Opinion
02-22-00338-CV
10-26-2023
Kimberly Goesling, Appellant v. American Airlines, Inc., Appellee
On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-314565-20
Before Kerr, Bassel, and Wallach, JJ.
MEMORANDUM OPINION
Bassel Justice
Dabney Bassel Justice
I. Introduction
Appellant Kimberly Goesling sued Appellee American Airlines, Inc. claiming that it was liable for a sexual assault that Ms. Goesling suffered while she was an American employee travelling on its business. Ms. Goesling now appeals from an adverse jury verdict on her liability theories. She raises six issues that we will dispose of in the following manner:.
Appellant originally filed the underlying suit as "Jane Doe" but later switched to using her name and used her name for this appeal.
• In her first issue, Ms. Goesling contends that the trial court should have granted a new trial because the jury charge contained a refused instruction and that this event caused the jury to deliberate with a "special charge that had been refused" in violation of Texas Rule of Civil Procedure 281. We hold that Ms. Goesling has waived this issue by failing to seek an evidentiary hearing on her motion for new trial and that even if we consider the merits of the contention, she has not shown harm because the charge upon which the jury deliberated did not include the refused instruction.
• In her second issue, Ms. Goesling contends that a Senior Judge assigned to hear her motion to recuse the trial judge abused his discretion by denying the motion. We conclude that the Senior Judge did not abuse his discretion because whether the trial judge had displayed a deep-seated favoritism or
antagonism that would make her fair judgment impossible fell within the zone of reasonable disagreement.
• In her third and fourth issues, Ms. Goesling contends that the jury's negative answers to the questions that submitted her liability theories are contrary to the conclusive evidence or against the great weight and preponderance of the evidence. We conclude that the jury resolved factual issues-primarily ones of credibility-adversely to Ms. Goesling, and it is not our prerogative to second-guess those determinations.
• In her fifth issue, Ms. Goesling contends that the trial court erred by excluding evidence of prior acts by the person who sexually assaulted her, and she contends that this evidence made it foreseeable that he might sexually "pursue" an American employee. We hold that Ms. Goesling waived this claim of error by not attacking on appeal all the possible grounds that were presented to the trial court to exclude the evidence. Further, the nature of the evidence is such that the trial court did not abuse its discretion by excluding it. Finally, the record does not cause us to conclude that the exclusion of the evidence was harmful.
• In her sixth issue, Ms. Goesling asks us to hold that certain defenses that American raised were invalid. Our affirmance of the trial court's judgment makes it unnecessary to reach this issue.
The order and numbering of the issues that Ms. Goesling raises in her brief's table of contents are different from those in her statement of issues. We will follow the sequence listed in the table of contents as it is the one used for the brief's arguments.
We affirm the trial court's judgment that Ms. Goesling take nothing.
II. Factual and procedural background
A. A snapshot of the trial testimony
Ms. Goesling sued American contending that American was responsible for a sexual assault that she had suffered while on a business trip as an American employee and that American had mistreated her after she reported the sexual assault. Over the course of eight days of testimony, during the two-week trial, the jury heard clashing versions of the events underlying the controversy and the consequences of those events.
Ms. Goesling became an employee of American as a result of a merger between American and an airline that she had worked for previously. Combining her employment with the two carriers, Ms. Goesling had a multi-decade career as a flight attendant and purser-the flight attendant in charge of an aircraft's cabin.
American offered its flight attendants an opportunity to become more involved in its operations with a program titled Flight Attendant Involvement Team (FAIT). Between 2016 and 2018, Ms. Goesling served on American's International Food-and-Beverage FAIT.
Ms. Goesling's claims centered on a January 2018 trip to Germany by her FAIT to visit with one of American's food-preparation vendors. Six American employees went on the trip with Ms. Goesling, including two managers in the division of American responsible for food-and-beverage service. A representative of a German vendor also attended. The final participant was a British "celebrity chef" by the name of Mark Sargeant-an independent contractor whom American utilized as a menu consultant and as a personality to promote its in-flight food offerings.
The jury found that Sargeant had sexually assaulted Ms. Goesling during the FAIT trip, and that finding is unchallenged. The sexual assault occurred after a dinner and a visit to bars on the last night of the FAIT trip. Portrayals of what occurred during the evening vary, with American's employees describing it as a rather tame affair and with Sargeant describing it as a raucous alcohol-filled event.
The jury found against Ms. Goesling on the theories by which she sought to hold American liable for the sexual assault, and she challenges the evidentiary support for those answers. The core of Ms. Goesling's evidentiary challenges to the negative findings is the actions of Brett Hooyerink. Hooyerink held the title of manager of international menu design for American and was one of the managers in American's food-and-beverage division who was on the FAIT trip. Ms. Goesling contended that during the evening of the sexual assault, Hooyerink made extremely crude remarks to Sargeant that indicated Ms. Goesling had a sexual interest in Sargeant and thus encouraged the sexual assault. Ms. Goesling also claimed that Hooyerink had given Sargeant her room number at the hotel where the FAIT was staying.
Hooyerink was steadfast in his denial that he had provided Sargeant the room number. Though his testimony was less definitive on the question of any encouragement that he had provided to Sargeant, he eventually denied the comments that formed the basis of Ms. Goesling's claims-that Hooyerink had "encouraged" Sargeant to believe that she had a sexual interest in him.
We will detail Hooyerink's testimony more fully when examining Ms. Goesling's evidentiary challenges to the jury's liability findings.
The sexual assault against Ms. Goesling occurred late in the night after the gathering attended by the FAIT. Several hours after she left the event, Sargeant sent her texts asking her to come to his room. Ms. Goesling did not accept Sargeant's invitation. She testified that after the text exchange, she fell asleep and was awakened by someone's pounding on her hotel room door. When she saw Sargeant through the door's peephole, she opened the door slightly, and he forced his way into the room. Ms. Goesling testified that Sargeant pinned her to the bed, inserted his tongue in her mouth, fondled her breasts, and digitally penetrated her. She testified that she squirmed free from his grasp and retreated to a corner of the room, and eventually he left the room.
Much of the trial testimony centered on the texts Ms. Goesling and Sargeant exchanged later on the night of the sexual assault and whether those texts had impacted her portrayal of the events in her room. The testimony also focused on Ms. Goesling's later descriptions of the event. But the question submitted to the jury regarding whether a sexual assault had occurred specifically focused on whether Sargeant had "intentionally or knowingly caused the penetration of the sexual organ of [Ms. Goesling] by any means without [her] consent," and as noted, the jury resolved this question in favor of Ms. Goesling with its unchallenged answer of "yes."
Other areas of focus during the trial were the timing of Ms. Goesling's report of the sexual assault, American's response to her efforts to report the sexual assault, and American's actions after she had made the report. In essence, Ms. Goesling asserted that American's response was self-serving and retaliatory while American defended its response as appropriate.
Though she claimed that she had been frustrated in her efforts to report the sexual assault earlier, Ms. Goesling detailed what had happened to her in Germany to American's managing director of its in-flight service food-and-beverage division approximately one month after the sexual assault. The manager brought in a member of American's human resources department. A member of American's in-house legal department also became involved.
After Ms. Goesling's report, American initiated what it termed an "independent investigation" of what she had reported. In essence, the investigation involved interviews of Ms. Goesling and of Sargeant. Ms. Goesling challenged the independence of the investigation by asserting that it was a means of gathering evidence to undermine a future claim that she might make because American anticipated that her report would lead to litigation. Ms. Goesling supported this view by claiming that (1) she did not know until much later that the investigator retained by American was a lawyer and (2) American had refused to permit her lawyer to be present when the investigator interviewed her. Ms. Goesling also offered evidence that she was asked what she considered to be inappropriate questions during the investigation, such as what she was wearing at the time of the sexual assault.
American defended both the manner and tone of the investigation. And no matter Ms. Goesling's challenges to how American conducted the investigation, there was no dispute as to its results; within approximately one month of her report of the sexual assault, American cancelled any further appearances by Sargeant as a "celebrity chef" and formally terminated its relationship with him.
Ms. Goesling remained a flight attendant with American for almost four years after the sexual assault and her report of it to American; she retired shortly before the trial commenced. With respect to American's treatment of Ms. Goesling after she reported the sexual assault, the jury again heard conflicting perspectives on what had occurred. In essence, Ms. Goesling described American's post-report treatment of her as retaliatory. In her view, American failed to support her by making it difficult for her to obtain the pay to which she was entitled; not accommodating her schedule in view of her needs; not compensating her for needed counseling; and no longer allowing her to participate in special projects, such as the FAIT programs that started after she reported the sexual assault. American countered Ms. Goesling's portrayal of her treatment by asserting that it had remedied her pay request as soon as it was presented to someone with authority to deal with the request, provided her with the funds to pay for her counseling by giving her additional vacation compensation, accommodated her schedule to address her needs after she reported the sexual assault, and continued to assign her to special projects and to honor her service after the report of the sexual assault.
A remaining clash in the testimony was the effect of the sexual assault on Ms. Goesling. Ms. Goesling and other witnesses testified to a terrifically negative impact that the sexual assault had on her relationships, her sense of security, and her physical well-being. She offered expert testimony that she suffered from Post-Traumatic Stress Disorder (PTSD) and that she would require intense counseling and support for years, including extended inpatient hospitalization. Her experts estimated the cost of this treatment as running into the hundreds of thousands of dollars. On these claims, American countered with expert testimony challenging whether Ms. Goesling suffered from PTSD and by contending that her portrayal of the trauma present in her life post-assault was exaggerated.
Finally, with respect to contested issues at trial, there was a strenuous disagreement about Ms. Goesling's attempt to introduce evidence that she claimed was probative-the evidence being primarily Sargeant's conduct toward another female American employee a couple of years before the sexual assault of Ms. Goesling. Ms. Goesling contended that the evidence made it foreseeable that Sargeant might sexually assault a female American employee if given the chance. The trial court excluded this evidence, and that act forms the basis of another of Ms. Goesling's issues on appeal.
We will detail the nature of this evidence when discussing the issues that she raises.
B. A snapshot of the course of the litigation
Ms. Goesling began litigation over the sexual assault by initially suing only Sargeant. She later amended her claims to add as defendants American and the hotel chain that owned the hotel where the sexual assault had occurred. She alleged that hotel employees had provided Sargeant her room number. Later amendments and nonsuits to her claims dropped Sargeant and the hotel chain from the litigation, leaving her suit against only American on a host of claims.
By the time the case went to the jury, Ms. Goesling's causes of action had winnowed down to two-a claim that American had participated in the sexual assault and a claim for the intentional infliction of emotional distress. Both liability issues were based on the actions of Hooyerink, the American employee who Ms. Goesling claimed had encouraged the sexual assault by his crude statements to Sargeant that she had a sexual interest in him and who she also claimed had provided her room number to Sargeant.
The court's charge submitted thirteen questions covering the following topics: (1) whether a sexual assault had occurred; (2) whether Hooyerink had occupied the status of "vice-principal" of American (making American liable for his actions); (3) whether American through Hooyerink's actions had assisted and participated in the sexual assault due to his statements to Sargeant and had also intentionally inflicted emotional distress on Ms. Goesling; (4) whether those actions had caused damage to Ms. Goesling; (5) the amount of compensation to which she was entitled; and (6) predicate questions to support her claim for exemplary damages. The jury answered only four of the questions, answering "yes" that a sexual assault had occurred and that Hooyerink was a vice-principal but answering "no" to the questions regarding whether he had assisted and participated in the sexual assault and whether he had intentionally inflicted emotional distress on Ms. Goesling. The conditional instructions in the charge made it unnecessary for the jury to answer the remaining questions.
The litigation then took a unique turn the day after the jury returned its verdict. Ms. Goesling's counsel's examination of a copy of the charge that he received with the jury's answers revealed that the charge contained an instruction in the question involving Hooyerink's assistance and participation, despite the trial court's indication at the charge conference that it was not submitting the instruction and the instruction's omission from the charge that the trial court had read to the jury. This discovery triggered the filing by Ms. Goesling of a "Plaintiff's Post-Verdict Motion for New Trial Based on The Jury['s] Rendering a Verdict on a Refused Charge, Not The Jury Charge Approved and Read by The Court." The day after filing the motion for new trial, Ms. Goesling moved to recuse the trial judge.
The trial judge declined to recuse, which triggered a referral of the recusal motion to the presiding judge of the local administrative judicial region. In turn, the presiding judge assigned a Senior Judge to hear the motion to recuse. A lengthy hearing ensued at which the trial judge, members of her staff, and the presiding juror testified; after the hearing, the Senior Judge denied the motion to recuse.
We will detail the testimony at this hearing when discussing Ms. Goesling's issues regarding the failure to grant a new trial based on an improper charge and the Senior Judge's denial of the motion to recuse. At this point, it suffices to say that the record does not support the contention that the charge utilized by the jury in its deliberations contained the refused instruction.
