1 In The


### Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09

- 21

- 00087

- CV



### ________________

BRITTANY N. FRANKS , Appellant

V.

JANCIE R. HORTON , Appellee

________________________________________________________________________ On Appeal from the 457 th District Court Montgomery County, Texas Trial Cause No. 18

- 11

- 15548

- CV

________________________________________________________________________

MEMORANDUM OPINION
Brittany N. Franks sued Janice R. Horton for injuries she allegedly sustained

as a result of a motor vehicle collision. 1 After a jury trial, the jury found Horton was
not negligent in the cause of the accident and the trial court entered a final judgment

1 For the purpose of disclosing potential conflicts, we note that Justice Horton is not related to Janice Horton.2 that Franks recover nothing from Horton. Franks now appeals from the take

- nothing
judgment

. Finding no reversible error, w e affirm the trial court’s judgment.

I. Background
In addition to the summarized testimony below, portions of a doctor ’s
videotaped deposition w ere played for the jury

. Th ose deposition excerpt s are not
included in the appellate record. However, because of our disposition of this appeal,
such evidence was unnecessary for our consideration.

A. Brittany Franks’ s Tes t imony

Plaintiff Franks testifie d that shortly before the accident, she and other

vehicles we re stopped at a red light. S he stated that while she was stopped, she

looked in her rear

- view mirror and saw Defendant Horton’s vehicle “coming off 99
really fast,” and that Horton caused a chain reaction collision by striking the vehicle

behind Franks
, which then struck Franks’s vehicle

. As a result of the impact,

Franks’s vehicle struck the vehicle in front of her. F ranks stated that she spoke to

Horton at the scene and that Horton apologized for the accident, stating that she had

dropped her phone, an d stooped to retrieve it , thus causing the accident.

Before the accident, Franks was uninjured ; afterward, in contrast, she has
experienced unremitting pain in her neck and low back. Franks testified that t he

effects of the accident have interfered with he r ability to sleep. Franks further3 mentioned depression and anxiety , indicating that she has a constant fear of being in

another motor vehicle accident

.

B. Ghada Badr’s Testimony

Badr was the driver of the front car in the collision . She indicated that the red
light at the intersection had just turned green, and she therefore was about to begin

moving forward when she was struck from behind by Franks’ s vehicle. Neither she

nor her passengers were injured in the collision.

C. Jose Montemayor’s Testimony

Montemayor, the Department of Public Safety officer who investigated the

accident, described his responsibilities in that position, as well as his training,
including training in the field of accident investigation. He further descri bed his
usual approach to the investigation of an accident, noting that it includes assuring

everyone’s safety
, interviewing the p eople involved in the collision
, and forming an
opinion regarding the cause or causes of the accident. In his opinion, Horton’ s failure

to control speed was a cause of the accident ; he did, however, acknowledge that

“failure to control speed [] ” was not the same as exceeding the speed limit or driving

at an unsafe speed
, and further acknowledged that he did not investigate the speed
of any of the vehicles involved in the collision.4 He described the damage to Franks’ s vehicle as shown on the accident report,
noting that on a scale of zero to seven, it had a damage rating of two and was not

towed from the scene

.

D. Ke ith Ross’ s Testimony

Ross, Franks’ s stepfather
, testified that he went to the accident scene as soon

as he learned of the collision

. He indicated that although he did not speak directly
with Horton, he overheard her say something about having dropped her p hone ; he
consequently assumed that Horton was using her phone at the time of the accident.

It was not until Defendant’s cross

- examination of him that he heard that Horton ’s
phone had fallen to the floor of her vehicle, and she attempted to retrieve it so t hat it

would not interfere with her driving; and he agreed that under those circumstances,

it would be prudent to retrieve the fallen object.

E. Horton’s Testimony

Horton testified that before the accident, she had placed her p hone on the

center console of her car. When the phone unexpectedly fell to the driver’s side floor

of the vehicle, she w as concerned that it might become lodged under either the

accelerator or the brake pedal, and s he therefore reached down to retrieve it
, accidentally causing the collision made the basis of this case. Sh e acknowledged that

she was using her phone shortly before the accident, and again shortly thereafter, but

denied using her phone at the time the ac cident occurred

.5 Although Horton conceded that she caused the accident in question, she did
not admit to having done so through her negligence

.

II. Standard of Review

The essence of Franks’ s appeal is that the evidence compelled a liability
decision in her favor. More specifically, she argues that the evidence was legally and

factually insufficient to support the jury’s finding that “ Horton was not negligent. ”

When a party who had the burden of proof brings a legal sufficiency issue
complaining of an adverse finding, that party must demonstrate that the evidence

establishes conclusively, i.e. , as a matter of law, all vital facts in support of the

finding sought by the party. Dow Che m. Co. v. F rancis , 46 S.W.3d 237, 241 (Tex.

2001); Sterner v. Marathon Oil Co

., 767 S.W.2d 686, 690 (Tex. 1989).

