Andrew Jackson v. Kristen C. Hitchcock Takara, as Representative and Independent Administratix of the Estate of Reuben Blair Hitchcock

Supreme Court of Texas
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No. 22-0288
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Andrew Jackson,
Petitioner,

v.

Kristen C. Hitchcock Takara, as Representative and Independent
Administratrix of the Estate of Reuben Blair Hitchcock,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM

The decedent in this case, Reuben Hitchcock, fell to the ground
while he was standing in a tractor’s front-end loader and trimming his
neighbor’s tree. He was hospitalized and died about a month later.
Hitchcock’s estate sued the neighbor, Andrew Jackson, asserting
Jackson was negligent in ignoring product safety warnings and allowing
Hitchcock, who suffered lifelong intellectual deficiencies, to trim the tree
in that manner and with no safety harness.
The jury failed to find any negligence of either Jackson or
Hitchcock proximately caused Hitchcock’s fall, and the trial court
rendered a take-nothing judgment. A divided court of appeals reversed
and remanded for a new trial, holding that the trial court’s admission of
the lay testimony of another neighbor, Valerie McElwrath, constituted
harmful error. We hold that the court of appeals erred both in
concluding that the trial court abused its discretion by admitting
McElwrath’s testimony and in determining that the admission of her
testimony probably caused the rendition of an improper judgment. We
therefore reverse the judgment of the court of appeals and render
judgment for Jackson.
In 2018, Reuben Hitchcock was a 52-year-old resident of Milam
County. He had no family nearby. He was in contact with his sister and
had recently reconnected with his biological mother, but both lived
outside Texas and did not regularly visit. Hitchcock had lived for a
number of years with his many dogs in a trailer on property owned by
McElwrath’s family. It is undisputed that Hitchcock had a low IQ and
an elementary-school level reading ability. As an adult, Hitchcock had
been hit by a car while bicycling, and this accident caused him to walk
with a limp and endure regular back pain. Nevertheless, Hitchcock did
odd jobs—like fence painting and tree trimming—to supplement his
social security disability income. Although he earlier maintained a
Texas driver license, in the later years of his life, he got around atop a
riding lawnmower with an attached trailer advertising his services. It
read “Country Boy Maintenance” and displayed the phone number at
which he could be reached.
Jackson, who was retired, estimated that he had hired Hitchcock
forty to fifty times over the years to do various odd jobs. He surmised

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that, of those jobs, approximately fifteen involved tree trimming on
Jackson’s property, sometimes using the front-end loader, or bucket, of
Jackson’s tractor as a work platform. The men were not close friends,
but Jackson occasionally drove Hitchcock to get groceries or pick up a
prescription. In the months leading up to Hitchcock’s fall, the two had
discussed trimming a particular tree on Jackson’s property until
Hitchcock arrived at Jackson’s home one evening, unannounced, ready
to trim the tree.
Jackson testified that Hitchcock suggested the best way to reach
the target branch was to raise Hitchcock up in the tractor’s bucket.
Jackson drove the tractor over and positioned it according to Hitchcock’s
suggestion. Hitchcock put his chainsaw in the bucket, then sat down in
it before Jackson raised it ten to fourteen feet above the ground. Jackson
put the tractor in park, turned it off, and stood nearby. When the limb
was partially cut, Hitchcock asked Jackson to get a rope. Jackson tossed
the rope to Hitchcock and stepped away. It was then that Hitchcock fell
from the bucket to the ground. He took some time to catch his breath
and rest. Jackson then brought him a chair and some ibuprofen, and
after a while, Hitchcock began talking about how Jackson could finish
the job. The men did not finish the tree trim—instead, Hitchcock drove
his mower and trailer home.
Later that night, Hitchcock called for an ambulance. He was
hospitalized for about a month, during which time his sister and
biological mother visited from Louisiana and Colorado. In light of
Hitchcock’s deteriorating condition, the physicians’ expectations that
Hitchcock would likely require substantial rehabilitative or nursing

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home care, and his sister’s belief that Hitchcock would not want to live
in such an institution, his sister ultimately authorized the hospital to
discontinue life-supporting care. Hitchcock died two days later.
Hitchcock’s sister, Kristen Takara, sued Jackson in her capacity
as representative and independent administrator of Hitchcock’s estate.
She alleged Jackson was negligent and grossly negligent for failing to
provide Hitchcock safety equipment, failing to train Hitchcock, failing
to hire a professional tree trimmer, and failing to comply with the
tractor’s written warnings. Takara called four witnesses in her case-in-
chief. She testified first, emphasizing the severity of Hitchcock’s
intellectual limitations and the physical injuries he had sustained in his
bicycle accident ten years earlier. The theme of her case was that
Jackson took advantage of Hitchcock.
Takara next called a psychologist who evaluated Hitchcock after
his bicycling accident. He told the jury that Hitchcock scored well below
average—in the tenth percentile—on an IQ test and that he could not
read beyond a third-grade level or manage his financial affairs. But he
also opined that, even among people with an IQ score like Hitchcock’s,
individuals’ functionality levels vary, such that some are capable of
managing their financial affairs, while others with higher IQ scores may
be incapable of doing so. The psychologist also noted that although facts
Hitchcock reported were not always accurate, he was coherent and
rational on most topics.
Takara then called Jackson, who described the events leading up
to and following Hitchcock’s fall and characterized Hitchcock as capable
despite his limitations. Finally, Hitchcock’s birth mother testified about

