Opinion
05-22-00347-CV
01-26-2024
W. DEAN COOK, Appellant v. BRETT J. KOVATCH, Appellee
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-01003-2018
Before Justices Molberg, Pedersen, III, and Miskel
MEMORANDUM OPINION
KEN MOLBERG, JUSTICE
Appellant W. Dean Cook appeals the trial court's judgment in favor of appellee Brett J. Kovatch. In six issues, Cook contends the trial court erred in (1) denying his motion to exclude the testimony and notes of Dr. Punam Patil, (2) excluding part of the deposition testimony of Dr. Kevin Lunde, (3) granting Kovatch's motion for directed verdict on Cook's assault claims, (4) allowing Kovatch to be sworn remotely for his deposition testimony, and (5) failing to submit a question on mental anguish damages to the jury. In his sixth issue, Cook argues missing portions of the reporter's record entitle him to a new trial. For reasons explained below, we affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
In his live petition, Cook alleged he and Kovatch were at an indoor shooting range together in the summer of 2016 when Kovatch removed the left earmuff of Cook's hearing protection. Cook alleged a nearby third party discharged his firearm while Cook's left ear was unprotected and, as a result, "the hearing in his left ear is damaged," he suffers from tinnitus, and experiences slight pain in the ear. Cook sued Kovatch for negligence, bodily injury assault, offensive contact assault, and intentional infliction of emotional distress.
On April 29, 2019, Kovatch filed a no evidence motion for partial summary judgment, arguing no evidence supported Cook's claims for assault, gross negligence, and intentional infliction of emotional distress. The trial court granted the motion as to Cook's intentional infliction of emotional distress claim alone, of which Cook does not complain on appeal.
The case then proceeded to trial on the remaining claims. Cook filed a motion to exclude the testimony and notes of one of his doctors, Dr. Punam Patil. He argued that, when it came to tinnitus, hearing issues, and the condition of Cook's ear, Dr. Patil lacked knowledge, experience, training, or education as an expert on those issues; her opinion was not reliable on those issues under the relevant standard; her opinion was not relevant on those issues; and her opinion was not based on sufficient underlying facts or data to be admissible. The trial court denied the motion on June 24, 2020.
At trial, Cook testified he and Kovatch were friends who, on June 11, 2016, went to a shooting range in Plano called the Bullet Trap. Cook said the range required "ear and eye protection to be worn at all times while on the range." Further, he said first-time visitors to the range were required to read the safety rules before shooting, though testimony showed both Cook and Kovatch had been to the range previously. Cook stated they each had a shooting lane, and they shared their shooting room with a group of three to five other individuals. Cook testified both he and Kovatch were wearing earmuff hearing protection, which he described as "two cups that go over your ears." Cook testified that at one point, Kovatch was talking to him but Cook could not understand him, so Cook leaned towards Kovatch, "expecting him to talk louder," and said, "what?" But instead, Kovatch "grabbed my left earmuff and pulls it away from my head and starts saying something, and a gunshot goes off, like, right as he's pulled it away from my head." Cook said he was shocked, and he still could not hear what Kovatch was trying to tell him because of the gunshot. He said the shooting range was "hot"-customers were shooting- throughout this time period. Cook said while they were shooting Kovatch seemed "irritated or angry with . . . the people next to us."
Cook testified that, later, as they were leaving, Kovatch attempted to remove Cook's earmuffs again, but Cook put his hands over his earmuffs to prevent him from doing so. Cook said Kovatch stared at him like he did not understand.
Cook said as a result of the shooting range incident, he had a ringing in his left ear that usually manifested when he was in a quiet room or trying to go to sleep. He said he also experienced a fluttering sensation in the left ear, like "there was an insect" in the ear, but that had not happened for over a year at the time of trial. Cook also previously occasionally experienced slight pain and a vertigo-like sensation. He said he had never experienced these symptoms prior to the shooting range incident.
Cook stated he did not see a doctor in 2016 about the ringing in his ear because he was hoping it would resolve on its own and he was dealing with other, unrelated medical problems that were more important. He said the ringing had not gone away and had not improved. Though he saw his primary care doctor, Dr. Patil, a couple of times in the fall of 2016, he did not tell her about the tinnitus.
Cook saw Dr. Kevin Lunde about the tinnitus in January 2018. He underwent a hearing test and learned he had hearing loss, though he stated later in his testimony that, subjectively, he had not noticed any difference in his hearing. Cook incurred $135.94 in expenses for his visit. Cook also saw other doctors for vertigo in 2019, and he was diagnosed with benign positional vertigo. He had episodes "every couple of months" that lasted a few minutes, but by the time of trial, he had not experienced any vertigo symptoms for the past year-and-a-half to two years.
