Cline v. Living Ctrs. of Tex., Inc., 2007 Tex. App. LEXIS 2044 (Tex. App. 2007)

Jury returned a defense verdict and Plaintiff appealed challenging two issues concerning the exclusion of evidence. Plaintiff contended it was error to exclude evidence that another resident inappropriately touched the resident, as well as evidence of subsequent similar acts. Plaintiff also argued that the trial court erred by going forward with the trial while there was a unresolved mandamus proceeding concerning discovery of documents. On appeal the court found that the judgment did not turn on the excluded evidence. The incident involving inappropriate touching was one of several alleged negligent acts heard by the jury and there was conflicting evidence that the jury resolved in favor of the defendants. Although the opinion is unclear, it appears as though one reason why the evidence was excluded was because it related to a premises liability claim that was not allowed. The court cited Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) as holding that Plaintiff was limited to a medical malpractice claim and could not maintain a premises liability claim against a health care provider. Appellant’s argument that the trial court erred by going forward with the trial was rejected because Defendants moved for a continuance and Appellant opposed it. Appellant could have agreed to the continuance. Appellant should not be allowed to waive, consent to or fail to complain about error at trial and then complain about it on appeal.

Note: Mr. Istafanous, an attorney, served as Primera’s Vice President of Corporate Compliance and Ethics