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visiting Hitchcock when he was hospitalized, telling the jury Hitchcock
was experiencing pain despite being in a medically induced coma. On
cross-examination, Jackson’s counsel pointed the jury’s attention to one
among thousands of pages of admitted medical records. Defendant’s
Exhibit 16, the Final Report of the emergency department, reflected that
a mere three hours after the fall, Hitchcock attributed his fall not to any
conduct of Jackson’s but, rather, to Hitchcock’s own loss of balance.
Before she rested, Takara moved the trial court to exclude
McElwrath from testifying on the ground that Jackson did not disclose
her as a person having knowledge of relevant facts until two weeks
before trial. Takara also argued Jackson’s untimely disclosure was
substantively deficient insofar as it omitted McElwrath’s address and
phone number and described McElwrath only as a neighbor, without
detailing the topics on which she would testify. Takara’s counsel added
that he called McElwrath on the phone after Jackson disclosed her, but
McElwrath never returned the calls. In response, Jackson’s counsel told
the trial court that McElwrath was timely disclosed under counsels’
agreement to extend the discovery period. Jackson’s counsel also stated
that Takara’s counsel went to McElwrath’s home, which was on the
same property where Hitchcock lived, when he inspected Jackson’s
property. Jackson’s counsel asserted that Takara was “very much
aware” of McElwrath and brought her up multiple times during
Takara’s deposition. The trial court denied the motion to exclude and
found there was no unfair surprise or unfair prejudice to Takara, adding
that she “had reasonable notice of the possibility that [McElwrath]

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would testify” and that she “was certainly aware of [McElwrath] and her
involvement with the decedent” and his capabilities.
McElwrath was Jackson’s sole witness. She told the jury that she
and her parents had known Hitchcock for fifteen years and that she saw
Hitchcock frequently. Like Jackson, McElwrath testified that Hitchcock
was capable and mechanically inclined despite his intellectual
limitations. She also told the jury that it is not uncommon for people to
use a front-end loader as a work platform and that she had probably
done so herself. McElwrath testified that Hitchcock had mentioned to
her that his “policy” was he was comfortable using a front-end loader as
a work platform as long as nobody was in or operating the tractor at the
time.
The jury returned a unanimous verdict in less than fifty minutes,
and the trial court rendered a take-nothing judgment on the jury’s
verdict. Takara appealed, challenging the legal and factual sufficiency
of the evidence and the admission of McElwrath’s testimony.
640 S.W.3d 293, 297 (Tex. App.—Houston [14th Dist.] 2021). The court
of appeals panel unanimously rejected Takara’s sufficiency challenges
because, even assuming Jackson acted negligently, there was sufficient
evidence that his negligence was not a proximate cause of Hitchcock’s
fall. Id. at 301-03. But the panel disagreed about whether Rule of Civil
Procedure 193.6(a) required exclusion of McElwrath’s testimony. See
TEX. R. CIV. P. 193.6(a) (barring a party from offering the testimony of a
witness who was not timely identified unless the court finds good cause
for the untimely disclosure or the failure to timely disclose would not
cause unfair surprise or unfair prejudice). The majority rejected

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Jackson’s contention that the parties had agreed to extend the discovery
deadline because the purported agreement was neither written nor filed
as part of the court’s record. 640 S.W.3d at 304-05 (citing TEX. R. CIV.
P. 11); see TEX. R. CIV. P. 191.1 (allowing parties to modify discovery
rules by agreement but noting such an agreement is unenforceable
unless it “complies with Rule 11” or is made part of the record in a
deposition). And it disregarded the assertions by Jackson’s counsel that
Takara repeatedly referred to McElwrath in Takara’s deposition
because the relevant deposition testimony was not included in the
record. 640 S.W.3d at 305. The court concluded the record did not
contain evidence that Takara “was aware that Jackson considered
McElwrath to be a person with knowledge of relevant facts” and thus
Jackson failed to establish a lack of unfair surprise or unfair prejudice.
Id. Finally, it concluded the trial court’s error in admitting McElwrath’s
testimony was harmful because Hitchcock’s physical and intellectual
capabilities were a central issue at trial and McElwrath was the only
disinterested witness who saw Hitchcock regularly enough to testify
about them. Id. at 306-07. The majority particularly took issue with
McElwrath’s testimony that Hitchcock had a “policy” regarding the use
of a tractor bucket as a work platform, noting Takara had no reason to
discover such a policy before trial and no evidence in the record
supported its existence. Id. at 307.
The dissenting justice would have held the trial court did not err
in finding Takara was not unfairly surprised or unfairly prejudiced by
McElwrath’s testimony because Takara knew McElwrath and knew that
she had knowledge of relevant facts about Hitchcock’s life and

