Opinion
No. 04-19-00874-CV
12-09-2020
Nydia PEÑA, Appellant v. Armando GUERRERO, III, Appellee
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CI-15587
Honorable Laura Salinas, Judge Presiding Opinion by: Beth Watkins, Justice Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice AFFIRMED
Appellant Nydia Peña appeals a final judgment in favor of appellee Armando Guerrero, III. We affirm the trial court's judgment.
BACKGROUND
On May 30, 2016, Peña ran a red light and collided with a car occupied by Guerrero and his friend Javier Maya. Guerrero suffered serious injuries in the collision, and Maya died. It is undisputed that at the time of the collision, Peña was intoxicated and driving 78 miles per hour in a 40 mile per hour zone. It is also undisputed that in the seconds before the collision, Peña turned around while the vehicle was moving to redirect her son into his car seat. Peña was criminally charged with intoxication manslaughter and intoxication assault in connection with the collision, and she is currently serving a prison sentence on the intoxication assault charge.
The jury in Peña's criminal case found her guilty of both intoxication manslaughter and intoxication assault. However, after the criminal jury returned its verdict, Peña agreed to plead no contest to intoxication assault in exchange for a reduced sentence.
Guerrero sued Peña for negligence, negligence per se, and gross negligence. He alleged that the statutory cap on exemplary damages did not apply because Peña committed felony intoxication assault under Texas Civil Practice and Remedies Code section 41.008(c)(14). Peña responded, inter alia, that Guerrero was contributorily negligent. Guerrero maintains that his actions did not contribute to the collision because he was a passenger and Maya was driving.
Guerrero filed a pre-trial motion in limine seeking to "prohibit[] counsel or the parties from offering" certain evidence "without first asking for a ruling from the Court . . . on the admissibility of the evidence." That motion addressed, inter alia, evidence tending to show that Guerrero was driving the car in which he and Maya were riding, had fallen asleep behind the wheel, and had used marijuana on the day of the collision. The motion also addressed evidence of Peña's purported remorse for the collision and the extent of her criminal punishment. The trial court granted these portions of Guerrero's motion in limine.
During the case in chief, the trial court granted Peña's request to admit five lines of her deposition testimony into evidence. Other than those deposition excerpts, Peña did not call any witnesses or seek to admit any evidence during the parties' case in chief. After the parties rested and closed, Peña made an offer of proof consisting of five exhibits, stating, "[W]e're going to offer some evidence that we believe the Court has excluded wrongly and just to preserve a record." When Guerrero asked if he should respond to Peña's offer, the court answered, "No, because I've already ruled."
Before the court submitted the case to the jury, Peña stipulated to Guerrero's negligence and gross negligence claims, and both parties waived a jury finding on gross negligence. The trial court granted a directed verdict in Guerrero's favor on the intoxication assault issue after Peña stated she "ha[d] no evidence against it" and conceded Guerrero had "met the elements" on that issue. The trial court also granted a directed verdict in Guerrero's favor on Peña's contributory negligence claim. The only issues the parties submitted to the jury were the amounts of actual and exemplary damages to which Guerrero was entitled.
After considering the evidence, the jury awarded Guerrero $9,756,223.22 in past and future actual damages, and $50,000,000 in exemplary damages. The trial court signed a judgment consistent with the jury's verdict. After the trial court denied Peña's motion for new trial, she appealed.
ANALYSIS
Peña contends the exemplary damage award is unconstitutionally excessive and that the exemplary and future damages awards are not supported by factually sufficient evidence. She also contends the trial court abused its discretion by excluding mitigating evidence. Finally, she argues the trial court improperly granted a directed verdict on her contributory negligence defense.
Exemplary Damages
Standard of Review and Applicable Law
"The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). Nevertheless, states have considerable flexibility in deciding the level of punitive damages that will further legitimate interests in punishment and deterrence. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). "Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment." Id.
We review the constitutionality of an award of exemplary damages de novo. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 307 (Tex. 2006). "We review not whether the exemplary damage award is exorbitant . . . but whether it is constitutional." Id. at 308. In considering this question, we generally look to three guideposts: (1) the reprehensibility of the defendant's conduct, (2) the ratio between exemplary and compensatory damages, and (3) the size of civil penalties in comparable cases. Id. Because Peña has not presented any argument regarding the third guidepost, we only consider the first two.
