In a recent Texas appellate case, the representative of a decedent’s estate appealed a judgment in favor of the defendant. She argued that the court had abused its discretion by admitting the defendant’s written statement when it wasn’t properly notarized.
The case arose when a university student was driving on I-10 toward Houston. At around 5:30 in the morning, the defendant got on I-10 and began traveling west ahead of the student’s car. The student was traveling faster than the defendant and came up to his vehicle from behind. Later, the parties disagreed about what had happened, but the defendant’s car swerved, hit the concrete barrier, and rolled over, landing upside down. The cars didn’t collide, but the student was thrown from his car and died at the scene.
The decedent’s mother sued the defendant in a wrongful death and survival action, claiming negligence and gross negligence. The defendant was granted partial summary judgment with regard to the mother’s claims for punitive damages and damages under the survival statute.
The jury heard the wrongful death claim. It found for the defendant. A take-nothing final judgment was entered against the plaintiff. She moved for a new trial, and then her attorney withdrew as counsel. However, she represented herself in filing an amended motion for a new trial. The motions were overruled by operation of law. She appealed.
On appeal, the mother argued that the trial court shouldn’t have admitted a written statement made by the defendant to the police on the day after the car accident. The written statement included the defendant’s recollection of what had happened before, during, and after the wreck. Although the statement was signed and notarized by the officer, the notary seal showed that the officer’s commission as a notary public expired eight months before the statement was signed and notarized.
The plaintiff argued it was inappropriate for the trial court to admit the statement when the notary public’s commission had expired. She argued that his notarizing of the statement was a breach of faith as a public servant. The appellate court pointed out that she was the one who’d first offered the statement into evidence. Her exhibits included records gotten from the police department, and they included a copy of the written statement. Her attorney had specifically asked that it be admitted as evidence. The defendant hadn’t objected, so the exhibits including the written statement were admitted.
The plaintiff’s attorney had used the written statement to try to impeach the defendant’s credibility as a witness by pointing out inconsistencies between it and other statements he’d made about the wreck. The plaintiff’s attorney even asked him in detail about the fact that the notary’s commission was expired.
The appellate court explained that under the doctrine of invited error, a party to a lawsuit can’t ask the trial court to perform an action and then appeal on the basis that the action was in error. The plaintiff in this case could not argue on appeal that the trial court made a mistake in making a ruling she’d requested. The lower court’s decision was affirmed.
If you have lost a loved one, the experienced San Antonio wrongful death attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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