Cook testified he had been to both outdoor and indoor shooting ranges many times over the past twenty-five years of his life. He stated indoor ranges are louder because "you have got a physical barrier containing the sound." He had never been to an indoor range or an outdoor range without wearing hearing protection, and he was unaware of any range that would not require hearing protection. Cook said he had occasionally gone dove hunting without hearing protection when he was younger, but he had not gone hunting without protection in the last ten years. He said the sound of a shotgun being fired outdoors while dove hunting was much less intense than the sound of a handgun fired at an indoor gun range.
Cook testified that, around the time he began experiencing tinnitus, he sometimes went swing dancing where there would be a live band or he went to "DJ music" events. On such occasions, Cook said he wore earplugs seventy-five percent of the time.
Cook said as a result of the tinnitus, he had trouble sleeping at night. He also had to "cut back on [his] shooting" because he was concerned about further damage. Shooting, Cook stated, was "a major thing [he] liked to do," and could not do it "as much anymore." Cook had a license to carry a handgun and he considered it an ethical obligation to maintain his training, so he still occasionally went to the range. Cook saw a cognitive behavioral therapist to help him cope with the tinnitus. The trial court admitted into evidence a bill from the therapist for $350.
Cook said he sued Kovatch in 2018 despite the incident happening in 2016 because he was conflicted about suing Kovatch, who was his friend. In the end he decided to sue because he thought he was entitled to compensation for his injury. Cook texted Kovatch shortly before filing suit to let him know he experienced hearing problems, and Kovatch responded, "Really??" Cook did not follow up with Kovatch after this.
Cook admitted on cross-examination he did not tell anyone about the tinnitus until he first mentioned it to Dr. Lunde in 2018. He said that, at the time he was deposed, he did not remember the exact date of the shooting range incident, on which day of the week it happened, or whether it was in the morning or afternoon. He did not remember if, after the incident, he and Kovatch continued to go shooting at the range. Cook said he did not make any statements to Kovatch after Kovatch removed the earmuff, and he did not raise the matter with him until he texted him two years later. In that period, Cook said he continued hanging out with Kovatch, but he did not tell him about the tinnitus. Cook did not bring it up with Kovatch, he testified, because Kovatch was an intimidating person to him and Cook found it difficult to tell him "based on what [he] had seen of [Kovatch's] behavior in the past."
When Kovatch sought to admit Cook's medical records from Cook's 2018 visit to Dr. Patil, Cook objected because Dr. Patil had not been qualified as an expert and the documents contained hearsay. The trial court overruled Cook's objections. Cook also said he visited with Dr. Patil on August 25, 2016, and the record from that visit stated he was "negative for hearing loss." A document from a May 21, 2018 visit to Dr. Patil also indicated Cook was negative for "ear pain," "hearing loss," and "tinnitus." Cook stated he had not missed any time from work due to any of the symptoms at issue in the case.
Cook read into the trial record Kovatch's deposition testimony that Kovatch could not remember whether he removed Cook's earmuff at the shooting range. Cook played part of a video recording of Dr. Lunde's deposition for the jury; we discuss this testimony below in Cook's second issue.
The defense called Kovatch to testify. He stated he had been to the Bullet Trap about ten times prior to the date in question. He did not recall many details from the incident, but said he remembered going with Cook, sharing a lane with him, and briefly conversing afterwards in the parking lot. Kovatch described it as "a pretty normal day at the gun range." He disagreed with Cook's testimony that they each had their own lane. Kovatch said they shared a lane, and a receipt was admitted into evidence reflecting a charge for one lane. When one of them was shooting, the other would be behind him. During reloading periods, Cook and Kovatch stood next to one another and conversed.
Kovatch testified he did not remove Cook's ear protection at the gun range. When asked why Cook would say he did, Kovatch said he had been trying to figure that out for years. Kovatch said, as the two of them left the gun range that day, they conversed but Cook did not say anything about his ear. Further, Kovatch said they hung out several times afterwards over the next two years and Cook never brought up anything related to the Bullet Trap. Kovatch testified he did not know how to respond to Cook's "out of the blue" text message, which was the first time Cook said anything to Kovatch about the incident, so he replied, "Really??" Kovatch said Cook never responded to his question, called him about it, or followed up in any way.
On cross-examination, Kovatch said he did not remember what kind of ear protection Cook was wearing or how long he and Cook were at the range together. When confronted with his deposition testimony, Kovatch acknowledged he previously said he did not remember whether they had one or two lanes, which differed from his earlier trial testimony that they shared a lane. But, later on redirect, Kovatch testified that, in his deposition, he also testified that he assumed they shared a lane because that was what he typically did when he went shooting with a partner. When asked about whether his memory of the 2016 incident would have been better in 2020 when he was deposed, Kovatch said he "might" disagree. He said no one had ever tried to speak with him at the gun range by removing his hearing protection, and he would not want someone at a hot gun range to grab his hearing protection and pull it away from his ear.
