## In the Court of Appeals Second App ellate District of Texas

at For t Worth

___________________________ No. 02

- 21

- 00228

- CV

___________________________

On Appeal from County Court at Law No. 3

Tarrant County, Texas Trial Court No. 2017

- 002237

- 3

Before Sudderth, C .J.; Birdwell and Bassel, JJ. Memorandu m Opinion by Chief Justice Sudderth 

### T HERISA 

### R. B LUE 

### , Appellant

V


### . C VITA 

### Z. H ANSHAW 

### , Appellee2 MEM ORANDUM OPINION In one issue, Ap pellant Therisa R. Blue raises a factual sufficiency challenge to a jury finding of no negligence in a personal injury lawsuit

. Blue filed suit against Appellee Cvita Z. Hanshaw for pe rsonal injury d amages that Blue co ntended she sustained as a result of a n automobile collision between the two parties. In response to the question as to whether Hanshaw ’ s negligence caused Blue ’ s injuries, the jury answered “ no , ” a nd t he trial court en te red a take

- nothin g judgm ent on the verdict. On appeal, Blue argues that th e jury verdict was against the great weight a nd prepo nderance of the evidence. Although Hanshaw did not file a n appell ee ’ s brief in re s ponse , we nevertheless hold that Blue ’ s issue was not properly preserved for our review, and therefore w e affirm. At approximatel y 8:45 a.m. on May 18 , 2015, Hanshaw was in her vehicle in a bank ’ s drive

- through lane waiting for the bank to open for busin e ss at 9 :00 a.m. From the record it appears t h at t he parties agree that a t some point, Blue pulle d her

ve hicle in to the same lane and behind Hanshaw ’ s car , and some time the reafter, Hans haw attempted to back her veh icle out of the la ne . In doing s o, Hanshaw ’ s vehicle colli ded into Blue ’ s. The storie s diverge somewhat at this point. At trial, Blue claimed that she had been waiting b ehind Hanshaw ’ s vehicle for ten minutes bef

ore Hanshaw backed her v ehicle in to he r s . But Ha nshaw testified that she looked in her rear

view mirror prior to backing up and s a w no one behind her, she3

looked down for mere “ seconds ” to put her gear into rev erse , and then “ all of a sudd en , ” as she was ba cking up, Blue ’ s car was there

. Bl ue described the impact as sudden and Hanshaw ’ s sp eed as fast. According to Blue, the impact “ t hr ew [her] foot and [her] leg back, ” causing her knee to hit the console and driving her leg “ into [her] hip. ” She sai d she f elt like her foot had been

“ shattered

. ” But Hanshaw char acterized the collision as minor and testified that her speed was at a “ cra

wl ” at the time of the impact. As Hanshaw explained, “ you really

can ’ t get a lot of speed just backin g u p in a dr ive

- through lane. ” Blue claimed to have sustained injuries to her neck, back, hip, leg , and foot as a

resu lt of this collision , injuries wh ich prevented her from being able to e ngage in activities that she had e njoyed in the past

— w alki ng, dancing , and aerobics

. According to Blue, s he also could not perform housekeeping or yard work to the extent that she had been a ble to befor e the collision

. But Hanshaw pointed to evidence that Blue ’ s p ain ste mmed from a degenerative disc dis ease that was exacer bated by Blue ’ s smoking and obesity

. Almost two years after the collision , Blue filed suit against Hanshaw, and more than four years after that, the case was t ried to a jury. In response to Question No. 1 of the jury charge

— “ Did the negligenc e, if any, of Cvita Z. Hanshaw proximately cause the inju ries in question ? ”

— the jury answered “ no. ” On appeal Blue argues that b ecause she had te s tified that sh e had been sitting behind Hanshaw for ten minutes before Hanshaw back ed into her , because Han sh aw admitted that she had backed into4

Blue and did not make a claim fo r contributory negli gence , and because the re was evidence th at Blue sustained injuries and i mpairment as a result of the collision, the jury finding was ag ainst the great weight and prepo nderance of the evidence and must be reversed

. But this is not the standard of review we apply to a factual su fficie ncy challenge. Instead of looking at iso la ted facts that tend to negate the jury finding, we are to consider and w eigh all of the per t inent evidence in t he record. Pool v. Ford Motor Co. , 715 S.W.2 d 629, 635 (Tex. 1986) (o p. on reh’g); C ain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alv ia r , 395 S.W.2d 821, 823 (Tex. 1965). Only if the f inding is

so cont rary to the overw helming weight of all th e evidence as to be manifestly unjust, shock the consci ous , or clearly demonstrate bias are we to set asi de the finding and order a new trial. Po ol

, 715 S.W.2d at 635

. But b efore we begin this evi dentiary review , we first m ake a threshold inquiry : has Blue ’ s fact ual sufficiency challenge been preserv ed for our review ? To preserve error , Bl ue must hav e comp l ained in a motion for new trial that the j ury ’ s answer was against the overwhelming weight of the evidence. Tex. R. Civ. P. 324(b)(2)

– (3 ); see In re M.S

. , 115 S.W.3d 534, 547 (Tex. 2003)

. T h e record h ere doe s not show that Blue filed a ny mo tion for ne w tria l

. See Tex. R. App. P. 3 4. 5(a)(6) (p ro viding that the clerk ’ s record must include copies of any post

- judgment motion). Thus, Blue ’ s factual suffi ciency complaint has not been preserved for our re view

.5

We overrule Blue ’ s factual suffic ien c y point . Hav ing overruled Blue ’ s sole point on appe al , we affirm the t rial court ’ s judgment.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Delivere d: July 7, 2022