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JBS CARRIERS, INC. and James Lundry, Appellants v. Trinette L. WASHINGTON, Sophia Renee Lenzy, Thomas Charles Lenzy, Individually and as Representatives of the Estate of Mary L. Turner

JBS CARRIERS, INC. and James Lundry, Appellants v. Trinette L. WASHINGTON, Sophia Renee Lenzy, Thomas Charles Lenzy, Individually and as Representatives of the Estate of Mary L. Turner, Deceased, Appellees

 

No. 04-15-00463-CV

 

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

 

2017 Tex. App. LEXIS 148

 

 

January 11, 2017, Decided

January 11, 2017, Filed

 

 

 

OPINION

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

This appeal arises out of a personal-injury negligence suit brought by the surviving children of Mary L. Turner, who was killed in an accident when she was struck by an 18-wheeler tractor-trailer driven by James Lundry, an employee of JBS Carriers, Inc. (“JBS”). At trial, the jury determined that Lundry’s negligent conduct was 50% responsible for the accident; JBS’s negligent conduct was [*2]  30% responsible for the accident; and Mary Turner’s negligent conduct was 20% responsible for the accident.

On appeal, JBS argues that the evidence is legally and factually insufficient to support the jury’s finding of direct negligence on its part. JBS and Lundry argue that the trial court’s evidentiary rulings resulted in an improper judgment. Finally, JBS and Lundry argue that the evidence is legally and factually insufficient to support the jury’s award of wrongful-death damages to two of Turner’s children: Sophia Lenzy and Thomas Lenzy. We hold the evidence is legally and factually sufficient to support the jury’s finding of direct negligence against JBS. We also conclude that the trial court did not abuse its discretion in its evidentiary rulings. Finally, we hold the evidence is legally and factually sufficient to support the jury’s award of wrongful-death damages to Sophia Lenzy and Thomas Lenzy.

In addition to the appeal brought by JBS and Lundry, Turner’s surviving children, Trinette L. Washington, Sophia Lenzy, and Thomas Lenzy (collectively “the Turner Family”), have brought a cross-appeal, arguing that the trial court’s judgment erroneously omitted the jury’s award of survival [*3]  damages to Mary Turner. The Turner Family also argues the trial court’s judgment contained mathematical errors. They argue that the amount of wrongful-death damages awarded to Turner’s surviving children and the amount of prejudgment interest are not calculated correctly in the judgment. We affirm the trial court’s rendering of judgment in favor of the Turner Family. However, because we agree the trial court’s judgment erroneously omitted the jury’s award of survival damages, erroneously calculated the wrongful-death damages, and erroneously calculated prejudgment interest, we reverse the judgment of the trial court in part and remand the cause to the trial court with instructions to sign an amended judgment in conformity with this opinion.

 

BACKGROUND

On August 27, 2012, at 6:43 p.m., Mary Turner was walking along a sidewalk on Rittiman Road in San Antonio. She then walked into the parking lot of a convenience store, cutting the corner at the intersection of Rittiman and Goldfield. She walked slowly. As she got close to the intersection, James Lundry, a truck driver with JBS, who was traveling in the same direction as Turner on Rittiman Road, approached the intersection in his 18-wheeler [*4]  tractor trailer and began to make a right-hand turn from Rittiman to Goldfield. As Lundry began making the turn, a car on Goldfield approached the intersection and stopped at the red light, resulting in less room for the turning radius on the 18-wheeler. Lundry thus could not complete the right turn on Goldfield and stopped his 18-wheeler. Neither the 18-wheeler nor the car could move without either Lundry or the driver of the car backing up. As both the 18-wheeler and the car remained stopped, Turner continued her walk and started crossing the street in front of the 18-wheeler. Meanwhile, according to Lundry’s testimony at trial, the driver of the car was “cussing at” Lundry and was making “hand signals” at him. Lundry testified he made his own “hand gesture” toward the other driver, which Lundry claimed was to let the other driver know that he needed to back up his car. According to Lundry, he made the gesture between three and five times. Turner continued walking across the street. The other driver then backed up his car. As Turner approached the space between the 18-wheeler and the car, three things happened simultaneously: the car moved to the right to go around the truck, Turner [*5]  continued walking, and Lundry in the 18-wheeler continued driving and ran over Turner. The right-front fender of the 18-wheeler hit Turner, causing her to be thrown underneath the tires of the 18-wheeler.

According to Lundry, as the car went around the left side of the 18-wheeler, Lundry accelerated and was watching the car in his left mirror, trying to see if the car had scratched the 18-wheeler as it drove past. Lundry testified that he did not know he had hit Turner and did not stop the 18-wheeler. Witnesses later found him and told him that he had hit a pedestrian.

A security camera mounted on a convenience store at the intersection captured the accident. When Turner began to cross Goldfield and first stepped into the street, she was about twenty-five feet away from Lundry’s 18-wheeler. JBS’s expert, Scott Altman, testified that Lundry would have been able to see Turner at this point if he had been looking in her direction. JBS’s safety director at the time of the accident, Randall Kopecky, testified that if Lundry had seen Turner walking across the street, he should have yielded to her.

The Turner Family sued JBS and Lundry for wrongful death. In addition to suing in their individual [*6]  capacities, they also brought a survival action as Turner’s representatives and sought damages for Turner’s mental anguish, and pain and suffering that she suffered before her death. They alleged that Lundry, who was acting in the scope and course of his employment with JBS, was negligent. They also alleged that JBS was negligent in failing to properly train Lundry in safely operating the 18-wheeler tractor-trailer.

A jury found that Lundry, Turner, and JBS were all negligent. The jury attributed 50% of the responsibility to Lundry, 30% of the responsibility to JBS, and 20% of the responsibility to Turner. The jury found that $500,000 would fairly and reasonably compensate Turner for pain and mental anguish. It also found funeral and burial expenses to be in the amount of $7,895.00. With respect to the three children, the jury was asked to determine the amount of money that would fairly and reasonably compensate the children for (1) loss of companionship and society sustained in the past; (2) loss of companionship and society that, in reasonable probability, will be sustained in the future; (3) mental anguish sustained in the past; and (4) mental anguish that, in reasonable probability, [*7]  will be sustained in the future. The jury awarded all three children $75,000.00 in each category. Thus, the jury found that each of Turner’s children sustained a total of $300,000.00 in damages.

JBS and Lundry filed a notice of appeal. The Turner Family then filed a notice of cross-appeal.

 

LEGAL AND FACTUAL SUFFICIENCY OF EVIDENCE TO SUPPORT NEGLIGENCE FINDING AGAINST JBS CARRIERS

JBS first argues that there is legally and factually insufficient evidence to support a negligence finding against it. JBS concedes that Lundry was acting within the course and scope of his employment and thus JBS is responsible for Lundry’s negligence under the doctrine of respondeat superior. However, JBS argues there is no evidence or factually insufficient evidence to support the jury’s finding that JBS, itself, was 30% responsible for causing or contributing to the accident. JBS contends that the Turner Family presented no evidence that it was negligent in its hiring of Lundry or in any way negligent in failing to train or supervise him. JBS also argues there is no evidence that it was negligent in entrusting a truck to Lundry or that it was negligent in failing to maintain the truck involved in a roadworthy [*8]  manner.

[HN1] When reviewing a jury finding for legal sufficiency, we “must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 795 (Tex. 2012). “A legal sufficiency challenge will be sustained when, inter alia, the evidence offered to prove a vital fact is no more than a mere scintilla.” Id.

[HN2] When reviewing a jury finding for factual sufficiency, we set aside “the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding,” we determine that “the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered.” Crosstex N. Tex. Pipeline, LP v. Gardiner, No. 15-0049, 2016 Tex. LEXIS 580, 2016 WL 3483165, at *24 (Tex. June 24, 2016).

According to JBS, the evidence at trial showed that it had a rigorous hiring, training, supervision, and maintenance program to ensure motorist and driver safety. JBS points to testimony from Scott Hall, Lundry’s supervisor at JBS. Hall testified that every driver at JBS has a CDL license and that JBS prescreens the drivers for driving history and criminal backgrounds before they are hired. The drivers [*9]  then attend an orientation where safety procedures are taught. Hall testified the orientation process is a combination of classroom PowerPoints, videos, on-the-job, and a road test. According to Hall, Lundry went through this orientation process in February 2012. Lundry testified that when he was hired by JBS, he had three days of orientation training and then took an oral or written test. Lundry also testified that he passed a road test, and every quarter of the year, passed a safety quiz.

In support of its argument, JBS also emphasizes that the Turner Family’s expert, Cam Cope, was questioned whether he “thought there were any bad hiring or training in this particular case by JBS of the driver, Mr. Lundry” and that Cope replied, in his opinion, there was not. The Turner Family points out that Cope’s testimony should not be given great weight on this specific issue as Cope was qualified as an expert in “accident reconstruction” and was not an expert in the trucking industry’s safety and training protocols.