Kovatch moved for a directed verdict on the two assault actions, loss of earning capacity, disfigurement, physical impairment, loss of enjoyment of life, and gross negligence. The trial court granted Kovatch's motion. As a result, only a negligence claim was submitted for the jury's determination. After hearing arguments, the jury answered "no" to the question of whether the negligence of Kovatch proximately caused the occurrence in question. On March 30, 2022, the trial court signed a final, take-nothing judgment in Kovatch's favor.
II. Discussion
A. Medical records
The medical records at issue here relate to visits Cook made to his primary care physician, Dr. Punam Patil. They reflect that Cook visited Dr. Patil for a "well adult exam" on May 21, 2018. Among other things, Cook told Dr. Patil about updates from seeing his nephrologist regarding a renal cyst that recent scans indicated could be cancerous. The records noted various possible symptoms in a "review of systems" section split into various systems of the body. As pertinent here, under "head, ears, nose, throat," the records stated Cook was negative for hearing loss and tinnitus. This appeared to reflect check-in paperwork Cook filled out in which he did not identify or select any "ear, nose, and throat" problems; tinnitus was not listed as a possible problem on the form. The records further reflect a visit Cook made to Dr. Patil on November 30, 2016, "to get a referral to [a] urologist." Cook also visited Dr. Patil on August 25, 2016, for a "preventive exam," and as pertinent here, the record for the visit states Cook generally had "no complaints" and was negative for hearing loss.
Before trial, Cook moved to exclude these records because, he argued, Dr. Patil lacked knowledge, skill, experience, training, or education to be an expert on tinnitus or issues related to hearing; her opinion on those issues was not reliable under Daubert; her opinion was not relevant on those issues; and her opinion was not based on sufficient underlying facts or data to be admissible. Kovatch responded in opposition. The trial court denied Cook's motion to exclude.
At trial, Kovatch offered the records into evidence. Cook again objected, arguing Dr. Patil was never tendered as an expert, the records did not contain any of Cook's statements, the records were hearsay, and that regardless, Cook had already testified he did not discuss any hearing issues with Dr. Patil. Kovatch responded by arguing, among other things, that the records were being offered as business records and whether Cook addressed hearing loss with Dr. Patil was relevant because Cook was making a claim for damages related to hearing loss. The trial court overruled Cook's objections and admitted the records.
We review a trial court's rulings on the admissibility of evidence for an abuse of discretion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). A trial court abuses its discretion when it acts without regard for guiding rules or principles. U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). Even if the trial court abused its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, that is, if it probably resulted in an improper verdict. Id.; TEX. R. APP. P. 44.1. TO ESTABLISH HARMFUL ERROR, THE COMPLAINING PARTY MUST DEMONSTRATE THAT THE JUDGMENT TURNS ON THE PARTICULAR EVIDENCE ADMITTED. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). In making this determination, we evaluate the entire case from voir dire to closing argument, considering the evidence as a whole, the strength or weakness of the case, and the verdict. Waldrip, 380 S.W.3d at 136. Erroneous admission of evidence is harmless if the evidence is merely cumulative, but beyond this, "whether erroneous admission is harmful is more a matter of judgment than precise measurement." Armstrong, 145 S.W.3d at 144.
Cook argues that any "statements in Dr. Patil's notes regarding [Cook]'s hearing should have been excluded by the trial court because she doesn't meet any of the criteria as an expert witness regarding hearing or medical issues associated with the ear." Kovatch argues, among other things, that any error in the records' admission was harmless because they "simply demonstrate that Cook did not complain of issues with his ear to Dr. Patil, and Dr. Patil did not observe any issues with his ear," which Cook himself testified to.
As stated above, the relevance of the records in question arose from the fact that, under the "head, ears, nose, throat" section of a symptoms review, the records stated Cook was negative for hearing loss and tinnitus in 2018. The records from the 2016 visits did not reflect complaints about tinnitus or his ears more generally.
Viewed in the context of the rest of the evidence, and assuming without deciding their admission was error, we must conclude any error in the admission of this evidence was harmless. The 2018 records appear to be based on paperwork filled out by Cook, where he did not identify any problems with his ears and where tinnitus was not listed as a possible problem or symptom to circle. Further, by that point, Cook's issues with his ear were already being treated by Dr. Lunde, whom Cook had first seen in January 2018 and who had diagnosed Cook with hearing loss. The 2016 records similarly reflect that Cook did not complain to his primary care physician about his ear issues. This is all cumulative of testimony given by Cook on direct examination. Cook explained at trial that he did not bring up these issues to his doctor in 2016 because he was hoping they would resolve on their own and he was dealing with other, more pressing medical problems. Therefore, we conclude the admission of these medical records did not cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1(A); Armstrong, 145 S.W.3d at 144.
