Page v. State Farm Lloyds

WANDA M. PAGE, Appellant v. STATE FARM LLOYDS, Appellee

No. 10-12-00317-CV

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

Opinion delivered and filed December 5, 2013

From the 18th District Court

Johnson County, Texas

Trial Court No. C200400452

MEMORANDUM OPINION

In ten issues, appellant, Wanda M. Page, advancing pro se, challenges a final judgment entered in favor of appellee, State Farm Lloyds. We affirm.

I. BACKGROUND

The dispute in this case is more than ten years old, and this is not the first time this case has been before this Court. See generally Page v. State Farm Lloyds, 259 S.W.3d 257 (Tex. App.—Waco 2008), rev'd in part, 315 S.W.3d 525 (Tex. 2010). As the parties arefamiliar with the facts in this case, we will only provide the highlights. See TEX. R. APP. P. 47.1.

"State Farm Lloyds issued Page a Texas Standardized Homeowners Policy— Form B ("HO-B") to insure her dwelling and its contents." Page, 315 S.W.3d at 526. "In June 2001, Page discovered mold and water damage to her home and some of her personal property." Id. Page filed a claim under her homeowner's policy with State Farm Lloyds. After various assessments, it was determined that there were leaks in the sanitary sewer lines that required remediation. Id. Thus, in January 2002, State Farm Lloyds provided Page with a check in the amount of $12,644 to cover remediation and repair of her dwelling and $13,631 to cover personal-property remediation and three months living expenses while the work was performed. Id. In May 2002, Page requested additional funds to repair damage to her carpet, which State Farm Lloyds refused to pay. Id. "A dispute ensued over the amounts needed to fully remediate and repair the home and its contents." Id. at 526-27.

Later, Page filed suit against State Farm Lloyds asserting causes of action for breach of contract, breach of the duty of good faith and fair dealing, fraudulent misrepresentation, and DTPA and Insurance Code violations. Id. at 527. About a year after she filed suit, Page provided State Farm Lloyds with an estimate for remediating her attic, which resulted in State Farm Lloyds paying Page an additional $13,042. Id.

Thereafter, State Farm Lloyds filed no-evidence and traditional motions for summary judgment, claiming entitlement to judgment as a matter of law on Page's breach of contract claim because the HO-B policy expressly excluded coverage for allmold damage and because there was no evidence that Page was owed additional money. Id. State Farm Lloyds also argued that summary judgment was proper as to Page's extra-contractual claims. Id.

The trial court initially denied State Farm Lloyds's summary-judgment motions; however, the trial court reversed course when presented with the Texas Supreme Court's opinion in Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006) on a motion for reconsideration filed by State Farm Lloyds. Id. Page appealed the trial court's granting of the motions for summary judgment, and this Court reversed, holding that Page's HO-B policy covered mold damage to the dwelling and its contents. Id. (citing Page, 259 S.W.3d at 257).

Subsequently, State Farm Lloyds filed a petition for review in the Texas Supreme Court. The Supreme Court analyzed Page's HO-B policy and determined that "when a plumbing leak results in mold contamination, the policy covers mold damage to personal property but not to the dwelling." Id. at 526, 531. Accordingly, the Supreme Court concluded that Page's contractual and extra-contractual claims pertaining to alleged mold damage to her house could not survive and reversed that portion of this Court's judgment. Id. at 532-33. However, the Supreme Court also concluded that Page's contractual and extra-contractual claims relating to alleged mold damage to her personal property survived and affirmed that portion of this Court's judgment. Id. at 532-33. The case was then remanded to the trial court for further proceedings. Id. at 532-33.

On remand, the trial court conducted a jury trial on Page's remaining claims. At this time, Page was represented by two attorneys and an additional consultant/attorney, who assisted trial counsel with voir dire. At the conclusion of the evidence, the jury rejected all of Page's claims. Thereafter, the trial court signed a judgment that Page take nothing from State Farm Lloyds. The final judgment also awarded State Farm Lloyds $16,869.83 in court costs. This pro se appeal followed.