Following the resolution of the recusal motion and in response to a motion for entry of judgment by American, the trial court rendered a final judgment that Ms. Goesling "have and recover nothing on her claims against American." Ms. Goesling then filed a combined motion for judgment nonobstante verdicto (JNOV) and for new trial. No written order addressed the motion, and it was overruled by operation of law. Ms. Goesling subsequently filed a notice of appeal.
III. Analysis
A. First and second issues-We conclude that Ms. Goesling has waived the issue raised in her motion for new trial predicated on the claim that the charge used in jury deliberations contained a "special charge[] which ha[d] been refused" in violation of Texas Rule of Civil Procedure 281. But if we review the record that we have before us, we conclude in the alternative that any violation of Rule 281 was not harmful. We also conclude that there was no error in the Senior Judge's refusal to recuse the trial judge.
1. We set forth the saga of how two jury charges made it into the jury room.
The focus of Ms. Goesling's first two issues is an instruction appended to Question No. 3, which was the question that asked whether American had assisted and participated in the sexual assault through the actions of Hooyerink. The trial court had ruled that it would not include this instruction in the charge. The twist in the story began when it was discovered that the copy of the charge, which was filed with the clerk and which reflected the jury's 10-2 verdict, included the refused instruction. This discovery prompted Ms. Goesling to file her "Post-Verdict Motion for New Trial Based on The Jury['s] Rendering a Verdict on a Refused Charge, Not The Jury Charge Approved and Read by The Court" and her motion to recuse. But a second charge with the jury's verdict was also later filed; the second filed charge did not contain the refused instruction. A hearing was held on Ms. Goesling's motion to recuse. At the hearing, the trial judge, members of her staff, and the presiding juror testified about how there came to be two charges-one with and one without the refused instruction-each of which contained the jury's verdict. What follows is our attempt to impose order on the confusion in the portrayal of what occurred.
At a summary level, during the charge conference, the trial judge indicated that she would not include an instruction requested by American in Question No. 3 in the court's charge dealing with Ms. Goesling's claims that American assisted and participated in the sexual assault through the actions of Hooyerink. At the recusal hearing, the trial judge testified that the refused instruction was not read to the jury when she read the charge to the jury, and the trial judge testified that it was not included in the copy of the charge given to the attorneys, nor was it in the individual copies of the charge given to the jurors for use in their deliberations. The record of the court's reading of the charge confirms that it was not included as part of Question No. 3 that was read to the jury. As we will detail, the presiding juror confirmed that the copy of the charge used by the jury in its deliberations and her personal copy of the charge, which she had retained, did not include the refused instruction. But as briefly mentioned above and as more fully detailed below, a copy of a charge that did not include the refused instruction and one that did were both signed by ten members of the jury. The jury had initially recorded the verdict that it reached on a charge stamped "copy," which did not include the refused instruction. To ensure that the verdict was reflected on an original, the jury was provided with a second charge, this one stamped "original," on which the presiding juror merely transferred the verdict already reached. The presiding juror then had the ten jurors who were in agreement with the verdict sign the second charge. The second charge contained the refused instruction. How this came to pass is not complex, but the explanation is complicated by the overlapping descriptions of the two different versions of the charge.
Question No. 3 took the following form:
QUESTION NO. 3
Did American Airlines, through its vice principal Brett Hooyerink, assist and participate with Mark Sargeant in committing the sexual assault of [Ms.] Goesling?
To "assist and participate" in the sexual assault by Mark Sargeant requires the following:
1. Sargeant committed a sexual assault against [Ms.] Goesling;
2. Brett Hooyerink provided substantial assistance to Sargeant in accomplishing the sexual assault;
3. Brett Hooyerink's own conduct, separate from Sargeant's, was a breach of duty to [Ms.] Goesling; and
4. Brett Hooyerink's participation was a substantial factor in causing the sexual assault.
You are instructed that, even if Brett Hooyerink supplied Mark Sargeant with the means of committing a sexual assault, Brett Hooyerink is not liable if he has no reason to suppose that a sexual assault will be committed.
Answer "Yes" or "No." [Emphasis added.]
The refused instruction is italicized.
In her brief, Ms. Goesling concedes that the trial judge read the correct charge to the jury and provided the jury with copies of the correct charge.
To impose order, we will break our chronicle into four episodes. The first episode began over the weekend before the case went to the jury, when the trial judge decided that she would not include the refused instruction in the charge. That decision was announced at the Monday charge conference. Also on that Monday, the charge was read to the jury, the case was argued, and jury deliberations began. But on that Monday, the trial court's regular court reporter called in sick. A combination of other hearings, the process of obtaining a substitute reporter and one whose transcription equipment was compatible with the court's equipment, and not having access to the normal court reporter's password-protected files produced confusion.
As the trial judge explained, confusion arose when the proposed charge was reprinted to delete the refused instruction-what the trial judge described as the original of the revised charge. As the trial judge explained,
And so the reprint of the Charges -- so the "Copy" I read to the jury --we redid them. Okay? And I had the "Original," and then the jury had the copies[,] and all the lawyers were provided with copies.
So my understanding is I read the right "Copy" to the jury. I provided them all with the right "Copy." And the -- and then on that day I typically would hand the "Copy" -- or the "Original" to the court reporter, and she would take it back with the exhibits. Okay?
And so I don't -- all I can say is that day was scattered. We had a fill-in court reporter. Just -- I don't know why it didn't make it back there [i.e., the jury room].
The trial judge believed that she had signed the physical version of the original of the revised charge, which we will describe as the First Original. The trial judge reiterated that the charge that she had read to the jury, as well as the copy of the charge that was given to the jurors and the lawyers, did not include the refused instruction. Again, the transcript of the trial court's reading of the charge reflects that the refused instruction was not included in the charge that was read to the jury.
As the trial judge later testified, she did not know what happened to the First Original from which she had read:
Q. Yes, ma'am. Judge . . ., all I'm trying to get to is that when you were reading to the jury the [c]ourt's Charge, you were reading a document that you had signed, correct?
A. Correct.
Q. It was -- it was the "Original" -- it wasn't Exhibit 1, but it was the "Original" Charge that you were going to give to the jury, correct?
A. That's correct.
Q. We don't have that document [anymore], do we?
A. I don't believe so.
Q. Do you know what happened to it?
A. I don't.
Q. Was it ever given to the jury?
A. No.
Thus, the physical fate of the First Original remains a mystery.
The second episode was a subpart of the first and explains how a second charge signed by the jurors and that bears a stamp "original" came into existence. This document is a second charge form that the jury signed and is the Exhibit 1 mentioned in the exchange quoted above. We will refer to this document as the Second Original. This document is pivotal to Ms. Goesling's claim that the jury used an improper charge because the Second Original includes the refused instruction.
The Second Original was apparently a previous version of the charge that was supposed to be discarded as it included the refused instruction but, by some turn of events, was instead placed in a redrope folder that the trial judge kept for her own use-not the official file maintained by the clerk. Specifically, the trial judge testified as follows:
Q. Okay. And so what we have in the [c]ourt's file, immediately before closing argument, is we have a signed [Second Original], correct?
A. When you say it's in the [c]ourt's file at that time, I want to make sure we're clear on what you mean by the "[c]ourt's" file.
Are you meaning, like, the electronic file of the court?
Q. Actually, I think I should ask you. When you say it's in the "[c]ourt's" file, where is it?
A. I mean, there's a -- like a -- a [r]edrope, and it has all of your pleadings in it and whatnot. And it normally has notes from the trial, and it has, you know, things that y'all -- case law. So I keep -- there's a [r]edrope, and so I think it made it into the [r]edrope.
Q. Sure. And so that's not the electronic file, but, certainly, you have got it on the bench. That's the [c]ourt's file, that's your paper file in front of you, right?
A. Right. Right. The coordinator, whatever, like, supplements things throughout the trial.
Q. Sure. All right. So we know that [the Second Original] was signed and in the [r]edrope?
A. Uh-huh.
The Second Original apparently resided in the redrope until it was interjected into the case by the third episode.
The third episode involves how the Second Original made its way into the jury room. The third episode began when the jury announced that it had reached a verdict and the bailiff was handed a charge by the presiding juror that was marked "copy" and was signed by ten jurors. When handed this document, the bailiff told the presiding juror that "it needed to be on an 'Original.'" No document marked "original" could be found in the jury room.
The bailiff testified as to what occurred as the third episode began and developed:
Q. (BY [Ms. Goesling's counsel]) So the jury handed you -- the presiding -- was it the presiding juror that handed you Exhibit 2 [the charge stamped "copy"]?
A. Correct.
Q. And what did you do with Exhibit 2 when she handed it to you?
A. Explained to her that it needed to be on an "Original" and took the "Copy" with me to the judge.
Q. You told her that before you talked to [the trial judge]?
A. Correct.
Q. And what did she say?
A. She just said, ["]Okay.["]
The bailiff next described his memory of the interchange with the trial judge when he brought to her attention the fact that the jury had signed a charge stamped "copy" and what happened because of that conversation:
Q. Okay. Actually -- well, let's -- let's clear that up. You bring the judge -- well, if I understood you correctly, you're in the jury room, you see the "Copy." You say, ["]You need to do the [']Original.['"] There was no "Original" in there.
Correct so far?
A. Correct.
Q. You take the "Copy" out to [the trial judge] and you say, ["]They signed the [']Copy[']; there is no [']Original.['"]
Is that correct?
A. Well, I didn't say that. I said[, "T]hey signed a [']Copy.['"] She stated that they needed an "Original."
Q. Okay. And then what happened?
A. She went and got an "Original." I don't know from where, but she got the "Original" copy and brought it to me. I took it to the jury room and told them to fill it out exactly the way they filled out the "Copy" and [to] let me know when they were done.
Q. Okay. So Plaintiff's Exhibit Number 1 [the Second Original], is that what you took back to the jury room as an "Original"?
A. As far as I know.
The trial judge also described the episode when the bailiff brought her the signed charge that bore "copy" stamped in red and did not bear the trial court's signature. The trial judge described the following exchange with the bailiff and what she did not understand about why no original could be found:
I said, ["]Where's the [']Original[']?["] I said, ["]They need to fill out the [']Original.['"]
And he said, ["]I don't have it.["]
And I didn't know, because of all the stuff with [the regular court reporter] being called out or whatever, that I handed it to the fill-in court reporter and she didn't give it to [the bailiff]. I don't know that part.
The trial judge testified that she then retrieved the Second Original that she had placed in the redrope, handed it to the bailiff, and told him to have the jury complete that form. The trial judge described what occurred after this interchange as follows:
Q. You testified that when you sent . . . [the bailiff] back with [the Second Original] for them to transfer their answers, one or two minutes later he came back with [the Second Original] signed?
A. That's correct.
She also returned to the bailiff the charge that was stamped "copy" that he had brought from the jury room; the trial judge did not maintain custody of it. The trial judge acknowledged that she did not tell the attorneys about the chain of events involving the Second Original when they occurred.
The presiding juror also testified about what had occurred. The presiding juror was a practicing lawyer. When the jury retired to deliberate, each of the jurors had a "copy" of the charge that included a verdict. When the jury reached its verdict, ten of the twelve jurors entered their verdict on the charge stamped "copy" that the presiding juror had.
The bailiff was summoned, and he told the presiding juror that the verdict should be recorded on what was stamped "original." After the exchange, the bailiff took the "copy" from them, and he returned with the Second Original.
The verdict had been reached before the jury was given the Second Original. As the presiding juror described the process,
[The bailiff] goes, ["]Nope, you've got to put it on the [']Original['] copy, the one that's stamped [']Original.[']"
So he goes back out, he go[es and] gets a copy from somewhere. He comes back in[,] and he gives it to me, and he says, ["]This is the one you have to sign so I can give it to the judge.["]
And so we all signed it. That's what happened.
It took "[m]aybe a minute" for the jury to fill out the Second Original that the bailiff gave them. The presiding juror assumed that the Second Original that the bailiff returned with was the same as the first charge that the bailiff had been given.
The presiding juror also testified as to the sequence of the signing of the "copy" that she originally gave to the bailiff and the signing of the Second Original, as well as how she was certain of that sequence and which document was which:
Q. Okay. So would you agree with me, before you turn through it, that Exhibit 1 [the Second Original] is filed marked on May 11 of 2022, the day of your verdict?
A. That's correct.
Q. Okay. And as you go through it, I am going to ask you: Is that the first one you signed or the second one?
[Ms. Goesling's counsel]: Object on 606, Your Honor.
THE COURT: Overruled.
THE WITNESS: This is the second one.
Q. (BY [American's counsel]) Okay. So Exhibit 1 [the Second Original] is actually the second jury verdict form that you signed with the other jurors?
A. That's correct.
Q. And is Exhibit 2 [the document marked "copy" that the presiding juror originally gave to the bailiff] the first verdict form you signed with all the other jurors?
[Ms. Goesling's counsel]: Objection, 606.