Application
"Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Gore, 517 U.S. at 575. In conducting a reprehensibility analysis, a court should consider whether: (1) the harm caused was physical as opposed to economic; (2) the defendant's conduct demonstrated indifference to or reckless disregard for the health or safety of others; (3) the plaintiff was financially vulnerable; (4) the defendant's conduct involved repeated actions or was an isolated incident; and (5) the harm resulted from intentional malice, trickery, or deceit, or mere accident. Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 875 (Tex. 2017). "One factor alone 'may not be sufficient to sustain a punitive damages award, and the absence of all of them renders any award suspect.'" Bennett v. Reynolds, 315 S.W.3d 867, 874 (Tex. 2010) (quoting Campbell, 538 U.S. at 419).
Here, Peña concedes the evidence supports the first two factors of a reprehensibility analysis, but she argues there is no evidence of the third, fourth, and fifth factors. However, she cites no authority holding that evidence of the first two factors is insufficient to support an exemplary damages award. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 46 (Tex. 1998) (citing Gore, 517 U.S. at 576) ("Conduct that endangers a person's health or safety merits more punishment than purely economic harm."). Because there was ample, undisputed evidence that Peña demonstrated indifference to and reckless disregard for the safety of her fellow motorists and Guerrero suffered severe physical injury as a result of that indifference, Peña has not shown the reprehensibility analysis renders the exemplary damages award constitutionally suspect under these circumstances.
"The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff." Gore, 517 U.S. at 580. "Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution." Campbell, 538 U.S. at 425. Although the United States Supreme Court and the Texas Supreme Court have refused to set a bright-line rule for an unconstitutionally excessive ratio, both have noted that a four-to-one ratio "might be close to the line of constitutional impropriety." Id.; Bennett v. Grant, 525 S.W.3d 642, 651 (Tex. 2017). Nevertheless, while the Texas Supreme Court rejected a 4.33-to-1 ratio in a consumer protection case, in doing so, it recognized that "[p]ushing exemplary damages to the absolute constitutional limit in a case like this leaves no room for greater punishment in cases involving death, grievous physical injury, financial ruin, or actions that endanger a large segment of the public." Chapa, 212 S.W.3d at 309-10.
Moreover, while the mathematical ratio is a relevant factor, a reviewing court must also consider "whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred." Gore, 517 U.S. at 581 (internal quotation marks and emphasis omitted). Because an award of exemplary damages is intended to punish and deter, "the penalty should fit the gravity of the misconduct, not simply the actual damages awarded by a jury." Baribeau v. Gustafson, 107 S.W.3d 52, 64 (Tex. App.—San Antonio 2003, pet. denied).
Here, the jury awarded Guerrero $50,000,000 in exemplary damages and $9,756,223.22 in actual damages, a ratio of approximately 5.1-to-1. Peña argues this ratio is unconstitutionally excessive on its face. Under these specific circumstances, we reject that assertion. It is undisputed that Peña's conduct was both likely to and actually did result in death or physical harm to others. See Gore, 517 U.S. at 581; Chapa, 212 S.W.3d at 310. The jury saw video of Guerrero screaming in pain, covered in blood, and crying that he could not breathe immediately after the collision. The impact of the collision tore his diaphragm, thrust his stomach and intestines into his chest, and lacerated his spleen. Those injuries required emergency surgery and a one-week stay in the intensive care unit, and Guerrero testified they were still causing him pain three years after the collision. He also lost two teeth and suffered a brain injury, a broken jaw—which required surgery and the implantation of metal hardware to repair—fractured ribs, and a punctured and collapsed lung. Under these facts, we hold a 5.1-to-1 ratio of exemplary to actual damages does not constitute a grossly excessive punishment for Peña's conduct, the potential harm she posed to the public, and the harm she actually caused Guerrero. See Gore, 517 U.S. at 568; cf. Sommerfield v. Knasiak, 967 F.3d 617, 623-24 (7th Cir. 2020) (affirming a 5.8-to-1 ratio of exemplary to actual damages in an employment harassment case because "[n]o legal principle requires the conclusion that this punitive-damages award was excessive relative to the harm that [the defendant] inflicted").
