Date: 11-30-2022

Case Style:

Therisa R. Blue v. Cvita Z. Hanshaw

Case Number: 02-21-00228-CV

Judge: Bonnie Sudderth

Court:

Second Appellate District of Texas at Fort Worth

On appeal from the 431st District Court of Denton County

Plaintiff's Attorney: Fort Worth, Texas - Best Personal Injury Directory

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Defendant's Attorney: Caitlin Hodge

Description:

Fort Worth, Texas – lawyer represented Appellant with raising a factual sufficiency challenge to a personal injury lawsuit..

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Blue filed suit against Appellee Cvita Z. Hanshaw for personal injury damages
that Blue contended she sustained as a result of an 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,” and the trial court entered a take-nothing
judgment on the verdict. On appeal, Blue argues that the jury verdict was against the
great weight and preponderance of the evidence. Although Hanshaw did not file an
appellee’s brief in response, we nevertheless hold that Blue’s issue was not properly
preserved for our review, and therefore we affirm.
At approximately 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 business at 9:00 a.m.
From the record it appears that the parties agree that at some point, Blue pulled her
vehicle into the same lane and behind Hanshaw’s car, and sometime thereafter,
Hanshaw attempted to back her vehicle out of the lane. In doing so, Hanshaw’s
vehicle collided into Blue’s. The stories diverge somewhat at this point.
At trial, Blue claimed that she had been waiting behind Hanshaw’s vehicle for
ten minutes before Hanshaw backed her vehicle into hers. But Hanshaw testified that
she looked in her rearview mirror prior to backing up and saw no one behind her, she
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looked down for mere “seconds” to put her gear into reverse, and then “all of a
sudden,” as she was backing up, Blue’s car was there.
Blue described the impact as sudden and Hanshaw’s speed as fast. According
to Blue, the impact “threw [her] foot and [her] leg back,” causing her knee to hit the
console and driving her leg “into [her] hip.” She said she felt like her foot had been
“shattered.” But Hanshaw characterized the collision as minor and testified that her
speed was at a “crawl” at the time of the impact. As Hanshaw explained, “you really
can’t get a lot of speed just backing up in a drive-through lane.”
Blue claimed to have sustained injuries to her neck, back, hip, leg, and foot as a
result of this collision, injuries which prevented her from being able to engage in
activities that she had enjoyed in the past—walking, dancing, and aerobics. According
to Blue, she also could not perform housekeeping or yard work to the extent that she
had been able to before the collision. But Hanshaw pointed to evidence that Blue’s
pain stemmed from a degenerative disc disease that was exacerbated 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 tried to a jury. In response to Question No. 1
of the jury charge—“Did the negligence, if any, of Cvita Z. Hanshaw proximately
cause the injuries in question?”—the jury answered “no.” On appeal Blue argues that
because she had testified that she had been sitting behind Hanshaw for ten minutes
before Hanshaw backed into her, because Hanshaw admitted that she had backed into
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Blue and did not make a claim for contributory negligence, and because there was
evidence that Blue sustained injuries and impairment as a result of the collision, the
jury finding was against the great weight and preponderance of the evidence and must
be reversed.
But this is not the standard of review we apply to a factual sufficiency
challenge. Instead of looking at isolated facts that tend to negate the jury finding, we
are to consider and weigh all of the pertinent evidence in the record. Pool v. Ford Motor
Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Only if the finding is
so contrary to the overwhelming weight of all the evidence as to be manifestly unjust,
shock the conscious, or clearly demonstrate bias are we to set aside the finding and
order a new trial. Pool, 715 S.W.2d at 635. But before we begin this evidentiary
review, we first make a threshold inquiry: has Blue’s factual sufficiency challenge been
preserved for our review?
To preserve error, Blue must have complained in a motion for new trial that
the jury’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). The record here does
not show that Blue filed any motion for new trial. See Tex. R. App. P. 34.5(a)(6)
(providing that the clerk’s record must include copies of any post-judgment motion).
Thus, Blue’s factual sufficiency complaint has not been preserved for our review

Outcome: We overrule Blue’s factual sufficiency point. Having overruled Blue’s sole
point on appeal, we affirm the trial court’s judgment.

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