THE COURT: Overruled.
THE WITNESS: Yes.
Q. (BY [American's counsel]) Okay. How do you know the difference . . . ?
A. So on the --
[Ms. Goesling's counsel]: Objection, 606.
THE COURT: Overruled.
THE WITNESS: I remember on the first exhibit, Plaintiff's Exhibit 1 [the Second Original], I -- this is the one I signed the second time. So I remember putting periods after each of my answers, either "yes" or "no" at the bottom. I specifically remember putting periods at the end.
On the first one that I signed, I didn't put the periods on.
Q. So Exhibit 2 [the document marked "copy" that the presiding juror originally gave to the bailiff] does not have a period after every single answer?
A. I don't know if it's every single one. Let me just check.
But Question [No.] 3 has a period. Question [No.] 7 has a period on Exhibit 2, but on Exhibit 1, there are no periods. There -- hold on, there are periods.
Q. And did you do that, put a period after every answer, the second -- on the second form that you-all signed to make it distinctive?
A. I did.
Q. And all ten signed that second time as well?
A. Correct.
The Second Original-the charge with the signed verdict that was signed second-contains a file-mark stamp on the same day that the jury returned its verdict and has the signature of the trial judge dated the day that the case went to the jury.
The presiding juror also testified that the refused instruction was not on her "own copy of the [c]harge that the judge read . . . before [the jury] deliberated" and which the presiding juror had retained. With respect to whether the presiding juror's personal copy had the refused instruction, the record shows that the Senior Judge was able to review the presiding juror's copy because she had brought it to the recusal hearing:
Q. (BY [American's counsel]) Are you certain that the instruction at issue, the paragraph under Number 4 on Page 9 in Exhibit 1, was not in the "Copy" that you deliberated from?
[Ms. Goesling's counsel]: Object --
THE COURT: Sustain the objection.
I'll just ask you: Is that paragraph on the "Copy" you've got at home -- that you took home with you?
THE WITNESS: I actually have it with me, if you want to see it.
[American's counsel]: I'd be fine with the [c]ourt looking at it in camera and -- or she can answer the question. Both is fine.
THE WITNESS: So you want me to answer, then I can show it to you?
THE COURT: That's -- the one in your hand is your juror copy that you had and you took with you?
THE WITNESS: Yes, sir, that's correct.
THE COURT: On Page 9, is the instruction on it?
THE WITNESS: (Indicated) No, it is not, Judge.
THE COURT: She says no, and my eyes tell me no. Next question.
The fourth episode in the story concerns how the trial court was notified that there was a difference between the two charges signed by the jury, what inquiry was made in response to that notice, what was uncovered, and what the trial judge did once the information was uncovered.
The issue came to the court's staff's attention after the presiding juror was contacted by Ms. Goesling's counsel. The court coordinator received a call from the presiding juror on the day after the jury's verdict was returned. The court coordinator described that conversation as follows:
Q. And what did [the presiding juror] say to you, please?
A. She said that she had received a phone call from [Ms. Goesling's counsel]; that he wanted to talk to her. And she asked, you know, if that was okay to do.
And I told her that she was released from her juror duties and she could talk to him, if she wanted to, but she didn't have to. And she went on to say -- because I said -- well, I didn't understand why that was happening, so she said that [Ms. Goesling's counsel] wanted to know about the [j]ury [c]harge.
Q. Did she mention this instruction?
A. Yes.
Q. And what did she say about it?
A. She said that there -- that [Ms. Goesling's counsel] was asking her about a sentence in the [j]ury [c]harge, and she said that she did not see the sentence.
Q. And do you know what sentence she was referring to?
A. The way she described it, I do.
The presiding juror made a second call to the trial court later that same day to inform the court that she had decided not to meet with Ms. Goesling's counsel as counsel had requested her to do. The court coordinator reported the calls to the trial judge and the bailiff.
The calls prompted a search of the jury room for the first signed charge, but the document was not found. The bailiff indicated that he had placed any paperwork related to the case in a box and that "the box" had gone in the shredder bin that is shared by two district courts. The day after the presiding juror's calls, facilities opened the shredder bin, and the document introduced at the hearing as the "copy"- which reflected the verdict and ten jurors' signatures, which had originally been taken to the trial judge on the date of the verdict, and which was referred to and introduced as Exhibit 2 during the hearing-was found. The trial judge had not given direction about the shredding of the "copy."
The bailiff testified that the court's regular court reporter found the "copy" with the first page detached in the shredder bin, that he had found its first page "[i]n that same stack," and that they were able to match the first page to the remainder of the document by what was apparently a corner that had been torn off. The court coordinator testified that the jurors' certifications were on the document that was found in the shredder bin. The bailiff testified that the jurors' signatures were on both versions of the charge that he dealt with when he received them from the presiding juror.
Other copies of the charge and jurors' notes were also found in the shredder bin. The notes were placed back in the shredder bin, and the other copies of the charge were held in the trial court's evidence room.
With respect to the sequence of the trial court's knowledge of events, the trial judge became aware of a potential issue on the day after the verdict was returned. She apparently asked the staff "to go see if they could find whatever [the presiding juror] was talking about." As noted, the "copy" was not actually found until the shredder bin was opened the next day. The trial judge first returned to the office five days after the document was recovered. The trial judge described what occurred on that day as follows: "And that's when they said they [had] found the 'Copy' that the [presiding] juror was talking about, and that's when I went ahead and hand-filed it."
The court coordinator also testified that the trial judge gave him the following instruction for the handling of the recovered copy and what was to be done with it as follows:
[S]he asked me to send it to the clerks on the 18th, so that's -- that's the only time I would have known she would have known about it.
Q. (BY [Ms. Goesling's counsel]) Okay. So let's go to that point. Thank you for clarifying.
So what did [the trial judge] ask you to do on May the 18th?
A. To send the signed file -- hand-filed "Copy" to the clerks.
Q. Okay. And where were you when she did that?
A. In the office.
Q. And did she hand it to you in your office or her office?
A. I believe it was in, like, the hallway. I have an open area, so I don't think it was her office.
Q. At the time she asked you to file it with the clerk, she had already written on there "Filed, [her name], 5/12/22," correct?
A. No.
Q. She had not?
A. I don't think that's 5/12.
Q. I'm sorry. 5/18/22.
A. Okay. Say that again then.
Q. Yes. When [the trial judge] asked you to file this with the clerk, did it already have handwritten on there, "Filed, [her name], 5/18/22"?
A. Yes.
Q. Okay. And you did file it with the clerk?
A. Yes.
After hearing the evidence outlined, the Senior Judge denied Ms. Goesling's motion to recuse the trial judge.
2. Issue One-Ms. Goesling claims that she was entitled to a new trial.
We reject Ms. Goesling's argument in her first issue that it was an abuse of discretion for the trial court to deny her a new trial in view of the charge issue detailed above. See In re Marriage of Sandoval, 619 S.W.3d 716, 721 (Tex. 2021) (stating that a trial court's denial of a motion for new trial is reviewed under an abuse-of-discretion standard). We conclude that Ms. Goesling waived her new-trial issue. We also conclude that the record does not support a conclusion that she was harmed by a violation of the Rule of Civil Procedure that provides that a refused charge should not be taken to the jury room.
a. We conclude that Ms. Goesling waived her new-trial issue on the two-charge issue.
American argues that Ms. Goesling waived her complaint by not obtaining a hearing on her motion for new trial so that she could present evidence about the issues that she raises regarding the two charges. Ms. Goesling responds that the question regarding whether to conduct a hearing on the motion was within the trial court's discretion and that she did not raise an issue that required a hearing. We initially conclude that Ms. Goesling did waive the issue, but we will also review her new-trial claim on the merits because the record generated by the recusal hearing allows us to do so.
As noted, Ms. Goesling initially filed a motion for new trial predicated on the inclusion of the refused instruction. She followed that motion with her motion to recuse, which produced the record we have outlined. The Senior Judge who heard the recusal motion was scrupulous in stating that he would not hear issues related to the motion for new trial.
After the recusal motion was denied, Ms. Goesling filed another motion for new trial that raised the point that the trial "[c]ourt should grant [Ms.] Goesling a new trial because the jury returned a verdict on a charge that included a harmful instruction rejected by the [trial c]ourt." See Tex. R. Civ. P. 321 (requiring motion for new trial to "briefly refer" to the complaint "in such a way that the objection can be clearly identified and understood by the court"). This motion was overruled by operation of law, and nothing in the record indicates that Ms. Goesling ever requested a hearing on it. See Tex. R. Civ. P. 329b(c) (stating that a motion for new trial is overruled by operation of law if not determined by written order within seventy-five days of filing).
As a general proposition, the Rules of Appellate Procedure provide the following with respect to whether a hearing on a motion for new trial is required to preserve error: "In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court." Tex.R.App.P. 33.1(b). Another general principle is that there is no need for a hearing on a motion for new trial unless the motion presents a question of fact. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979). When a hearing is required to delve into a question of fact, it is the movant's burden to request the hearing and to not allow the motion to be overruled by operation of law. In re J.A.L., 630 S.W.3d 249, 253 (Tex. App.-El Paso 2020, no pet.) ("[W]hen a motion for new trial requires a hearing, . . . the movant must ask the court for a setting and not allow its motion to be overruled by operation of law.").
Here, American bases the need for a hearing on the second motion for new trial on Rule of Civil Procedure 327, which addresses jury misconduct as a ground for a motion for new trial and requires both that the motion be supported by affidavit and that the trial court conduct a hearing on it. Tex.R.Civ.P. 327(a). Ms. Goesling responds that she did not raise an issue of jury misconduct. The focus on jury misconduct begs the broader question of whether a hearing was required because the two-charge issue raised in the second motion presented a fact question.
We conclude that the second motion for new trial raised a fact issue on the question of harm. Why the issue was fact-driven is demonstrated by the recusal hearing transcript that details what occurred with respect to the charge and runs to 150 pages. A central focus of American's argument regarding why the presence of two charges does not warrant reversal is the absence of harm, which is predicated on the fact that the jury did not use a charge containing the refused instruction in its deliberations. And Ms. Goesling's counsel stated during the recusal hearing that "if we get into what is harm with respect [to] a motion for new trial, we are entitled to go get some affidavits." Ms. Goesling's second motion for new trial also claimed the two-charge issue caused harm.
Thus, the parties agree that Ms. Goesling was required to establish the presence of the two charges caused harm. Because of the unique circumstances of how the issue arose, we agree that the question of harm raised a fact question that required a hearing. If we cannot rely on the testimony at the recusal hearing to resolve the issue of harm because that question was not litigated during the hearing, then there is no evidentiary record on the question. Further, there is nothing in the record to show that Ms. Goesling satisfied her burden to seek a hearing to make an evidentiary record on the harm question raised by her second motion for new trial. By not carrying that burden, Ms. Goesling waived the claim of harmful error based on the presence of two charges raised in the second motion.
b. We set forth our holding that Ms. Goesling has failed to show harm from a violation of Texas Rule of Civil Procedure 281.
To reach the issue on the merits, we will alternatively assume that we can review the record of the recusal hearing. Both parties argue that the new-trial issue is based on the record developed at the recusal hearing. For the sake of completeness, we will address Ms. Goesling's claim that she was entitled to a new trial using that record.
(1) We set forth the evidence that we consider in making our harm determination and why we conclude that it is not a violation of Texas Rule of Evidence 606(b) to consider the presiding juror's testimony.
We initially address whether we may consider the presiding juror's testimony, which Ms. Goesling contends that we cannot. As noted, the record demonstrates that the charge read to the jury and given to the lawyers did not include the refused instruction and that the presiding juror testified that the charge upon which the jury originally placed its verdict did not contain the refused instruction, nor did the presiding juror's personal copy of the charge that she retained. When the bailiff brought the Second Original to the jury room, the presiding juror took a minute to transfer the answers from the charge used during deliberations to the second form. The recusal hearing record contains no evidence that deliberations occurred during this time; the presiding juror testified that the verdict had been reached before she received the Second Original containing the refused instruction. The presiding juror documented which charge was which by placing periods after all the answers on the Second Original that the jury signed.
Ms. Goesling does not discuss how this testimony impacts her claim of charge error but attempts to insulate herself from it by claiming that it is inadmissible under Texas Rule of Evidence 606(b). The total extent of her argument is as follows:
During the recusal hearing, American's attorneys called the presiding juror as a witness regarding the jury[-]charge forms. In [her] recusal filings, [Ms.] Goesling objected to such testimony, as it was not relevant to the recusal issues before the presiding judge[] and was unduly prejudicial. See Tex. R. Evid. 401, 403. During the recusal proceeding, [Ms.] Goesling referred to her written objections and also objected to any testimony by the presiding juror[] because jurors are precluded from testifying regarding jury deliberations. See Tex. R. Evid. 606(b). Any inquiry into the actions or observations of the presiding juror during deliberations and prior to rendering a verdict in open court [is] explicitly prohibited by Rule 606, which includes both affidavit testimony and live testimony. Id. Accordingly, this [c]ourt should not consider any testimony from the presiding juror in making its harm analysis and holding that the improper [r]efused [i]nstruction probably caused rendition of an improper verdict. [Record references omitted.]
