                                        In The

                                   Court of Appeals

                        Ninth District of Texas at Beaumont

                                 _________________

                                NO. 09-15-00086-CV
                                _________________

 JENNIFER OSAGIEDE, AS A REPRESENTATIVE OF THE ESTATE OF
                 SULE OSAGIEDE, Appellant

                                           V.

                    LAZARO AGUILAR, Appellee
__________________________________________________________________

                      On Appeal from the 136th District Court
                            Jefferson County, Texas
                           Trial Cause No. D-191,687
__________________________________________________________________

                           MEMORANDUM OPINION

       Appellant Jennifer Osagiede, as a representative of the estate of Sule

Osagiede, appeals the trial court’s judgment in favor of appellee Lazaro Aguilar

following a jury trial. In her sole issue on appeal, Osagiede argues that the trial court

abused its discretion by admitting into evidence a written statement by Aguilar that

was not properly notarized. For the reasons set forth below, we affirm the judgment

of the trial court.


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                                  I.    Background

      On the morning of January 21, 2010, Sule Osagiede (“Sule”), a student at

Tulane University, was driving west on Interstate 10 (“I-10”) from New Orleans to

Houston. At approximately 5:30 a.m., Lazaro Aguilar entered I-10 via the entrance

ramp at Martin Luther King, Jr. Parkway in Beaumont and began traveling west on

I-10 ahead of Sule’s vehicle. Shortly after Aguilar’s vehicle entered the highway,

Sule’s vehicle, which was traveling at a higher rate of speed than Aguilar’s vehicle,

approached Aguilar’s vehicle from behind. For reasons disputed by the parties,

Aguilar’s vehicle swerved to the right, struck the concrete barrier on the right side

of the interstate, and rolled over, landing upside down. Sule’s vehicle swerved to the

left, struck the concrete barrier on the left side of the interstate, and rolled, landing

on its side. No collision occurred between the two vehicles. Sule was ejected from

his vehicle during the accident and died at the scene.

      In January 2012, Sule’s mother, Jennifer Osagiede, filed a wrongful death and

survival action against Aguilar, asserting claims for negligence and gross

negligence. In September 2014, the trial court granted partial summary judgment in

favor of Aguilar on Osagiede’s claims for exemplary damages and damages under

the survival statute. In December 2014, Osagiede’s claim under the wrongful death

statute was tried to a jury. At the conclusion of the five-day trial, the jury returned a

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verdict in favor of Aguilar. On December 30, 2014, the trial court entered a take

nothing final judgment in favor of Aguilar and against Osagiede. Osagiede’s counsel

filed a motion for new trial on January 28, 2015. Thereafter, Osagiede’s counsel

withdrew from representation of Osagiede, and on March 2, 2015, Osagiede,

proceeding pro se, filed an amended motion for new trial. Osagiede’s motions for

new trial were overruled by operation of law on March 16, 2015. See Tex. R. Civ.

P. 4, 329b(c). This appeal followed.

                II.   Admission of Aguilar’s Written Statement

      In one issue, Osagiede contends that the trial court abused its discretion by

admitting into evidence a written statement that Aguilar made to the police on the

day after the accident. The record reflects that Beaumont Police Officer Melvin

Devaugh obtained the written statement at issue from Aguilar on January 22, 2010.

The statement purports to contain Aguilar’s recollection of events as they occurred

before, during, and after the accident. The statement is signed by Aguilar and

notarized by Officer Devaugh. However, the notary seal affixed to the statement

indicates that Officer Devaugh’s commission as a notary public expired on May 5,

2009—over eight months before Aguilar’s statement was signed and notarized.

      In her brief, Osagiede argues that the trial court erred by admitting the written

statement into evidence at trial because the statement was notarized by a notary

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public whose commission had expired. Specifically, Osagiede contends that Officer

Devaugh’s act of notarizing the statement after the expiration of his commission

constituted “a [breach] of faith as a public servant” and that the trial court’s decision

to “allow[] [the statement] into evidence [was] an unlawful act.” The record,

however, reflects that Osagiede was the one who first offered the written statement

into evidence. At the beginning of Osagiede’s case-in-chief, Osagiede’s counsel

sought to pre-admit several exhibits, including Plaintiff’s Exhibit 1, into evidence at

trial. Plaintiff’s Exhibit 1 consisted of records obtained from the Beaumont Police

Department, including a copy of Aguilar’s written statement. After identifying the

exhibits to be pre-admitted, Osagiede’s counsel specifically requested that the trial

court admit the exhibits into evidence. Aguilar made no objection to the admission

of Plaintiff’s Exhibit 1, and the trial court admitted the exhibit into evidence as

requested by Osagiede’s counsel. Thereafter, Osagiede’s counsel called Aguilar as

its first witness and used Aguilar’s written statement in an effort to impeach his

credibility. Before questioning Aguilar about purported inconsistencies between the

written statement and other statements he made about the accident before trial,

Osagiede’s counsel specifically questioned Aguilar in detail about the fact that

Officer Devaugh’s notary commission was expired at the time Aguilar signed the

written statement.

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      Now, on appeal, Osagiede argues that the trial court should not have admitted

Aguilar’s written statement into evidence. However, under the doctrine of invited

error, a party cannot request a specific action in the trial court and then complain on

appeal that the trial court committed error in granting that request. Tittizer v. Union

Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); Lamell v. OneWest Bank, FSB, 485

S.W.3d 53, 64 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). This rule,

“grounded in even justice and dictated by common sense,” is based on estoppel. Ne.

Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488 (Tex. 1942); Neasbitt v.

Warren, 22 S.W.3d 107, 112 (Tex. App.—Fort Worth 2000, no pet.). Applying the

invited-error doctrine to the facts before us, we conclude that Osagiede is estopped

from arguing on appeal that the trial court erred in making the very ruling that she

requested at trial.1 See Tittizer, 171 S.W.3d at 862; see also Rivera v. 786 Transp.,

LLC, No. 01-14-00430-CV, 2015 WL 3981708, *6 (Tex. App.—Houston [1st Dist.]

June 30, 2015, no pet.) (mem. op.) (“A party may not complain on appeal that

evidence was improperly admitted when that party elicited the evidence.”); In re



      1
         To the extent Osagiede contends that the invited-error doctrine does not
apply because Osagiede’s attorney, rather than Osagiede herself, offered the written
statement into evidence at trial, we cannot agree. It is well-settled that the attorney-
client relationship is an agency relationship and that an attorney’s acts and omissions
within the scope of his or her employment are regarded as the client’s acts. Gavenda
v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986).
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M.E.C., 66 S.W.3d 449, 455–56 (Tex. App.—Waco 2001, no pet.) (concluding that

because the appellant offered copies of certain temporary orders into evidence at

trial, he could not complain on appeal that their admission was error). We overrule

Osagiede’s sole issue and affirm the judgment of the trial court.

             AFFIRMED.


                                               _____________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on May 3, 2016
Opinion Delivered February 16, 2017

Before McKeithen, C.J., Kreger and Johnson, JJ.




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