Michael B. Jenniges v. Barbara Keen Gawlik--Appeal from County Court at Law No. 1 of Travis County

NO. 03-02-00237-CV

Michael B. Jenniges, Appellant

v.

Barbara Keen Gawlik, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,

NO. 241,266, HONORABLE ORLINDA L. NARANJO, JUDGE PRESIDING

Appellant Michael B. Jenniges commenced the underlying personal injury proceeding following a traffic accident in which appellee Barbara Keen Gawlik drove her car into Jenniges's pickup truck. (1) In the bifurcated proceeding, a jury determined that Gawlik's estate was liable for Jenniges's actual damages in the amount of $11,700. Further, the jury determined that Gawlik's acts were malicious, and, in the second phase of the proceeding, found her estate liable for punitive damages in the amount of $1. Jenniges contends that the trial court reversibly erred during the punitive damage phase of the proceeding by allowing the administrator of Gawlik's estate, Rick Kennon, to testify as an expert when, during discovery, he had been designated only as a fact witness. Jenniges also contends that, in the event there was no error in failing to designate Kennon as an expert, the trial court erred by disallowing cross-examination of Kennon regarding potential claims Gawlik's estate may have against her personal physician. We affirm the judgment.

Jenniges first contends that the trial court erred by allowing Kennon to testify as an expert about the assets in Gawlik's estate when he had been designated as a fact witness only. At trial, Jenniges objected that Kennon should not be permitted to testify about the assets in Gawlik's estate because such matters required expert testimony. Gawlik's estate responded that expert testimony was unnecessary and that Kennon would only testify about facts, that is, what assets were in Gawlik's estate at the time of trial.

After the court overruled Jenniges's objection, Gawlik's estate called Kennon to testify. During direct examination, Gawlik's estate's attorney asked Kennon, "What assets are in the estate right now, if any?" Kennon responded that there was only "an estate bank account with approximately $36,000 in it." Gawlik's estate's attorney also asked Kennon how many survivors Gawlik had, to which he responded, "At the time of her death, there was one adult child and three minor children." All other testimony from Kennon regarding the value of Gawlik's estate was elicited from Jenniges on cross-examination, which the court did not limit. Additionally, the trial court allowed as evidence a copy of the inventory and appraisement of Gawlik's estate, which showed the amount of money she received from her husband's estate.

To be admissible, expert testimony must generally involve "scientific, technical, or other specialized knowledge" as to which a witness could be qualified as an expert by knowledge, skill, experience, training, or education, and it must assist the trier of fact. Tex. R. Evid. 702; see GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999). Where the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide, and admission of expert testimony on the issue is error. See Bruce, 998 S.W.2d at 620.

Here, Kennon was appointed by the probate court as the administrator of Gawlik's estate. The Texas Probate Code lists persons qualified to serve as an administrator of an estate. See Tex. Prob. Code Ann. 77 (West 1980). None of the qualifications to serve as an administrator of an estate requires any specialized knowledge, training, or experience. Further, the probate code provides that there are no requirements of special skill or knowledge of an estate's administrator and only in extreme cases will someone not be qualified to serve as an administrator.

To support his argument that an expert's opinion was necessary to testify about Gawlik's estate's assets, Jenniges relies upon punitive damage cases that involved the valuation of the cash flow of large corporations. See Browning-Ferris Indus., Inc. v. Liek, 845 S.W.2d 926, 944 (Tex. App.--Corpus Christi 1992), rev'd on other grounds, 881 S.W.2d 288 (Tex. 1994); Borden, Inc. v. De La Rosa, 825 S.W.2d 710 (Tex. App.--Corpus Christi 1991), vacated by, 831 S.W.2d 304 (Tex. 1992). Contrary to these situations, Gawlik's estate was straightforward, and, at the time of trial, consisted only of a bank account with money on deposit. Kennon did not rely on any special knowledge or training to testify about the assets of Gawlik's estate, and no expert testimony was required to describe the single asset of her estate. Jenniges's first contention is overruled.

Jenniges also contends that, in the event this Court determines that expert testimony was unnecessary to describe the assets of Gawlik's estate, the trial court erred by not allowing Jenniges to elicit testimony from Kennon that Gawlik's estate had a possible medical malpractice claim against her personal physician. The trial court allowed Jenniges to present a bill of review.

We review the trial court's exclusion of evidence using the abuse of discretion standard described in City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). There was no evidence that a medical malpractice claim had been filed by Gawlik's estate or her survivors. Additionally, there was no evidence that actions by any of Gawlik's physicians caused her damage. Furthermore, the autopsy report, admitted as evidence, stated that, while there was a high but non-lethal concentration of one particular drug in her bloodstream, she died in her sleep of a heart attack. As there was no evidence produced indicating that any actions of Gawlik's physicians constituted medical malpractice or caused Gawlik harm, Jenniges's reference to a medical malpractice action was only speculation. We hold that Jenniges has not shown that the trial court abused its discretion in disallowing testimony regarding a possible medical malpractice claim by Gawlik's estate against her personal physician. Jenniges's second contention is overruled.

Having overruled Jenniges's contentions, we affirm the trial court's judgment.

Jan P. Patterson, Justice

Before Justices Yeakel, Patterson and Puryear

Affirmed

Filed: January 16, 2003

1. Barbara Gawlik died during the pendency of the lawsuit, and Jenniges maintained the lawsuit against her estate.