                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-017-CV

DEBORAH FRAZIER                                                    APPELLANT

                                        V.

WESLEY RODEN                                                         APPELLEE

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          FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Deborah Frazier appeals a take-nothing judgment in favor of

Appellee Wesley Roden following a jury trial in a car accident case. In two

issues, Frazier argues that the trial court erred by including an instruction on

“emergency” in the jury charge and that the jury’s verdict is contradictory and

should be set aside. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      A.    Roden’s Version of the Accident

      Roden testified that on Friday, April 15, 2005, he was driving a Ford 250

truck north on Interstate 35E and was pulling a trailer with a horse in it. The

driving conditions were clear and dry. Traffic was slowing and starting to get

bumper to bumper. He was traveling at only twenty to twenty-five miles per

hour, following a dump truck that was approximately twenty-five feet in front

of him.

      Roden had been traveling in the right-hand lane for approximately twenty

miles when Frazier’s vehicle entered his lane from the left, pulling in front of

him. Roden immediately braked and turned his steering wheel to the right to

avoid hitting Frazier, but he bumped the back of her vehicle, making minor

contact with the passenger-side tail light. Roden’s truck suffered no damage.

He testified that Frazier said that she was fine and that she told the police at

the scene that she was not injured.

      Roden testified that there was nothing he could have done to prevent the

accident. He said that if he had jerked the steering wheel harder to the right,

he probably would have jack-knifed and flipped his truck and trailer. Roden said

that he did everything he could to avoid bumping Frazier’s vehicle; he felt like

Frazier should not have turned into his lane.

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      B.     Frazier’s Version of the Accident

      Frazier testified that she was traveling north on Interstate 35E in the right-

hand lane. She denied changing lanes in front of Roden. Frazier said that as

traffic slowed and started to back up, she was behind an eighteen-wheeler.

Frazier said that she looked in her rear-view mirror and saw Roden coming

towards her at a high rate of speed. Frazier said that she could not move to the

left because there was a car there. Frazier said that Roden hit her and that they

both moved to the shoulder.

      Frazier claimed that she told the police that her left groin, knee, and

ankle, as well as her neck, were sore. She sought treatment from her family

doctor on the Monday following the Friday accident. Frazier’s family doctor

referred her to Advanced Physical Therapy. Frazier also underwent an MRI, met

with an orthopedic surgeon, and sought chiropractic care. Frazier’s medical

bills totaled $10,241.72. On cross-examination, Frazier admitted that all the

imaging studies had benign findings and that the MRI indicated some

degeneration in her neck. Frazier also admitted that she had told the police

dispatch that there were no injuries as a result of the accident, that no

ambulance came to the scene, and that her doctor has not placed any

restrictions on her activities.




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      C.    Jury Charge and Verdict

      Over Frazier’s objection, the trial court included an “emergency”

instruction in its charge to the jury. Ultimately, the jury returned a verdict

finding neither Frazier nor Roden negligent and awarding Frazier $416 in past

medical expenses. The trial court signed a take-nothing judgment in favor of

Roden, stating that it appeared that the jury’s verdict was for Roden and

against Frazier. This appeal followed.

                   III. E MERGENCY INSTRUCTION W AS P ROPER

      In her first issue, Frazier argues that the trial court abused its discretion

by including the following emergency instruction in the jury charge:

      If a person is confronted by an “emergency” arising suddenly and
      unexpectedly, which was not proximately caused by any
      negligence on his part and which, to a reasonable person, requires
      immediate action without time for deliberation, his conduct in such
      an emergency is not negligence or failure to use ordinary care if,
      after such emergency arises, he acts as a person of ordinary
      prudence would have acted under the same or similar
      circumstances.

Frazier argues that submission of this instruction constituted error because no

evidence existed that Roden lacked time for deliberation before he took action.

      To warrant the submission of an instruction on sudden emergency, there

must be evidence that (1) an emergency situation arose suddenly and

unexpectedly, (2) the emergency situation was not caused by the defendant’s



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negligence, and (3) after the emergency situation arose, the defendant acted

as a person of ordinary prudence would have acted. Thomas v. Oldham, 895

S.W.2d 352, 360 (Tex. 1995); McDonald Transit, Inc. v. Moore, 565 S.W.2d

43, 44–45 (Tex. 1978). If evidence exists raising a fact issue regarding these

elements, the trial court should submit the requested instruction. Jordan v.

Sava, Inc., 222 S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); DeLeon v. Pickens, 933 S.W.2d 286, 294 (Tex. App.—Corpus Christi

1996, writ denied). Actions by other vehicles may create a sudden emergency.

See DeLeon, 933 S.W.2d at 294.

      We review the trial court’s decision to include a sudden emergency

instruction in its charge for an abuse of discretion. See Dew v. Crown Derrick

Erectors, Inc., 208 S.W.3d 448, 456 (Tex. 2006). “If an instruction might aid

the jury in answering the issues presented to them, or if there is any support

in the evidence for an instruction, the instruction is proper.” Louisiana-Pacific

Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998).

      Frazier focuses on the portion of the jury charge defining an emergency

as something that requires immediate action without time for deliberation and

argues that Roden’s testimony—that if he had jerked the steering wheel to the

right, he probably would have jack-knifed and flipped his truck and

trailer—establishes that Roden did have time to deliberate. Frazier argues that,

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in light this deliberation by Roden, no emergency occurred and that the

emergency instruction should not have been submitted.

      Roden, however, did not testify that he had time to deliberate or that he

did deliberate prior to the accident.2   Instead, Roden testified that Frazier’s

vehicle entered his lane from the left and that he “immediately put on [his]

brakes, and . . . turned the wheel to the right to try to avoid hitting her.”

Roden testified that he did not see Frazier’s vehicle until she came into his lane.

