record as a whole and "require the complaining party to demonstrate that the judgment turns on the particular evidence admitted." Id. Specifically, in civil cases, Rule 44.1(a)(1) of the Texas Rules of Appellate Procedure provides, "No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of . . . probably caused the rendition of an improper judgement." TEX. R. APP. P. 44.1(a)(1).
The traditional rule in Texas is to exclude evidence of settlement agreements. Mi-Jack Prod., Inc. v. Braneff, 827 S.W.2d 493, 497 (Tex. App.-Houston [1st Dist.] 1992, no pet.). Rule 408 of the Texas Rules of Evidence specifically provides:
TEX. R. EVID. 408(a). However, settlement evidence may be admitted for other purposes, "such as proving a party's or witness's bias, prejudice, or interest, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." TEX. R. EVID. 408(b); Certain Underwriters at Lloyd's, London v. Chicago Bridge &Iron Co., 406 S.W.3d 326, 339 (Tex. App.-Beaumont 2013, pet. denied) (). "The trial court may properly exercise its discretion when deciding whether evidence is impermissibly offered as evidence of a settlement offer or is offered for another valid reason." Chicago Bridge &Iron Co., 406 S.W.3d at 340.
In a single issue, Salazar maintains the trial court abused its discretion in allowing evidence concerning her settlement with other defendants. Salazar testified at trial, and the following testimony is the subject of this appeal:
Counsel then moved on and questioned Salazar regarding the Salazars' business operation.
According to Salazar, the erroneous admission of this evidence caused the rendition of an improper verdict. However, as a threshold matter, we must first address the preservation and record inadequacies of this appeal.
To begin, Dr. Payan maintains Salazar failed to preserve error. We agree. Salazar failed to obtain a ruling on her objection as required by the Texas Rules of Appellate Procedure. TEX. R. APP. P. 33.1(a)(2)(A); see Palmer v. Off. of the Att'y Gen., 656 S.W.3d 640, 644 (Tex. App.-El Paso 2022, no pet.) ("To preserve error for appellate review, the complaining party must raise the complaint before the trial court 'by a timely request, objection, or motion' and either obtain an express or implicit ruling or show that the trial court refused to rule."). On appeal, Salazar maintains the trial court's response, "And I guess I thought you weren't going to get into it at all.
Maybe say they were parties and they've settled[,]" constitutes a ruling to her objection. We disagree; the trial court's response did not constitute either an express or implicit ruling.[1]
Salazar also failed to request an instruction to disregard. According to Salazar, she did not do so because "there was no possible curative instruction that could undo the damage that had already been done." However, Texas precedent establishes otherwise. See Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 862 (Tex. App.-Fort Worth 2003, pet. denied) () (citations omitted); see also Beutel v. Paul, 741 S.W.2d 510, 513-14 (Tex. App.- Houston [14th Dist.] 1987, no pet.) () (citations omitted).
Salazar did not obtain a ruling to her objection, did not request an instruction to disregard, but instead, only moved for a mistrial. Accordingly, Salazar further waived error. See One Call Sys., Inc. v. Houston Lighting &Power, 936 S.W.2d 673, 677 (Tex. App.-Houston [14th Dist.] 1996), writ denied) () .
Moreover even if Salazar had preserved...
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