Finally, Peña argues that because most of Guerrero's actual damages were for non-economic injuries like physical pain, mental anguish, physical impairment, and disfigurement, the jury's award of actual damages already includes a punishment element. She contends the ratio of exemplary damages to Guerrero's only economic damages—his medical bills—demonstrates that the exemplary damages award is unconstitutional. However, none of the authority upon which Peña relies for this assertion involved any physical harm—or, in Campbell and Chapa, even a risk of physical harm—to the plaintiff. See Campbell, 538 U.S. at 426 (bad-faith claim against automobile insurer); Chapa, 212 S.W.3d at 308 (dispute over vehicle purchase); Apache Corp. v. Moore, 960 S.W.2d 746, 749 (Tex. App.—Amarillo 1997, writ denied) (gas well blowout damaged neighboring realty interest). Moreover, Peña cites no authority that non-economic mental anguish damages in consumer protection disputes like Campbell and Chapa are comparable to the physical pain and mental anguish Peña's conduct caused Guerrero. Under these facts, we reject Peña's assertion that due process requires us to ignore Guerrero's non-economic damages in assessing the constitutionality of the exemplary damages award.
In her reply brief, Peña quotes Apache Corp. for the proposition that "an award of exemplary damages in excess of four times the economic damages would cross the line of constitutional impropriety." Apache Corp., 960 S.W.2d at 750. However, our sister court did not, as Peña implies, hold that only economic damages are relevant in analyzing the constitutionality of an exemplary damages award. Instead, it reached the conclusion upon which Peña relies only after "considering [the defendant's] conduct and the harm resulting to the [plaintiffs]" in that specific case. Id.
After reviewing the evidence, the parties' arguments, and the applicable law, we conclude Peña has not shown the exemplary damages award was grossly excessive under the facts of this case. We overrule her challenge to the constitutionality of that award.
Factual Sufficiency
Standard of Review and Applicable Law
When an appellant challenges the factual sufficiency of evidence supporting an adverse jury finding on which she did not bear the burden of proof at trial, she must show the evidence is insufficient to support the finding. In re Marriage of Thrash, 605 S.W.3d 224, 230 (Tex. App.—San Antonio 2020, pet. denied). We consider all the evidence, but we will not reverse a judgment based on the challenged finding unless the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Id. In conducting a factual sufficiency review, we may not substitute our judgment for the jury's and we must recognize "that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Application
Factual Sufficiency of Exemplary Damages
The court's charge asked the jury to consider six factors in assessing exemplary damages: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) Peña's net worth. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.011. Peña does not dispute that the evidence is factually sufficient to support a finding in Guerrero's favor on the first, second, third, and fifth factors. Nor does she dispute that the Texas Legislature has determined as a public policy matter that conduct like Peña's justifies lifting a statutory cap on exemplary damages. Id. § 41.008(c)(14), (15). She argues, however, that the fourth and sixth factors weigh against the award. Assuming, without deciding, that this assertion is correct, we reject Peña's assertion that the undisputed evidence of the nature of the wrong done, the character of Peña's conduct, the degree of her culpability, and the extent to which her conduct offended a public sense of justice and propriety is so weak as to render the award manifestly unjust. See Thrash, 605 S.W.3d at 230. Moreover, because we have already held the exemplary damages award is not unconstitutionally excessive, we decline to hold that the award, while large, is "flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience." Casas v. Paradez, 267 S.W.3d 170, 185 (Tex. App.—San Antonio 2008, pet. denied). We overrule Peña's factual sufficiency challenge to the exemplary damages award.
Factual Sufficiency of Future Damages
Peña does not dispute that the evidence is legally sufficient to support the jury's awards of future damages, and she does not identify any evidence that controverts these awards. See Lemus v. Aguilar, 491 S.W.3d 51, 59 (Tex. App.—San Antonio 2016, no pet.) ("When reviewing a factual sufficiency challenge, an appellate court examines all of the evidence, both the evidence that supports the finding and the evidence that controverts the finding."). However, she argues the evidence is factually insufficient to support the jury's findings on Guerrero's claims for future disfigurement, future physical impairment, and future physical pain and mental anguish. While Peña purports to challenge only the amount of damages the jury awarded, she appears to argue the evidence is factually insufficient to support any award of future damages at all. We address Peña's challenges to each award of future damages separately.