Roden agreed that there was nothing he could have done to prevent the

accident from occurring other than not be there.

      This testimony by Roden, as well as the other evidence introduced at trial,

raises at least an issue of fact on every element of sudden emergency. See

DeLeon, 933 S.W.2d at 294; see also Carter v. Helicopter Ambulance Serv. of

N. Tex., Inc., No. 05-95-00468-CV, 1996 WL 403987, at *5 (Tex.

App.—Dallas July 19, 1996, writ denied) (not designated for publication).

Consequently, the trial court did not abuse its discretion by submitting the

sudden emergency instruction. See DeLeon, 933 S.W.2d at 288, 294 (holding

that trial court properly submitted sudden emergency instruction when



      2
       … The record reveals that Roden gave that answer—that he probably
would have jack-knifed and flipped his truck and trailer—in response to the
following question from plaintiff’s counsel at trial: “If you had just jerked it,
what would have happened?”

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conflicting testimony existed regarding whether defendant was following

plaintiff’s vehicle too closely and rear-ended plaintiff’s vehicle or whether

negligence of truck driver created sudden emergency causing defendant to

swerve into plaintiff’s lane and rear-end her vehicle).3 We overrule Frazier’s

first issue.

      IV. W AIVER OF C OMPLAINT T HAT J URY V ERDICT W AS C ONTRADICTORY

      In her second issue, Frazier argues that the jury’s verdict was

contradictory because the jury found that neither Frazier nor Roden were

negligent yet awarded Frazier $416 for past medical care. If the jury’s verdict

is “incomplete, or not responsive to the questions contained in the court’s

charge, or the answers to the questions are in conflict, the court shall in writing

instruct the jury in open court of the nature of the incompleteness,

unresponsiveness, or conflict, provide the jury such additional instructions as




      3
       … The cases cited by Frazier did not involve conflicting evidence raising
an issue of fact on every element of sudden emergency like the evidence here;
therefore, those cases are not controlling. See Deviney v. McLendon, 496
S.W.2d 161, 163, 166 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)
(holding sudden emergency instruction erroneous when both parties testified
that defendant rear-ended plaintiff’s car, which was stopped on Loop 410, and
no evidence was presented raising sudden emergency); Petty v. Children’s
World Learning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *4
(Tex. App.—Dallas May 31, 1995, writ denied) (not designated for publication)
(holding sudden emergency instruction erroneous but harmless when evidence
showed only that third party’s conduct was sole proximate cause of accident).

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may be proper, and retire the jury for further deliberations.” See Tex. R. Civ.

P. 295. Frazier did not raise any contention concerning conflicting jury findings

in the trial court before the jury was discharged, so the trial court did not have

the opportunity to provide the jury such additional instructions as may have

been proper and the jury did not have the opportunity to retire for further

deliberations. Accordingly, because Frazier did not advise the trial court of this

alleged conflict in the jury’s verdict, this issue is not preserved for our review.

See Tex. R. Civ. P. 295; Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11,

24 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Kitchen v. Frusher, 181

S.W.3d 467, 473 (Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g);

Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 861 (Tex.

App.—Fort Worth 2003, pet. denied).

      Frazier argues in her reply brief that the Texas Supreme Court has never

applied the waiver or preservation doctrine to a purported conflict in jury

findings and that cases holding that waiver of an alleged conflict in jury findings

occurs if a party fails to object to the purported conflict before the jury is

discharged are erroneous and not well-founded. Frazier traces cases applying

this waiver doctrine and claims that they are not well-reasoned. However, the

origin of this waiver doctrine is Texas Rule of Civil Procedure 295, which was

promulgated by the Texas Supreme Court. See Tex. R. Civ. P. 295. That rule

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requires the trial court to provide instructions to the jury and requires the jury

to redeliberate in the event of conflicting answers in their verdict. See id. A

trial court cannot comply with Rule 295 unless it knows that a party believes

the jury has returned conflicting answers in its verdict.       Consequently, we

decline Frazier’s invitation to revisit existing case law requiring a party to object

in the trial court to an alleged conflict in the jury’s verdict in order to preserve

that issue for appellate review.

      Finally, in any event, no conflict exists in the jury’s verdict. Frazier claims

a fatal conflict exists between the jury’s failure to find either Roden or Frazier

negligent in Question No. 1 (by answering “no” as to both Frazier and Roden

in the liability question) and the jury’s answer to Question No. 3 (the damage

question) awarding Frazier $416 in past medical expenses. But Question No.

3, the damage question, was not conditionally submitted; the jury was required

to answer it regardless of its answer to Question No. 1. See Turner v. Precision

Surgical, L.L.C., 274 S.W.3d 245, 249 (Tex. App.—Houston [1st Dist.] 2008,

no pet.) (explaining that a jury question is conditionally submitted when the jury

is instructed to answer the question contingent upon its answer to some other

question). Because the jury was required to answer Question No. 3 regardless

of its answer to Question No. 1, no conflict exists in the jury’s verdict; the jury

simply found that the accident was not proximately caused by Frazier or by

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Roden and that Roden sustained past medical expenses of $416 as a result of

the accident that was not either party’s fault. See, e.g., Casualty Underwriters

v. Rhone, 134 Tex. 50, 54, 132 S.W.2d 97, 99 (1939) (explaining, “[i]t will

never be presumed that jurors intend to return conflicting answers, but the

presumption is always to the contrary. Courts properly refuse to strike down

answers on the ground of conflict, if there is any reasonable basis upon which

they may be reconciled”).

      We therefore overrule Frazier’s second issue.

                                V. C ONCLUSION

      Having overruled both of Frazier’s issues, we affirm the trial court’s take-

nothing judgment in favor of Roden.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.


DELIVERED: October 22, 2009




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