In support of the jury’s finding of negligence on behalf of JBS, the Turner Family also points to testimony that JBS did not give Lundry any training regarding the blind spot in front [*10]  of the 18-wheeler. Scott Hall testified that all vehicles have different blind spots. Hall did not know if JBS had ever trained drivers specifically on the right-front-fender blind spot. Hall was asked about JBS’s 2014 training manual that showed three specific blind spots, but did not mention a blind spot in the front of the 18-wheeler. Hall agreed the manual showed three blind spots but did not show one in the front of the 18-wheeler where Turner had been hit.1 The Turner Family also points to Lundry’s testimony that while JBS gave him specific training on blind spots, he could not recall receiving any training from JBS about the blind spot in the right front of the 18-wheeler.

 

1   JBS criticizes this evidence, arguing that it only talks about 2014, which was after the accident. But, in reading Hall’s testimony, it is clear that Hall was consistent in his testimony that before 2014 JBS trained drivers in the blind spots depicted in the manual. Hall was also consistent that he has no recollection of JBS ever training drivers about the right-front blind spot.

The Turner Family emphasizes that JBS admits there was an eighteen-foot blind spot in front of the 18-wheeler and that the blind spot was a contributing factor in the accident. Hall testified that blind spots on an 18-wheeler are in different locations depending on the size of the truck and the size of the driver. The Turner Family points out that Lundry testified he is a shorter gentleman and had to keep his seat low to reach the pedals on the floorboard; thus, his blind spot was larger than a taller driver. [*11]  In addition to Lundry’s shorter stature increasing the size of the blind spot, JBS had also installed a CB radio on the dash that further blocked Lundry’s view. JBS’s expert, Scott Altman, testified that the CB radio mounted on the dash increased the size of the blind spot. Hall, Lundry’s supervisor, admitted that although JBS had conducted ergonomic testing for its drivers to see if the drivers could properly operate the equipment, Hall could not say if any testing was done to see if a driver, due to his body type, could see over the CB radio.

The Turner Family contends that testing done by JBS’s expert showed that because of the blind spot, Lundry’s seat position, and the CB radio, Lundry could not have seen Turner when she was standing eighteen feet in front of his truck. In support of this statement, the Turner Family points to Altman’s testimony that Turner was about twenty-five feet away from the truck when she stepped into the road. Altman testified that at this point Lundry would have been able to see Turner’s face. Altman testified that Turner was 5’1″, so the right front blind spot was about eighteen feet, which Altman characterized as being “significant.”

The Turner Family [*12]  argues that if Lundry had been trained about the eighteen-foot blind spot in front of the 18-wheeler, “he would have known that he could not assume that just because he did not see anything in front of him” did not mean there was not anyone in front of him. The Turner Family argues that based upon this evidence, “the jury was free to conclude that JBS failed to use ordinary care when it instructed Lundry on how to safely operate the 18-wheeler he was driving at the time of the accident and when it failed to determine whether Lundry’s seat position allowed him to see in front of the truck.” We agree with the Turner Family. Reviewing the evidence discussed above, we hold that the jury’s finding of direct negligence against JBS was supported by legally and factually sufficient evidence.

 

EVIDENTIARY RULINGS

On appeal, JBS and Lundry complain the trial court erred in (1) excluding evidence of Turner’s pre-existing mental health disease and her drug and alcohol use at the time of the accident; and (2) in admitting the opinions of Cam Cope and in allowing the jury to view an animation prepared by Cope.

[HN3] “Evidentiary rulings are committed to the trial court’s sound discretion.” U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court [*13]  abuses this discretion when it acts without regard for guiding rules or principles.” Id. “Even if the trial court abused its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., it probably resulted in an improper judgment.” Id.

JBS and Lundry first argue that the trial court erred in excluding Turner’s daughter’s admission to Detective Doyle that Turner had paranoid schizophrenia and bi-polar disorder. Right before Detective Doyle was called to testify, the parties discussed whether the entirety of Detective Doyle’s police report, which included references to Turner’s mental health disease, should be admitted or referred to during Detective Doyle’s testimony. The trial court sustained the Turner Family’s objection under Texas Rule of Evidence 403 and ruled that Detective Doyle could not testify about Turner’s daughter’s statement to police. The trial court further ordered the police report be redacted to omit any reference to Turner’s mental health disease. The redacted police report, Defendants’ Exhibit 145-A, was admitted in evidence. During this discussion, JBS’s counsel referred to the motion in limine hearing where the trial court had made a preliminary [*14]  ruling to exclude any reference to Turner’s drug use and mental health. JBS’s counsel requested that the trial court make a final ruling as to whether he could cross-examine witnesses about Turner’s drug use and mental health issues. JBS’s counsel further explained that he wanted to offer some medical records at the time he called JBS’s expert medical witness, Dr. Miller, to the stand and thus would be discussing Turner’s drug use and mental health problems. The trial court ruled, “I mean, there is some relevance, but I still think the prejudice outweighs, you know, what you want to put in so at this point I’m still going to sustain the objection by [the Turner Family] as to not going into those areas.” Thus, the trial court excluded the evidence under Texas Rule of Evidence 403.

[HN4] Pursuant to Rule 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” TEX. R. EVID. 403. When a party objects under Rule 403, a trial court must conduct a balancing test, weighing the danger of prejudice against the probative value of the evidence. Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 424 (Tex. App.–Eastland 2006, no pet.). “‘Unfair prejudice’ means an undue tendency to suggest a decision on an improper basis, commonly, [*15]  though not necessarily, an emotional one.” Id. (citing Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex. App.–Houston [14th Dist.] 2000, no pet.)).

JBS cites Bedford v. Moore, 166 S.W.3d 454 (Tex. App.–Fort Worth 2005, no pet.), for the proposition that “[e]vidence of drug or alcohol use is admissible where there is further evidence of negligence and improper conduct on the part of the user.” JBS argues that the security camera footage, itself, is evidence of negligence and improper conduct on the part of Turner because the video shows her “failing to yield the right-of-way to Lundry, entering the road far removed from the intersection, and failing to stop at a time and place to avoid the accident.” JBS also points to Detective Doyle’s testimony that Turner failed to yield the right-of-way and was at fault for causing the accident. Characterizing this evidence as negligent and improper conduct by Turner, JBS argues Bedford applies. However, even assuming the evidence of drug usage is relevant in this case, Bedford merely addresses the admissibility of such evidence under Texas Rule of Evidence 401. It does not address Rule 403 and thus does not address the trial court’s ruling in this case.

JBS also cites Nichols v. Howard Trucking Co., 839 S.W.2d 155, 155-56 (Tex. App.–Beaumont 1992, no writ), which involved a head-on collision between two vehicles. The central issue in the case was which vehicle had crossed the center lane and caused the collision. Id. at 156. The trial court admitted [*16]  in evidence, without objection, a defendant’s exhibit showing that Nichols, one of the drivers, had not slept for a twenty-four-hour period before the accident. Id. at 157. There was also evidence that Nichols had consumed alcoholic beverages in the evening hours before the accident. Id. Dr. Griffin, the doctor who performed the autopsy on Nichols, testified that Nichols had 51.6 milligrams percent of alcohol in his system at the time of the autopsy, which is equivalent to 0.0516 percent alcohol concentration. Id. The defendant also offered into evidence a urinalysis test performed by Dr. Griffin as part of the autopsy. Id. The urinalysis was positive for marijuana. Id. The plaintiff objected pursuant to Rule 403. Unlike in the instant case, the trial court in Nichols overruled the plaintiff’s objection and admitted the urinalysis evidence. Id.

On appeal, the plaintiff argued the trial court abused its discretion in overruling his objection. The court of appeals reasoned that “the evidence clearly shows acts of negligence and improper conduct on the part of Mr. Nichols.” Id. at 158. The court concluded that the urinalysis results provided “some explanation for the negligence and improper conduct.” Id. The court [*17]  held that the trial court did not abuse its discretion in overruling the objection:

 

Appellant tells us that the trial court abused its discretion in allowing the evidence regarding the urinalysis to be presented to the jury contending that the probative value of such evidence is outweighed by the danger of unfair prejudice. We agree that the admission of the urinalysis was prejudicial to plaintiff’s case; however, we do not believe that same constituted an unfair prejudice. Relevant evidence is almost always prejudicial to the party against whom same is offered. In order to find error through abuse of discretion, we must determine that the admission of such prejudicial evidence was calculated to cause and probably did cause the rendition of an improper judgment. Normally, reversible error does not occur in connection with evidentiary rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.–San Antonio 1983, writ ref’d n.r.e.). Recalling the evidence, Corporal Fikes testified that Nichols crossed the center line causing the collision. Charles Davis testified that Mr. Nichols crossed the center line causing the collision. The jury was free to resolve the disputed issues [*18]  based upon this evidence alone. The jury was also free to resolve the issues against plaintiff based upon the testimony of defendants’ expert witness, Nalle. Other evidence showed blood alcohol content and further that Mr. Nichols had not slept in nearly 24 hours. Plaintiff cannot demonstrate that the entire case turned on the admission of the positive drug screen result. Appellant has shown no abuse of discretion by the trial court in admitting the questioned evidence.