In conducting our factual sufficiency review, unless the record demonstrates otherwise, we presume the jury followed the trial court's instructions prohibiting it from awarding damages for any element more than once. Golden Eagle, 116 S.W.3d at 771. We are also cognizant that "[m]atters of pain and suffering, mental anguish, [and] physical impairment . . . are necessarily speculative, and it is particularly within the jury's province to resolve these matters and determine the amounts attributable thereto." Perez v. Arredondo, 452 S.W.3d 847, 861 (Tex. App.—San Antonio 2014, no pet.).
1. Future disfigurement
The jury awarded Guerrero $250,000 in damages for future disfigurement. As support for his future disfigurement claim, Guerrero offered the testimony of his mother, Rachel, who told the jury she "didn't recognize him at all" after the collision and "couldn't believe that was him." Rachel also testified Guerrero is embarrassed by the way he looks "[e]very day" and frequently tells her, "Look at the way I look." Peña contends this testimony is conclusory because Rachel "provided no explanation . . . of how [Guerrero] is purportedly disfigured."
We disagree. To the extent Peña believes the jury was required to weigh the evidence under any particular definition of "disfigurement," she waived that contention because she neither requested such a definition nor objected to the charge's omission of it. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (if complaining party did not object to wording of court's charge, we review the sufficiency of the evidence based on the question as submitted). Rachel's testimony permits a reasonable inference that Guerrero looks different than he did before the collision and that he is embarrassed by his current appearance. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (jury may make reasonable inferences from evidence it chooses to believe). Even if Rachel did not specifically describe the changes to Guerrero's appearance, her testimony is not so weak as to make the jury's future disfigurement finding manifestly wrong and unjust.
Peña also argues, "A current photo of Mr. Guerrero introduced into evidence did not show any obvious disfigurement." As support for this proposition, she cites Plaintiff's Exhibit 64B. However, the jury was free to compare Exhibit 64B to another photograph admitted into evidence, Plaintiff's Exhibit 64A, in making its future disfigurement finding and in assessing the credibility of Rachel's testimony. Cf. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004) ("Issues of credibility that depend on appearance and demeanor cannot be weighed by the appellate court."). In addition, Guerrero testified at trial, and the jury was able to personally observe his features.
This evidence is not so weak as to render the jury's future disfigurement finding manifestly wrong and unjust. See Thrash, 605 S.W.3d at 230. Moreover, Peña cites no evidence or authority showing the jury exceeded the scope of its broad discretion in fixing the amount of the award. See Perez, 452 S.W.3d at 861; Palacios v. Robbins, No. 04-02-00338-CV, 2003 WL 21502371, at *6 (Tex. App.—San Antonio July 2, 2003, pet. denied) (mem. op.). We therefore overrule Peña's factual sufficiency challenge to the future disfigurement award.
2. Future physical impairment
The jury awarded Guerrero $1,500,000 in damages for future physical impairment. In her brief, Peña identifies several showings she contends Guerrero was required to make to support a finding of physical impairment. As with disfigurement, however, the charge did not define "physical impairment," and Peña did not object to this omission. See Osterberg, 12 S.W.3d at 55. As a result, we review the sufficiency of the evidence based on the question the jury answered. See id.
Both Guerrero and his mother testified that Guerrero—who was 22 years old at the time of the collision—was very strong and physically active before the collision. He played basketball, exercised, and worked for his father. Guerrero testified that now, in contrast, his pain level decreases his motivation, hinders his ability to exercise, and makes it difficult for him to work without taking frequent breaks. He has a difficult time moving, "especially if it's hot and [he is] sweating." He also has difficulty getting out of bed, and his sleep schedule is altered. He stated he does not think his life will ever be the same because "[e]verything is different. It has changed. My body is not what it used to be." Additionally, Guerrero's physician, Hugo Rojas, testified that patients who experience jaw injuries like Guerrero's typically develop arthritis. See Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex. App.—Waco 1999, pet. denied) (increased likelihood of arthritis supported future impairment finding).
This evidence is not so weak as to render the jury's future physical impairment finding manifestly wrong and unjust. See Thrash, 605 S.W.3d at 230. Moreover, Peña cites no evidence or authority to support a conclusion that the kinds of lifestyle changes of which Guerrero presented evidence are factually insufficient to support a $1,500,000 award. See Perez, 452 S.W.3d at 861; Palacios, 2003 WL 21502371, at *6. We overrule Peña's factual sufficiency challenge to the future physical impairment award.
