Nancy Mulligan and Jeremy May v. Efrain Garza--Appeal from 133rd District Court of Harris County

 Affirmed and Memorandum Opinion filed February 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00537-CV

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NANCY MULLIGAN AND JEREMY MAY, Appellants

V.

EFRAIN GARZA, Appellee

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On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 01-43920

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M E M O R A N D U M O P I N I O N

In this automobile collision case, Nancy Mulligan and Jeremy May appeal a judgment finding May forty percent negligent and awarding each of them damages of only $250 on the grounds that: (1) the trial court erred by excluding from evidence a written statement disclosing May=s previous injuries; (2) the evidence was legally and factually insufficient to support the finding that May was negligent; and (3) the damage finding is against the great weight and preponderance of the evidence and manifestly unjust. We affirm.

May and Mulligan=s first issue challenges the trial court=s exclusion of his written statement, showing that he had disclosed previous neck and back injuries to Garza=s insurance company. May contends that this statement was properly offered to rebut the defense argument that he had lied about his previous injuries. A trial court=s evidentiary ruling is reviewed for abuse of discretion,[1] and is upheld if there is any legitimate basis for it in the record. Drilex Sys. Inc. v. Flores, 1 S.W.3d 112, 119-20 (Tex. 1999).

Because he was not present at trial, May=s trial testimony consisted of his video-taped deposition taken in September of 2002. In that deposition testimony, May admitted he had previously suffered, and received medical treatment for, the same type of injuries he claimed to have sustained in the collision (the Acollision@) with Garza. He was then cross-examined in that deposition on deposition testimony he had given in May of 2002 in which he stated that he had never suffered, or been treated for, any such injuries.

The morning after May=s video deposition was played for the jury, his counsel offered into evidence a portion of an unsworn written statement (the Astatement@) that May had allegedly given to Garza=s insurance company in 1999 before the lawsuit was filed. The offered portion stated, AI previously sustained an injury to my neck, back and shoulders playing rugby in April 1999.@ The statement was offered Aas a prior consistent statement to rebut the charge of fabrication or undue influence under Rule 801.@ Counsel later offered the statement a second time to prove only that the statement was made (not the truth of the matter asserted), and then a third time after Garza=s closing argument to rebut Garza=s arguments challenging May=s credibility.

Although the trial court=s exclusion of the statement can be upheld for various reasons that are specific to each offer of the statement, a single ground of objection asserted at trial by Garza, and that applies to all, is that the statement was not designated on the exhibit list required under the trial court=s Trial Preparation Order. Because May and Mulligan=s brief on appeal does not mention or address this ground in any way, it provides us no basis to conclude that it was not a valid objection. Therefore, May and Mulligan=s first issue fails to demonstrate error in excluding the statement and is overruled.

May and Mulligan=s second issue challenges the legal and factual sufficiency of the evidence supporting the finding of negligence by May because: (1) there was no evidence that May had any reasonable opportunity to avoid the accident or acted unreasonably in any way; and (2) finding him liable for entering an intersection on a green light was clearly wrong and manifestly unjust.

A legal sufficiency review considers the evidence in the light that supports the disputed finding, indulges every inference in its favor, and disregards evidence and inferences to the contrary[2] to determine if more than a scintilla of evidence supports the challenged finding. Tarrant Reg=l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). A factual sufficiency review considers all of the evidence to determine whether the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

In this case, Garza testified that, while the light at the intersection was still yellow, he tried to stop, but slid into the intersection before the light turned red. This is legally sufficient evidence that, when May entered the intersection, the light was either still red for him, or, if it was green, Garza=s vehicle was already in the intersection and May failed to avoid colliding with it. Although the evidence of May=s negligence was controverted, it did not render the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, May and Mulligan=s second issue is overruled.

May and Mulligan=s third issue contends that the jury=s award of $250 damages to each of them is against the great weight and preponderance of the evidence and is manifestly unjust. However, Mulligan=s doctor testified that the test he performed did not indicate the cause of her elbow injury, but that it was usually not caused by the type of trauma she probably experienced in the accident. The doctor further admitted on cross-examination that he originally attributed her condition to the accident only because she had not disclosed her previous injuries to him. Similarly, May=s evidence contained inconsistencies regarding the extent to which he had previously suffered the injuries he claimed to result from the collision. Under these circumstances, the jury=s award was not against the great weight and preponderance of the evidence. Accordingly, May and Mulligan=s third issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed February 10, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

[1] Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000).

[2] Wal Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).