## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00058

- CV

___________________________

On Appeal from the 352nd Distri c t Court Tarrant County, Texas Trial Court No. 352

- 281 484

- 15
Before Sudderth, C.J.; Womack and Wallach, JJ. Opinion by Chief Justice Sudderth 

### M ILLICENT 

### E DWARD S 

### , Appel lan t

V



### . L YNN 

### S MITH 

### C HEVROLET 

### , Appel l ee2 OPINION
In two issues, Appellant Millicent Edward s appeals the trial court ’ s take

nothing j udgment against her. Because the evidence is legally ins ufficient t o support a finding of direct negligence against A p pellee Lyn n Smith Chev rolet , w e affirm. Backg rou n d
In Jan uary 2014 Edward s ’ s car was hit by another car near the service ba y at Lynn Sm i th ’ s dealership. Edwards ha d taken her SUV to L ynn S mith fo r an oil change , but as she left , she noti ced that the oi l light was still on in her car , so she flagged down an empl oyee . While they were talking , another car back ed out of the

serv ice bay and hit her car , injur ing Edwards , who was sittin g in h er car at the time,
and damaging t he pane ling between Edward s ’ s r ig h t front ti re and her p assenger door

. In October 2015, Edwards sued L ynn Smith under a theory of vicarious liability for the negligence of th e person who backed t he car in t o her s and who
Edwards alleges was a Lynn Smith employee

. Edwards sought damages , including medical exp enses and pas t an d f uture physi cal pain and mental ang ui sh , fo r i nj u ries to her neck, back, and sho ulders as a result of the collision

. At trial, Edwards testified that at the time of the collision, she had not seen a
L ynn Smit h e m p loyee dri v ing the othe r car , nor did she know why the driver was backing out of t he service bay, but that she did not believe that the driver in tent ionally
caused the collision

. According to Edwards, the car w as driven back into the service
ba y after str i k

ing her v ehicle and a manager at Lynn Smith promised th a t the3

dealership w ould take care of the damage

. But , according to Edwards, she was

“ kindly blown off

” by Lynn S mith whenever she attempted to follow up on the promised repairs and eventually Lynn S m ith told h er they woul d not repa ir the
dama g e because it had be en “ too long. ”
In addition to offering her own t esti mony, Edwards cal led one other witness , Charles Clark, a servic e manager at L ynn Smith

. Clark testi fied that the location where the Janu a r y 2014 acc ident to o k p lac e was no longer open and that he did not know which employees Edwards had s poke n to on the day of the accident or who
backed the car into Edwards ’ s vehicle

. When Edwards rested her case , L ynn Smith rest ed , closed , an d moved fo r a dir e cte d v erd ict on the only theory raised in Edwards ’ s pleadings

— v i carious liability.
In support of its motio n, Lynn Smith a rgued that Edwards had failed to establish its
vi carious liability because Edwards had presented no evidence that th e collisio n was

c a use d by one of its employees

. The tri al court denied the motion and immediately proceeded to a “ charge conference. ” 1

1 The “ c h arge conference ” consist ed of 17 words and compris ed one question, two respo nses , and a reply : T H E COURT: I s th e j ury charge, as currently formulated , any issues with it? [ EDWARDS ’ S COUN SEL]: I don ’ t think so

. [ L YNN SMITH ’ S C OU NSEL]: No.4

The only liability question submitted to the jury in the char ge was a direct

- liability question, “ Did the neg

ligence, if any, o f [

L ynn Smith] proximately cause the occurrence or inj ury in question ? ” The ju ry a nswered that question “ yes ” and

awar ded Edwards $22 ,736 .00 in past m edical expenses and $2,500 .00 for pas t physical pain

. The parties f

iled competing po s t

ver dict motions. E dwards fil ed a motion seeking entry of judgment in conformity with t he jury ’ s verdict , and Lynn Smith fil ed
a motion for judgment n otwi ths tanding the verdict ( JNOV )