Ms. Goesling does not indicate that her Rule 401 and 403 objections were made during the recusal hearing. See Tex. R. App. P. 33.1(a) (specifying how appellate complaints are preserved). Nor does she explain why the evidence would not be relevant under Texas Rule of Evidence 401 (even if it might be inadmissible). Neither does she explain how any unduly prejudicial effect of the evidence under Texas Rule of Evidence 403 would have affected the Senior Judge's hearing the recusal motion. See Ex parte Twine, 111 S.W.3d 664, 668 (Tex. App.-Fort Worth 2003, pet. ref'd) (stating that the danger of unfair prejudice under Rule 403 is greatly reduced when a judge is sitting as the trier of fact).
Thus, Ms. Goesling assumes that Rule 606(b) makes the presiding juror's testimony inadmissible. In doing so, she does not set out what the testimony was or the provisions of the rule. Nor does she correlate the two to explain why Rule 606(b) would make the testimony inadmissible.
The prohibition on juror testimony in Rule 606(b) provides that "[d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment." Tex. R. Evid. 606(b). How the presiding juror's testimony-that she took one minute to transfer the answers from one form to another and that she identified the forms she had before her-implicates any of the prohibited topics described in the rule is unclear, and we conclude that the presiding juror's testimony did not violate Rule 606(b).
Specifically, the Texas Supreme Court has defined "the term 'deliberations' as meaning formal jury deliberations-when the jury weighs the evidence to arrive at a verdict." Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 371 (Tex. 2000). Thus, "[j]uror testimony is still permitted on the issue[] of . . . communications to the jury . . ., provided such testimony does not require delving into deliberations." Id. at 372. The presiding juror's testimony did not involve matters that occurred during deliberations because the deliberations had already concluded. Nor do we see how the presiding juror's testimony about the transfer of the answers concerned an effect on the vote that the jurors cast or their mental processes.
Further, as American points out, the record contains evidence explaining what occurred beyond the presiding juror's testimony. Communications by the trial judge do not fall within the ambit of Rule 606(b). In re Taylor Morrison of Tex., Inc., No. 02-13-00364-CV, 2014 WL 487221, at *4 (Tex. App.-Fort Worth Feb. 6, 2014, orig. proceeding [mand. denied]) (mem. op.) (concluding that because "the juror affidavits state[d] that the trial judge [had] entered the jurors' room 'right after lunch' before they had restarted deliberations and again in the afternoon, . . . the trial court's communications to the jury did not occur during deliberations" and holding that appellate court could consider the jurors' testimony on the trial court's statements at those times). The chain of events was testified to by both the trial judge and her staff.
Here, Ms. Goesling cannot base her claim of error on what occurred in the episode involving the different charge forms and then wall off the underlying circumstances of that claim from our consideration.
(2) We conclude that Ms. Goesling has failed to establish harm from the fact that a charge with the refused instruction was present in the jury room.
Ms. Goesling also tries to sidestep whether there was harm from the confusion regarding the two charges. We conclude both that a showing of harm is required and that Ms. Goesling fails to show that there was harm.
Ms. Goesling's argument suggests a categorical rule of error derived from Texas Rule of Civil Procedure 281: "The procedural rules strictly prohibit the jury from having in the jury room 'any special charges which have been refused.' Tex.R.Civ.P. 281. Here, the record conclusively establishes the [c]harge on which the jury rendered its verdict contained the [r]efused [i]nstruction." The premise of this argument is that harmful error automatically occurs when a refused special charge- here, the refused instruction-breaks the bounds of the jury room.
Ms. Goesling's argument continues that "[c]harge error is generally considered harmful if it relates to a contested, critical issue." See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855-56 (Tex. 2009). The principle is correctly stated but inapplicable. The harm standard she quotes assumes that the error related to a charge that the jury used to reach its verdict. How that rule applies to the facts before us is another unexplained aspect of Ms. Goesling's argument.
Rule of Civil Procedure 281 that Ms. Goesling invokes specifies what papers may be taken into the jury room:
With the court's permission, the jury may take with them to the jury room any notes they took during the trial. In addition, the jury may, and on request shall, take with them in their retirement the charges and instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused. Where only part of a paper has been read in evidence, the jury shall not take the same with them, unless the part so read to them is detached from that which was excluded.Tex. R. Civ. P. 281.
As the First Court of Appeals has explained, the terms of Rule 281 are mandatory and self-executing, but a violation of the rule is not per se harmful:
Rule 281 states that "the jury may, and on request shall, take with them in their retirement . . . any written evidence . . . ." Tex.R.Civ.P. 281. Despite the permissive language of the rule-"may, and on request shall"-the supreme court has held not only that the rule is mandatory[] but also that it "is self-operative and requires no request from the jurors or counsel." First [Emps.] Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex. 1983). If the rule is violated, we then review the record for harm. See id. at 172-73 (reviewing court is to evaluate whole case to determine whether denying jury opportunity to examine exhibits "was reasonably calculated to cause and probably did cause the rendition of an improper judgment"); Formosa Plastics Corp., USA v. Kajima Int'l, Inc., 216 S.W.3d 436, 464 (Tex. App.-Corpus Christi[-Edinburg] 2006, pet. [denied]) [(op. on reh'g en banc)]; Cruz v. Hinojosa, 12 S.W.3d 545, 550 (Tex. App.-San Antonio 1999, pet. denied); Tex.R.App.P. 44.1(a)(1); Tex.R.Civ.P. 281.
Similarly, where exhibits that have not been admitted into evidence are allowed into the jury room, we review such error for harm. See Mid-[S.] Bottling Co. v. Cigainero, 799 S.W.2d 385, 388 (Tex. App.- Texarkana 1990, writ denied) ("question on appeal . . . is whether the jury's verdict probably resulted directly from the presence of a part of the deposition in the deliberation room"). For example, such error is not reversible if there is no evidence that the jury considered the improper exhibits[] or if the exhibits are cumulative. See Annesley v. Tricentrol Oil Trading, Inc., 841 S.W.2d 908, 911-12 (Tex. App.-Houston
[14th Dist.] 1992, writ denied) (trial court erred by allowing into jury room [fifty]-page exhibit of which only two pages were admitted, but error was harmless because appellant failed to show that jurors considered additional pages), [abrogated on other grounds by] Van Allen v. Blackledge, 35 S.W.3d 61 (Tex. App.-Houston [14th Dist.] 2000, pet. denied); Harvey v. Culpepper, 801 S.W.2d 596, 601 (Tex. App.-Corpus Christi[-Edinburg] 1990, no [writ]) (where deposition improperly allowed into jury room, no harm where deposition "presented the jury with no new information and added nothing substantive for the jury to consider").Country Vill. Homes, Inc. v. Patterson, 236 S.W.3d 413, 447-48 (Tex. App.-Houston [1st Dist.] 2007), judgm't vacated w.r.m., 2008 WL 11535924 (Tex. Mar. 7, 2008).
When we apply the appropriate harm standard, rather than the ill-fitting one invoked by Ms. Goesling, the lack of harm becomes apparent. Again, the record indicates that the jury never knew that the Second Original contained the refused instruction, and certainly nothing indicates that the jury deliberated and reached its verdict by being guided by that instruction. Thus, a Rule 281 violation did occur, but we will not reverse and remand the result of a two-week jury trial when the record contains no indication that this violation "probably caused the rendition of an improper judgment" because the jury did not utilize the refused instruction in its deliberations. See Tex. R. App. P. 44.1(a)(1). Accordingly, we overrule Ms. Goesling's first issue.
And the presiding juror did not learn that the refused instruction was in the Second Original until Ms. Goesling's counsel contacted her after the trial.
In her reply brief, Ms. Goesling argues that the copies given to the jurors were shredded. This is apparently untrue as the testimony was that the copies, after they had been discovered in the shred bin, had been preserved and were in the evidence room. More importantly, Ms. Goesling argues that "[a]ssuming that is true, those copies on which the other eleven jurors deliberated for three days also had the [r]efused [i]nstruction." How she reaches this conclusion is also unclear. The presiding juror brought her trial copy of the charge to the recusal hearing, and it did not contain the refused instruction.
Our resolution of this issue makes it unnecessary to reach American's argument that the refused instruction was a proper instruction. See Tex. R. Civ. P. 277 ("The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict.").
3. We conclude that the Senior Judge did not err by denying Ms. Goesling's motion to recuse the trial judge.
In her second issue, Ms. Goesling contends that the Senior Judge who heard her motion to recuse the trial judge abused his discretion by denying that motion. The decision to deny the motion to recuse was not an abuse of discretion because that decision fell within the zone of reasonable disagreement as to whether the trial judge displayed a deep-seated favoritism or antagonism that would make fair judgment impossible.
a. We set forth the standard of review that applies to the denial of a recusal motion and the standards that apply to determine whether a judge should be recused.
The standard and scope of our review of the denial of a motion to recuse is as follows:
We review an order denying a motion to recuse a judge under an abuse[-]of[-]discretion standard, affirming the lower court's denial so long as it is within the zone of reasonable disagreement. See Nairn[ v. Killeen Indep. Sch. Dist.], 366 S.W.3d [229,] 250 [(Tex. App.-El Paso 2012, no pet.) (citing] Gaal[ v. State], 332 S.W.3d [448,] 456 [(Tex. Crim. App. 2011))]; see also Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992).
A trial court only abuses its discretion if it acts without reference to any guiding rules or principles, that is, if the trial court's act was arbitrary or unreasonable. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). In reviewing the lower court's decision denying a recusal motion, we consider the totality of the evidence and information presented at the recusal hearing to determine if the record reveals sufficient evidence to support the court's decision. Nairn, 366 S.W.3d at 250.Caballero v. Vig, 600 S.W.3d 452, 457 (Tex. App.-El Paso 2020, pet. denied). "We will not reverse the ruling on the motion to recuse if it is within the zone of reasonable disagreement." In re B.M.B., No. 05-22-01322-CV, 2023 WL 3836429, at *4 (Tex. App.-Dallas June 6, 2023, no pet.) (mem. op.).
Texas Rule of Civil Procedure 18b provides the grounds for recusal, and in this matter, Ms. Goesling asserts three of them: (1) "the judge's impartiality might reasonably be questioned"; (2) "the judge has a personal bias or prejudice concerning the subject matter or a party"; and (3) "the judge has personal knowledge of disputed evidentiary facts concerning the proceeding." See Tex. R. Civ. P. 18b(b)(1), (2), (3).
To carry the burden of proof that recusal is warranted, a movant must show that such a degree of bias or prejudice exists that the movant was deprived of a fair trial. B.M.B., 2023 WL 3836429, at *4. Specifically, the movant's burden to prove recusal "is only satisfied when the movant provides facts demonstrating the presence of bias or partiality 'of such nature and extent as to deny the movant due process of law.'" Id. at *5 (quoting Ex parte Ellis, 275 S.W.3d 109, 116 (Tex. App.-Austin 2008, no pet.)). Stated differently, the burden on a movant who is seeking a judge's recusal presents a "high threshold." Id. Thus, the proof offered to establish a bias or prejudice warranting recusal must rise above "[c]onclusory statements, conjecture, or mere assertions of bias." Id. The need for concrete proof of a bias or prejudice flows from the principles that bias or prejudice cannot be "lightly established" because "[j]udges enjoy a presumption of impartiality." Id.
In deciding whether the requisite level of prejudice exists, we adopt the perspective of an outside observer of the judicial process and apply the following view:
The test for recusal is "whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge is actually impartial." Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 776 (Tex. App.-Dallas 2011, no pet.). Courts evaluate the merits of a motion to recuse from "a disinterested observer's point of view." . . . Ellis, 275 S.W.3d [at] 116 . . . .Id. at *4.
Various principles also cabin what proof may be relied on to establish the grounds for recusal. The very terms of the recusal procedure set out one restriction: a motion to recuse a judge "must not be based solely on the judge's rulings in the case." Tex.R.Civ.P. 18a(a)(3). Indeed, "[j]udicial rulings alone almost never constitute a valid basis for a motion to recuse based on bias or partiality." B.M.B., 2023 WL 3836429, at *5. In most cases, a dissatisfied litigant's remedy to challenge an unfavorable ruling is not to recuse the judge but to appeal the ruling. Id. (first citing In re City of Dallas, 445 S.W.3d 456, 467 (Tex. App.-Dallas 2014, orig. proceeding); and then citing Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex. App.-Houston [14th Dist.] 2000, pet. denied)). Rulings only become a ground for recusal when "they display a deep-seated favoritism or antagonism that would make fair judgment 'impossible.'" Id. (citing Dow Chem. Co. v Francis, 46 S.W.3d 237, 240 (Tex. 2001)).