3. Future physical pain and mental anguish
The jury awarded Guerrero $5,000,000 in damages for future physical pain and mental anguish. Again, while Peña's appellate brief lists specific showings she contends Guerrero was required to make to support his claim for future physical pain and mental anguish, the court's charge did not instruct the jury to consider the issues upon which Peña relies, and Peña did not object to the wording of this submission or request any additional instructions. See Osterberg, 12 S.W.3d at 55.
With regard to Guerrero's future physical pain, Dr. Rojas testified "[t]he majority of" patients who undergo a surgical jaw repair like Guerrero's report chronic pain and "headaches so severe it can mimic a migraine." He stated, "[I]n my experience in 31 years, I have never seen someone who's happy with the results." He also testified the surgical repairs to Guerrero's abdomen cause chronic pain to the extent that coughing and sneezing will "create problems," and he noted Guerrero suffers "a lot of digestive problems" caused by the trauma of the collision. Guerrero confirmed he experiences pain in his lungs, stomach, and abdomen. He also testified he wakes up in the middle of the night with pain. Rachel testified Guerrero is "hurting a lot. . . . Physically, emotionally. Everything." Finally, Dr. Rojas testified that based on his injuries, Guerrero—who was 26 years old at the time of trial—has a life expectancy of approximately 50 more years. See Finley v. P.G., 428 S.W.3d 229, 234-35 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (considering plaintiff's life expectancy in reviewing award of future damages).
With regard to Guerrero's future mental anguish, the evidence shows that Maya, who died in the collision, was Guerrero's best friend. Witness testimony established that because Guerrero and Maya were both hearing-impaired, they had "a special bond," "were like brothers," and "were always together." One of the police officers who responded to the collision testified that when he looked inside the wrecked vehicle, he saw Guerrero "holding [Maya] in his arms" while Maya was "seemingly lifeless." Guerrero testified that he is depressed, he misses Maya and thinks about him every day, and he is "obsessive, you know, thinking about the car that night . . . I continue to wonder like what if I had—what if he and I had swapped places, you know, that's what I continue to think about." He also worries about Maya's young daughter growing up without her father. He told the jury Maya's death causes him emotional pain "[e]very day."
Additionally, Dr. Rojas testified Guerrero's "biggest problem is his brain injury" and that he is "showing a lot of the classic signs that concern me." He noted that because Guerrero uses sign language, it is difficult for him to "communicate with [his] hands how depressed he is. How he's now having suicidal thoughts. How he wants to die because his best friend for 20 years since he was three years old died. And is asking why didn't I die?" He explained Guerrero is "isolating" and "having outbursts of" aggression and crying. Dr. Rojas testified that due to his physical injuries, Guerrero is at a high risk for suicide, and he stated Guerrero's family members have reported they are afraid to leave him alone and have hidden pills and knives from him "because he's constantly talking about dying and killing himself." He added that "with head trauma and injuries like this," Guerrero's life expectancy was statistically "decreased by nine years almost immediately."
Peña argues the Texas Supreme Court's opinion in Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013) bars us from considering evidence of Guerrero's "sadness and distress over his close friend dying." We reject this assertion. In Strickland, the Texas Supreme Court held the plaintiffs could not recover emotional injury damages based on the death of their family dog. Id. at 198. In reaching this conclusion, the court noted, by way of comparison, that Texas law does not permit loss-of-consortium damages based on the death of a close friend. Id. at 195. Here, Guerrero did not seek loss-of-consortium or any other damages arising directly out of his loss of Maya's companionship. Instead, he sought damages for and presented evidence of the mental anguish he will likely suffer in the future, including—but not limited to—the anguish he will continue to experience as the result of surviving a collision that killed his lifelong best friend before his eyes. Because the uncontroverted evidence shows Guerrero is depressed, isolated, and suicidal because of the multiple changes in his life since the collision, we reject Peña's assertion that Guerrero's emotional reaction to Maya's death is not relevant or probative evidence to support the future mental anguish finding.