When a party who had the burden of proof complains of the factual

insufficiency of an adverse finding, that party must demonstrate that the adverse
finding is contrary to the great weight and preponderance of the evidence. Dow

Chem

. , 46 S.W.3d at 24 1-4 2; Cropper v. Caterpillar Tractor Co.
, 754 S.W.2d 646,

651

- 53 (Tex. 1988). We weigh all the evidence and set aside the adverse finding
only if it is so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust. Dow Chem

. , 46 S.W.3d at 242. In doing so, we must detail

the evidence and state in what regard the contrary evidence greatly outweighs the

evidence in support of the adverse finding. Id. We must also remember that it is6 within the province of the jury to determine th e credibility of the witnesses and the

weight to be given their testimony

. Brush v. Reata Oil & Gas Corp

. , 984 S.W.2d

720, 725

- 26 (Tex. A pp.

— Waco 1998, pet. denied). We will not determine the
credibility of a witness or substitute our judgment for that of the jury, even if the

evidence could support a different result. Maritime Overseas Corp. v. Ellis
, 971

S.W.2d 402, 407 (Tex. 1998) (citing Pool v. Ford Motor Co

. , 715 S.W.2d 629, 634

(Tex. 1986)). O ’ Connor v. Miller
, 127 S.W.3d 249, 254 ( Tex. App.

— Waco 2003,

pet. denied).

III. Analysis
At the outset, we note that the jury did not make an affirmative finding that

Horton was not negligent; instead, it failed to find that Horton’s negligence, if any,
proximately caused the collision. In other words, Franks, as the plaintiff, simply did

not meet her burden of proof as to one or more of the elements of her case. See JLG
Trucking, LLC v. Garza , 466 S.W.3d 157 , 164

- 65 (Tex. 2015) (discussing the burden

of proof).

A. Legal Insufficiency

The fact that Horton struck a vehicle from the rear does not establish her

liability to Franks

. See Jowdy v. Rossi, No. 01

- 19

- 00715

- CV, 2021 WL 279 3474 , at

*3 (Tex. App.

— Houston [1 st Dist

. ] July 6, 2021, no pet.) (mem. op.). In or der to

prevail, Franks must demonstrate all elements of her negligence claim against7 Horton

. Id. Moreover, to prevail on a legal sufficiency challenge, Franks must prove

these elements as a matter of law. Dow Che m. , 46 S.W.3d at 241

. Because the elements of duty
, causation , and damages do not appear to be the
subject of any appreciable controversy, we will focus on the requirement that Horton

ha d breached a legal duty to Franks by failing to operate her vehicle as a person of

ordinary prudence under the circumstances then presented. See D. Houston, Inc. v.

Love, 92 S.W.3d 450, 454 (Tex. 2002) (addressing the elements of actionable
negligence). Franks contends that she has met the requisite burden by showing that

Horton placed her phone in a location where it could become a hindrance, and that

Horton then compounded her error by attempting to retrieve her phone after it had

fallen to the floor beneath her feet. Although the undisputed evidence does, indeed,

show that Horton placed her cell pho ne on her center console and that the accident

occurred when she attempted to pick it up from the floor of the vehicle while exiting

from a freeway
, we disagree with Franks that either of these action s proves as a

matter o f law that Horton breached her duty of exercising ordinary care.

Franks has placed great emphasis on Horton’s testimony that her phone was
in an unsecured position and that she chose to try to pick it up after it fell to the floor ;

she claims that this evidence proves Horton’s negligence

. What this argument

overlooks, however, is th e fact that the cited testimony reflects Horton’s realization
of the risk after the fact and does not necessarily show that she then appreciated the8 possibility of her cell phone falling off her console, since it had not previously done

so. Horton’s choices, however, may not be judged in hindsight, but instead must be

evaluated according to the situation as it appeared to Horton at the time it occurre d

.
See Ft. Worth & D. C. Ry. Co. v. Alcorn
, 178 S.W. 833, 836 ( Tex. App.

— Amarillo

1915, no writ) ( addressin g the imprudence of assessing a party’s actions in hindsight

or with reference to possible alternative decisions ). Given this evidentiary posture

of the case, we cannot say that Franks has conclusively proven that Horton’s actions

were negligent, and we therefore overrule Franks’ s initial point of error.

B. Factual Insufficiency
In weighing the evidence supporting Franks against that supporting Horton,

we agree with Franks that th e evidence c ould have supported a jury verdict in

Franks’ s favor . Had the jury chosen to return such a verdict, we would not disturb

it , for it is the province of the jury, not this court, to determine the credibility of
witnesses and the weight to be accorded to their testimony. See Moore v. A l tra
Energy Techs., Inc., 321 S.W.3d 727, 739 (Tex. App.

— Houston [14 th Dist.] 2010,
pet. denied). The jury could have believe d that Horton was negligent, as that term
was defined in the court’s charge, yet it declined to do so.
In reaching its decision, t he jury may have decided that Horton did ex ercise

ordinary care , and that her “split

- second decision []” to retri eve her phone was not
negligent
, since it may have represented less risk of harm than permitting the phone9 to impede her use of the brake pedal . T he jury also may have found that Franks
simply did not meet her burden of proof to establish Horton’s alleged negligence. I n

neither instance are we inclined to second

- guess the jury, and we therefore overrule

Franks’ s second point of error.

IV. Conclusion

Because the evidence does not mandate a decision that Horton’s alleged
negl igence proximately caused the accident in question, we affirm the trial court’s

take nothing judgment in Horton’s favor.

AFFIRMED

.

________________________________ CHARLES KREGER Justice

Submitted on July 5, 2022 Opinion Delivered November 3, 2 022
Before Kreger, Horton and Johnson , JJ.