 

 

Nichols, 839 S.W.2d at 158.

In the instant case, the trial court sustained the Rule 403 objection. Thus, JBS and Lundry must show an abuse of discretion by the trial court. Further, for any error to be reversible, JBS and Lundry must show that “the entire case turned on the admission” of Turner’s mental health issues and drug abuse. See id.

JBS and Lundry argue that they met this standard through their bill of exception, which contains Dr. Miller’s proffered testimony. Dr. Miller testified that he practices family medicine and is the family physician of one of JBS’s attorneys. Dr. Miller testified about the medical condition of paranoid schizophrenia. Dr. Miller testified he reviewed some medical records of Turner’s visit with a Dr. Edwards and some records [*19]  from Methodist Specialty Hospital. Dr. Miller also reviewed the autopsy and toxicology report on Turner, along with video of the accident.

Dr. Miller testified that two and a half months before the accident, at a visit with Dr. Edwards, Turner’s medical records show that she was taking nine different medications, including Vicodin and Xanax. Dr. Miller testified Vicodin and Xanax can impact one’s cognitive ability. According to Dr. Miller, Dr. Edwards’s records state that Turner had had chronic anxiety. Further, Dr. Miller testified that in June 2012, Dr. Edwards wrote in his records of Turner’s need to be seen in a psychiatric facility. Dr. Miller testified that Dr. Edwards’s records reflect that in August 2012, about two and a half weeks before the accident, Turner received a psychiatric evaluation at Methodist. Dr. Miller testified that the medical records from Methodist state Turner’s diagnosis was schizophrenia paranoid type and bipolar disorder and that Turner was prescribed two more medications in addition to the six that she had been prescribed by Dr. Edwards. According to Dr. Miller, schizophrenia paranoid and bipolar disorder are permanent conditions that can be improved with [*20]  treatment but not cured. Dr. Miller testified that Turner’s medical records reflect that Turner’s mental condition worsened fifteen days before the accident, and she was prescribed Clonazepam and Lithium. Dr. Miller testified that Clonazepam and Lithium can have sedative effects. When asked if Turner was taking other medications prescribed by Dr. Edwards, Dr. Miller testified that he did not know because Dr. Edwards’s last visit with Turner was two and a half months before the accident.

Dr. Miller also testified that the medical records further showed Turner had a history of abusing crack cocaine. According to Dr. Miller, the toxicology report showed that Turner was positive for an opiate, consistent with Vicodin, one of the medications prescribed by Dr. Edwards. Dr. Miller testified the toxicology report did not show Xanax or Klonopin, both of which were prescribed by Dr. Edwards during his last visit with Turner. Dr. Miller concluded that Turner was not taking those medications even though Dr. Edwards had prescribed them to treat the anxiety component of her paranoid schizophrenia and bipolar conditions. Dr. Miller testified that the effect of Turner not taking those medications was [*21]  that “[h]er condition would get much worse.”

Dr. Miller testified that patients like Turner who have paranoid schizophrenia, “particularly those with exacerbation,” lose cognitive abilities. They “will feel or sense that they’re being spoken to or being talked to by inanimate objects, hearing voices from the furniture, from the walls, from the television telling them to do certain things and they’re not able to ascertain what is real and what’s not.” “They lose grasp on reality. They’re unable to separate out what is real and what’s not.” Dr. Miller testified that Turner “was a rather unfortunate individual because of her extensive medical problems, her paranoid schizophrenia, her bipolar disorder and having been prescribed at least eight medications within two and a half time – two and a half months of time of her death, this poor unfortunate lady was pretty much damned if she did and damned if she didn’t.” “With the medications themselves in combination could have a significant impact on her mental state or not taking those medications and her disease getting worse would probably have even a worse impact.”

The Turner Family points out that Dr. Miller was not Turner’s physician, did not [*22]  treat her, and had never even met or talked with Turner. Dr. Miller was the family doctor of one of JBS’s attorneys. Further, the Turner Family emphasizes that Dr. Miller’s opinions at the time of trial were much different than at the time of his deposition. During his deposition, Dr. Miller testified that he had no knowledge of Turner’s specific state of mind at the time of the accident:

 

All I can say is that in general, someone with schizophrenia and/or bipolar disorder can – that condition can contribute to their cognitive abilities and their grasp on reality and the way that they properly deal with conditions around them. Beyond that, I cannot say anything as to the specific state of mind that Mary Turner had on the day she died or any other day or was that disease in better control or worse control or was she functioning normally that day or not. So, that’s all I can say [interruption by counsel] is that in general, that schizophrenia and/or bipolar disorder can contribute to someone’s cognitive abilities and [her] grasp on reality.

 

 

(emphasis added). In his deposition, Dr. Miller admitted that persons suffering from bipolar disorder experience different symptoms, manic and depressive [*23]  states, and that he did not know which symptoms Turner may have been suffering from on any day, much less the day of the accident. Dr. Miller testified in his deposition that someone with mental health issues like Turner could be impaired by those conditions but that he had no opinion as to whether or not Turner was impaired at the time of the accident.

Dr. Miller also admitted in his deposition that he knew no details of Turner’s schizophrenia; the records from Methodist Specialty and Transplant Hospital did not identify what signs or symptoms Turner was experiencing. According to Dr. Miller, “Dr. Edwards’s records mentioned several times anxiety” but Dr. Miller “did not specifically say that it was anxiety related to her schizophrenia.” Dr. Miller admitted that the only symptom experienced by Turner he could link to schizophrenia was “anxiety.”

With regard to the autopsy and toxicology report, Dr. Miller was questioned during cross-examination at trial whether he could give an opinion as to any levels of drugs and/or alcohol that would have impaired Turner. Dr. Miller replied, “At the time of her death, no.” Dr. Miller testified that Turner had opiates in her system, that she was not [*24]  taking two of her prescribed medications that would improve her condition, and that she had cocaine in her system. According to Dr. Miller, any of those could possibly impair an individual but he could not testify to a reasonable, medical probability that they impaired Turner on the day in question.

We find no abuse of discretion by the trial court in excluding Dr. Miller’s testimony pursuant to Rule 403. Dr. Miller, a family physician, based his opinions on medical records made over two months before the accident. His trial testimony linking Turner’s medical records to her specific state of mind on the day of the accident was weak, and in his deposition, he admitted he could not testify about Turner’s state of mind on the day of the accident. Further, the security camera footage of the accident does not show Turner acting erratically. Therefore, we cannot say that the trial court abused its discretion in determining, pursuant to Rule 403, that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice in labeling Turner a bipolar schizophrenic drug addict.

JBS and Lundry also argue that “Cope’s testimony regarding what was visible to Lundry and the animation [*25]  purporting to depict that testimony is unreliable, factually incorrect, and represents no more than the subjective belief and unsupported speculation of Cope.” JBS and Lundry argue the animation was not created with accurate measurement or scientific method and thus misled the jury as to the actual line-of-sight from Lundry’s perspective. According to JBS, the “animation prepared by Cope should not have been shown to the jury” because the Turner Family “failed to establish a proper basis for its use under the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).”

In response, the Turner Family cites an opinion from this Court: Garza v. Perez, No. 04-04-00224-CV, 2005 Tex. App. LEXIS 5810, 2005 WL 1750100 (Tex. App.–San Antonio 2005, pet. denied). In that case, this Court explained that “[w]hen an [HN5] experiment is conducted out-of-court and in the absence of opposing counsel, there must be a substantial similarity between the conditions depicted on the videotape and the actual event that is the subject of litigation.” 2005 Tex. App. LEXIS 5810, [WL] at *2 (citing Fort Worth & Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex. 1964)). However, this Court noted that “the conditions need not be identical.” Id. (citing Fort Worth, 375 S.W.2d at 281-82). “When there is dissimilarity in the conditions, the admission of the experiment is within the trial court’s discretion if the differences are minor or are explained to the jury.” Id. The test for exclusion was whether the experiment [*26]  would tend to confuse rather than aid the jury. Id. This Court explained that the appellants were challenging the trial court’s admission of videotapes sponsored into evidence by an expert witness of the appellees. Id. Specifically, the appellants contended that the videos did not portray circumstances substantially similar to those of the accident and thus misled the jury. Id.

This Court concluded that “although the experimental conditions were not identical to those encountered by Garza, the trial court did not abuse its discretion in determining that they were substantially similar.” Id. According to this Court, the record reflected that the dissimilarities between the video and the occurrence, which were minor, were explained to the jury. Id. Further, this Court held that any error was harmless because at trial appellants “were afforded the opportunity to cross-examine the witness on any dissimilarities in the video experiment.” Id. And, “the videotapes were not the only evidence bearing on the audibility and visibility of the train.” Id.

