Opinion issued November 15,=20
2007
In The
Court of=20
Appeals
For=20
The
First =
District of=20
Texas
NO.=20
01-07-00138-CV
CHARLOTTE NGO=20
BIBAI AND IMAOBONG NDA, Appellants
V.
DOM =
KIM NGUYEN,=20
Appellee
On =
Appeal from=20
County Civil Court at Law No. 4
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 823304
MEMORANDUM=20
OPINION
<=
/SPAN>Appellants,=20
Charlotte Ngo Bibai and Imaobong Nda, sued appellee, Dom Kim =
Nguyen=20
(=E2=80=9CNguyen=E2=80=9D), after Nguyen=E2=80=99s vehicle hit the =
rear of the vehicle in which=20
appellants were passengers. A jury found that Nguyen was not =
negligent,=20
and the trial court ordered that appellants take nothing.=20
<=
/SPAN>In=20
what we construe as two issues, appellants contend that (1) the =
trial=20
court erred by excluding photographic evidence of the property =
damage and=20
an estimate of repairs and (2) the evidence is factually =
insufficient to=20
support the jury=E2=80=99s finding that Nguyen was not=20
negligent.
<=
/SPAN>We=20
affirm.
BACKGROUND
<=
/SPAN>On=20
March 21, 2004, appellants were back-seat passengers in a Honda =
mini-van,=20
which was owned and driven by Sunny Imeh. Imeh, who is not a party =
to this=20
suit, is appellant Bibai=E2=80=99s cousin and appellant =
Nda=E2=80=99s husband. The=20
mini-van was stopped on a feeder road of Interstate-10 at the =
intersection=20
of Fry Road in west Houston, waiting for the traffic light to =
change, when=20
Nguyen=E2=80=99s vehicle, a Toyota SUV, collided with the back of =
the=20
mini-van.
<=
/SPAN>Appellants=20
sued Nguyen for negligence, alleging damages for bodily injuries, =
pain and=20
suffering, and damage to the mini-van. Specifically, appellants =
sought to=20
recover =E2=80=9Cactual damages for each person, in maximum =
amount, [Bibai]=20
($15,000) and [Nda] ($15,000),=E2=80=9D plus costs and =
interest.
<=
/SPAN>On=20
October 26, 2006, the case was tried to a jury. Nguyen conceded =
that he=20
had hit the mini-van, but contended that it was merely an =
accident. Nguyen=20
testified that he had come to a complete stop approximately five =
feet=20
behind the mini-van and sat there for a few seconds. He suddenly =
felt an=20
intense burning in his eye, and his foot slipped off of the brake =
and onto=20
the accelerator. Nguyen testified that his vehicle lurched forward =
into=20
the back of the mini-van. Nguyen said that he immediately got out =
of his=20
vehicle and went to check on the people in the mini-van. There =
were five=20
people in the mini-van, including appellants, and they all climbed =
out,=20
seemingly uninjured. Nguyen testified that neither vehicle had to =
be towed=20
and that his vehicle sustained a scratch on the bumper that did =
not=20
require repairs.
<=
/SPAN>Bibai=20
testified that they were sitting at the light, that she heard a =
brake from=20
behind, and that Nguyen=E2=80=99s vehicle hit theirs. Bibai =
testified that she=20
suffered severe pain in her neck, back, and right hand. Bibai =
testified=20
that they drove the mini-van to the hospital after the collision, =
but that=20
they left without treatment because the wait to be seen was too =
long and=20
they did not have enough money. Bibai went to a doctor a few days =
later,=20
who prescribed ibuprofen and a muscle relaxer. The doctor =
instructed Bibai=20
to return for a follow-up visit if she was still experiencing =
problems,=20
but Bibai did not return. Bibai then underwent two months of =
treatment=20
with a chiropractor and fully recovered. Bibai testified that =
Nguyen had=20
stated at the scene that his foot had slipped and that she =
believed that=20
the damages to the mini-van were consistent with Nguyen=E2=80=99s =
foot having=20
slipped off of the brake.
<=
/SPAN>Nda=20
testified that Nguyen had slammed into the back of the mini-van =
and that=20
Nguyen had stated at the scene that he had just changed lanes when =
he hit=20
them. Nda suffered pain in her neck, shoulder, and lower back, and =
underwent five weeks of chiropractic treatment. Nda testified that =
she and=20
Imeh owned the mini-van and that the cost to repair the damage to =
the=20
mini-van was $3,000.
<=
/SPAN>The=20
jury was asked whether it found that the negligence of Nguyen or =
Imeh had=20
proximately caused the occurrence in question, and the jury =
responded =E2=80=9CNo=E2=80=9D=20
to each. On November 8, 2006, the trial court rendered judgment =
for=20
Nguyen, ordering that appellants take nothing. Appellants=E2=80=99 =
motion for new=20
trial was overruled by operation of law.