. Edwards also filed a motion for le ave to amend her p leadin gs to a dd direct negligence cl a i ms agains t Lynn

THE C OURT: Okay. To put this in context, i n its “ Order

— Re garding Jury Char ge , ” t he tr ial court had r e qui red the par ties to s ubmit an agreed charge before trial began. Because here
w e are not aske d to decide whether r equiring part ie s to agree or ob ject to a proposed charge prior to the closing of the evi dence in a case is reasonable , we do not address th a t i ssu e. But o ur decision in this case should not be interpret ed as an approval of
suc h a p rac tice. See Tex. R

. Civ. P. 272 (requiring the trial c ourt t o give the parties “ a reasona ble time

. . . in whi ch to exa mine and present objections ” to the propos e d j ury charge )

. As the Texas Supre me Court has explained, the trial cour t ’ s interest i n effici ency “ should be balanced w ith a trial judge ’ s ultimat e duty to provide the jury with a legally correct charge

. ” King Fisher Marine Serv., L.P

. , v. Tamez , 443 S

. W .3 d 8 38, 84 6 ( Tex. 2014)

. And , a s further noted in King Fish er , “ [T]he preparation o f the ch arge comes ‘ at that very d ifficult point of the trial bet ween t h e close of evidence and summation

. ’ ” Id. at 846

– 47 ( quotin g Sta te Dep ’ t of Highway s and Pub. Transp. v. Payne , 8 38 S.W. 2d 235, 240 (Tex. 1992)) (emphasis added) ; c f. Wacke nhu t Corp. v. Gutie rrez , 453 S .W.3d 917, 920 n.3 ( Tex. 2015) (

noting that a no

- evide n c e obj ection to a question in the jury charge “ cannot pro perly be asserted before trial ” because it i s “ premised on th e evidence (or lack thereof

) pre sented at tri al ” ).5

Smith based on its general negligence, including negl igent supervision

. The trial court
gra nted Lynn Smith ’ s motion for JNO V and rende red a t a ke

- noth ing judgment.
Di scussion
Edwards bri ngs two issues on appeal: (1 ) the trial court abuse d its discr etion by
den ying her motion for leave to ame nd her pleadings to add a direct

- negligence claim
and (2) the trial court erred by granting Lynn Smith ’ s motion for JN OV. Edward s

con cedes that t h e pleaded theo ry o f vicarious liability was not t ried b efore the jury,
and sh e instead focuses her first issue on her argument that Lynn S m ith ’ s direct negligence was tried by consent. But even if we were to agree with Edward s that
direct neg l igence was tried by consent or that the trial court erred by denyi n g her
moti on for leave to ame nd her pleadings , 2 our rul ing would not benefit Edwards
becau se the evidence is still legally insufficient to support a direct

- negligence verd ict

a gainst Lynn S mith

. See Tex. R

. App. P. 44.1 (a)(1 )

. Th us, the tri al court did n ot
reversi bly err by d enying Edwards ’ s motion to amend her pleading s nor by granting Lynn Smith ’ s request for JN O V

. Upon a party’s motion and reasonable notice, a trial c ourt may disrega r d a jury
verdict and render a JN OV if no evidence supports the jur y fi n ding o n an issue

n ecessary to liability or if a direc ted verdict wou ld have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003); Fo rt Bend Cty. Dra i n age Dist . v. Sbrusch , 818 S.W.2 d 392, 394 (Tex. 1991). A directe d ve r dict i s proper onl y under

2 We do not so hold.6

limited circumstances : (1) when the evide nce conc lusively establishes the movant’s right to judgment or negates the opponent’s right or (2) w hen the evidence i s insuff icient to raise a mater i al fact issue. Prudential Ins. C o . of Am

. v . Fin . Revie w Servs.,
Inc. , 29 S.W.3d 74, 77 (Tex. 2000); Playoff Corp. v. Blackwell , 300 S.W.3d 451, 454 (Tex. App.