First, we note that unlike in Garza, the animation in this case was not admitted in evidence; it was merely shown to the jury for demonstrative [*27]  purposes. Additionally, we find no abuse of discretion by the trial court in determining that the use of the amination for demonstrative purposes would not confuse the jury. Like in Garza, JBS and Turner were afforded the opportunity to cross-examine Cope about any dissimilarities between the accident and the animation. Further, the jury had photographs of the accident scene, along with an actual real-time videotape of the accident. Thus, we find no abuse of discretion by the trial court in allowing the animation to be viewed by the jury.

Finally, JBS and Lundry argue that Cope’s expert opinion testimony was conclusory or speculative and is thus not relevant evidence. At trial, Cope testified he went to the scene of the accident three times, watched the traffic at the intersection of Rittiman and Goldfield, and viewed the video and photos taken of the accident. Cope testified that Turner was hit by the 18-wheeler twenty-nine seconds after the light had changed, and that there was no doubt in his mind that the signal telling Turner she could walk was indicated. Cope testified that when he was able to inspect the actual truck driven by Lundry at the scene of the accident, he “took measurements [*28]  to determine heights of mirrors and also to walk in a perimeter around the front side of the vehicle just so that [he] could determine if there were blind spots for the driver of the vehicle so that there would be areas where he wouldn’t be able to see a person traveling on his right side.” According to Cope, he also sat in the driver’s seat of the truck “to look out and had the lawyer in this case walk out there in the perimeter also so that [he] could determine whether [he] could see the lawyer and all of the angles to the right as if he was approaching from the area where the service station pumps were and/or the mailbox.” Cope testified that as Lundry made the right turn, the biggest opening was the passenger window where he would be able to see Turner walking. Cope testified they held up a measuring stick to measure Turner’s height. Cope concluded the blind spot was twenty feet. JBS and Lundry did not lodge an objection during this testimony by Cope.

According to JBS and Lundry, Cope’s testimony regarding what was visible in Lundry’s line-of-sight is not reliable because no actual measurements were made of Lundry’s line-of-sight within the cab of the tractor as it was configured [*29]  at the time of the occurrence made the basis of this lawsuit. JBS and Lundry complain that no in-cab measurements were taken and that plaintiffs’ counsel, who is substantially taller than Lundry, simply pointed a camera out of the window with the lens at some unknown and undocumented height at Cope who was holding a measuring rod outside the cab some distance away. According to JBS, this methodology is flawed because it ignores the actual facts and measurements, such as Lundry’s seat position and Lundry’s height affecting the line of sight. JBS and Lundry further complain that Cope’s methodology ignores Turner’s actual position in relation to the 18-wheeler as the 18-wheeler proceeded down Rittiman Road and turned on Goldfield. JBS and Lundry argue Cope made no attempt to accurately fix the relative positions of the 18-wheeler or Turner at any point in time and that Cope ignored the constantly changing angle of the 18-wheeler throughout the turning maneuver from Rittiman onto Goldfield and ignored Turner’s change in direction as she approached Goldfield. According to JBS and Lundry, Cope’s opinions are not probative evidence.

In City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009), the Texas Supreme Court stated that “[b]are, baseless [HN6] opinions [*30]  will not support a judgment even if there is no objection to their admission in evidence.” “Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less probable.'” Id. (quoting TEX. R. EVID. 401). “Furthermore, this Court has held that such conclusory statements cannot support a judgment even when no objection was made to the statements at trial.” Id. Thus, “a party may complain that conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony.” Id. (emphasis added). “When a scientific opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable.” Id. at 818. “But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection.” Id.

Because JBS and Lundry did not object during Cope’s testimony, they cannot argue that the trial court erred in not excluding his testimony based on reliability. Instead, [*31]  because they did not object to Cope’s testimony, they argue that his testimony was conclusory and therefore does not constitute relevant evidence. However, in reviewing Cope’s testimony, we do not find that his opinions were conclusory or speculative. Thus, we do not agree with JBS and Lundry that Cope’s testimony cannot be considered relevant evidence in support of the judgment.

Moreover, even if we were to agree that Cope’s opinions were conclusory and speculative, and thus could not be considered relevant evidence, there is other legally sufficient evidence in this case (besides Cope’s testimony) to support the jury’s findings of negligence against JBS and Lundry.

 

WRONGFUL-DEATH DAMAGES

JBS and Lundry argue the evidence is legally and factually insufficient to support the jury’s award of wrongful death damages to two of Turner’s three children: Sophia Lenzy and Thomas Lenzy. The jury awarded each of Turner’s three children $300,000: $75,000 for loss of companionship and society sustained in the past; $75,000 for loss of companionship and society sustained in the future; $75,000 for mental anguish sustained in the past; and $75,000 for mental anguish sustained in the future.

[HN7] While both [*32]  mental anguish and loss of companionship and society compensate for non-economic damages, the two elements of damages are separate and do not overlap. Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex. App.–Houston [14th Dist.] 2009, pet. denied). [HN8] “Mental anguish” is defined as “the emotional pain, torment, and suffering that the wrongful-death beneficiary experienced as a result of the death of her family member.” Id. “Damages for mental anguish are intended to compensate the beneficiary for the deleterious effect that the wrongful death had on the beneficiary.” Id. To recover mental anguish, a claimant must demonstrate “a high degree of mental suffering beyond disappointment, anger, resentment, or embarrassment.” Id. “Thus, proof of mental anguish can include painful emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair, public humiliation, or a combination of any or all of those feelings.” Id.

“By contrast, [HN9] ‘loss of companionship and society’ refers to the positive benefits flowing from the love, comfort, companionship, and society that the beneficiary would have experienced had the decedent lived.” Id. “As compared with mental anguish, which emphasizes the negative impact of the wrongful death on the beneficiary, loss of companionship and [*33]  society focuses on the removal of positive benefits that the beneficiary once enjoyed but which were taken away by the wrongful death.” Id. at 455-56 (emphasis in original).

[HN10] “Although mental anguish is distinguishable from loss of companionship and society, in awarding damages for both elements, the jury may consider some of the same factors.” Id. at 456. Those considerations include (1) the relationship between the decedent and the beneficiary; (2) the living arrangements of the parties; (3) any extended absence of the deceased from the beneficiary; (4) the harmony of family relations; and (5) the decedent and beneficiary’s common interests and activities. Id.

Proof of a familial relationship is “some” evidence that the surviving family members suffered mental anguish as a result of the death. Moore v. Lillebo, 722 S.W.2d 683, 686 (Tex. 1986) (explaining that proof of the family relationship “constitute[d] some evidence they suffered mental anguish from the wrongful death of their son” and mandated the submission of a damage issue on mental anguish). Sophia Lenzy and Thomas Lenzy are Turner’s children. While JBS and Lundry stress that neither Sophia Lenzy nor Thomas Lenzy testified at trial, they did not necessarily need to testify; mental anguish evidence does not [*34]  need to come from plaintiffs themselves, but can be in the form of third parties’ testimony. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Here, their sister, Trinette Washington testified about how Sophia Lenzy and Thomas Lenzy were affected when they learned of their mother’s death from being crushed by an 18-wheeler. Washington testified that when Thomas was told of his mother’s death, he “lost it.” “[E]veryone had to hover and calm him down because he just – we couldn’t stop him from screaming . . . .” Washington testified that her mother’s death was “the hardest” on Thomas. Washington explained that her mother’s death had also “been hard on Sophia” and that Sophia was very upset about her mother’s death. Washington testified that Sophia, along with the entire family, put their efforts into helping Thomas because “everybody was worried about Thomas.” Washington testified, “All of our energy [was] focused on my little brother because he just kept – we couldn’t stop him from screaming and so we got him to calm down and put him in the air and we all, you know, talked with him and gave him love, and we got through it.” Washington testified that the two-and-a-half years since their mother’s death had “been a long journey.”

With respect [*35]  to loss of companionship and society, JBS and Lundry argue that neither Sophia nor Thomas had had a close relationship with Turner at the time of her death. Washington, however, testified about her siblings’ relationship with their mother. Washington testified that her mother and Thomas loved each other, that even though Thomas was an adult, he was still “her baby boy.” Washington characterized her brother, Thomas, as a “mamma’s boy.” According to Washington, it was hard for Thomas and her mother to be separated. Turner and Thomas had talked on the phone during the time he was incarcerated, and at the time of the accident, Thomas had just been released from prison. Washington also testified that Sophia and her mother loved each other. JBS criticizes the jury for awarding all three children the same amount, arguing that Sophia and Thomas did not have as close of a relationship with their mother as Washington. However, in reviewing the record, we find the jury was reasonable in awarding the same amount. There was testimony that while all three children loved their mother and were despondent when she died, they were all adults who did not see their mother on a consistent basis.

We hold [*36]  that the evidence is legally and factually sufficient to support an award of mental anguish, and loss of companionship and society.

