Opinion issued February 22, 2007.
On Appeal from the 189th District Court, Harris County, Texas, Trial Court Cause No. 2000-14641.
Panel consists of Justices TAFT, ALCALA, and HANKS.
Appellant, S.E.A. Leasing, Inc., appeals the trial court's judgment entered on a jury verdict finding premises liability in favor of appellees, Jeff Steele and Melissa Steele ("the Steeles"). We determine (1) whether S.E.A. Leasing preserved its statute-of-limitation challenges, (2) whether S.E.A. Leasing preserved its challenge that the trial court improperly admitted expert testimony, and (3) whether S.E.A. Leasing preserved its challenge that there was legally-sufficient evidence that a dangerous condition existed on the land owned by S.E.A. Leasing. We affirm.
On March 21, 1998, Jeff was injured when he lost control of his motorcycle on a wooded track owned by S.E.A. Leasing. Jeff was impaled on a tree stump that was not visible in part because the track was being run in reverse of its usual direction on the day of the accident. On March 21, 2000, the Steeles filed suit for premises liability against Rio Bravo Motorcross Park, Lynn Amaral, and Rio Bravo Motorcycle Park, Inc. At the time that suit was filed, the real property records showed Lynn as the property owner of the track. After the Steeles' suit had been filed and the statute of limitations had expired, Lynn filed a "Correction of Record Real Property Ownership Affidavit" on December 19, 2000, which asserted that S.E.A. Leasing was the true title owner of the track. On October 27, 2003, the Steeles amended their petition to add S.E.A. Leasing as a defendant.
In March 1997, Lynn filed a warranty deed transferring title of the track to S.E.A. Leasing, a Delaware corporation owned by her son, Scott Amaral. On April 2, 1998, an S.E.A. Leasing representative and Lynn signed a warranty deed "voiding out" the March 1997 warranty deed and transferring title of the track back to her.
S.E.A. Leasing affirmatively pleaded statute of limitations as a bar to the Steeles' suit against it because suit had been filed seven months beyond the statute-of-limitations period. The Steeles brought forth legal theories in avoidance of limitations. S.E.A. Leasing filed a motion for summary judgment on the ground of statute of limitations; the trial court overruled this motion. The case proceeded to trial. The Steeles' expert witness, Emil Shebelbon, testified, based on his 14 years of experience designing and operating motorcross tracks and implementing safety measures, that S.E.A. Leasing's track was unsafe because it had been run backwards and that the turn should have had some type of barricade because it was a "flat turn."
On November 30, 2004, the trial court rendered judgment upon a jury verdict in favor of the Steeles. S.E.A. Leasing filed a motion for new trial on December 22, 2004. The clerk's record reflects that S.E.A. Leasing did not pay the statutory fee for the motion for new trial.
In issues one and two, S.E.A. Leasing attacks the trial court's denial of its motion for summary judgment and motion for new trial because the statute of limitations barred the Steeles' suit. Specifically, S.E.A. Leasing contends that the statute of limitations was not tolled because of the discovery rule, fraudulent concealment, misidentification, or S.E.A. Leasing's absence from the State.
A. The Law
The primary purpose of a statute of limitations is to compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Cont'l S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975). Actions for premises liability are governed by the two-year statute of limitations contained in section 16.003 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon Supp. 2006). The cause of action accrues when the negligent act is committed. See Johnson Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998).
Statute of limitations is an affirmative defense, and the burden is on the defendant to "plead, prove, and secure findings to sustain its plea of limitations." Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988); see Tex. R. Civ. P. 94. There is no dispute that the Steeles filed an amended petition naming S.E.A. Leasing as a defendant more than two years after the date of the alleged injury. Therefore, the Steeles bore the burden of bringing forth a legal theory in avoidance of limitations. See Diamond v. Eighth Ave. 92, L.C., 105 S.W.3d 691, 695 (Tex.App.-Fort Worth 2003, no pet.) (citing KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).
B. Motion for Summary Judgment
We first address S.E.A. Leasing's summary-judgment motion that it contends preserved its statute-of-limitations complaint for appellate review.
To preserve a complaint for appellate review, a party must first present the issue to the trial court. Tex. R. App. P. 33.1(a). After a trial on the merits, as in the present case, the denial of a motion for summary judgment may not be reviewed on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 187-88 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding that when party moves unsuccessfully for summary judgment and subsequently loses in conventional trial on merits, denial of that motion generally is not subject to review on appeal); Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 638-39 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Consequently, the trial court's denial of S.E.A. Leasing's motion for summary judgment is not reviewable on appeal and does not preserve its statute-of-limitations challenge.
