## NUMBER 13 - 20 - 00 023 - CV COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

LUIS ENRIQUE GUEVARA, Appellant,

v. AMADO GAMBOA , Appellee.

On appeal from the County Court at Law No. 5 of Cameron County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva Memorandum Opinion by Justice Silva Appellant Luis Enrique Guevara brought suit against appellee Amado Gamboa alleging Gamboa negligently caused an automobile accident and injured Guevara. After

a jury trial, both parties moved for a directed verdict. Guevara attempted to use a prior written statement, filed with the court but not introduced into evidence, as conclusive proof2 of his claim. Gamboa, on the other hand, moved for a directed verdict based on Guevara’s failure to identify Ga mboa as the alleged tortfeasor during trial . The trial court granted Gamboa’s motion and entered a take

- nothing judgment for Guevara

. By one issue, Guevara challenges the trial court’s ruling , alleging the trial court erred by failing to take judicial noti ce of the prior statement , despite not requesting the trial court to take judicial notice . We affirm.
I. B ACKGROUND On February 9, 201 8 , Guevara filed an original petition against Gamboa. According to his petition , Guevara was stopped at a traffic light in hi s vehicle when Gamboa’s vehicle struck him from behind , causing Guevara to sustain injur y. On April 2, 2018 , Gamboa filed a statement that reads: To whom it may concern, I, Amado Gamboa IV, would like to submit this as my official statement. I concede the fact that my actions were wrong. However, it is equally wrong for the plaintiff to attempt to use the situation for personal financial gain. The plaintiff has already made a claim to my insurance company and the plaintiff had my personal information and co uld have contacted me had there been any necessity for assistance or compensation for medical bills but did not. If there is a legitimate expense that my insurance did not c over for the plaintiff, I am willing to consider looking over and covering said exp enses. Best Regards, A mado Gamboa IV On May 25, 2018, Gamboa filed an original answer, containing a general denial and jury demand. A jury trial was held on September 16, 2019. The only witness to testify during trial was Guevara, and no exhibits were admitted. In relevant part, the following exchange occurred: [Guevara’s Counsel]: What out of the ordinary occurred, if anything? [Guevara]: I was involved in a motor vehicle accid ent. A vehicle hit me from behind.3 [Guevara’s Counsel]: Talk as loud as you can. [Guevara]: I was involved in an accident. A vehicle hit me from behind. Guevara did not identify who was driving the vehicle that struck him, nor did he implicate Gamboa in any manner. Guevara and G a mboa both rested their cases in chief following Guevara’s testimony. After both parties rested, each moved for a directed verdict. Guevara sought a directed verdict based on Gamboa’s counsel ’s opening statement in which he “admitted that [ Gamboa ] was at fault.” 1 Gamboa ’s motion for a directed verdict was based on the lack of evidence implicating Gamboa. Guevara subsequently sought to include Gamboa’s
statement from April 2, 2018, where he “concede[d] the fact that [ his ] actions were wrong.” The trial court denied Guevara’s motion, noting that the statement was not presented as evidence and that opening statements are not evidence. See Weslaco Fed ’n of T chr s

. v. Tex. E duc. Agency , 27 S.W. 3d 258, 263 (Tex. App.

— Austin 2000, no pet.) (holding that

an attorney’s opening statement was not evidence and did not constitute a judicial admission). After reviewing the record with the parties’ attorneys, the trial court agreed that Guevara failed to present any eviden ce that implicated Gamboa as the tortfeasor , and granted Gamboa’s directed verdict

. This appeal followed.
II. S TANDARD OF R EVIEW The test for reviewing a directed verdict is the same as a review of legal sufficiency

. City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005)

. In reviewing the granting of a

1 It is unclear whether Gamboa’s counsel admitted fault during opening statements; neither parties’ opening statements were included in the reporter’s record based on Gamboa’s request that the reporter exclude them fro m the record. The appellant bears the burden of producing a sufficient record for appellate review. See Enter

. Leasing Co. v. Barrios , 156 S.W.3d 547, 549 (Tex. 2004) (per curiam).4 directed verdict, we must determine whether there is more than a scintilla of evidence to raise a fact issue on each element of the plaintiff’s claim. Coastal Transp. Co. v. Crown Cent. Petroleum Corp, , 136 S.W.3d 227, 233

– 34 (Tex. 2004). We consider all of the evidence in a light most favorable to the non

- movant. Id. If the evidence supporting a finding on each element rises to a level that would enable reasonable and fair

- minded people to differ in their co nclusions, it constitutes more than a scintilla of evidence and the case must be reversed and remanded for a jury determination. Id. A directed verdict is proper “where the plaintiff fails to present evidence in support of a fact essential to [their] right to recover

. . . .” Villegas v. Griffin Indus

. , 975 S.W. 2d 745, 749 (Tex. App.