B. Limits on deposition testimony of Dr. Lunde
At trial, Cook played part of a video recording of Dr. Lunde's deposition testimony. The trial court asked Cook to estimate how long it would take to play the portions of Dr. Lunde's deposition he intended to play. Cook said thirty to forty-five minutes, and Kovatch informed the court he then intended to play fourteen minutes of the deposition.
Cook played the video for about an hour before Kovatch's counsel asked to approach the bench, and an off-the-record conference was held. The deposition was again played for several minutes and Kovatch objected, stating that "we assumed that the clips that were going to be played were the clips that were agreed to. Since the entire video has been playing, there are excerpts from this deposition that have been played [on which] we had sustained objections." Cook stated he thought the software would "start playing the clips continuously" and apologized. After discussing what else Cook intended to play from the deposition, the trial court ruled as follows:
I am trying to think through how to handle this. The plaintiff had initially indicated 45 minutes of testimony from Dr. Lunde. The jury has been listening to his testimony for more than an hour. And whether it was intentional or not, the jury heard testimony that they weren't supposed to hear, based on the Court's previous rulings. So I think what we are going to do is, we're going to stop the playing of the plaintiff's testimony from Dr. Lunde and allow the defendant to present their cross-examination of Dr. Lunde, and then we'll proceed with any further witnesses for the plaintiff.
Cook objected, stating he wished to "continue to play the portions that were designated that do not contain any sustained objections." The trial court overruled Cook's objection:
And I will overrule the objection. Again, the plaintiffs had more than enough time to present all the testimony that the plaintiff had designated, and instead, whether it was inadvertent or not, chose to use that time to play testimony that the jury was not supposed to hear. I have very few remedies available to me. So I think the plaintiffs had the time to present that testimony, and I can't undo what the jury has already heard, but we are going to move on at this point, especially given that it doesn't sound like we can count on the depositions matching the excerpts and the Court's rulings, given that the Court's rulings were not taken into account when the clips were set up.
We first observe Cook has failed to bring forth a record on appeal from which we can make a determination about reversible error. Two video exhibits appear in the record before us: the first exhibit purports to be excerpts of the deposition Cook intended to play for the jury, and the second was supposed to be the portion actually played for the jury and deemed admitted by the trial court. Yet both video exhibits before us are the full deposition of Dr. Lunde; the video deposition that was deemed admitted by the trial court is thus not in the record before us. See Taveau v. Brenden, 174 S.W.3d 873, 877 (Tex. App.-Eastland 2005, pet. denied) (concluding that, when video exhibits on appeal differed from portions played for jury, and videos were not transcribed by the court reporter, the appellate court "would not be able to tell which portions of the videotapes were viewed by the jury," and the appellant's complaint was waived).
However, even accepting Cook's representation to the trial court that the video exhibit was played to the jury straight through the first one hour and two minutes, we conclude any error in the trial court's limitation was harmless. See TEX. R. APP. P. 44.1. In the part of the deposition played for the jury, Dr. Lunde testified he was a practicing ENT physician and had been licensed to practice medicine in Texas since 1995. In addition to his day-to-day duties as a physician, he had published articles in medical journals, lectured at various retirement communities, and worked with medical students on a weekly basis. Dr. Lunde was board certified in otolaryngology-head and neck surgery and facial plastic and reconstructive surgery.
Dr. Lunde said he saw Cook on January 9, 2018, for his tinnitus complaints. As pertinent here, Dr. Lunde testified he diagnosed Cook with left ear sensorineural hearing loss and left ear tinnitus. He testified there was a high probability Cook would continue to experience tinnitus in his left ear for the rest of his life. Dr. Lunde said Cook's hearing test result indicated sensorineural or inner ear hearing loss affecting the higher frequencies in Cook's left ear. He said this loss was due to inner ear nerve damage. He said he had a high level of certainty that the hearing test Cook received was accurate. Dr. Lunde stated it is common in his practice to rely on a patient's statements in determining the cause of his or her illness.
Dr. Lunde stated that loud noises are one cause of tinnitus and can also cause hearing loss. He further said that experiencing a gunshot at an indoor gun range without hearing protection can cause tinnitus, and that assuming the gun range incident happened as Cook described it, it could have caused the tinnitus in Cook's left ear. He said this "with a reasonable medical probability." Ultimately, Dr. Lunde said there was a high probability that the gun range incident would have caused Cook's tinnitus. He said he came to this conclusion because Cook's symptoms started immediately with the noise exposure, there were no other obvious causes and nothing else in Cook's past medical history that would be a risk for hearing loss, and that the hearing test result of high-frequency hearing loss is typical for noise exposure. Dr. Lunde testified that "when patients experience loud noise exposure and have immediate onset of tinnitus, it's obvious that the loud noise exposure caused the tinnitus." Further, he stated that Cook's right ear was normal.