C. Motion for New Trial
Next, we address S.E.A. Leasing's motion for new trial that it contends preserved its statute-of-limitations challenge for appellate review. S.E.A. Leasing argues that the statute of limitations was not tolled because the Steeles put on "no evidence" to support avoidance of limitations under the discovery rule, fraudulent concealment, misidentification, or S.E.A. Leasing's absence from the State. We construe S.E.A. Leasing's argument to be a legal-sufficiency challenge to the evidence on one of these legal theories in avoidance of limitations.
In order properly to preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion and (2) the trial court ruled on or refused to rule on the request, objection, or motion. Tex. R. App. P. 33.1(a). Generally, to preserve this type of legal-sufficiency complaint, S.E.A. Leasing had to raise it in (1) a motion for directed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985); UPS, Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.App. — Houston [14th Dist.] 2000, pet. denied).
On appeal, S.E.A. Leasing contends that it preserved its legal-sufficiency challenge for review in its motion for new trial. Although its complaints regarding the discovery rule and fraudulent concealment were raised in its motion for new trial, the record reflects that S.E.A. Leasing did not pay the statutorily required fee for filing a motion for new trial before the trial court lost its plenary power. The trial court should not consider a motion for new trial until the filing fee is paid, absent emergency or other rare circumstances. Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004) (quoting Jamar v. Patterson, 868 S.W.2d 318, 319 n. 3 (Tex. 1993)). Accordingly, an appellant's failure timely to pay the filing fee before the trial court loses its plenary power does not preserve the appellant's complaint for review on appeal. Id. (explaining, "[Appellant's] factual sufficiency complaint had to be raised in a motion for new trial, but because she never paid the $15 fee, the trial court was not required to review it. As her complaint was never properly made to the trial court, it preserved nothing for review. . . ."). Therefore, S.E.A. Leasing has not preserved these legal-sufficiency challenges. See Garza, 137 S.W.3d at 38; Jamar, 868 S.W.2d at 319. Further, in its motion for new trial, S.E.A. Leasing did not complain that there was no basis to avoid limitations under misidentification or S.E.A. Leasing's absence from the State. Thus, these particular statute-of-limitations arguments of S.E.A. Leasing would not have been preserved in any event. See Tex. R. App. P. 33.1(a).
Rule 329b generally provides that a trial court retains jurisdiction over a case for a minimum of 30 days, during which time the trial court has plenary power to change its judgment. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). Certain post-judgment motions, if filed within this initial 30-day period, extend the trial court's plenary jurisdiction over its judgment for up to an additional 75 days. See id.; see also Tex. R. Civ. P. 329b©, (e), (g). After the time set forth in the rules, however, a court's plenary power expires, and the actions that it may take with respect to its judgment generally are limited to correcting clerical mistakes in the judgment. See Tex. R. Civ. P. 329b(f). Here, because S.E.A. Leasing filed a motion for new trial, the trial court's plenary power expired March 15, 2005 — 105 days after the judgment was signed. The clerk's record includes a certified "Bill of all Costs incurred," dated March 22, 2005, which shows that S.E.A. Leasing had not paid the filing fee for its motion for new trial within that 105-day period.
We overrule S.E.A. Leasing's issues one and two.
In issue three, S.E.A. Leasing argues that the trial court erred by admitting the expert-witness testimony of Shebelbon over its objection because "[the Steeles] failed to put forth any evidence to meet their burden of showing that Shebelbon's opinion was based on sufficiently objective foundation or reliable methodology to constitute legal evidence." We construe S.E.A's issue three to be a challenge to the expert's qualifications and the reliability of his testimony.
S.E.A. Leasing does not contend in issue three that the expert's testimony is conclusory or speculative, but, rather, raises that complaint in issue four, which we address separately below. Cf. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (holding that when party challenges reliability of expert testimony, timely objection is required to preserve no-evidence challenge to any finding on which it is based; no objection is required, however, to preserve no-evidence challenge to conclusory expert testimony).
An objection to testimony, including the qualifications of experts and the reliability of their theories and methodology, must be raised at the trial-court level, and failure to do so waives any error on these grounds. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); see also Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). A complaint on appeal must be the same as that presented in the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate court cannot reverse a judgment based on a complaint not raised in the trial court. Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Banda, 955 S.W.2d at 272.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). A ruling from the trial court on the request, objection, or motion must be obtained. Id.; see Tex. R. App. P. 33.1. If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g).
A review of the record shows that S.E.A. Leasing made two objections to Shebelbon's testimony. The first objection was made after Shebelbon had testified to his background and experience:
[S.E.A. Leasing's Counsel]: Objection. Before he goes any further, are we qualifying Mr. Shebelbon now? Are we qualifying him as an expert?