Factual=20
Sufficiency
<=
/SPAN>In=20
what we construe as their second issue, appellants challenge the =
factual=20
sufficiency of the evidence. Specifically, appellants contend that =
the=20
jury=E2=80=99s verdict that Nguyen was not negligent is against =
the great weight=20
and preponderance of the evidence.
<=
/SPAN>When=20
a party attacks the factual sufficiency of an adverse finding on =
an issue=20
on which she has the burden of proof, she must demonstrate on =
appeal that=20
the adverse finding is against the great weight and preponderance =
of the=20
evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 =
(Tex. 2001).=20
As the reviewing court, we may not act as factfinder and may not =
pass=20
judgment on the credibility of witnesses or substitute our =
judgment for=20
that of the trier of fact. Golden Eagle Archery, Inc. v. =
Jackson,=20
116 S.W.3d 757, 761 (Tex. 2003). We consider and weigh all of the =
evidence=20
and set aside the verdict only if the evidence is so weak or if =
the=20
finding is so against the great weight and preponderance of the =
evidence=20
that it is clearly wrong and unjust. Francis, 46 S.W.3d at=20
242.
<=
/SPAN>Appellants=20
contend that =E2=80=9C[r]egardless of the amount of the impact, =
the fact that=20
[Nguyen] did not maintain an assured clear distance between his =
car and=20
that of [appellants=E2=80=99] shows that he was =
negligent.=E2=80=9D Section 545.062 of the=20
Transportation Code provides that a driver following another =
driver is=20
required to maintain an =E2=80=9Cassured clear distance between =
the two vehicles=20
so that, considering the speed of the vehicles, traffic, and the=20
conditions of the highway, the operator can safely stop without =
colliding=20
with the preceding vehicle or veering into another vehicle, =
object, or=20
person on or near the highway.=E2=80=9D Tex. Transp. Code Ann. =
=C2=A7 545.062=20
(Vernon 1999). However, the supreme court has held that a breach =
of=20
section 545.062 does not constitute negligence per se.=20
Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 =
& n.1=20
(Tex. 1998) (construing substantively same language in predecessor =
statute, Tex. Rev. Civ. =
Stat.=20
art. 6701d, =C2=A7 61(a)). Section 545.062 imposes on =
the driver=20
the same duty of reasonable care as that imposed under the common =
law.=20
See id.
<=
/SPAN>Under=20
common law, the mere occurrence of a rear-end collision does not =
establish=20
negligence as a matter of law. Neese v. Dietz, 845 S.W.2d =
311, 314=20
(Tex. App.=E2=80=94Houston [1st Dist.] 1992, writ denied); =
see Jordan v.=20
Sava, 222 S.W.3d 840, 850 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2007, no=20
pet.). The plaintiff must prove specific acts of negligence on the =
part of=20
the defendant driver and must prove proximate cause. Neese, =
845=20
S.W.2d at 314. With regard to rear-end collisions, =
=E2=80=9Cstandards of ordinary=20
care cannot be fixed with any degree of certainty, but must be =
left in=20
large measure to the trier of the facts.=E2=80=9D Id. =
Conflicts in the=20
witnesses=E2=80=99 testimony present credibility questions for the =
jury to=20
resolve. Id. at 314=E2=80=9315.
<=
/SPAN>The=20
evidence shows that Nguyen conceded at trial that he hit the =
mini-van, but=20
he contended that it was merely an accident. Nguyen testified that =
he came=20
to a stop at the traffic light approximately five feet behind the=20
mini-van, that he got something in his eye, that his foot slipped =
off of=20
the brake and touched the accelerator, and that his vehicle =
lurched=20
forward into the back of the mini-van.
<=
/SPAN>Bibai=20
testified that they were sitting at the light, that she heard a =
brake=20
behind her, and that Nguyen=E2=80=99s vehicle hit them. Bibai =
testified that=20
Nguyen stated at the scene that his foot had slipped and that she =
believed=20
that the damages to the mini-van were consistent with =
Nguyen=E2=80=99s foot having=20
slipped off of the brake. Nda testified that Nguyen slammed into =
the back=20
of the mini-van, but that Nguyen had stated after the collision =
that he=20
had just changed lanes when he hit them.
<=
/SPAN>At=20
the close of trial, the jury was instructed on negligence as=20
follows:
=E2=80=9CNegligence=E2=80=9D means =
failure to use ordinary care,=20
that is failing to do that which a reasonable person or ordinary =
prudence=20
would have done under the same or similar circumstances, or doing =
that=20
which a person of ordinary prudence would not have done under the =
same or=20
similar circumstances.
=E2=80=9COrdinary care=E2=80=9D means =
that degree of care that=20
would be used by a person of ordinary prudence under the same or =
similar=20
circumstances.