 

CROSS-APPEAL

 

  1. Survival Damages

In their cross-appeal, the Turner Family argues that the trial court erred in failing to award them $406,316.00 in survival damages as representatives of Mary Turner. JBS and Lundry respond that they were not entitled to the damages under the survival cause of action because they lacked standing to bring an action on behalf of Turner. JBS and Lundry point to the survival statute, which provides that only a personal representative, administrator, or heir may sue on behalf of an estate. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.021(b) (West 2008). And, they emphasize that none of Turner’s children in this case is a personal representative or administrator of Turner’s estate. See Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998). Further, JBS and Lundry maintain that while heirs at law may have standing to bring suit on behalf of the decedent’s estate, they may only do so if they (1) allege and prove there is no administration pending, and (2) none was necessary. See id. According to JBS and Lundry, the Turner Family “wholly failed to plead or prove at trial that no administration was pending and none was necessary.” [*37]  Thus, JBS and Lundry argue that the Turner Family “never established their rights as heirs to bring the survival cause of action” and the trial court had no jurisdiction to sign a judgment in favor of the estate.

In response, the Turner Family points out that JBS and Lundry’s argument is really one about capacity and not standing. The Turner Family stresses that JBS and Lundry did not challenge the Turner Family’s capacity as Mary Turner’s personal representative before trial through a verified answer, as required by Texas Rule of Civil Procedure 93. Thus, according to the Turner Family, because JBS and Lundry failed to file a verified answer challenging the Turner Family’s capacity to bring the survival action, they waived any claim that the Turner Family could not recover survival damages based on lack of capacity.

[HN11] “A plaintiff must have both standing and capacity to bring a lawsuit.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome, whereas the issue of capacity is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.” Id. (citations omitted). “A plaintiff has standing [*38]  when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.” Id. at 848-49 (emphasis in original) (quoting Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)).

[HN12] “Although a minor, incompetent, or estate may have suffered an injury and thus have a justiciable interest in the controversy, these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their behalf.” Id. at 849 (emphasis added). “Unlike standing, however, which may be raised at any time, a challenge to a party’s capacity must be raised by a verified pleading in the trial court.” Id. (emphasis added). The burden is on the defendant to challenge a plaintiff’s capacity to sue, and the defendant’s “failure to raise the issue of capacity through a verified plea results in waiver of that issue both at trial and on appeal.” Mariner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 200 (Tex. App.–Houston [1st Dist.] 2010, no pet.); see TEX. R. CIV. P. 93.

We agree with the Turner Family that the issue here is one of capacity, not standing. Because Mary Turner’s estate suffered an injury, it had a justiciable interest in the controversy and thus standing. See Lovato, 171 S.W.3d at 849. The issue now raised by JBS and Lundry is whether the Turner [*39]  Family had capacity to sue on behalf of Mary Turner’s estate-that is, whether the Turner Family had the legal authority to act on behalf of the estate. However, because JBS and Lundry did not raise this issue of capacity in the trial court by verified pleading, they have waived any argument on appeal.2 See Mariner Health Care, 321 S.W.3d at 202 (holding that because defendant did not file a verified pleading contesting the decedent’s daughter’s capacity to bring the survival action and instead waited until the close of evidence at trial to first raise the issue, the defendant waived its challenge to the daughter’s capacity to bring the survival action on behalf of the estate).

 

2   We note that JBS and Lundry argue in their brief that the Turner Family never pled “that they were suing in the capacity as representatives of the Estate of Mary L. Turner.” We have reviewed the Turner Family’s live pleading and find their petition sufficient.

Therefore, because JBS and Lundry did not properly raise the issue of capacity in the trial court, we conclude the trial court erred when it failed to include in its judgment the jury’s award of $406,316.00 in survival damages.

 

  1. Mathematical Errors in Judgment

Also in their cross appeal, the Turner Family contends the trial court’s judgment incorrectly reduced the Turner Family’s wrongful-death damages by $101,579.00. At a post-judgment hearing, JBS and Lundry agreed that the trial court’s judgment incorrectly reduced the Turner Family wrongful death [*40]  damages by $101,579.00. On appeal, JBS and Lundry do not address this argument. In reviewing the jury’s verdict and the trial court’s judgment, we conclude the trial court’s judgment incorrectly reduced the Turner Family’s wrongful death damages by $101,579.00.

Further, the Turner Family points out that the trial court’s judgment (even with the incorrect amount of wrongful death damages) did not correctly calculate prejudgment interest and awarded only $1,540.00 in prejudgment interest. The Turner Family has no complaint with the rate of 5% interest, but contends the trial court incorrectly calculated prejudgment interest using that interest rate. Moreover, the Turner Family emphasizes that because the trial court’s judgment did not include survival damages or the correct amount of wrongful-death damages, it does not reflect the correct amount of prejudgment interest. In reviewing the jury’s verdict and the trial court’s judgment, we agree with the Turner Family.

 

CONCLUSION

We affirm the trial court’s rendering of judgment in favor of the Turner Family. However, because (1) the trial court’s judgment does not include the jury’s award of survival damages to the Turner Family, (2) the trial [*41]  court’s judgment incorrectly calculated the amount of wrongful-death damages awarded to the Turner Family, and (3) the trial court’s judgment incorrectly calculated the amount of prejudgment interest, we reverse the trial court’s judgment in part and remand the cause to the trial court with instructions to sign an amended judgment in conformity with this opinion. Further, because the date of the judgment will necessarily change in the amended judgment, the trial court’s amended judgment should also modify the amount of post-judgment interest.

Karen Angelini, Justice

 

DISSENT BY: Marialyn Barnard

 

DISSENT

 

DISSENTING OPINION

Because I believe the trial court erred in excluding evidence of Mary Turner’s pre-existing mental health conditions and her drug and alcohol use at the time of the accident, I respectfully dissent. I conclude that not only did the trial court abuse its discretion in excluding such evidence as more prejudicial than probative, see TEX. R. EVID. 403, I believe the excluded evidence was crucial to the issue of proportionate responsibility, resulting in the rendition of an improper judgment. See id. R. 44.1(a)(1).

In its answer, JBS Carriers, Inc. and James Lundry alleged Turner failed to exercise ordinary care [*42]  and that this failure caused or contributed to her death and the damages resulting therefrom. Although the common law defense of contributory negligence no longer exists under Texas law, the underlying concept is still relevant and encompassed in our proportionate-responsibility statute. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 209-10 (Tex. 2015); see TEX. CIV. PRAC. & REM. CODE ANN. § 33.001-.017 (West 2015). The same facts used to prove contributory negligence may be used to diminish a plaintiff’s recovery by proving the plaintiff bore some responsibility for her own injuries. Austin, 465 S.W.3d at 210. This may even preclude a plaintiff from recovering at all if the defendant can establish the plaintiff bore more than fifty percent of the responsibility for her own injuries. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001, 33.003). As stated by the supreme court, although contributory negligence is no longer an affirmative defense that acts “as an absolute bar to recovery, it remains a defensive issue on which a defendant bears the burden of proof.” Id.

In support of its contention that Turner bore some responsibility in this matter, JBS was permitted to introduce the video showing Turner entering the roadway far from the actual intersection, i.e., jay walking, and failing to stop or even slow down as she entered the roadway. In addition, JBS presented [*43]  testimony from Detective Doyle who testified Turner was not in the crosswalk at the time of the accident. See TEX. TRANSP. CODE ANN. § 552.005(a) (West 2011) (stating pedestrian shall yield to vehicle if crossing road in other than marked crosswalk or in unmarked crosswalk at intersection). The detective further testified Turner failed to yield the right-of-way, and was, in fact, looking forward when she was struck. Id.; see also TEX. TRANSP. CODE ANN. § 552.003(b) (stating pedestrian may not suddenly leave curb or other place of safety and proceed in the path of a vehicle so close that it is impossible for vehicle operator to yield). Detective Doyle concluded Turner was at fault for the accident. Seemingly as a result of this evidence, the jury found Turner twenty percent responsible for the accident. However, JBS sought to introduce additional evidence to establish Turner’s fault was far more than the twenty percent ultimately found by the jury.

Specifically, JBS sought to introduce an admission made by Turner’s daughter at the scene of the accident that Turner suffered from paranoid schizophrenia and bi-polar disorder. The existence of these conditions, as well as the fact that Turner suffered from anxiety, was verified by Turner’s medical records, [*44]  which were also excluded. The records established Turner was prescribed numerous medications to treat her mental health issues, including: (1) Klonopin, a tranquilizer; (2) Lithium, a mood stabilizer; (3) Haldol, to treat schizophrenia; (4) Seroquel, to treat bipolar disorder and schizophrenia; (4) Xanax, a tranquilizer; (5) Ambien, to treat sleeplessness; (6) Hydroxyzine, to treat anxiety; and (7) Vicodin, to treat pain. JBS also sought to introduce the autopsy and toxicology reports, which established that at the time of the accident, Turner was positive for cocaine, oxycodone, and alcohol, but negative for medications previously prescribed to treat her mental health conditions. Finally, JBS sought to introduce testimony from its expert, Dr. Keith Miller, who would have testified about the effect and purpose of Turner’s medications, as well as her mental health issues and their possible effect on Turner’s ability to process information and her perception of reality. However, the trial court excluded all of this proposed evidence, ruling its probative value was outweighed by its prejudicial effect pursuant to Rule 403 of the Texas Rules of Evidence.