We note that Peña has not challenged Guerrero's recovery of damages for past mental anguish. Peña does not explain why Guerrero's past anguish arising from Maya's death is compensable if, as she argues, his future anguish is not.
Based on this evidence, the jury's finding that Guerrero will experience future physical pain and mental anguish caused by the collision is not manifestly wrong or unjust. See Thrash, 605 S.W.3d at 230. Moreover, the evidence is not factually insufficient to support the jury's determination that Guerrero's future physical pain and mental anguish justified an award of $5,000,000. See Perez, 452 S.W.3d at 861; Palacios, 2003 WL 21502371, at *6. We overrule Peña's factual sufficiency challenge to the future pain and mental anguish award.
Evidentiary Issues
Standard of Review and Applicable Law
The admission and exclusion of evidence is committed to the trial court's sound discretion. In re E.A.G., 373 S.W.3d 129, 144 (Tex. App.—San Antonio 2012, pet. denied). If there is any legitimate basis for a trial court's evidentiary ruling, a reviewing court must uphold the ruling. Malone, 972 S.W.2d at 43. To reverse a judgment based on erroneously excluded evidence, the complaining party must show the error harmed her because it probably caused an improper judgment or probably prevented her from presenting her case to the court of appeals. TEX. R. APP. P. 44.1; In re E.A.G., 373 S.W.3d at 144. In determining whether the excluded evidence harmed the appellant, we review the entire record. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). We generally will not reverse the judgment unless the appellant shows it turned on the excluded evidence. Id.
Application
Peña contends the trial court committed harmful error by excluding evidence of her criminal punishment and remorse related to the collision and evidence supporting her claim that Guerrero was contributorily negligent. Guerrero responds, inter alia, that Peña waived this argument because she never offered the evidence in question and the trial court therefore never ruled on it. He also argues that even if the evidence was improperly excluded, Peña was not harmed.
Waiver
Guerrero is correct that the record does not explicitly show that Peña offered or the trial court excluded the evidence in question. Instead, the record shows the trial court granted Guerrero's motion in limine on that evidence. Generally, a ruling on a motion in limine does not admit or exclude evidence or preserve error for appeal. Westview Drive Invs., LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583, 600 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A limine ruling "is merely a tentative ruling that prohibits a party from asking a certain question or offering certain evidence in front of the jury without first approaching the bench for a ruling." Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 757 (Tex. App.—Fort Worth 1998, no pet.). Peña argues, however, that her evidentiary complaint is preserved for our review under these circumstances because the record shows "[e]veryone at trial—Mr. Guerrero, Ms. Peña, and the trial court—believed that the evidence was excluded."
We agree. We have previously held that a limine ruling preserved an evidentiary complaint where the record showed the parties and the court treated that ruling as evidentiary. See Torrez v. Sanders, 163 S.W.3d 133, 134 n.1 (Tex. App.—San Antonio 2005, no pet.). Here, when Peña stated she wanted to make an offer of proof consisting of "some evidence that we believe the Court has excluded wrongly," the trial court appeared to treat its ruling as evidentiary. For example, when Guerrero asked if he should respond to Peña's offer of proof, the court answered, "No, because I've already ruled." Under these unique circumstances, we hold Peña did not waive her evidentiary complaint. See id.
Evidence of Peña's Criminal Punishment and Remorse
The evidence Peña claims was improperly excluded regarding her criminal punishment and remorse consists of portions of her deposition in which she testified: (1) she has been sentenced to ten years' imprisonment but does not believe she will serve that entire sentence; (2) she feels she is paying a debt to society and being punished through her imprisonment because she "[has] to be away from [her] son"; and (3) she cannot do anything from prison "to pay back for what happened." Assuming, without deciding, that the trial court erred by excluding this evidence, Peña has not shown that error probably resulted in an improper judgment. TEX. R. APP. P. 44.1; Able, 35 S.W.3d at 617. She argues the exclusion of this evidence prevented the jury from assessing "the situation and sensibilities of the parties," which is the fourth of six factors the jury was instructed to consider in assessing exemplary damages. As noted above, however, she does not dispute that Guerrero presented evidence of several other factors to support an award of exemplary damages. Moreover, while the jury did not specifically hear evidence that Peña was imprisoned, it heard evidence that she had been criminally charged in connection with the collision. While Peña argues the jury's exemplary damages verdict may have been lower if it had considered the excluded portion of her deposition, after reviewing the record as a whole, we cannot say the judgment turned on the issues addressed by that evidence. We therefore overrule Peña's complaint regarding the exclusion of her criminal punishment and remorse.