— Corpus Christi

– Edinburg 1998, pet. denied). A party’s statements made during open ing arguments are not evidence. See Weslaco Fed’n of Tch r s

. , 27 S.W.3d at 263. We review the granting of a directed verdict de novo. Donald v. Rhone , 489 S.W.3d 584, 588 (Tex. App.

— Texarkana 2016, no pet.).
III. A PPLICABLE L AW A. Negligence The elements of neglig ence are: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached that duty; and (3) the plaintiff sustained damages proximately resulting from the breach. EMI Music Mexico, S.A. de C.V. v. Rodriguez , 97 S.W.3d 847, 858 (Tex. App.

— Corpus Christi

– Edinburg 2003 , no pet.)

. Failure to present evidence in support of one of these elements is fatal to a plaintiff’s claim. Villegas , 975 S.W.2d at 749.
B. Judicial Notice Texas Rule of Evidence 201 governs a trial court’s ability to take judicial notice of an adjudicative fact. See T EX

. R. E VID

. 201. However, a court may not take judicial notice of a fact that is subject to reasonable dispute. Id. 201(b). Further, while a c ourt may take5 judicial notice of its own records , the court may not take judicial notice of the truth of the allegations in it s records. In re J.E.H. , 384 S.W.3d 864, 870 (Tex. App.

— San Antonio 2012 , no pet.); see also In re I.B. , No. 13

- 17

- 00098

- CV, 2017 WL 2806779 , *2 (Tex. App.

— Corpus Christi

– Edinburg June 29, 2017, no pet.) (mem. op) (providing same)

. A general denial is sufficient to place all matters ple a d ed by the adverse party into dispute. See T EX

. R. C IV

. P. 92 ; Estrada v. Dillon , 44 S.W.3d 558, 562 (Tex. 2001) (per curiam)

. IV. D ISCUSSION G uevara summarizes his argu ment by asserting that the trial court erred by failing to take judicial notice of Gamboa’s statement even though it had not been entered into evidence , and even though Guevara did no t request the court take judicial notice of the
statement

. 2 However, Guevara does not cite to any authority that would require a trial court to take judicial notice of a statement contained in the trial court’s records . Rather, Rule 201 prohibits a court from taking judicial notice of a fact that is subject to reasonable dispute. T EX

. R. E VID

. 201(b) . Further, while a court may take judicial notice of the pleadings on file, the court may not take judicial notice of the facts alleged in the pleadings on fil e. See In re J.E.H. , 384 S.W.3d at 870; see also In re I.B. , 2017 WL 2806779 at *2. Gamboa’s general denial placed all elements of Guevara’s claims in dispute , including liability

. See T EX

. R. C IV

. P. 92; Estrada , 44 S.W.3d at 562

. The trial court did not err by failing to take judicial notice of Gamboa’s statement.

2 Although Guevara’s summary of the argument asserts the trial court erred on this basis, his argument fails to “contain a clear and concise argument” and lacks “appropriate citations to authorities and to the record.” T EX

. R. A PP

. P. 38.1 (i). We note a part y may forfeit his or her complaint due to inadequate briefing. See id. ; see, e.g. , Smith v. Smith , 112 S.W.3d 275, 281 n.8 (Tex. App.

— Corpus Christi

- Edinburg 2993, pet. denied). Assuming, without deciding, that Guevara properly presented this issue for app ellate review, we address his argument on the merits out of an abundance of caution

. See Republic Underwriters Ins. Co. v. Mex

- Tex, Inc. , 150 S.W.3d 423, 427 (Tex. 2004).6 We further note that Guevara did not present any evidence that Gamboa caused or was otherwise involved in an accident with Guevara. See Rodriguez , 97 S.W.3d at 858. T he jury could not consid er statements made by Gamboa’s counsel during opening arguments as evidence. See Weslaco Fed’n of T chr s

. , 27 S.W.3d at 263. Nor could it consider Gamboa’s written statement, which was not offered into evidence at trial. Without any evidence that Gamboa ow ed or breach ed a duty to Guevara, there is not more than a scintilla of evidence to raise a fact issue as to breach

. Coastal Transp. Co. , 136 S.W.3d at 233

– 34

. Accordingly, the trial court properly denied Guevara’s motion for directed verdict and granted Gamboa ’s. See Villegas , 975 S.W.2d at 749. Guevara’s sole issue is overruled.
V. C ONCLUSION The trial court’s judgment is a ffirmed

.
CLARISSA SILVA Justice Delivered and filed on the 25th day of February , 202 1

.