— Fort Worth 2009, pet. denied) (op. on reh’g).
To determine wheth e r the tri al court erred by rende ring a JNOV, we test legal
suf f iciency by view

ing the evidence in the light most favor able t o the verdict. See Ing ram v. Deere , 288 S.W.3d 886, 893 (Tex. 2009); Wal

- Mart Stores, Inc. v. Miller

, 102
S.W.3d 7 06, 709 (Tex. 20 0 3 ). This means we must cre dit e vidence favoring the jury
verd i ct if r e as onabl e juror s could and must disregard contra ry evi dence unless

re asonable jurors could not. See Tanner v. Nationwide Mut. Fire Ins. , 289 S.W.3d 828, 830 (Te x. 2009) ; Cent. Ready Mi x Concrete Co. v. Islas

, 228 S.W. 3d 649, 651 (Tex. 2007).
We w i ll upho l d the t rial co urt’s JNOV if no evidence support s the jury’s finding on a vit al fact or if the evidence conclusively establishes the opposite of a vital fact. C ity of
K eller v. Wilson , 1 68 S.W.3 d 802, 810 (Tex. 2 005). “[ E ] very reasonable inferenc e deduci b le from the ev

idence is to be indulged in ” supp ort of the jury’s fin ding.
B ustamante v. Ponte , 529 S.W.3d 447, 456 (Tex. 2017) ( quoting Merrell Dow Pharm

. , Inc . v. Hav ner , 953 S.W.2d 7 0 6, 711 (

Tex. 1997) ).
In its JNOV motion, Lynn Smith argued th a t (1 ) Edwa rds ’ s vica ri ous

- liability
claim failed be cause there was no jury finding t hat one of its employees was negligen t , (2) the submission o f its direct negligence was imp roper as a matter o f law because7

Edwards d id not plead that theory of liab ilit y , (3) Edward s ’ s pleading s did not support the jury ’ s verdict , (4) the evidence was legally i nsufficient to support the jury ’ s finding of negligence against Lynn S mith even if Edwards had pleaded i ts d irect negligence ; and ( 5) Edwards waived her vicarious

- li a bility cla im because s he failed to seek an d obtain a jury finding on whether one of its employees was acting in the course and
scope of employment

. T he trial court did not expres s ly state which ground it relied upon in granting the motion

. E stablish ing g eneral ne gligence re q uires proof of a duty, a breach of that duty, and damages proximately caused by the breach

. Kroger Co. v. Elwood , 197 S.W.3d 793, 794 (Tex. 2006)

. As for n e gligent supervision , Edwards had to show that Lynn Smith, as an employer, f

a i led to us e ordinary c are to ad equately superv is e its employ ees. Mackey v. U.P. Enter

s . , Inc. , 935 S .W.2d 446, 459 (Tex. App.

— Tyler 1996, no w rit

) ; see also Dangerfield v. Or

msby , 264 S. W. 3d 904, 912 (Tex. A p p.

— Fort Worth 2008, no pet.) ( “ [ A] n employer i s liable fo r negligent

. . . supe rvision if it hires an incompetent or unfit employee whom it k nows, or by the exercise o f reasonabl e care sh ould h ave known, was incompetent or unf i t, thereby creati ng an unreasonable risk of harm to
others

. ” )

. In this ca s e, there i s no e videnc e that a Lynn Smith employee

— let a lone a poorly supervised one

—

was dri vi ng the car that struck Edwards ’s , and , relate dly,
there is no evidence that any Lynn

- S mith

- related party was driving the car that hit
Edwards

. Edwards admitted i n her test imony that s he did not see a Lynn Smith8

employe e driving th e veh icle, that she did not believe a Lynn Smith employee intentionally struck her car, and that she did not k n ow anything about what any Lynn
Smith employee may have been do ing a t the t i me of the acc ident

. W hile she did testify that “ they drove the car back into the bay ” after the ac cident , there was no
clarification of who “ they ” was or if it w a s a Lynn Smith employee. And Clark
testified that he did not know if an employee was dri vin g the car.
To fill t hese obvious evidentiary gaps , Edwards argues in her brief that Lynn
Smith ’ s “ intransigence ” during the discover y process e n titled her to rely on the
do ctrine of res ips a loquitor