THE COURT: Well, that practice isn't followed under the Rules anymore, so I will take questions one at a time and — so —
[S.E.A. Leasing's Counsel]: May I take him on voir dire?
THE COURT: You may.
Following S.E.A. Leasing's voir dire examination, S.E.A. Leasing stated to the trial court only that it had no further questions, and the trial court ordered direct examination to resume. Simply stating "objection" is too general to preserve error. See In re D.O., No. 01-05-00989-CV, 2006 WL 3230306, at *3 (Tex.App.-Houston [1st Dist.] Nov. 9, 2006) (orig. proceeding). Further, the trial court did not rule on S.E.A. Leasing's first objection. S.E.A. Leasing made a second objection after the Steeles had asked Shebelbon what could have been done to make the turn area safer and after his explanation in which he stated that the track was being run backwards:
[S.E.A. Leasing's Counsel]: Objection. Unless you can substantiate grounds on how he knows this, in which direction the track's going, have to place him on the scene or something to determine how all of a sudden you are going in the wrong direction. Have not heard anything —
THE COURT: Well, that objection is overruled. The question is — and the question is what could be done to make that turn safer in the turn area. I will let him testify from his experience about that. That's all — that's all you need to answer.
S.E.A. Leasing's objection was not related to Shebelbon's expert qualifications or the reliability of his testimony, but, rather, his personal knowledge and speculation about which direction the track was being run on the day that Jeff was injured. The record does not reveal that S.E.A. Leasing ever specifically brought Shebelbon's expert qualifications or the reliability of his testimony to the trial court's attention and obtained a ruling from the court. Consequently, S.E.A. Leasing failed to preserve for appellate review any challenge relating to Shebelbon's expert qualifications or the reliability of his testimony. See Tex. R. App. P. 33.1(a); Coastal Transp. Co., 136 S.W.3d at 233.
We overrule S.E.A. Leasing's issue three.
In issue four, S.E.A. Leasing argues, "In the case at bar, the record contains no evidence of any unreasonably dangerous condition other than by the expert's improperly admitted opinion." We construe S.E.A. Leasing's argument to be that the trial court erred because the evidence was legally insufficient to support the jury's finding that a dangerous condition existed on the track because Shelbebon's expert testimony was non-probative and constituted no evidence of an unreasonably dangerous condition.
Jury charge question two asked, "Did the negligence, if any, of those named below proximately cause the injury in question? With respect to the condition of the premises, S.E.A. Leasing Inc. was negligent if — (a.) the condition posed an unreasonable risk of harm, and (b.) S.E.A. Leasing, Inc. knew or reasonably should have known of the danger, and (c.) S.E.A. Leasing, Inc. failed to exercise ordinary care to protect Jeff Steele from the danger, by both failing to adequately warn Jeff Steele of the condition and failing to make that condition reasonably safe." The jury answered "yes" to S.E.A. Leasing's negligence as a cause of the injury and "no" to Jeff Steele's own negligence as a cause of the injury.
We recognize that although an objection must be made to challenge the reliability of an expert's testimony, no trial objection is required "[w]hen the testimony is challenged as conclusory or speculative and therefore non-probative on its face." Coastal Transp. Co., 136 S.W.3d at 233. Expert testimony is considered "conclusory or speculative" when it has no factual substantiation in the record. See United Servs. Auto. Ass'n v. Croft, 175 S.W.3d 457, 463-64 (Tex.App.-Dallas 2005, no pet.); Gabriel v. Lovewell, 164 S.W.3d 835, 846 (Tex.App.-Texarkana 2005, no pet.). However, an attack on the sufficiency of the evidence in a jury trial must be preserved in the trial court. Aero Energy, Inc., 699 S.W.2d at 822; Tex. R. App. P. 33.1(a). Generally, there are five recognized methods of preserving a legal-sufficiency complaint in a jury trial: (1) a motion for directed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial. See id.; see also Cecil, 804 S.W.2d at 510-11; DeLanney, 809 S.W.2d at 494-95.
S.E.A. Leasing argues that it preserved this challenge in its motion for new trial. However, as discussed above, S.E.A. Leasing's motion for new trial did not preserve any complaint on appeal because of S.E.A. Leasing's failure timely to pay the filing fee before the trial court lost its plenary power. See Garza, 137 S.W.3d at 38; Jamar, 868 S.W.2d at 319. Thus, S.E.A. Leasing's challenge that the evidence was legally insufficient to support the jury's finding that a dangerous condition existed on the track is waived. See Tex. R. App. P. 33.1(a).
We overrule S.E.A. Leasing's issue four.
We affirm the judgment of the trial court.