Also, a claim of bias or prejudice usually must be supported with proof "that the bias arose from an extrajudicial source." Id. Again, without proof of an extrajudicial source, grounds for recusal do not arise because recusal should not result "from actions during the pendency of the trial[-]court proceedings unless the actions during proceedings indicate a high degree of favoritism or antagonism that renders fair judgment impossible." Id. (first citing Parker v. Cain, No. 07-17-00211-CV, 2018 WL 4997784, at *2 (Tex. App.-Amarillo Oct. 15, 2018, pet. denied) (mem. op.); then citing Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex. App.-Houston [1st Dist.] 1997, no writ); and then citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994)); see also Fox v. Alberto, 455 S.W.3d 659, 666 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("[I]f a party seeks recusal of a judge based on the judge's alleged bias, prejudice, or partiality and if that party does not show that the alleged bias, prejudice, or partiality arose from events occurring outside of judicial proceedings, then the judge may not be recused unless the judge has displayed a deep-seated favoritism or antagonism that would make fair judgment impossible." (emphasis added)).
b. The Senior Judge did not abuse his discretion by denying the motion to recuse.
Applying the abuse-of-discretion standard that governs our review of this issue and the principle that a judge's actions at trial usually do not establish bias or prejudice, we hold that the Senior Judge acted within the zone of reasonable disagreement by not finding that a reasonable member of the public at large, knowing all the facts in the public domain concerning the trial judge's conduct, would have a reasonable doubt that she is actually impartial. No trial is perfect. The issues regarding the charge in this case-albeit presenting unusual circumstances-show a trial judge who was dealing on the fly with the unexpected but not doing so in a way that displayed a deep-seated favoritism or antagonism that would make fair judgment impossible.
As we have discussed, at the recusal hearing, the trial judge and her staff freely disclosed what had occurred that had generated the problem with the court's charge. The genesis of the confusion was the fact that the trial court's regular court reporter was not present on the morning that the case went to the jury. This produced a charge that went to the jury without being stamped as the trial judge usually did and the trial judge's placing a prior version of the charge in a redrope that she kept for use on the bench. By a twist of the hand of fate, the version placed in the redrope contained the refused instruction. The bailiff brought a charge with the verdict to the trial judge, and she concluded that it had been mislabeled as a "copy," she gave the bailiff the blank charge from the redrope that was marked "original"-the Second Original-and the presiding juror did no more than transfer to that form the answers that were reached during the jury's deliberations.
Upon discovery of the presence of the refused instruction in the charge, Ms. Goesling's counsel contacted the presiding juror, and the presiding juror then contacted the trial court to report what counsel was asking her about. Pursuant to the trial judge's instructions, her staff began an investigation to unravel what had happened-a seemingly reasonable response to the concern that had been communicated by the presiding juror. Again, in an unusual turn of events, the charge used by the jury in its deliberations was found before it was destroyed. After returning from vacation, the trial judge filed the charge that her staff had found.
To meet her high burden to establish a bias or prejudice warranting recusal, Ms. Goesling attributes dark motives to the trial judge's actions in dealing with the unusual circumstances that she faced:
At the recusal hearing, [the trial judge] testified that the incorrect charge with the [r]efused [i]nstruction made its way to the jury room by accident, due in part to confusion caused by her official court reporter['s] calling in sick that day. Instead of telling the parties that this had occurred, [the trial judge] concealed the issue, directing the jury to "transfer their answers" and to sign a second verdict form. [Ms.] Goesling did not learn about the discrepancy until [the trial judge] filed the second document, after [Ms.] Goesling [had] filed her motion complaining of the jury['s] rendering judgment on a charge with the [r]efused [i]nstruction.
Such filing reasonably raises questions regarding [the trial judge's] impartiality, as the record supported [Ms.] Goesling's post-verdict
motion, while [the trial judge's] filing introduced her own evidence into the new[-]trial issues based on the jury verdict form, which gives the appearance of bias or prejudice regarding the subject matter. See Tex. R. Civ. P. 18b(b)(2). For these reasons, [the Senior Judge] erred in denying [Ms.] Goesling's recusal motion and [in] allowing [the trial judge] to hear [Ms.] Goesling's post-verdict motions. [Record references omitted.] [Emphasis added.]
In essence, Ms. Goesling's argument is that the trial judge could have handled the problem differently when she learned that the jury had not used the proper form; it could be argued so. But it is not beyond reasonable disagreement to conclude that the trial judge was simply addressing a problem with a document that she thought was mislabeled, and an inference can be reasonably drawn that she did not display a deep-seated favoritism or antagonism that would make fair judgment impossible. In other words, Ms. Goesling's arguments are unconvincing that the only inference that could be drawn is the one that she draws.
The counterpart to Ms. Goesling's argument is that the trial judge introduced her own evidence into the proceeding when she explained what happened. We are unsure exactly what this argument even suggests. The trial judge on the public record owned up to what had created the problem. No fact that she testified to came from an extrajudicial source. The evidence at the recusal hearing related solely to matters that had occurred during the course of the proceeding, and the trial judge and her staff were candid in admitting her role in how the situation arose.
Finally, Ms. Goesling argues that
[the trial judge's] impartiality in such a situation might reasonably be questioned, as the only way for her to hold there is no harm was to first absolve herself (and her staff) of the very problem that caused [Ms.] Goesling harm. It was patently unfair to place [Ms.] Goesling in that position, where [the trial judge] participated in both causing the problem and in deciding the solution.
Again, the trial judge did not try to "absolve" herself of a role in the problem; she and her staff acknowledged it. And if there is an underlying suggestion in Ms. Goesling's comment that the trial judge or her staff was not candid about what had occurred, there is a complete absence of support in the record for that suggestion. Further, the implication of the argument is one of breathtaking scope: If one claims that a trial judge makes a mistake, the remedy-under Ms. Goesling's argument-becomes not an appeal of the ruling but a motion to recuse claiming trial judges must now have transferred their loyalties from their judicial duties to those of self-preservation. Such an argument is at odds with the principle that a ruling-some of which will inevitably be wrong-cannot be the basis to recuse and that grounds to recuse arise only from the display of a deep-seated favoritism or antagonism that would make fair judgment impossible.
For the reasons laid out, the Senior Judge did not abuse his discretion by finding that the trial judge should not be recused. We overrule Ms. Goesling's second issue.
B. Issues three and four-We overrule Ms. Goesling's third and fourth issues attacking the evidentiary support of the jury's negative answers to the liability questions.
In her third and fourth issues, Ms. Goesling raises legal- and factual-sufficiency challenges to the jury's negative findings on her liability theories. Intermeshed in these arguments are subissues regarding whether Ms. Goesling's theories are legally viable. We will not reach those subissues because Ms. Goesling's sufficiency challenges fail. The crux of Ms. Goesling's challenges turns on the contention that Hooyerink's testimony at trial-that he did not encourage Sargeant to sexually assault Ms. Goesling-could not be credited by the jury because it contradicted his deposition testimony. First, the contradiction is not as stark as Ms. Goesling portrays it to be, and it was in the jury's purview to decide what Hooyerink had admitted. Second, even if there were a contradiction between the deposition and the trial testimony, which testimony to believe presents a classic credibility question for the jury to resolve. We resolve the sufficiency issues against Ms. Goesling because the record presented credibility questions that the jury resolved against her, and it is not in our province to revisit that resolution.
American asserts that Ms. Goesling waived these issues because deposition excerpts played to the jury were not included in the reporter's record. A supplemental reporter's record with the excerpts has been filed. This filing obviates a concern that we lack an adequate record by which to conduct our review. We therefore deny "American Airlines, Inc.'s Objection to Consideration of Untimely Record and Motion to Strike [the Supplemental Reporter's Record]."
1. Standards of review
a. We set forth the legal-sufficiency standard of review.
In her third issue, Ms. Goesling challenges the trial court's failure to grant her motion for JNOV directed at the negative jury findings on her liability theories. We recently set out the standards that govern such a motion:
A trial court may disregard a jury verdict and render a JNOV if no evidence supports the jury finding on an issue necessary to liability or if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Edwards v. Chevrolet, 605 S.W.3d 219, 222 (Tex. App.-Fort Worth 2020, no pet.). A directed verdict is proper only under limited circumstances: (1) when the evidence conclusively establishes the movant's right to judgment or negates the opponent's right or (2) when the evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Edwards, 605 S.W.3d at 222.McDaniel v. Dindy, 673 S.W.3d 24, 30-31 (Tex. App.-Fort Worth 2023, no pet.).
When a party attacks the legal sufficiency of an adverse finding for an issue on which the party had the burden of proof-as Ms. Goesling does in this appeal-the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021). In reviewing a "matter of law" challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Francis, 46 S.W.3d at 241. If no evidence supports the finding, then we will examine the entire record to determine if the contrary position is established as a matter of law. Id. We will sustain the issue only if the contrary position is conclusively established. Id. Evidence conclusively establishes a fact when the evidence leaves "no room for ordinary minds to differ as to the conclusion to be drawn from it." Int'l Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019).
b. We set forth the factual-sufficiency standard of review.
In her fourth issue, Ms. Goesling also asserts that the trial court should have granted her a new trial because the finding is "so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust." When a party attacks the factual sufficiency of an adverse finding on an issue on which she had the burden of proof, that party must show that the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. To resolve this type of factual-sufficiency challenge, "[t]he 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. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g)); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
c. Credibility determinations are for the jury to make.
Overlying both standards of review is the principle that credibility determinations are for the jury. Simply,
[j]urors are the sole judges of the credibility of the witnesses and the weight to give their testimony. They may choose to believe one witness
and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary.
Most credibility questions are implicit rather than explicit in a jury's verdict. Thus, reviewing courts must assume jurors decided all of them in favor of the verdict if reasonable human beings could do so. Courts reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it.City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (footnotes omitted).
2. We overrule the portion of Ms. Goesling's third issue contending that the trial court should have granted a motion for JNOV with respect to the jury's negative answer to Question No. 3 that submitted her assistance-and-participation theory of liability.
Although American argues that Texas law does not recognize the aiding-and-abetting claim that Ms. Goesling made, for purposes of our analysis, we will assume without deciding that such cause of action is recognized in Texas.
As we noted in the introduction, Ms. Goesling submitted a theory of liability that turned on whether a managerial employee of American-Hooyerink-had assisted and participated in the sexual assault on her. The charge submitted Ms. Goesling's assistance-and-participation theory as follows:
QUESTION NO. 3
Did American Airlines, through its vice principal Brett Hooyerink, assist and participate with Mark Sargeant in committing the sexual assault of [Ms.] Goesling?
To "assist and participate" in the sexual assault by Mark Sargeant requires the following:
1. Sargeant committed a sexual assault against [Ms.] Goesling;
2. Brett Hooyerink provided substantial assistance to Sargeant in accomplishing the sexual assault;
3. Brett Hooyerink's own conduct, separate from Sargeant's, was a breach of duty to [Ms.] Goesling; and
4. Brett Hooyerink's participation was a substantial factor in causing the sexual assault.
The jury found that Sargeant had sexually assaulted Ms. Goesling, and that ends any review of that issue. We will take in turn Ms. Goesling's contentions regarding why the other elements that were submitted in the question-primarily the second element that substantial assistance was provided-were conclusively established and why we reject those contentions. First, we will examine what we view as subsidiary arguments and then deal with the pivotal question: Was it conclusively proven that Hooyerink had conveyed to Sargeant the crude remarks that Ms. Goesling asserts were the impetus for the sexual assault?
In her first subsidiary argument, Ms. Goesling contends that American provided substantial assistance because it fueled Sargeant's drunkenness:
Sargeant described the night of his sexual assault as an "alcohol-filled" evening. American paid for Sargeant's drinks, beginning at the restaurant and continuing at the hotel bar. He also described Hooyerink['s] (and American employees Russ Brown and Ashley Gerber) drinking with him, including doing shots of [Jägermeister]. Hooyerink testified that he was drinking along with Sargeant[] but denied drinking shots. Sargeant blamed his sexual assault o[f Ms.] Goesling on his being drunk that night. Accordingly, the legally sufficient evidence conclusively establishes that Hooyerink provided substantial assistance to Sargeant in providing him with alcohol. [Record references omitted.]
This statement first ignores the testimony by the outside vendor, who was not an American employee, that he paid for drinks as well during the course of the evening. Further, Hooyerink denied that the event was an alcohol-filled evening.
In her next subsidiary argument, Ms. Goesling apparently asserts that Hooyerink gave Sargeant her room number:
It is undisputed that Hooyerink arranged the hotel rooms for that night's stay, including [Ms.] Goesling's and Sargeant's. Nevertheless, [Hooyerink] denied that he gave Sargeant her room number. The evidence demonstrates otherwise. Hooyerink had [Ms.] Goesling check in before him in the Sheraton check-in line, so [he] was in a position to know where she was staying. And[] Sargeant appeared at [Ms.] Goesling's door very shortly after leaving Hooyerink's company and shortly after he began texting [Ms.] Goesling. Accordingly, the legally sufficient evidence conclusively establishes that Hooyerink provided substantial assistance to Sargeant in providing him with [Ms.] Goesling's room number. [Record references omitted.]