An appellate court reviews a trial court’s exclusion of evidence for an [*45]  abuse of discretion. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding principles or rules. Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Erroneous exclusion of evidence is reversible error if it probably resulted in an improper judgment. TEX. R. APP. P. 44.1(a)(1); Garza, 466 S.W.3d at 161. In State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009), the supreme court held: “[I]t is not necessary for the complaining party to prove that ‘but for’ the exclusion of evidence, a different judgment would necessarily have resulted. The complaining party must only show ‘that the exclusion of evidence probably resulted in the rendition of an improper judgment.'”. The exclusion of evidence is likely harmless when the evidence excluded was cumulative or “the rest of the evidence was so one-sided that the error likely made no difference in the judgment.” Cent. Expressway Sign, 302 S.W.3d at 870. Whether the erroneous exclusion of evidence probably caused the trial court to render an improper judgment is a “judgment call entrusted to the sound discretion and good sense of the reviewing court from an evaluation of the whole case.” First Emps. Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex. 1983).

Under Texas law, we presume relevant evidence is admissible. TEX. R. EVID. 402. In this case, I do not believe the relevance of the excluded evidence can be contested. Although the excluded evidence [*46]  was relevant, it was still subject to exclusion under Rule 403 of the Texas Rules of Evidence if it was more prejudicial than probative. Id. R. 403. Under Rule 403, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. Id. However, “Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Estate of Finney, 424 S.W.3d 608, 613 (Tex. App.–Dallas 2013, no pet.); Murray v. Tex. Dep’t. of Family & Protective Servs., 294 S.W.3d 360, 368 (Tex. App.–Austin 2009, no pet.). The party opposing the proffered evidence has the burden to show why the evidence is prejudicial and how the prejudicial attributes substantially outweigh the probative value of the evidence. Murray, 294 S.W.3d at 368 (quoting Goldberg v. State, 95 S.W.3d 345, 367 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d)).

Evidence is unfairly prejudicial when it has “an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one.” In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.–Beaumont 2013, pet. denied). In applying Rule 403, the court should consider the probative value of the evidence, the potential of the evidence to impress the jury in some irrational way, the time needed to develop the evidence, and the proffering party’s need for the evidence. Id. As noted by the Beaumont Court of Appeals, the power of exclusion found in Rule 403 should be used sparingly. In re Commitment of Winkle, 434 S.W.3d 300, 309 (Tex. App.–Beaumont 2013, pet. denied); see Finney, 424 S.W.3d at 613. In other words, relevant evidence should not be [*47]  excluded without “very good cause.” See Davis v. Davis, 521 S.W.2d 603, 607 (Tex. 1975) (holding that rules that exclude evidence bearing directly on truth to be determined should not apply absent very good cause).

In this case, the excluded evidence was probative to show Turner’s proportionate responsibility for the accident. The excluded evidence — including statements by Turner’s own daughter — established Turner suffered from two serious mental health conditions — paranoid schizophrenia and bi-polar disorder — conditions that could have affected her perceptions. If permitted, Dr. Miller would have explained to the jury that as a result of these disorders, Turner would have been out of touch with reality and lacked the ability to rationally understand and properly perceive her surroundings.1 This would have provided an explanation as to why Turner chose to walk into a roadway — seemingly without stopping or looking — outside of the crosswalk. Her conditions, according to Dr. Miller, would have been exacerbated by the fact that at the time of the accident, she had not been taking the medications prescribed by other health care providers to alleviate the effects of those conditions. We recognize, as the majority asserts, that the [*48]  evidence regarding the prescribed medications was based on a physician visit two months before the accident. However, even if it could be said the evidence regarding her prescribed medications was too prejudicial based on the time-gap, the same reasoning does not apply to the existence of her mental health conditions and their effect on her perceptions, nor to the fact that the toxicology report showed that at the time of the accident Turner had been using cocaine, alcohol, and oxycodone.

 

1   There was a suggestion that Dr. Miller’s testimony should have been excluded because it was contrary to his deposition testimony. This is an inaccurate portrayal of the events. At the time of his deposition, Dr. Miller did not have access to either the autopsy or toxicology reports. Dr. Miller’s trial testimony was not new or contrary to his deposition testimony. Rather, his trial testimony was based on access to additional documents unavailable to him at the time of his deposition. Thus, exclusion on this basis would also, in my opinion, constitute an abuse of discretion.

I do not believe the excluded evidence had an undue tendency to suggest that the jury determine proportionate responsibility on an improper basis, including an emotional one. See Anderson, 392 S.W.3d at 882. The existence of a mental disease affecting one’s perception of reality and illegal drug use is evidence jurors should be permitted to consider in determining responsibility for an accident such as the one that occurred in this case. I believe that if Lundry, the driver of the truck, had been found to suffer from similar mental conditions or had tested positive for alcohol or illegal substances, the trial court would have found this evidence admissible in response to a challenge under Rule 403. And here, the jury believed Turner [*49]  bore some responsibility given the its finding that Turner was twenty percent responsible for the accident. Considering the probative value of the excluded evidence, the absence of any potential of the evidence to impress the jury in some irrational way, the negligible amount of time needed to develop the evidence, and JBS’s obvious need for the evidence, I do not believe we can say the trial court acted in accordance with guiding rules and principles. See id. Thus, at a minimum, I believe the trial court erred in excluding evidence of Turner’s existing mental health conditions — whether Dr. Miller had actually treated her or not — and her alcohol and illegal drug use at the time of the accident. I would therefore hold the trial court clearly abused its discretion in excluding this evidence. See Garza, 466 S.W.3d at 161.

I would further hold, considering the record as a whole, that the exclusion of the evidence probably resulted in improper verdict and subsequent judgment. The jury’s findings on proportionate responsibility are particularly compelling. The jury found Turner twenty percent responsible knowing only that she failed to use the cross-walk, failed to yield the right-of-way, and failed to stop or [*50]  slow down as she entered the roadway. If jurors had been permitted to hear about Turner’s mental conditions and their effect, as well as her use of alcohol and illegal drugs, particularly on the day of the accident, I am certain the finding on Turner’s responsibility would have been in excess of twenty percent — possibly negating any responsibility on the part of JBS or Lundry.

As noted above, JBS does not have to prove that “but for” the exclusion of this evidence a different judgment would have resulted. See Cent. Expressway Sign., 302 S.W.3d at 870. Moreover, the excluded evidence was not cumulative, nor was the evidence so one-sided that the exclusion made no difference. Id. Rather, the role of this evidence in the context of this trial was crucial to the key issue of responsibility, and therefore, in my opinion, its exclusion was harmful. Id.; see TEX. R. APP. P. 44.1(a)(1).

Because I believe that at a minimum, the trial court erred in excluding evidence of Turner’s mental health conditions, as well as her alcohol and illegal drug use at the time of the accident, I would reverse the trial court’s judgment and remand the matter for a new trial that would allow JBS to present the excluded evidence in support of its proportionate responsibility claim. [*51]  Accordingly, I respectfully dissent.

Marialyn Barnard, Justice

Continental Group, LLC, Plaintiff–Appellee/Cross–Appellant, v. All Access International, Inc., a/k/a All Access Logistics, Inc.,

Appellate Court of Illinois,

First District,

SIXTH DIVISION.

Continental Group, LLC, Plaintiff–Appellee/Cross–Appellant,

v.

All Access International, Inc., a/k/a All Access Logistics, Inc., Defendant–Appellant/Cross–Appellee.

All Access International, Inc., a/k/a All Access Logistics, Inc., Counterplaintiff–Appellant/Cross–Appellee,

v.

Continental Group, LLC, Spartak Corportation, N.P. Enterprises, Inc., Angel Botev, and Nikola Panayotov, Counterdefendants–Appellees/Cross–Appellants.

No. 1–16–0389

|

Order filed: January 13, 2017

Appeal from the Circuit Court of Cook County, No. 13 L 499, Honorable Thomas R. Mulroy, Judge, Presiding.

 

 

ORDER

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.

*1 ¶ 1 Held: The judgment of the trial court, which found that the counterplaintiff failed to prove its claims of fraud, civil conspiracy to commit fraud, breach of contract, and violations of the RICO Act, was not against the manifest weight of the evidence where the counterplaintiff failed to provide a reasonable basis for the computation of damages.