. But this argument places the cart before the horse

. Applying res ipsa loq uitor h ere would require us to presume the very fact that Edwards must prove to invoke res ipsa loquitor, i.e., that the car was under the management and control of Lynn Smith at the time it hit her

. A s the Supreme Court has explai n ed,
The te rm “res ipsa loquitur ” means “the thing speaks for itself.” As the translation implies, res ipsa is used in certain limited type s of cas es when the circu m stances surrounding the accident constitute sufficient circ u mstantial evidence of the defe n dant 's neg ligence to su pport such a finding. The doctrine is applicable only when two factors are present: (1) the character of the accide nt is su ch that it would n ot ordinarily occur in the absence of negligence; and (2) t h e instrumentality causing the i njury is
s hown to have been under the manage ment and control of the defendant. Unless both factors are present, the jury cannot reasonably infer f rom the circumsta n ces of the accident that the defendant was negligent.
Mar a thon Oil Co. v. Sterner

, 632 S. W .2d 57 1, 5 73 (Tex. 198 2) ( citations omitted ) ( emphasis added) . Because Edwards has failed to offer any evidence that the c ar that9

hit hers was in any way managed or controlle d by Lynn Smith, or any of its employees, she cannot rely upon the doctrine of re s i p sa loquitur to pro ve Lynn
Smith ’s negligence. Id

. And Edward s ’ s a rguments that Lynn Smith ’ s recal citrance during the discovery process and r efus al to supply her wit h th e name of the employee who was allegedly driving the offendin g vehicle somehow abr oga t es her burden o f p roof are of no avail.
E ven if Lynn Smith had wrongfully withheld discov ery , Edwards still bore the burden of prope rly pleading a nd proving a vi able cause of action against Ly nn Smith

. Except with regard to death

- penalty sanctions, dis c overy abuse is no t punishe d by relieving a party of its obligation of proving its case. 3 Furthermore, fashioning t he
pro per remedy for disco very abuse is within the s ound discretion of the tria l c ourt

—

not the appellate courts

— and only after a proper m otio n has been file d. Horizon Health Corp. v. Acadia Healthcare Co. , 520 S.W.3d 848, 8 84 (Tex. 2017) ( “ Rule 215 generally leaves sanctions to the sound discretion o f the trial court

. ” ). The rec ord
does not indicate that Edward s fil ed any motion seeking t o c o mpel such infor mat ion
from Lynn Smith or sought sanctions for failing to comply with discovery requests

. Se e Tex. R. Civ. P. 215.2 ( permi tting trial court t o or d e r as sancti ons designate d fac ts to be established for purposes of the actio n). We reject thi s argument.

3 Edwards cites no authority for t he propo sition that res i psa loquitor may be imposed as a discovery sanction, and we decline to so hold her e.10

Beca u se the evi dence was legally insufficient to support the jury ’ s finding of direct negl igence against Lynn Smith, the trial court did not err by g r a nting JNOV on that groun d. W e therefore overrule Edwards ’ s second issue

. Likewise, b eca use the re was no ev ide nce to s upport a direct negligence finding against Lynn Smith, the trial court did not abuse its discretion by denyin g Edwards ’ s motion for lea v e t o a mend her pleadings to add a direct negligence cause of action

. See Ge is v. C

olina d el R io, L.P. , 362 S .W. 3d 100, 115 (Te x. App.

— San Antonio 2011,
pet. denied) (explaining that a trial amendment is mandatory if it i s merely procedural in nature, suc h as wh en conformi ng the pleadings to the evidence presented at trial )

. We overrule Edward s ’ s first issue.
Co nc l usion
H aving overruled both of Edwards ’ s issue s , w e a ffirm the trial cour t ’ s judgme nt
.

/s/ Bonnie Sudderth B onnie Sudderth Chief Just ice
Deliv ered: April 2, 2020