In essence, Ms. Goesling argues that there was evidence supporting an inference that Hooyerink gave Sargeant her room number. But as the argument itself acknowledges and as the record shows, Hooyerink denied that he knew which room she was in. Next, Sargeant testified that he had obtained Ms. Goesling's room number from the hotel concierge, that he did not remember where he obtained it, or that he might have gotten it from Ms. Goesling. And indeed, Ms. Goesling had sued the hotel chain that owned the hotel where the sexual assault occurred alleging that hotel employees had given Sargeant her room number. This record left the jury with conflicting evidence as to how Sargeant had obtained the room number.
In her final subsidiary argument, Ms. Goesling argues that Hooyerink held a subjective belief that Ms. Goesling was attracted to Sargeant:
Hooyerink unequivocally testified he believed that [Ms.] Goesling was attracted to Sargeant, stating, "[Ms. Goesling] was very friendly, but my perception was, is that there was an attraction there to [Sargeant]." This is entirely consistent with Sargeant's testimony that Hooyerink conveyed the idea to Sargeant that [Ms.] Goesling was sexually interested in Sargeant and was "in the mood to party" and "was up for it [sex with Sargeant]." For these additional reasons, the legally sufficient evidence conclusively establishes that Hooyerink provided substantial assistance to Sargeant in providing him with encouragement to pursue a sexual encounter with [Ms.] Goesling that night, which culminated in sexual assault. [Record references omitted.]
Left unexplained in this argument is how Hooyerink's subjective belief-if unexpressed to Sargeant-constituted assistance or participation. Instead, the argument appears to be that the evidence supports an inference that Hooyerink's belief might have prompted him to make a statement of encouragement. But in view of the testimony that Hooyerink did not make the statement, that only creates an inference that the jury was free to reject. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (Phillips, C.J., concurring to, and dissenting from, per curiam majority op. on reh'g) ("[T]he mere fact that more than one reasonable inference may be drawn from this evidence does not mean that no evidence supports the jury's verdict. If more than one reasonable inference may be drawn, a question of fact is ordinarily presented for the jury to decide.").
Ms. Goesling's central argument is that Hooyerink's denial that he made crude statements to Sargeant was so incredible that the jury could not credit it. The core of this argument is that Hooyerink encouraged Sargeant and that "[b]ut for Hooyerink's participation in encouraging Sargeant to pursue [Ms.] Goesling sexually, Sargeant would not have gone to [Ms.] Goesling's room that night to pursue her." Ms. Goesling then counterposes the following description of Hooyerink's testimony to that of Sargeant's:
Sargeant's specific testimony was as follows:
Mr. Sargeant, would you read what you said at 9:45 a.m. to [Ms. Goesling]?
A: "Yes, definitely, and you don't need to say it, I was drunk and stupid, and certain people encouraged me, naming no names."
Q: Is that statement true?
A: Yes.
Q: You in fact had told other people, Mr. Sargeant, you told other people that these people were egging you on, haven't you?
A: Yes.
Q: And suggesting to you that [Ms. Goesling] was in the mood to party?
A: Yes.
Q: And Brett Hooyerink was one of those people, wasn't he?
A: Yes.
Q: And who else?
A: Ashley Gerber.
Q: So Brett and Ashley said what to you, sir, to encourage you?
A: Towards the end of the evening
A: Towards the end of the evening, I was standing with both of them, and Brett turned round to me and said[,] "[S]he has a clit on for you[."] I said[,] "I don't understand what that means[."] He said: "It's the female equivalent of a hard on[."] And Ashley agreed[,] and[] essentially, they said that she was up for it.
Q: I hate to make you repeat that, sir, but part of that broke up in the transmission, and I could see other people shaking their heads. So would you repeat that so that we can all hear it[?]
A: Yes. Towards the end of the evening, I was standing with Brett and Ashley. Brett said to me that "she has a clit on for you[."] I was confused. I asked, ["]I didn't know what that meant, what did that mean[?"] Brett told me it was the female version of a hard on, and Ashley agreed and, essentially, said that they thought she was up for it.
Q: Would you have gone to [Ms. Goesling's] room if Brett and Ashley had not said those two things to you?
A: I was not interested in [Ms. Goesling] at all until this stage.
Q: So was it them telling you that that made you interested?
A: It put the idea into my head, yes.
Q: Before they said that, you didn't have any idea of having a sexual encounter or even going to her room or kissing [Ms.] Goesling, is that correct?
A: That is correct, yes.
During his deposition, Hooyerink did not deny encouraging Sargeant to pursue a sexual relationship with [Ms.] Goesling, stating, "I can't rule it out." At trial, Hooyerink changed his testimony, stating, "At the time, I actually said that I couldn't rule it out, but I do deny it now." He further stated that he never said anything to Sargeant to encourage him to
pursue or assault [Ms.] Goesling. Hooyerink was unable to provide any explanation for his dramatic recant of his deposition testimony. [Record references omitted.]
As a starting point, Ms. Goesling's thumbnail sketch of Hooyerink's testimony compels a fuller recitation of what the jury heard. The relevant testimony went on at length:
Q. Have you read or watched Mark Sargeant's deposition?
A. I have not.
Q. Do you know what Mark Sargeant said in his deposition?
A. I've heard snip-its of what Mark Sargeant has said specific to me in his deposition, yes.
Q. Who told you that?
A. My attorney did.
Q. Anybody but your attorney told you what Mark Sargeant said in the deposition?
A. No.
Q. Have you -- have you actually looked at what he said?
A. No.
Q. Have you actually watched the video?
A. I have not.
Q. Okay. You know from the texts and from your deposition, one of the texts that was sent -- one of the texts that was sent by
Mr. Sargeant, this is Defendant's Exhibit Number 20 for the record, at 9:45 a.m., I'm going to try to scroll in here a little bit. There we go.
A. That's better, thank you.
Q. You can see that now, can't you?
A. Yes.
Q. I talked to you about that in your deposition?
A. Yes, sir.
Q. I asked you if you encouraged Mark Sargeant to have a sexual relationship with [Ms.] Goesling, didn't I?
A. Yes.
Q. You denied that you encouraged Mark Sargeant to have a sexual relationship with [Ms.] Goesling, didn't you, sir?
A. At the time, I actually said that I couldn't rule it out, but I do deny it now.
Q. All right. Let's break that down. At the time that I took your deposition under oath --
A. Uh-huh.
Q. -- and I asked you, "Did you encourage Mark Sargeant to pursue a sexual relationship with [Ms.] Goesling," what you said was --
. . . .
Q. (By [Ms. Goesling's counsel]) What you swore to in your deposition, same oath you took here is, "I can't rule it out." That's what
you swore to under oath at the time you gave your sworn deposition in this case, correct?
A. Yes.
[American's counsel]: Your Honor, under the rule of optional completeness, I would like to read the four questions before that.
THE COURT: Go ahead.
. . . .
[American's counsel]: Page 157, you were asked by
[Ms. Goesling's counsel] at Page 157, line 1, you were asked, "So as we sit here today, looking at Exhibit No. 29, you have no idea who the certain people that encouraged Mark Sargeant were?" And you responded, "I do not."
THE WITNESS: Yes, that's correct.
[American's counsel]: And you were asked next by [Ms. Goesling's counsel], "And you're swearing under oath that it was not you," and you answered, "I did not encourage Mr. Sargeant to whatever he's claiming[;] I did not encourage anybody. No."
Next question, "Did you encourage him to have a sexual relationship with [Ms. Goesling]?" And you responded, "I did not." True?
THE WITNESS: Yes.
[American's counsel]: And then you were next asked, "Did you encourage him to go to [Ms. Goesling's] room?" And you responded, "I did not." Is that true?
THE WITNESS: Yes, sir.
[American's counsel]: And then you were asked, "Did you tell him she was interested in him?" Answer: "I don't recall saying that."
THE WITNESS: Yes.
Q. (By [Ms. Goesling's counsel]) Did you also say -- what did Mark Sargeant say? Did you ask me that in the deposition?
A. I don't remember asking you that in the deposition.
Q. At the time that you swore to this under oath.
A. Uh-huh.
Q. Mark Sargeant hadn't been deposed, had he?
A. I don't believe so.
Q. Right. You now know he has been deposed and you know what he said that you said?
A. Yes. Yes, sir.
Q. Okay. He said, sir, under oath, that you told him that [Ms. Goesling] had a C-L-I-T-on for him at the bar that night while y'all were drinking shots of Jägermeister. You know that, correct, sir?
A. Yes, sir.
Q. Are you saying to this jury under oath that you did not say that to him?
A. Yes, I am testifying under oath that I did not say that to Mark Sargeant.
In this text, Sargeant told Ms. Goesling that "certain people encouraged me." When Ms. Goesling asked twice who had encouraged him, Sargeant responded, "No one. I'm just kidding."
Later in Hooyerink's testimony, the following exchange occurred between Ms. Goesling's counsel and Hooyerink:
Q. But then when Mark Sargeant says you encouraged him, he's not telling the truth?
A. I'm not following you.
Q. Right. You just testified to this jury that you're -- you saw an attraction between -- that [Ms. Goesling] was attracted to Mark Sargeant.
A. Uh-huh.
Q. He testified there wasn't any of that. He also testified you encouraged him. So what your testimony to the jury is, you thought she was attracted to him, but you didn't tell him that she thought -- or that you thought she was attracted to him?
A. I never had that conversation with Mark Sargeant.
Q. And, yet, at the time of your deposition, you said you couldn't rule it out?
A. Well, the context of Mark Sargeant's recollection has changed since my deposition.
Q. The context -- what's happened is[] you prepared for the deposition, you reviewed the documents, you gave your deposition under oath, [and] you did not know what he was going to say. Now, sir, you know what he said and now that that's under oath in the evidence in this case, you are denying it, sir?
A. I'm saying that I never said anything to Mark Sargeant that would encourage him to pursue or assault [Ms.] Goesling.
Q. Well, let's -- let's talk about this. If somebody says she has a C-L-I-T-on for you, that's the equivalent of a male hard-on, she wants you, she wants it, do you agree that would be encouraging someone -- if someone said that, do you agree that would be encouraging someone to pursue the person you're talking about?
A. I never said that.
Then, at another point in the testimony, the following exchange occurred between Ms. Goesling's counsel and Hooyerink:
Q. And that when [Sargeant] says -- he says that you said, "She has a C-L-I-T-on for you." He then says he didn't know what that was, so he
asked you what that meant, and he says, I want to give you a chance to explain this if you want to, that you said that's the equivalent of a female hard-on. Did you say that, sir?
A. No. I have never heard that phrase until this trial, in my entire life, and I have never heard that phrase used since, only in conjunction with this trial.
The quoted testimony reveals considerably more nuance than does Ms. Goesling's characterization of it. In response to a general question, Hooyerink apparently testified at his deposition that he could not "rule out" having encouraged Sargeant. The nature of the "encouragement" referenced in the question is unclear. Also, in other answers in his deposition, Hooyerink appeared to deny that he had encouraged Sargeant. Thus, Hooyerink's answers as read to the jury do not establish an unqualified statement that he had made encouraging statements to Sargeant. Then, at trial when specifically confronted with the words that Sargeant said Hooyerink had used to encourage him, Hooyerink denied using the words. Contrary to Ms. Goesling's argument, this is an explanation for the change in his testimony, if there were one. And to the extent that Hooyerink had qualified his statements in the deposition, at trial, he stated an unqualified denial.
Like so many incidents at trial, exactly what Hooyerink had acknowledged in his deposition was unclear. It was the jury's role to weigh Hooyerink's trial testimony juxtaposed with what he said in his deposition and to decide which was more credible. We defer to the jury's decision because as noted, "Courts reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it." City of Keller, 168 S.W.3d at 819.