Evidence of Guerrero's Contributory Negligence
Peña also contends the trial court committed harmful error by excluding EMS records indicating Guerrero told first responders that he was driving the vehicle in which he and Maya were traveling and that he had fallen asleep behind the wheel. She also challenges the exclusion of evidence that Guerrero smoked marijuana on the day of the collision. Guerrero argues, inter alia, that Peña judicially admitted the issue of fault would not be submitted to the jury.
We agree with Guerrero. A clear, deliberate, and unequivocal statement made in open court is a judicial admission that bars the party who made the admission from later disputing it. Westport Oil & Gas Co., L.P. v. Mecom, 514 S.W.3d 247, 255 (Tex. App.—San Antonio 2016, no pet.); see also Tex. Tax Sols., LLC v. City of El Paso, 593 S.W.3d 903, 910 (Tex. App.—El Paso 2019, no pet.) (attorney's judicial admissions in open court were binding on party). Although Peña's pre-trial filings claimed Guerrero was contributorily negligent, during voir dire her attorney told the prospective jury members:
You are not here this week in this trial to decide who's at fault for this accident. That's already been established. . . . Who was negligent. Who was responsible. Who was liable. . . . You don't have to do this part. It's already done. . . . You're not going to have to come in and make any judgments against the person or their conduct.During opening statement, Peña's attorney similarly told the jury:
I'm not going to waste one minute of your time . . . really trying to defend what happened in this lawsuit, or in this accident. . . . Most of the time . . . there's a swearing match as to who caused the accident. . . . We're not going to go there. I can't go there. I would take away credibility from Ms. Peña and from myself, and I'm not going to do that.During the parties' case in in chief, Peña objected to Guerrero's attempt to show photos of the collision to a witness because "the purpose of these photos is to establish who is at fault for this accident. That's not [a] material or relevant issue in this particular trial."
These clear, unequivocal statements in open court constitute a judicial admission that "who's at fault" for the collision would not be submitted to the jury. See Mecom, 514 S.W.3d at 255; see also TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (trier of fact must determine issues of proportionate responsibility). It is true that while Peña was making her offer of proof—after she made the statements described above—she told the trial court, "Just because a defendant admits responsibility or liability does not preclude an argument that a plaintiff was contributorily at fault." However, Texas law is clear that a judicial admission bars a party from later disputing the admitted fact. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). Moreover, Peña offers no explanation why she repeatedly told the jury it would not have to make any fault determinations if—as she argues on appeal—the question of Guerrero's fault "was a key defense for [her]." See Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 885 (Tex. App.—San Antonio 1996, writ denied) ("It is not within the purview of a party to limit the purpose for which they admit facts.").
Under these circumstances, the trial court could have reasonably concluded that Peña's judicial admissions barred her from presenting evidence of Guerrero's purported fault. See Wolf, 44 S.W.3d at 562. Because we must uphold a trial court's evidentiary ruling if there is any legitimate basis for it, we overrule Peña's claim that the trial court abused its discretion by excluding evidence of Guerrero's contributory negligence. See Malone, 972 S.W.2d at 43.
Directed Verdict
A trial court may direct a verdict when the party with the burden of proof fails to present evidence raising a fact issue essential to its right of recovery. See Ibarra v. Nat'l Constr. Rentals, Inc., 199 S.W.3d 32, 37 (Tex. App.—San Antonio 2006, no pet.). We review a trial court's ruling granting a motion for directed verdict under a legal sufficiency standard, and we may consider any reason the directed verdict should have been granted, even if that reason was not explicitly stated by the movant. See id.
Peña contends the trial court committed harmful error by granting a directed verdict on her contributory negligence claim because she offered probative evidence to support it. However, we have already held that Peña's judicial admissions constituted a legitimate basis for the trial court to exclude the evidence upon which she relies. Because Peña does not identify any other evidence that supports her contributory negligence claim, we cannot say the trial court erred by granting Guerrero's motion for directed verdict on that claim. See id. at 38.
CONCLUSION
We affirm the trial court's judgment.
Beth Watkins, Justice