 

¶ 2 The counterplaintiff, All Access International, Inc., a/k/a All Access Logistics, Inc. (All Access), appeals from an order of the trial court granting judgment in favor of Continental Group, LLC, Spartak Corporation, N.P. Enterprises, Inc., Angel Botev, and Nikola Panayotov (collectively referred to as the counterdefendants) on All Access’s counterclaims, which asserted fraud, civil conspiracy to commit fraud, breach of contract, and violations of the Racketeer Influenced and Corrupt Organization (RICO) Act (18 U.S.C. § 1961 et al. (West 2012)), arising from the counterdefendants’ alleged overbilling for trucking services. On appeal, All Access contends that it sustained its burden of proof for each counterclaim. For the reasons that follow, we affirm.

 

¶ 3 The following factual recitation is taken from the pleadings, testimony, and exhibits of record.

 

¶ 4 In early 2008, All Access was in the business of brokering delivery services between clients and trucking companies. One client, Panalpina, a freight-forwarder, invited All Access to bid on a contract to provide vehicles, drivers, and dispatchers at Panalpina’s warehouse in Elk Grove Village. Salvatore Marcello, an “owner” of All Access, prepared the bid with assistance from Panayotov, who previously worked with Panalpina.1 In August 2008, All Access secured the contract and hired Panayotov as its director at Panalpina.

 

¶ 5 All Access leased a fleet of vehicles and gave Panayotov authority to hire drivers, who earned $12 to $20 per hour; and owner-operators, who provided their own vehicles, drivers, and fuel, and received $30 to $35 per hour. Spartak Corporation (Spartak), whose sole shareholder was Angel Botev, was one such owner-operator. Another owner-operator, Continental Group, LLC (Continental), consisted of two members: Spartak and N.P. Enterprises, Inc., whose sole shareholder was Panayotov.

 

¶ 6 All Access typically paid drivers and owner-operators on an hourly basis. As an exception, it paid Continental a flat rate for work performed during the “third shift” and for deliveries to Sigma, a company located in Milwaukee. Additionally, Continental received 75% of All Access’s billing rate for pick-ups that Continental’s drivers made on the return route from Sigma to Panalpina. Drivers punched their timecards at Panalpina and emailed invoices to Margaret Woss, an All Access employee. Under Panayotov’s supervision, Woss collected the timecards, compared them against the invoices, and entered the data into spreadsheets for payroll.

 

*2 ¶ 7 In February 2012, Marcello began examining All Access’s operating costs and hired a company to investigate the relationship between Botev, Panayotov, Spartak, and Continental. Based on the investigation, All Access refused to pay Continental’s invoices from July 31 to September 20, 2012.

 

¶ 8 Continental filed a complaint against All Access in January 2013, seeking $119,646.50 in damages for the unpaid invoices. Count I alleged breach of contract. Count II alleged that, by failing to object to the invoices, All Access admitted liability for the accounts stated.

 

¶ 9 All Access filed a counterclaim against the counterdefendants in April 2013. Counts I and II sought treble damages totaling $990,000 and $150,000, respectively, for violations of the RICO Act (18 U.S.C. § 1961(c) (West 2012)). Count III sought $330,000 in damages for alleged fraud by Continental, and count IV sought $380,000 in damages for civil conspiracy to commit fraud by all the counterdefendants. Common to all the counts, All Access alleged that Continental sent inflated invoices and used All Access’s credit cards for unauthorized fuel purchases.

 

¶ 10 The case proceeded to a bench trial in September 2015.

 

¶ 11 Continental called Botev and Panayotov as witnesses. According to their testimony, Panayotov hired Botev as a driver for All Access in February 2009. Botev and Panayotov later formed Continental, which sent additional drivers and vehicles to All Access. Panayotov provided Continental with billing information for pick-ups that its drivers made on the return route from Sigma to Panalpina. However, All Access sometimes paid Continental’s invoices late or did not pay in full. Botev authenticated the unpaid invoices and stated that both he and Panayotov discussed the late payments with Marcello. Panayotov denied knowing why All Access did not pay the invoices. Following Botev’s and Panayotov’s testimony, Continental rested its case-in-chief.

 

¶ 12 In its defense and in support of its counterclaims, All Access called Marcello as a witness. In 2011 and 2012, Marcello met with Panayotov and Botev to discuss operating costs, driver hours, and the number of drivers working. Panayotov requested higher rates for Botev and raised concerns regarding late payments to Continental. According to Marcello, Continental’s invoices were “substantially” lower after Panayotov left All Access in June 2012.

 

¶ 13 In July 2012, Marcello hired a company to investigate the relationship between Panayotov, Botev, Continental, and Spartak. During the investigation, All Access searched for timecards from 2009 to 2011, but only found timecards and daily logs from January through July 2012. Marcello stated that All Access kept the timecards at Panalpina, and denied that Panayotov told him that Panalpina wanted the records moved. During the investigation, Marcello learned that Continental’s drivers purchased fuel using All Access’s credit cards and that Continental refused to provide records for its own fuel account. In August 2012, Panayotov and Botev met with Marcello and requested payment on six weeks of invoices. Marcello refused to pay due to the investigation.

 

¶ 14 Margaret Woss, who worked in billing and payroll for All Access, testified that All Access’s timecards and billing records did not indicate whether drivers operated vehicles belonging to All Access, Spartak, or Continental.

 

*3 ¶ 15 All Access proffered testimony from dispatchers and drivers, who testified that Continental’s drivers operated All Access’s vehicles from once per week to several times per day and that drivers for Continental or All Access were assigned to the vehicles based on need and availability. On at least one occasion, Panayotov instructed an All Access driver to purchase fuel using an All Access credit card although drivers for Continental had also operated the vehicle.

 

¶ 16 Investigator Carl Novak testified that he examined All Access’s driver log sheets, fuel receipts, timecards, credit card records, and delivery order forms from January 1 through July 1, 2012. Novak also received a list of drivers for Continental and All Access. Using this information, he calculated that Continental’s drivers used All Access’s credit cards to purchase $10,304.79 in fuel for All Access’s vehicles. As Novak did not receive mileage information, he could not determine whether Continental’s drivers used all the fuel that they purchased.

 

¶ 17 Next, Novak examined Continental’s hourly billing practices. He learned that Continental was supposed to charge All Access $35 per hour for use of a vehicle, driver, and fuel, and $18 per hour for only a driver, but in fact, charged $35 per hour for all hours billed. Thus, Continental overbilled All Access by $17 for each hour that a Continental driver operated an All Access vehicle. Novak estimated that the overage from January 1 through July 1, 2012, was $49,421.60.

 

¶ 18 Finally, Novak examined Continental’s billing for deliveries to Sigma. As Continental and All Access divided payment for Sigma deliveries “on a 75/25 percentage basis[,]” Novak multiplied each of Sigma’s invoices to All Access by .75 and compared the result to what Continental actually billed for the deliveries. He estimated that the overage from January 1 through July 1, 2012, was $22,216.

 

¶ 19 Sheryl Canty, a certified public accountant, testified that All Access retained her to investigate possible overbilling by Spartak and Continental. She did not receive timecards from All Access or payroll records from Continental or Spartak, but instead received copies of Spartak’s and Continental’s cancelled payroll checks and invoices that All Access paid to both companies. Using these materials, Canty attempted to compare the hours that Spartak’s and Continental’s drivers worked against the hours that both companies billed to All Access.

 

¶ 20 First, Canty examined Spartak’s payroll checks from March 2009 through December 2010, and Continental’s payroll checks from November 2010 through July 2012, and determined the amount of money that Spartak and Continental paid their drivers during those time periods. Next, she subtracted payments that Spartak and All Access made for (1) flat-rate deliveries to Sigma; (2) flat-rate work performed during the “third shift;” (3) fuel reimbursement; and (4) drivers that All Access did not recognize or was “never billed for.” When she made these adjustments, she was unaware that some drivers might have billed using corporate names. She also did not know whether Spartak and Continental had provided every payroll check, and she assumed that neither company had provided checks unrelated to payroll. Based on the average hourly rate that Spartak and Continental paid their drivers, Canty determined the total billable hours worked by drivers for each company.

 

¶ 21 Finally, Canty examined invoices that All Access paid to Spartak from February 2009 through October 2011, and paid to Continental from January 2011 through July 2012. She adjusted the totals to account for non-hourly billing. Based on Spartak’s and Continental’s hourly billing rates, Canty determined the number of hours that Spartak and Continental billed All Access.

 

*4 ¶ 22 By comparing the hours that Spartak’s and Continental’s drivers worked to the hours that the companies billed All Access, Canty concluded that Spartak overbilled for $46,157.44 and that Continental overbilled for $42,357.98. Due to the lack of additional records from Spartak and Continental, Canty could not determine whether overbilling occurred in connection to Sigma deliveries, “additional trips,” or “third shifts.”

 

¶ 23 After All Access rested, Continental recalled Panayotov, who testified that he told Marcello that Panalpina wanted All Access to remove its records from its warehouse and that Marcello instructed him to transfer the records to All Access’s warehouse. He denied hiding the documents. According to Panayotov, drivers used multiple vehicles throughout the day but only identified the first vehicle on their daily log sheet. He denied that Continental’s drivers were permitted to buy fuel using All Access’s credit cards or that he complained to Marcello about untimely payments to Continental.