Dr. Lunde said that, other things being equal, a gun discharged near someone not wearing ear protection would be more likely to cause tinnitus than a gun discharged near someone wearing ear protection. He said that a gunshot near someone not wearing ear protection would be a more likely cause of tinnitus than a gunshot near someone wearing hearing protection who then does not experience tinnitus for six months but then experiences a gunshot without ear protection and develops tinnitus within a week.
Dr. Lunde said that, generally, someone who develops tinnitus after a concert would most likely experience tinnitus in both ears. Wearing earplugs at a concert would greatly reduce someone's chances of developing tinnitus. Given Cook's symptoms, Dr. Lunde concluded with a reasonable medical certainty that a sudden noise in only his left ear was the most probable explanation for why Cook only experienced tinnitus in his left ear. Dr. Lunde further testified about hypotheticals in which someone was exposed to loud noise at a concert and also was exposed to a gunshot with only his left ear unprotected; Dr. Lunde said the gunshot exposure was the more likely explanation for tinnitus in the left ear. Relatedly, Dr. Lunde said that gunshot exposure with the left ear unprotected was the more likely cause of tinnitus within two weeks after such exposure if the person also experienced exposure to shotgun fire while wearing hearing protection six months earlier without experiencing tinnitus until after the incident of gunshot exposure without left ear protection.
Dr. Lunde also said a younger person's body has greater capacity to heal itself than the body of someone in their forties. He said patients with a long history of noise exposure typically have sensorineural hearing loss in both ears. Dr. Lunde said because Cook had experienced tinnitus for the past three years, it was highly probable he would continue to experience it for the remainder of his life. Dr. Lunde also testified about treatments or coping mechanisms for patients dealing with tinnitus, and said he did not recommend hearing aids for Cook because his symptoms were not severe enough.
Kovatch played portions of his cross-examination of Dr. Lunde. Dr. Lunde said he probably spent about fifteen minutes talking with Cook about his complaints. They did not discuss Cook's prior exposure to loud music or noises other than the shooting range incident. Dr. Lunde said had the tinnitus not occurred immediately following the shooting range incident, Cook's history of prior exposure to loud noises would have been relevant to his diagnosis, but he said he did not discuss other exposures because it was his understanding the incident in question and tinnitus occurred almost concurrently. Dr. Lunde said noise exposure over time can cause sensorineural hearing loss. He listed examples of noises, including factories, cars, engines, concerts, listening to music loudly, and repeated exposure to gunfire. Dr. Lunde stated someone could experience hearing loss even if they regularly wear ear protection. Dr. Lunde said it was possible for hearing loss in just one ear to be caused by accumulated noise exposure if someone had a genetic predisposition on one side or the other, but typically such hearing loss would be in both ears. He said the condition of someone suffering from tinnitus or hearing loss who experiences repeated exposure to loud noises could worsen, and earlier noise exposure could predispose someone to develop worse hearing loss in the injured ear. Dr. Lunde said someone's hearing loss could get worse simply because they age. He stated he did not recommend hearing aids for Cook, refer him for cognitive behavioral therapy, or recommend any further follow up or treatment.
In the excluded portions of the deposition, Dr. Lunde said he could make the conclusions he made from visiting a patient on just one occasion, which is what he did in Cook's case. He said this was the norm in his area of medicine. Dr. Lunde said tinnitus is a subjective complaint, but this does not mean it is not real. Because there are no medications to treat tinnitus, Dr. Lunde said it would not matter if Cook had been seen by him the day after the tinnitus started as opposed to waiting a year-and-a-half afterwards. He said there was a possibility that Cook's hearing could get worse, he had seen patients with hearing damage like Cook's that subsequently worsened, and that already having hearing damage made a person more likely to sustain further damage in the future.
No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1. A JUDGMENT MAY NOT BE REVERSED UNLESS THE ERROR CONTRIBUTED IN A SUBSTANTIAL WAY TO BRING ABOUT THE ADVERSE JUDGMENT. Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018). Exclusion of evidence is likely harmless if the "evidence was cumulative or if the rest of the evidence was so one-sided that the error likely made no difference in the judgment[,]" but exclusion is likely harmful if it was crucial to a key issue. Id. In determining whether the exclusion of evidence was harmful, we review the entire record. Id.
We cannot conclude the exclusion of Dr. Lunde's testimony described above probably caused the rendition of an improper judgment. The jury heard Dr. Lunde's testimony about his diagnosis of Cook and his opinion about the likely cause of Cook's tinnitus and hearing loss. Thus, the jury heard from Dr. Lunde about the critical issues in the case affecting Kovatch's liability. The remainder of the deposition that was not admitted was not about these central questions, and moreover, much of the excluded testimony related to Cook's prognosis and thus the question of damages, which was not reached by the jury. Accordingly, we conclude any error did not cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1. COOK'S SECOND ISSUE IS OVERRULED.