But even if we saw Hooyerink's testimony in the stark terms that Ms. Goesling places it and saw a direct contradiction between Hooyerink's deposition and trial testimony, the issue would still be one of credibility for the jury to determine. The Tyler Court of Appeals recently cataloged a host of cases that it cited for the proposition that such a conflict usually poses a question of credibility:
Furthermore, conflicts between a witness's deposition testimony and trial testimony are generally credibility issues for the jury. See, e.g., AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 142-43 (Tex. App.-Fort Worth 1996, writ denied) (holding that conflict in witness's deposition and testimony at trial did not conclusively negate claim[] but instead was quasi-admission raising fact issue for jury to resolve); [see also] Drake v. Spriggs, No. 13-03-429-CV, 2006 WL 3627716, at *3-4 (Tex. App.-Corpus Christi-Edinburg Dec. 14, 2006, no pet.) (mem. op.) (holding deposition testimony that appeared deliberate, clear, and unequivocal in isolation was mere quasi-admission for jury to resolve when considered in entire context of testimony); Jacobs v. Jones, No. 05-99-01455-CV, 2000 WL 768777, at *2 (Tex. App.-Dallas June 15, 2000, no pet.) (. . . not designated for publication) (holding that evidence was not factually insufficient to support jury verdict even though "trial testimony was inconsistent with . . . deposition testimony[ because] it is the province of the jury to resolve such conflicts, determine the credibility of the witness[es], and the weight to be given their testimony"). Statements in a deposition are declarations against the interest of the witness, the witness may explain or contradict those statements at trial, and the statements' probative value simply creates a credibility issue for the jury's determination. See Panola Cnty. Comm'rs [Ct.] v. Bagley, 380 S.W.2d 878, 885 (Tex. App.-Texarkana 1964, writ ref'd n.r.e.).Cruz v. Mor-Con, Inc., 672 S.W.3d 175, 185 (Tex. App.-Tyler 2023, no pet.). Though confronted in American's brief with citations to this rule, Ms. Goesling makes no attempt in her reply brief to establish why the conflict that she sees between Hooyerink's deposition and trial testimony would do any more than to create a credibility question.
Ms. Goesling's theory of the case was that Hooyerink did a number of things to assist and participate in her assault, such as (1) fueling Sargeant's drunkenness, (2) giving him her room number, and (3) carrying out his belief that Ms. Goesling had an attraction to Sargeant by making statements to Sargeant that she had a sexual interest. On every issue, the jury heard conflicting evidence or could draw conflicting inferences. Thus, Ms. Goesling's challenge fails because some evidence supports the jury's negative answer to Question No. 3 dealing with Hooyerink's assistance and participation in the sexual assault. Because some evidence supports the answer, the argument fails that the evidence conclusively establishes that Question No. 3 should have been answered "yes." We overrule this portion of Ms. Goesling's third issue.
3. We overrule the portion of Ms. Goesling's third issue contending that the trial court should have granted a motion for JNOV with respect to the jury's negative answer to Question No. 7 that submitted her intentional-infliction-of-emotional-distress theory of liability.
The jury answered the following question "no":
QUESTION NO. 7
Did American Airlines, through its vice principal Brett Hooyerink, intentionally inflict severe emotional distress on [Ms.] Goesling?
Intentional infliction of emotional distress occurs when the Defendant acts intentionally or recklessly with extreme and outrageous
conduct to cause the Plaintiff emotional distress and the emotional distress suffered by the Plaintiff was severe.
"Extreme and outrageous conduct" occurs only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.
Answer "Yes" or "No."
The core of Ms. Goesling's assertion-that the evidence conclusively established the contrary of the jury's negative findings-is a retread of her prior argument that was just addressed:
Regarding the first two elements, as detailed above, Sargeant's testimony establishes that he would never have gone to [Ms.] Goesling's room[] but for Hooyerink's encouragement that [Ms.] Goesling was interested in Sargeant. Such testimony conclusively establishes that Hooyerink's conduct was extreme and outrageous[] and was intentional or at least reckless. Hooyerink's changed trial testimony is testimony [that] is "so weak that it only creates a mere surmise or suspicion of its existence[]" and is no evidence under the law. [Record reference omitted.]
Simply, Ms. Goesling's argument is the same as she made with respect to Hooyerink's assistance and participation, and our response is also the same. The conflict on which she bases her issue merely presented a credibility question to the jury. Again, some evidence supports the answer, and the argument fails that the evidence conclusively establishes that Question No. 7 should have been answered "yes." We overrule the remainder of Ms. Goesling's third issue.
4. We overrule Ms. Goesling's fourth issue contending that she is entitled to a new trial because the jury's negative answers to Question Nos. 3 and 7 are so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.
For a third time, Ms. Goesling argues,
As detailed above, Sargeant testified at length that Hooyerink encouraged him to pursue [Ms.] Goesling sexually, describing the specific vulgar phrases Hooyerink used. Sargeant also testified unequivocally that, but for Hooyerink's encouragement, he would not have pursued [Ms.] Goesling at all. The jury heard that, during his deposition, Hooyerink testified about encouraging Sargeant, stating that he "can't rule that out." Hooyerink's during-trial change in testimony to a denial, without any explanation for his change in testimony[,] does not rise to the level of legally sufficient evidence. [Record references omitted.]
Though we now apply a different standard of review, our conclusion remains the same-that Ms. Goesling's factual-sufficiency issue seeks to have us invade the jury's province by holding that its credibility determinations in answering Question Nos. 3 and 7 were flawed. That we cannot do. For the reasons we have explained in detail above, we conclude "that the credible evidence supporting the finding[s] is [not] so weak, or so contrary to the overwhelming weight of all the evidence, that the [findings] should be set aside and a new trial ordered." See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).
We overrule Ms. Goesling's fourth issue.
C. Issue Five-We overrule Ms. Goesling's issue contending that the trial court erred by excluding evidence of Sargeant's prior conduct.
In her fifth issue, Ms. Goesling contends that the trial court erred in refusing to admit certain evidence that she claims made it foreseeable that Sargeant would sexually pursue her. In sequence, Ms. Goesling waived the issue on appeal by not attacking the grounds raised to exclude it, it was not an abuse of discretion to exclude the evidence, and she shows no harm from its exclusion.
1. The evidence at issue
Offered during a bill of exception, the evidence that Ms. Goesling contends should have been admitted took two forms. See Tex. R. Evid. 103(a)(2). The first related to an incident that occurred-more than a year before the sexual assault of Ms. Goesling-between Sargeant and a manager of customer experience at American who handled the marketing around celebrity chefs, such as Sargeant. The manager coordinated an event near Sargeant's home, which was located close to London. The manager and Sargeant were at that event, and the manager left Sargeant, believing that he was going home. Sargeant then texted the manager asking her to join him for a drink. The manager declined and suggested that he contact another American employee who was taking people out for a drink that night. The manager said that Sargeant responded that he would rather have a drink with her and commented on her appearance. When asked what comment Sargeant had made about her appearance, the manager responded, "Something to the extent that I'm a more attractive party to have drinks with or something like that." The manager told Sargeant to go home to his wife, and the next day he apologized.
Although Ms. Goesling made an offer of proof, not a bill of exception, the parties refer to it as the latter. For consistency, we will use the term employed by the parties.
The manager described Sargeant's comments to her supervisors and indicated that she was irritated by his comments. The manager was questioned about her reporting of Sargeant's texts:
Q. (By [Ms. Goesling's counsel]) And did you tell them anything else about -- well, let me ask a different way.
You told [them] about the texts[;] you told them you were unhappy about them. What else did you tell them about the texts, if anything?
A. I don't recall saying anything else about the texts.
She indicated that she had told one of her supervisors that she had handled the situation and that "it was done." The manager said that Sargeant had never made a sexual advance toward her, that she did not consider the exchange described as sexual, that he had never asked her to come to his room, and that he had accepted her "no" answer to his invitation.
One of the supervisors described the manager as being dissatisfied with her job duties. This person had no recollection that the manager was removed from contact with Sargeant after the report of the exchange or that she had reported a sexual comment or a sexual advance by Sargeant toward her. If the manager had described the conversation that she testified about, the supervisor would have involved American's HR department to investigate Sargeant.
Finally, another American employee responded to news of the termination of Sargeant's contract after the investigation of the sexual assault on Ms. Goesling by writing an email that included the comment: "From my background, working with [Sargeant] has been difficult -- he's shown up to some photo shoots hung[]over[;] he's hit on some of our marketing colleagues . . . ." The origin of that comment was "gossiping shared among colleagues" and rumors.
With respect to the second form of evidence offered during the bill-of-exception hearing, we quote the description of it from Ms. Goesling's brief:
In 2016, an American vice principal, Russell Brown, and [the manager whose testimony is described above] exchanged emails regarding marketing videos featuring Sargeant. [The manager] stated that Sargeant looked like he had not slept in a week and [that] they were trying to edit it out. Brown replied that Sargeant was not interested in down time for the entire four-day trip. That same day, Sargeant told [the manager] and Brown that he looked jet lagged in all of the marketing photos. Brown replied to Sargeant stating[,] "It's all the brandy you had the night before . . . ." In 2017, [the manager] and Brown exchanged a chat regarding Sargeant stating that he did surprisingly well at an event and was on his "best behavior." [Record references omitted.]
2. Ms. Goesling waived her issue on the exclusion of evidence of Sargeant's prior conduct by failing to address all of the grounds for its exclusion that were asserted at trial by American.
As a general proposition, "[a] trial court's exclusion of evidence is reviewed for [an] abuse of discretion." JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). "A trial court abuses its discretion when it acts without regard for any guiding rules." Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). An appellate court must uphold an evidentiary ruling "if there is any legitimate basis" for it. Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas 2005, no pet.).
As a counterpart to the rule upholding a decision to exclude evidence on any legitimate basis, when a party lodges multiple reasons to exclude evidence, the party attacking the exclusion ruling must attack all legitimate possible grounds that the trial court could have relied on to make its decision. Recently, we cataloged the cases establishing this proposition:
When an appellee objects to evidence on several independent grounds[,] and[] on appeal, the appellant complains of the exclusion of the evidence on only one of those grounds, the appellant waives any error by failing to challenge all possible grounds for the trial court's ruling that sustained the objection. Idniarti v. Bell Helicopter Textron, Inc., No. 02-12-00045-CV, 2013 WL 1908291, at *1 (Tex. App.-Fort Worth May 9, 2013, pet. denied) (mem. op.); In re Blankenship, 392 S.W.3d 249, 259 (Tex. App.- San Antonio 2012, no pet.); see Spa Castle, Inc. v. Miura N. Am., Inc., No. 02-16-00024-CV, 2017 WL 817149, at *1 (Tex. App.-Fort Worth Mar. 2, 2017, no pet.) (per curiam) (mem. op.) (holding that [appellant] waived error complaining about exclusion of its evidence "[b]ecause [appellant] has not challenged any, much less all, possible grounds supporting the trial court's rulings sustaining [a]ppellees' objections"); see also Ex parte L.S., No[s]. 02-18-00096-CV[, 02-18-00097-CV, 02-18-00098-CV], 2019 WL 622587, at *2 (Tex. App.-Fort Worth Feb. 14, 2019, no pet.) (mem. op.) ("If an independent ground fully supports the complained-of ruling, but the appellant assigns no error to that ground, we must accept the validity of that unchallenged independent ground, and thus any error in the grounds challenged on appeal is harmless."); Britton v. Tex. Dep't of Crim[.] Just[.], 95 S.W.3d 676, 681 (Tex. App.- Houston [1st Dist.] 2002, no pet.) ("Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.").Rex Performance Prods., LLC v. Bettegowda, No. 02-18-00171-CV, 2019 WL 3955205, at *3 (Tex. App.-Fort Worth Aug. 22, 2019, no pet.) (mem. op.).
Here, the parties intensely litigated the admission of the evidence regarding Sargeant's prior conduct. Ms. Goesling filed a trial brief in support of foreseeability of sexual assault. American then filed a response to Ms. Goesling's trial brief. American's response concluded that
[Ms. Goesling's] proffered evidence concerning Mr. Sargeant's prior conduct-including his prior alleged drinking, behavior at events that pre-date the January 2018 Germany trip, and his interactions with [the manager that Sargeant asked out for a drink]-do not make the foreseeability of sexual assault any more likely. Any logical connection between the prior conduct and the later alleged sexual assault is too attenuated to constitute probative evidence. Moreover, even if the evidence of Mr. Sargeant's prior conduct had any probative value (and it does not), such value would be substantially outweighed by the danger of confusing the jury, prejudicing the jury, and (in the case of the Texas Workforce Commission document), introducing hearsay. For all these reasons, American respectfully requests that this [c]ourt exclude the evidence of Mr. Sargeant's prior conduct described in . . . [Ms. Goesling's] trial brief in its entirety.
American's response specifically referenced Texas Rules of Evidence 401 (setting out the test for relevance), 402 (stating that relevant evidence is generally admissible), and 403 (permitting the exclusion of relevant evidence "for prejudice, confusion, or other reasons"). Tex. R. Evid. 401, 402, 403. At the time that Ms. Goesling presented her bill of exception, American again objected, "And it's not relevant and it's 403."
In her opening brief, Ms. Goesling rehashes the argument that she made before the trial court and in her trial brief-that the evidence made the sexual assault "foreseeable." Ms. Goesling's opening brief never mentions the Rule 403 objection that American made in its trial brief and before the trial court. In her reply brief, Ms. Goesling mentions American's Rule 403 objection at trial but downplays it by asserting that American did not elaborate on its Rule 403 objections during the bill-of-exception hearing and by setting forth the trial court's statement that it was not admitting the evidence because "it[ was] not similar enough."