 

¶ 24 At the close of trial, the court granted judgment for All Access on Continental’s complaint and granted judgment for Continental on All Access’s counterclaims. The court stated that neither Botev nor Panayotov testified credibly but that All Access’s witnesses were “credible, believable, straightforward, and helpful.” The court stated:

“The Court believed the Defense testimony insomuch as it seriously impeached and discredited Plaintiff’s invoices and finds that Plaintiff’s invoices *** were incorrect, unreliable, unworthy of belief, and wrong and thus finds for Defendants and against Plaintiff on Plaintiff’s Complaint.

Defendants introduced good evidence to prove their Counterclaim which, based on the testimony and documents, narrowly failed to meet Defendants’ burden of proof. This evidence, however, thoroughly impeached Plaintiff’s claim and the invoices submitted to prove the claim. The Court thus finds for Plaintiff*** on Defendants’ Counterclaim.”

 

¶ 25 All Access filed a motion to reconsider. While the motion to reconsider was pending, the trial court granted All Access’s motion for leave to file an amended counterclaim pursuant to section 2–616(c) of the Code of Civil Procedure. 735 ILCS 5/2–616(c) (West 2014). The amended counterclaim added allegations of breach of contract by Spartak and Continental. The trial court denied the motion to reconsider as to each counterclaim. All Access filed a notice of appeal and Continental filed a notice of cross-appeal.

 

¶ 26 No counterdefendant filed a response brief, and Continental did not file an appellee brief. Because the record is simple and All Access’s claimed errors may be decided without the aid of an appellee brief, this court may address the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

 

¶ 27 On appeal, All Access contends that the trial court’s findings demonstrate that it met its burden of proof for each counterclaim and permitted the calculation of damages within a “reasonable probability.” As the court found Continental’s witnesses incredible but considered All Access’s witnesses to be credible and unimpeached, All Access maintains that the court erred in applying the law to the facts of the case.

 

¶ 28 As an initial matter, we observe that All Access requests de novo review. De novo review is appropriate only where “the question on appeal is limited to application of the law to undisputed facts[.]” City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005). In a civil case turning upon factual issues, such as the case at bar, we will not disturb the trial court’s findings unless they are against the manifest weight of the evidence. Samour, Inc., v. Board of Election Commissioners of City of Chicago, 224 Ill. 2d 530, 542 (2007). “A factual finding is against the manifest weight of the evidence when the opposite conclusion is clearly evident or the finding is arbitrary, unreasonable, or not based in evidence.” Id. at 544. Because the trial court is best positioned “to observe the conduct and demeanor of the parties and witnesses[,]” a reviewing court will not substitute its judgment regarding “the credibility of witnesses, the weight to be given to the evidence, or the inferences to be drawn.” Best v. Best, 223 Ill. 2d 342, 350–51 (2006); see also People v. Jackson, 409 Ill. App. 3d 631, 647 (2011) (trier of fact may accept or reject as much or as little of a witness’s testimony as it deems appropriate). In this case, where the trial court’s order made no factual findings regarding All Access’s counterclaims, we must presume that the court found all controverted facts in favor of the counterdefendants. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill. App. 3d 720, 727 (2003). We may affirm the judgment on any basis supported by the record, regardless of whether the trial court relied upon those grounds. Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, ¶ 30.

 

*5 ¶ 29 All Access raised counterclaims for fraud, civil conspiracy to commit fraud, breach of contract, and violations of the RICO Act (18 U.S.C. § 1961 et al.) (West 2012)). Common to each cause of action, All Access had “the burden of establishing not only that [it] sustained damages, but also of providing a reasonable basis for computation of those damages.” 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 31. A party is not required to prove damages with “mathematical certainty,” and “need only present evidence to allow the trial court to compute damages within a fair degree of probability.” Doornbos Heating and Air Conditioning, Inc., v. James D. Schlenker, M.D., S.C., 403 Ill. App. 3d 468, 487 (2010). However, damages “may not be predicated on mere speculation, hypotheses, conjecture or whim.” Phillips v. DePaul University, 2014 IL App (1st) 122817, ¶ 57. Evidence presented in support of damages “must not be remote, speculative, or uncertain.” Doornbos, 403 Ill. App. 3d at 485.

 

¶ 30 All Access maintains that the testimony of Novak, the investigator, and Canty, the accountant, provided a reasonable basis for calculating damages related to unauthorized fuel purchases, inflated billing, and instances where Continental billed All Access for the full cost of a driver, vehicle, and fuel even when Continental’s drivers operated All Access’s vehicles. Our review of the record, however, discloses gaps in the evidence that preclude the calculation of damages within a fair degree of probability. Certain evidence, like All Access’s timecards from 2009 to 2011, was unavailable to Novak and Canty. Other evidence, such as the timecards from January 1 to July 1, 2012, was available but omitted information pertinent to the calculation of damages—in particular, the time and distances that Continental’s drivers operated All Access’s vehicles. Further, Novak and Canty both acknowledged instances where their calculations relied on assumptions, and, in one instance, they provided contradictory testimony regarding whether damages sought by All Access could be calculated at all. In view of these issues, which we consider in detail as follows, the trier of fact could have concluded that All Access did not provide a reasonable basis for calculating damages.

 

¶ 31 First, Novak proposed that damages for fuel purchases could be calculated based on the cost of fuel that Continental’s drivers purchased for All Access’s vehicles. As available records did not indicate the precise mileage that Continental’s drivers drove the vehicles, however, Novak could not determine whether drivers for Continental or All Access used the purchased fuel. Similarly, although Novak proposed that All Access incurred damages for each hour that Continental’s drivers billed at the incorrect rate while operating All Access’s vehicles, the evidence included no way to calculate the precise number of hours that Continental’s drivers operated those vehicles. Notably, testimony from drivers and dispatchers indicated that drivers for both Continental and All Access were assigned to the vehicles with varying frequency throughout the day. Consequently, any calculation of damages arising from the hours that Continental’s drivers operated All Access’s vehicles, or the amount of fuel that they used, amounts to speculation and conjecture and cannot provide a basis for calculating damages. Phillips, 2014 IL App (1st) 122817, ¶ 57.

 

¶ 32 Canty’s calculations for determining excessive billing by Spartak and Continental are similarly speculative. She testified that, in order to compare the hours worked by Spartak’s and Continental’s drivers against the hours billed to All Access, she subtracted unrelated payments from Spartak’s and Continental’s payroll records. In determining which payments to disregard, however, she was unaware whether drivers operated under corporate names and was uncertain whether the checks available for her analysis fully and accurately reflected Spartak’s and Continental’s payrolls. Additionally, Canty’s comparison of payroll records and invoices involved data from entirely different time periods. She compared Spartak’s payroll checks from March 2009 to December 2010 against All Access’s payments from February 2009 to October 2011, and compared Continental’s payroll checks from November 2010 to July 2012 against All Access’s payments from January 2011 to July 2012. Given these discrepancies, Canty’s analysis does not allow for an accurate calculation of damages incurred during the time periods that she analyzed.

 

*6 ¶ 33 Other damages calculations proposed by All Access are similarly infirm. Novak’s and Canty’s testimony conflicted as to whether sufficient evidence existed to calculate overbilling for Continental’s deliveries to Sigma. Moreover, we have reviewed additional calculations that All Access proposed in its closing argument and appellate brief for determining damages incurred outside the time periods analyzed by Novak and Canty. Those calculations, like the calculations proposed by Novak and Canty, rely on assumptions regarding the time and distances that Continental’s drivers drove All Access’s vehicles and are similarly speculative.

 

¶ 34 Based on the foregoing, the trial court did not contradict the manifest weight of the evidence in rejecting All Access’s proposed damages calculations. Although the best evidence regarding damages “ ‘is often nothing better than the opinions of persons well informed upon the subject under investigation,’ ” in this case, the record establishes that All Access’s calculations are predicated on assumptions that do not allow for the computation of damages within a fair degree of probability. Levin v. Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d 640, 655 (1987) (quoting Johnston v. City of Galva, 316 Ill. 598, 603–04 (1925)). In cases involving both claims and counterclaims, such as the case at bar, each party must meet its burden of proof irrespective of whether the opposing party establishes its competing claims. Redmond v. Socha, 216 Ill. 2d 622, 644 (2005). As All Access failed to provide a reasonable basis for calculating damages, the trial court’s order granting judgment for All Access on Continental’s complaint but granting judgment for Continental on All Access’s counterclaims was not against the manifest weight of the evidence.

 

¶ 35 For the foregoing reasons, we affirm the judgment of the trial court.

 

¶ 36 Affirmed.

 

Justices Cunningham and Rochford concurred in the judgment.

All Citations

Not Reported in N.E.3d, 2017 IL App (1st) 160389-U, 2017 WL 161581

 

 

Footnotes

1

Although the record only identifies Marcello as an “owner” of All Access, we observe that this term is inappropriate because All Access is a corporation.

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