C. Directed verdict on assault
In his third issue, Cook argues he presented sufficient evidence to avoid a directed verdict on his two assault causes of action. A directed verdict is warranted when the moving party is entitled to judgment as a matter of law and no other verdict can be reached. See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 645 (Tex. App.-Dallas 2015, no pet.). A directed verdict for a defendant may be proper when (1) a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right of recovery, (2) the evidence conclusively establishes a defense to the plaintiff's cause of action, or (3) a legal principle precludes recovery. Tex. Instruments, Inc. v. Udell, No. 05-14-01042-CV, 2016 WL 4485573, at *3 (Tex. App.-Dallas Aug. 25, 2016, pet. denied) (mem. op.); Ravani v. Vaught, 231 S.W.3d 568, 570 (Tex. App.-Dallas 2007, no pet.).
We review a trial court's decision to grant or deny a motion for a directed verdict under the legal sufficiency standard of review. Mikob Props., Inc. v. Joachim, 468 S.W.3d 587, 594 (Tex. App.-Dallas 2015, pet. denied). We consider all the evidence in a light most favorable to the nonmovant, and we resolve all reasonable inferences that arise from the evidence admitted at the trial in the nonmovant's favor. Id. In our review, we determine whether there is any evidence of probative force to raise a fact issue on the question presented. Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex. App.-Dallas 2006, no pet.).
The elements of civil assault mirror those of criminal assault. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012); Sanchez v. Striever, 614 S.W.3d 233, 239 (Tex. App.-Houston [14th Dist.] 2020, no pet.). As pertinent here, a person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another (bodily injury assault), or if he intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative (offensive contact assault). See TEX. PENAL CODE § 22.01(a).
A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. TEX. PENAL CODE § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id. A culpable mental state may be proved through direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. Dunham v. State, 554 S.W.3d 222, 230 (Tex. App.-Houston [14th Dist.] 2018), aff'd, 666 S.W.3d 477 (Tex. Crim. App. 2023). A defendant must foresee the risk involved and consciously ignore it for a finding of recklessness. Lovelace v. State, 654 S.W.3d 42, 51 (Tex. App.-Amarillo 2022, no pet.); see also Stepherson v. State, 523 S.W.3d 759, 763 (Tex. App.-Houston [14th Dist.] 2017, no pet.) ("The reckless person neither desires for the risk [to] occur nor is he reasonably certain that it will occur, but he does perceive it."). The issue is whether, given all the circumstances, it is reasonable to infer that the defendant "was in fact aware of the risk." Id. Recklessness involves "the callous disregard of risk, in a 'devil may care' or 'not giving a damn' attitude ...." Dunham, 554 S.W.3d at 230. Mere irresponsibility, thoughtlessness, or ordinary carelessness does not rise to the level of recklessness. Wright v. State, 494 S.W.3d 352, 367 (Tex. App.-Eastland 2015, pet. ref'd).
We first consider whether Cook presented any evidence of probative force to raise a fact issue on his bodily injury assault cause of action. Regarding the mens rea, Cook points to evidence that Kovatch seemed irritated or angry in the time period leading up to the incident and that Cook said Kovatch's behavior was "odd." Cook also points to evidence that the range was "hot" when Kovatch removed his hearing protection, and he argues that "any rational person would recognize that removing hearing protection under those circumstances would be an intentional, knowing, or reckless act."
We reject Cook's contentions. While Cook testified Kovatch seemed irritated or angry, he testified Kovatch seemed irritated or angry at the strangers with whom they shared the shooting room. No evidence was presented at trial showing Kovatch was angry with Cook. On the contrary, evidence showed the two were friends before, during, and after the event, and the record elicits no suggestion Kovatch intended to injure or was aware he was injuring Cook. The evidence is clear that Kovatch was trying to communicate with Cook. Thus, we conclude Cook failed to present any evidence Kovatch intentionally or knowingly caused Cook bodily injury. Further, we conclude the evidence failed to raise a fact issue on recklessness because no evidence showed that Kovatch was aware of any risk of injury. Although evidence generally showed the range had regulations requiring ear protection to be worn at all times, no evidence showed Kovatch was aware of or perceived a risk that momentarily removing ear protection would cause Cook bodily injury. Instead, Cook testified Kovatch did not seem to understand why Cook prevented him from removing the protection the second time. Accordingly, we conclude the trial court did not err by granting Kovatch's motion for directed verdict on Cook's bodily injury assault claim.