The trial court's actual ruling was as follows: "All right. I just don't -- my ruling is that's not going to come before the jury. It's not concrete enough[;] it's not similar enough." Ms. Goesling's argument-that this ruling must have been limited to relevance-is not borne out by the trial court's words. Beyond this, one possible ground for the ruling was the Rule 403 ground, which American repeatedly raised and which we hold below fully supports the trial court's exclusion of evidence. Ms. Goesling's opening and reply briefs simply refuse to challenge that ground for exclusion. Accordingly, Ms. Goesling has waived her complaint.
3. The trial court did not err by excluding evidence of Sargeant's prior behavior.
For the sake of completeness, though, we will address why the trial court did not abuse its discretion by excluding evidence of Sargeant's prior behavior. Ms. Goesling argues that the evidence that the trial court excluded made it foreseeable that Sargeant would later sexually "pursue" a female American employee. For the sake of argument, we will assume that foreseeability is an element of a cause of action that Ms. Goesling alleged. Even operating under this assumption, we do not conclude that the trial court abused its discretion by excluding the evidence at issue.
Again, the abuse-of-discretion standard mandates that we must uphold a trial court's evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
As we noted, Ms. Goesling argues that the evidence made it foreseeable that Sargeant would sexually pursue her. But Ms. Goesling did not base her claim on mere sexual pursuit but on sexual assault, which is a crime. Indeed, the definition of "sexual assault" that was submitted by Ms. Goesling and that the jury found had occurred defined a criminal act. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (stating that a person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent). Further, at the time of the offer after the bill of exception, Ms. Goesling's counsel indicated that the evidence established more than that Sargeant was troublesome or was a cad but that he was instead a "danger" to American's female employees. Specifically, Ms. Goesling's counsel argued, "We offer the testimony of those three witnesses, Your Honor . . . as notice to American Airlines that Mark Sargeant was a danger to its female employees."
Foreseeability is an element of proximate cause, and criminal conduct is foreseeable only in limited circumstances because a criminal act is usually a superseding cause. Doe v. Messina, 349 S.W.3d 797, 800 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). To make the leap that criminal conduct is foreseeable requires detailed showings that make it foreseeable that the supervening act of criminal conduct will occur:
The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dall[.], Inc., 907 S.W.2d 472, 477 (Tex. 1995). These elements cannot be established by mere conjecture, guess, or speculation. Id. Foreseeability means the defendant, "as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others." Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549-50 (Tex. 1985). The general danger, not the exact sequence of events that produced the harm, must be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Generally, third-party criminal conduct is a superseding cause unless the conduct is a foreseeable consequence of such negligence. See Nixon, 690 S.W.2d at 550; see also Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999). Courts consider the following factors in determining whether an intervening force rises to the level of a superseding cause:
(1) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(2) the fact that the intervening force's operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of the force's operation;
(3) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
(4) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
(5) the fact that the intervening force is due to an act of a third person that is wrongful toward the other and as such subjects the third person to liability to him;
(6) the degree of culpability of a wrongful act of a third person that sets the intervening force in motion.
See Pena, 990 S.W.2d at 754 (citations omitted). The first three factors are particularly important. See id. at 754-56; Becerra v. Sw. Bell Tel. Co., No. 14-10-00536-CV, 2011 WL 1744201, at *5 (Tex. App.-Houston [14th Dist.] May 5, 2011, no pet.) (mem. op.).Id. at 800-01. Though it dealt with whether a sexual assault was foreseeable after permitting underage drinking, Messina held that even under the circumstance of permitting teenagers to consume alcohol, "the egregious, felonious crime of sexual assault was an extraordinary consequence." Id. at 803 (collecting cases that sexual assault, even after facilitating drunkenness, is an extraordinary consequence).
Trial courts are vested with discretion to decide whether prior acts-that are offered to prove that an extraordinary act is foreseeable-are sufficiently probative to warrant admission. For example, the First Court of Appeals dealt with the question of whether evidence of a nonviolent crime would make it foreseeable that a murder would occur at an apartment complex. See Perez v. DNT Glob. Star, L.L.C., 339 S.W.3d 692, 706 (Tex. App.-Houston [1st Dist.] 2011, no pet.). When the trial court excluded evidence of the prior nonviolent crimes, the appellate court held that was the type of discretionary decision that it would not second-guess, especially when no challenge to that ruling was made on appeal:
Evidence, even if relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403. At trial, [Appellees] argued that the relevance of the nonviolent crimes was
outweighed by its prejudicial value. The trial court could have reasonably concluded that the relevancy of nonviolent crimes was slight because of their dissimilarity to the murder in question, and thus, their prejudicial value outweighed their relevance. [Appellant] does not challenge the exclusion of the evidence under Rule 403. Thus, we must uphold the trial court's ruling on this basis.Id.
Here, Ms. Goesling fought hard to have the jury hear about Sargeant's prior behavior. It was the only evidence available with which to craft an argument that American had foreknowledge, which arguably should have created a fear that Sargeant might commit the extraordinary act of sexual assault against one of its employees. The question is whether that evidence had probative value that was so strong that the potential prejudicial effect did not substantially outweigh it, making the trial court's decision to exclude the evidence an abuse of discretion. It did not.
We begin with the evidence that on a prior occasion Sargeant looked like he had not slept, had consumed too much liquor, or was not interested in down time. It is unexplained how this conduct is probative of any element of proof that is necessary to show that an extraordinary criminal act of sexual assault was foreseeable. The excluded acts did not involve sexually inappropriate conduct or harbor any suggestion that he would engage in criminality of any type. It is unexplained how such acts that are so dissimilar to sexual assault would be probative on the question of foreseeability, much less how their probative value would not be substantially outweighed by their prejudicial effect.
Turning to the other evidence that the trial court excluded, Sargeant did ask a female American employee to have a drink with him. He was caddish in stating that he wanted to have a drink with the manager whom he had invited on the evening in question rather than another American employee who was taking others out for drinks because the manager was more "attractive." The manager rebuffed the invitation, and Sargeant accepted the rejection and apologized. The manager did not consider the invitation to be sexual in nature. Admittedly, the supervisor to whom the manager reported said that if he had known of the invitation (and it was not clear that he was told of it), he would have requested American's HR department to investigate Sargeant. The probative value of Sargeant's drink invitation on the question of whether this conduct made it foreseeable that his conduct would escalate to the extraordinary act of sexual assault is, once again, unexplained. Nor is it explained how it was outside the zone of reasonable disagreement for the trial court to conclude that the prejudicial effect of this act, which was so dissimilar to sexual assault, substantially outweighed its probative value.
Instead, in an argument bereft of any analysis of the standards of proof necessary to show foreseeability of the extraordinary event of a crime or the evidentiary standards that govern the trial court's discretion, Ms. Goesling argues that at least one court has found an episode of sexual harassment to be probative of foreseeability; she relies on Doege v. Sid Peterson Mem'l Hosp., No. 04-04-00570-CV, 2005 WL 1521193 (Tex. App.-San Antonio June 29, 2005, pet. denied) (mem. op.). Doege involved a hospital that filed a no-evidence summary-judgment motion on the element of a premises-liability claim, arguing that it had no "prior knowledge of [the] sexual behavior while on the job" of a radiology tech who had sexually assaulted a patient while performing an ultrasound. Id. at *8. Doege held that
[e]vidence of specific previous crimes on or near the premises may raise a fact issue on the foreseeability of a particular crime. Nixon, 690 S.W.2d at 550. [Appellant] argues the deposition testimony of [a nurse] shows the hospital had actual knowledge of [the radiology tech's] prior sexual misconduct at the hospital. [The nurse] testified that [the radiology tech had] made remarks to her about coming to a room the hospital provided for him[] so that he could give her a massage. He also made comments to her regarding her lips and her overall appearance. These inappropriate conversations with [the radiology tech] frightened [the nurse] so much that she had security walk her out to her car that night because she feared another encounter with [the radiology tech]. [The nurse] testified that she told her supervisors about the incident, but nothing was done, as required by the hospital harassment policy and the employee handbook. Taking all evidence favorable to [appellant] as true and indulging every reasonable inference in her favor, we hold [that the nurse's] deposition testimony was sufficient to raise a fact issue on foreseeability. [Id.] at 549. Therefore, we hold the trial court erred in rendering summary judgment in favor of the hospital on [appellant's] premises[-]liability claim.2005 WL 1521193, at *9. We make no comment regarding whether the evidence Doege cited should have met the standards necessary to establish foreseeability of the extraordinary event of a sexual assault. We do note that there are many distinctions between the evidence in Doege and what was before the trial court in this case. The American employee had at least some role in shepherding Sargeant, she did not consider his statements sexual in nature, he accepted her rebuff, and the matter was done. There are obvious distinctions in the setting, as well as in the recipient's interpretation and reaction to what occurred. Again, under the circumstances before the trial court in this case, it was not an abuse of discretion for the trial court to make the decision that it did.
4. We set forth why the exclusion of Sargeant's prior conduct was not harmful.
Even if we were to reach the conclusion that the trial court erred by excluding the evidence, we would not conclude that the error was harmful. American argues that Ms. Goesling offers no more than a conclusion that the trial court's failure to admit the testimony regarding Sargeant's prior behavior was harmful. Ms. Goesling does not respond to this argument in her reply brief. In the context of the jury findings made-the sufficiency attacks on which we have rejected-we agree that harm has not been shown.
The Texas Supreme Court detailed the harm standard that applies to a trial court's decision to admit or exclude evidence as follows:
To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must show that the error probably resulted in an improper judgment. Tex.R.App.P. 61.1; [City of Brownsville v.] Alvarado, 897 S.W.2d [750,] 753 [(Tex. 1995)]; McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992). In determining if the excluded evidence probably resulted in the rendition of an improper judgment, we review the entire record. McCraw, 828 S.W.2d at 756; Gee[ v. Liberty Mut. Fire Ins. Co.], 765 S.W.2d [394,] 396 [(Tex. 1989)]. Typically, a successful challenge to a trial court's evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted. [Tex.] Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Alvarado, 897 S.W.2d at 753-54. And, ordinarily, this Court will not reverse a judgment because a trial court erroneously excluded evidence when the evidence in question is cumulative and not
controlling on a material issue dispositive to the case. Able, 35 S.W.3d at 617-18; Reina v. [Gen.] Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex. 1981).Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on reh'g); see also Jackson v. Takara, No. 22-0288, 2023 WL 5655867, at *4 (Tex. Sept. 1, 2023).
As we have noted, the liability questions that the jury answered dealt with whether Hooyerink had assisted and participated in the sexual assault or had intentionally inflicted emotional distress on Ms. Goesling. Specifically, the questions asked, "Did American Airlines, through" Hooyerink either assist and participate in the sexual assault or intentionally inflict emotional distress. [Emphasis added.] Again, the evidence relied on by Ms. Goesling to establish liability under these theories consisted primarily of Hooyerink's statements to Sargeant on the evening of the sexual assault. Unexplained is how evidence of Sargeant's behavior more than a year before that evening-which no one suggests was known to Hooyerink-could impact the jury's analysis of how Hooyerink behaved or its analysis of whether Hooyerink was the impetus for the sexual assault. Under these circumstances, how the judgment based on the jury's negative answers to the liability questions turned on the excluded evidence is not explained by Ms. Goesling.
The only arguable impact that an investigation of Sargeant might have had was that he would not have been present for Hooyerink to allegedly encourage. That is apparently the tie that Ms. Goesling attempts to create by her argument that "[h]ad American investigated Sargeant in 2016 in accordance with its own policies, it is likely that Sargeant could not have pursued Goesling in 2018, either because it would have terminated his contract or would have warned its female employees about Sargeant." The first problem with this statement is that the evidence is that an investigation might have been prompted; no one testified what the likely result of the investigation would have been. But to focus on the question of harm, again, it was Ms. Goesling's choice to make the liability of American dependent solely on the conduct of Hooyerink and not on any other principal or action of American. Because American's conduct-outside the conduct of Hooyerink-was not included in a topic of consideration in the jury questions that determined this case, we do not see how an error in excluding evidence that did not impact those questions was harmful.
We overrule Ms. Goesling's fifth issue.
D. We do not reach Ms. Goesling's sixth issue.
In her sixth issue, Ms. Goesling contends that "[t]he legal defenses American raised in the trial court regarding application of the worker[s'] compensation bar to liability and regarding application of German law to preclude Goesling's right to a jury trial are without merit." By this issue, Ms. Goesling apparently seeks to forestall American's assertion of certain defenses should her appeal result in a reversal and remand. Because we affirm the trial court's judgment, we need not address this issue or American's conditional cross-point. See Tex. R. App. P. 47.1.
Additionally, in her reply brief, Ms. Goesling appears to withdraw this issue.
IV. Conclusion
Having overruled Ms. Goesling's first through fifth issues, which are dispositive of this appeal, we affirm the trial court's judgment.