II. THE RECORD

At the outset of our analysis of Page's issues, we recognize that the record in this case includes three reporter's record volumes—one of which is labeled "Excerpts of Voir Dire Proceedings." In addition, the record includes three clerk's record volumes. Nevertheless, Page has filed a pro se "Optional Appendix," wherein Page includes several documents that were not formally included in the record. With regard to this, we note that we may not consider matters outside the appellate record, and attachment of documents as appendices to an appellate brief does not constitute formal inclusion in the record. See TEX. R. APP. P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record."); see also Kuntze v. Hall, 371 S.W.3d 600, 601 (Tex. App.—Waco 2012, order); Poston v. Wachovia Mortg. Corp., No. 14-11-00485-CV, 2012 Tex. App. LEXIS 3608, at *3 n.2 (Tex. App.—Houston [14th Dist.] May 8, 2012, no pet.) (mem. op.) (citing Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). With that in mind, we review Page's issues.

III. VOIR DIRE QUESTIONS ABOUT RELIGION

In her first issue, Page argues that her rights were violated by questions about veniremembers' religious practices. Specifically, Page asserts that she is a Seventh-Day Adventist and that it was discriminatory to only mention the juror numbers of those jurors who are also Seventh-Day Adventists.

The portion of voir dire that Page complains about in this issue involves the following questions asked by State Farm Lloyds's attorneys:

Is there anyone here who knows the Plaintiff, Ms. Page, 44 and 46[?] Anybody else? Okay. And by the way, I am going to ask some questions, some of them may seem like that [sic] are personal questions, I need to ask those questions so that we can figure out whether we can get a jury that in this particular case is going to be fair and reasonable. So please don't hold that against us. The first thing I want to know just please raise your—there are three churches I want to ask about. Please raise your paddle if you are a Baptist. All right. Please raise your paddle if you are a Seventh-Day Adventist. 1, 5, 6, 36, and then please raise your paddle if you attend the Church of Christ. All right.

Though represented by three attorneys at trial, no objection was made to the foregoing questions.

Normally, to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. See TEX. R. APP. P. 33.1(a); Haryanto v. Saeed, 860 S.W.2d 913, 918 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (concluding that appellant failed to preserve error because he did not object to statements and questions made by appellee's counsel during voir dire); see also Parsons v. Greenberg, No. 02-10-00131-CV, 2012 Tex.App. LEXIS 888, at *17 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.) (holding appellant waived his complaint on appeal that voir dire questioning about conspiracy theories was prejudicial because appellant did not lodge a specific objection). If the party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g); see also Parsons, 2012 Tex. App. LEXIS 888, at *17.

Because Page did not object to the religion questions above, we conclude that error is not preserved, and thus, the complaint is waived. See TEX. R. APP. P. 33.1(a); Haryanto, 860 S.W.2d at 918; see also Parsons, 2012 Tex. App. LEXIS 888, at *17. Page's first issue is overruled.

IV. PAGE'S COMPLAINT ABOUT PANEL MEMBER #1

In her second issue, Page complains that State Farm Lloyds violated the constitutional rights of veniremember #1 by using a peremptory strike. Page asserts that veniremember #1 was stricken from the panel due to her religious beliefs. In this issue, Page invokes Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), as it has been extended to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

Once again, the record reflects that Page did not object to State Farm Lloyds's usage of one of its peremptory strikes to remove veniremember #1 from the panel. Texas courts have held that even constitutional complaints, including those of Batson violations, may be waived by failing to object at trial. See Brumfield v. Exxon Corp., 63 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); In re K.M.B., 91S.W.3d 18, 27 (Tex. App.—Fort Worth 2002, no pet.) ("To preserve a Batson/Edmonson challenge, the complaining party must object to the peremptory strike before the jury is sworn."); see also Ward v. Baylor Univ., No. 10-11-00066-CV, 2012 Tex. App. LEXIS 1437, at *10 (Tex. App.—Waco Feb. 22, 2012, pet. denied) (mem. op.). Therefore, because Page did not object, we conclude that this error has not been preserved and is therefore waived. See TEX. R. APP. P. 33.1(a); Brumfield, 63 S.W.3d at 919; In re K.M.B., 91 S.W.3d at 27; see also Ward, 2012 Tex. App. LEXIS 1437, at *10. We overrule Page's second issue.¹

V. PAGE'S DENIED CHALLENGES FOR CAUSE

In her third, fourth, and fifth issues, Page argues that the trial court erred in denying her challenges for cause as to veniremembers 6, 21, and 37 because each are purportedly State Farm...