We now consider whether the evidence raised a fact issue on Cook's claim for offensive contact assault. To avoid a directed verdict, Cook needed to put forth evidence raising a fact question about whether Kovatch knew or should have reasonably believed that Cook would regard removing his ear protection as offensive or provocative. See TEX. PENAL CODE § 22.01(a). Because offensive physical contact is the gravamen of such claims, the defendant is liable for contacts that are offensive and provocative even if they cause no physical harm. See City of Watauga v. Gordon, 434 S.W.3d 586, 590 (Tex. 2014). These claims address "the personal indignity that often flows from an offensive or provocative invasion of personal space or interests." Sanchez v. Striever, 614 S.W.3d 233, 240 (Tex. App.-Houston [14th Dist.] 2020, no pet.). To be offensive, the contact "must be one which would offend the ordinary person." City of Fort Worth v. Deal, 552 S.W.3d 366, 372 (Tex. App.-Fort Worth 2018, pet. denied) (quoting Restatement (Second) of Torts §§ 13, 18 (1965)).
Cook directs us to two cases discussing offensive contact assault. In Umana v. Kroger Tex., L.P., 239 S.W.3d 434, 435-36 (Tex. App.-Dallas 2007, no pet.), the plaintiff was a baker at Kroger who alleged and put forth evidence showing that her supervisor "grabbed her" and tore her apron from her neck after accusing her of failing to wear her name badge. The plaintiff was in tears afterwards and never returned to her job following the incident. Id. This Court concluded "reasonable minds could differ as to whether the supervisor knew or should have reasonably believed that [the plaintiff] would regard his tearing the apron she was wearing as offensive or provocative," and accordingly, she "produced more than a scintilla of evidence sufficient to raise a fact issue on each of the elements required for her assault claim ...." Id. at 436.
In the seminal case dealing with this type of assault, the plaintiff was standing in a buffet line at a luncheon at a hotel. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 628 (Tex. 1967). As the plaintiff was about to be served, a hotel employee approached him and "snatched the plate from [the plaintiff's] hand and shouted that he, a Negro, could not be served in the club." Id. at 628-29. The plaintiff was not actually touched but testified he "was highly embarrassed and hurt by [the employee's] conduct in the presence of his associates." Id. at 629. The jury found, among other things, that the employee "'shouted in a loud and offensive manner' that [the plaintiff] could not be served there, thus subjecting [the plaintiff] to humiliation and indignity." Id. The supreme court had "no difficulty in holding that the intentional grabbing of plaintiff's plate constituted a battery." Id. The court concluded that "the forceful dispossession of [the plaintiff's] plate in an offensive manner was sufficient to constitute a battery." Id. at 630.
Umana and Fisher both illustrate that, while the contact in question need not be made directly with the plaintiff's person but may be made with "anything connected with his person," see Fisher, 424 S.W.2d at 629, the contact must nevertheless be made in a manner or under circumstances such that the defendant knows or should reasonably believe the contact is offensive or provocative, see TEX. PENAL CODE § 22.01(a). The evidence put forth by Cook did not present such circumstances or conduct on the part of Kovatch; instead, as discussed above, the evidence showed Kovatch was Cook's friend and was attempting to communicate with him. Although the circumstances arguably revealed the imprudence of Kovatch's conduct, we cannot conclude Cook created a fact question about whether Kovatch knew or should reasonably have believed Cook would regard the contact as offensive or provocative. We conclude the trial court did not err by granting Kovatch's directed verdict motion as to Cook's offensive contact assault claim. Cook's third issue is overruled.
D. Remote deposition
Cook also contends the trial court erred by allowing Kovatch to be sworn remotely rather than in person for his deposition. On September 15, 2020, Cook filed a motion to compel the deposition of Kovatch. As pertinent here, Cook argued the parties had agreed to a live deposition on June 5, 2020, but that, before the deposition, Kovatch notified Cook he no longer agreed to the live deposition and referenced the supreme court's then-current COVID-19 emergency order, which expired on July 31, 2020. Kovatch preferred the deposition take place remotely or sometime after July 31. Cook argued the emergency order did not alter Texas Rule of Civil Procedure 199.1(b), which requires a witness being deposed remotely to be placed under oath by a person present with the witness and authorized to administer oaths in that jurisdiction. On September 30, 2020, the trial court granted the motion in part, ordering that Kovatch be remotely deposed by Zoom and that he be "sworn remotely by a licensed stenographer who is not in the physical presence of the defendant." Kovatch was remotely deposed on October 19, 2020, and he was placed under oath via Zoom by the reporter.
The supreme court's Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 135 (Tex. 2020), which became effective October 1, 2020, and expired December 1, 2020, was effective when the deposition at issue was conducted. In that order, the supreme court provided as follows:
Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal-and must to avoid risk to court staff, parties, attorneys, jurors, and the public-without a participant's consent:
a. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than December 1, 2020;
...
c. except as this Order provides otherwise, allow or require anyone involved in any hearing, deposition, or other proceeding of any kind- including but not limited to a party, attorney, witness, court reporter,
grand juror, or petit juror-to participate remotely, such as by teleconferencing, videoconferencing, or other means[.]