=E2=80=9CProximate cause=E2=80=9D means =
that cause which, in a=20
natural and continuous sequence, produces an event, and without =
which=20
cause such event would not have occurred. In order to be a =
proximate=20
cause, the act or omission complained of must be such that a =
person using=20
ordinary care would have foreseen that the event, or some similar =
event,=20
might reasonably result therefrom. There may be more than one =
proximate=20
cause of an event.
<=
/SPAN>The=20
question posed to the jury was, =E2=80=9CDid the negligence, if =
any, of=20
[Nguyen (and/or Imeh)] proximately cause the occurrence in =
question?=E2=80=9D=20
(Emphasis added.) The jury unanimously answered, =
=E2=80=9CNo.=E2=80=9D=20
<=
/SPAN>Evidence=20
supporting the finding exists in the testimony of Nguyen and =
Bibai. Nguyen=20
testified that his foot accidentally slipped off of the brake and =
onto the=20
accelerator, causing Nguyen=E2=80=99s vehicle to lurch forward. =
Bibai did not=20
dispute Nguyen=E2=80=99s testimony; rather, she testified that she =
believed that=20
the damage to the vehicle was consistent with Nguyen=E2=80=99s =
testimony. Contrary=20
evidence is found in Nda=E2=80=99s testimony. Nda testified that =
Nguyen had stated=20
at the scene of the collision that he had just switched lanes when =
he=20
struck appellants.
<=
/SPAN>Assessing=20
the credibility of the witnesses is within the province of the =
jury.=20
See Jackson, 116 S.W.3d at 761; Neese, 845 S.W.2d at =
314=E2=80=9315.=20
Here, appellants failed to prove to the satisfaction of the jury =
that=20
Nguyen was negligent in allowing his car to move forward and =
strike=20
appellants=E2=80=99 vehicle.
&nbs=
p;Considering=20
the record as a whole, we cannot conclude that the evidence is so =
weak or=20
that the finding is so against the great weight and preponderance =
of the=20
evidence that it is clearly wrong and unjust. See Francis, =
46=20
S.W.3d at 242; Barkley v. Dudley, 495 S.W.2d 280, 282 (Tex. =
Civ.=20
App.=E2=80=94Houston [1st Dist.] 1973, writ ref=E2=80=99d n.r.e.) =
(concluding that=20
evidence would permit, but did not require, an inference of =
negligence and=20
upholding jury=E2=80=99s finding that driver was not negligent =
after foot slipped=20
from clutch pedal in rear-end collision at stop sign). We hold =
that the=20
evidence is factually sufficient.
<=
/SPAN>Accordingly,=20
we overrule appellants=E2=80=99 second issue.
Exclusion of=20
Evidence
<=
/SPAN>In=20
their first issue, appellants contend that the trial court erred =
by=20
excluding photographic evidence of the damage to the mini-van and =
an=20
estimate of the cost of repairs. The trial court excluded the =
evidence on=20
the bases that Nda did not have title to the mini-van and that the =
damage=20
estimate constituted hearsay.
<=
/SPAN>The=20
record shows that appellants objected at trial to the exclusion of =
this=20
evidence. In their offer of proof, appellants asserted that the =
evidence=20
would support Nda=E2=80=99s claim of damages to the =
mini-van. ![3DFootnote](3D"")
Specifically, Nda would testify that she =
owned the=20
mini-van. In addition, contended appellants, the damage estimate =
was=20
submitted by Nguyen and therefore did not constitute hearsay.=20
<=
/SPAN>We=20
review a trial court=E2=80=99s decision to exclude evidence for an =
abuse of=20
discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 =
S.W.2d 35,=20
43 (Tex. 1998). A trial court abuses its discretion when it acts =
without=20
reference to any guiding rules or principles. Id. We must =
uphold=20
the trial court=E2=80=99s evidentiary ruling if has any legitimate =
basis.=20
Id. Unless an erroneous evidentiary ruling by the trial =
court=20
probably caused the rendition of an improper judgment, we will not =
reverse=20
the ruling. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d =
887,=20
906 (Tex. 2000).
<=
/SPAN>As=20
Nguyen contends, appellants sought to admit the evidence at issue =
to=20
support their claim of damage to the mini-van. However, the jury =
found=20
that Nguyen was not negligent. As such, appellants have not shown =
that any=20
error in the exclusion of the evidence of damages probably caused =
the=20
rendition of an improper judgment regarding liability. See =
Malone,=20
972 S.W.2d at 43. Without a finding of liability, the level of =
damages is=20
immaterial. See Mitchell v. Bank of Am., 156 S.W.3d 662, =
627 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2004, pet. denied). =
<=
/SPAN>We=20
cannot conclude that the trial court abused its discretion by =
excluding=20
the evidence of damage to the mini-van. See Malone, 972 =
S.W.2d at=20
43.
<=
/SPAN>Accordingly,=20
we overrule appellants=E2=80=99 first issue.
CONCLUSIONWe affirm the trial =
court=E2=80=99s=20
judgment.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Taft, Hanks, =
and=20
Higley. |