Further, the supreme court's Twenty-Second Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 129 (Tex. 2020), was effective at the time the trial court entered its order requiring remote swearing of Kovatch, and it gave trial courts the same powers as the Twenty-Sixth Emergency Order to suspend procedures and require the remote participation of anyone involved in a deposition.
Accordingly, the trial court here was empowered to require anyone involved in the deposition, including the court reporter, "to participate remotely," and moreover, the court was permitted to "modify or suspend any and all" procedures, even "without a participant's consent." See id. Given this, we reject Cook's argument based upon rule 199.01(b) that the trial court erred in requiring Kovatch to be sworn remotely. Cook's fourth issue is overruled.
E. Mental anguish damages instruction
In his fifth issue, Cook contends the trial court erred in failing to submit a question to the jury concerning his mental anguish damages. Before trial, Cook filed a proposed jury charge with the court. Among other things, his proposed charge included questions on negligence and assault and asked what "sum of money, if paid now in cash, would fairly and reasonably compensate W. Dean Cook, Plaintiff, for his injuries, if any, that resulted from the occurrence in question?" He submitted separate questions for "physical pain and mental anguish sustained in the past" and "physical pain and mental anguish that, in reasonable probability, W. Dean Cook, Plaintiff, will sustain in the future." The charge of the court did not include "mental anguish" questions, instead asking the jury only about physical pain sustained in the past and physical pain Cook would in reasonable probability sustain in the future. Cook objected that the charge left "off mental anguish and loss of enjoyment of life as both to the past and the future for" mental anguish damages. Cook pointed to evidence that he "[had] trouble sleeping at night, which I think would fall under mental anguish and/or loss of enjoyment. I think there was also testimony that basically staying in a quiet room, you know, the tinnitus can get a bit maddening at times, which I think would be mental anguish and/or loss of enjoyment of life." The trial court overruled Cook's objection.
Cook argues on appeal that the trial court reversibly erred by refusing to submit to the jury questions on mental anguish damages. Even assuming Cook presented sufficient evidence warranting mental anguish questions, we conclude any error in the failure to submit these questions was harmless. As stated above, no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1. Here, the error complained of could not have caused the rendition of an improper judgment because the jury did not find Cook negligent, and as we concluded above, the trial court properly granted kovatch's motion for directed verdict as to cook's assault claims; because these predicate findings were not made, the question of damages was immaterial. See Rogers v. Gonzales, 654 S.W.2d 509, 515 (Tex. App.-Corpus Christi-Edinburg 1983, writ ref'd n.r.e.) (concluding error in refusing issue on mental anguish was harmless when jury did not find negligence, which was predicate to recovery). Cook's fifth issue is overruled.
F. Reporter's record complaint
In his final issue, Cook argues there are sufficient portions of the reporter's record missing such that he is entitled to a new trial under Texas Rule of Appellate Procedure 34.6(f). He points to three instances when the trial court went off the record when the deposition of Dr. Lunde was under discussion.
An appellant is entitled to a new trial under the following circumstances: (1) if the appellant has timely requested a reporter's record; (2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceedings were electronically recorded-a significant portion of the recording has been lost or destroyed or is inaudible; (3) if the lost, destroyed, or inaudible portion of the reporter's record, or the lost or destroyed exhibit, is necessary to the appeal's resolution; and (4) if the lost, destroyed or inaudible portion of the reporter's record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit. TEX. R. APP. P. 34.6(F).
Cook does not appear to complain of a lost or destroyed reporter's record, notes, or recording. He argues instead he is entitled to a new trial because the proceedings in the trial court were at times conducted off the record. We first note that the appellant bears the burden to bring forth an appellate record that enables us to determine whether appellant's complaints have merit. See Morris v. Liberty Mut. Fire Ins. Co., No. 05-10-01125-CV, 2012 WL 759026, at *1 (Tex. App.-Dallas Mar. 7, 2012, pet. denied) (mem. op.). In any event, Cook fails to explain how any failure to record portions of the proceedings affects his ability to present any of his issues on appeal. See Nobles v. State, No. 04-02-00157-CR, 2003 WL 21018295, at *2 (Tex. App.-San Antonio May 7, 2003, no pet.) (mem. op., not designated for publication). Accordingly, we cannot conclude any error probably prevented Cook from properly presenting his appellate issues. See TEX. R. APP. P. 44.1. Cook's final issue is overruled.
III. Conclusion
Having overruled Cook's appellate issues, we affirm the judgment of the trial court.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BRETT J. KOVATCH recover his costs of this appeal from appellant W. DEAN COOK.