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capabilities. Id. at 309 (Christopher, C.J., dissenting). The dissenting
justice also concluded that, even assuming admission of McElwrath’s
testimony was erroneous, it was cumulative of Jackson’s and therefore
not harmful. Id. The court of appeals reversed and remanded for a new
trial, id. at 308, and Jackson petitioned this Court for review.
We conclude the court of appeals erred in holding the admission
of McElwrath’s testimony was an abuse of discretion. Under Rule 193.6,
a party may not offer testimony from a witness that was not timely
identified unless the trial court finds that (1) there was good cause for
the failure or (2) the failure “will not unfairly surprise or unfairly
prejudice the other parties.” TEX. R. CIV. P. 193.6(a). Thus, once it is
determined that the witness was not timely designated, a trial court
must inquire whether there is (1) good cause for failing to timely identify
the witness or (2) a lack of unfair surprise or unfair prejudice. A court
of appeals reviews a trial court’s decision under Rule 193.6(a) for abuse
of discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (“We
review a trial court’s decision to admit or exclude evidence for an abuse
of discretion.”).
The court of appeals misapplied Rule 193.6(b)’s requirement that
a finding of no unfair surprise or no unfair prejudice “must be supported
by the record,” TEX. R. CIV. P. 193.6(b), by unduly excluding material
about the discovery process that the trial court had before it as a basis
for its decision. The trial court was free to find that Takara was not
unfairly surprised based on Jackson’s counsel’s undisputed
representations to the court that counsel had agreed to extend discovery,
that Takara identified McElwrath multiple times during Takara’s

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deposition, and that Takara went to McElwrath’s home on the day the
parties inspected Jackson’s property.
The court of appeals disregarded counsel’s uncontested
representations and found error in the trial court’s reliance on them
because Jackson did not present evidence to support them. 640 S.W.3d
at 305. But nothing in the text of Rule 193.6 requires the trial court’s
finding to be supported by specific evidence in the record when it is
otherwise substantiated by counsel’s uncontested representations to the
trial court as to the state of discovery in the case. And even if it did,
counsel’s statements made in open court without any objections satisfy
that requirement if the trial court credits them, as it did here. See
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (noting that, while an
attorney’s statements are not evidence unless made under oath, the oath
requirement is waived if the opponent fails to object when she “knows
or should know that an objection is necessary”). In considering whether
the trial court abused its discretion, the court of appeals should have
considered counsel’s statements, along with Takara’s trial testimony
that she “talked to [McElwrath] multiple times throughout all of this.”
It erred in failing to do so. Had it considered both Takara’s testimony
and counsel’s uncontested statements as the kinds of record support that
may satisfy Rule 193.6(a), it would have concluded that the trial court
did not abuse its discretion by allowing McElwrath to testify.
The court of appeals also erred by concluding that the admission
of McElwrath’s testimony was harmful error. A court of appeals cannot
reverse a trial court’s judgment based on the erroneous admission of
evidence unless the error “probably caused the rendition of an improper

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judgment.” TEX. R. APP. P. 44.1(a)(1); see Nissan Motor Co. v. Armstrong,
145 S.W.3d 131, 148 (Tex. 2004) (concluding the erroneous admission of
evidence on other automobile incidents probably resulted in an improper
judgment and thus was reversible error because it was “far more than
cumulative,” was “emphasized at every opportunity,” and was central to
the liability case). The complaining party must “demonstrate that the
judgment turns on the particular evidence admitted.” Nissan Motor Co.,
145 S.W.3d at 144. By contrast, the erroneous admission of cumulative
evidence or evidence that does not control a material and dispositive
issue is generally harmless and thus does not require reversal of the
trial court’s judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394,
396 (Tex. 1989). In evaluating whether erroneously admitted evidence
is harmless, we review the entire record, considering, in particular, the
“state of the evidence, the strength and weakness of the case, and the
verdict.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871
(Tex. 2008) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835,
841 (Tex. 1979)); see also Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex.
2018).
Considering the entire record, we cannot agree with the court of
appeals’ conclusion that the admission of McElwrath’s testimony, even
if erroneous, would constitute harmful, reversible error. We find no
merit in the court of appeals’ suggestion that McElwrath’s testimony
had outsized importance because she was the only disinterested witness
who interacted with Hitchcock frequently enough to credibly testify
about the extent of his intellectual and physical deficiencies. While the
extent of Hitchcock’s capabilities may have been thematically important

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context the jury considered, there was no suggestion that his deficiencies
gave rise to a legal incapacity impacting the applicable legal standards.
Cf. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971) (holding the
trial court properly refused to submit to the jury the issue of whether a
child under the age of five was negligent because such a child “was
incapable of negligence as a matter of law”). For this reason, the
conflicting testimony regarding the degree of Hitchcock’s physical and
intellectual deficiencies—with Takara and the psychologist
emphasizing Hitchcock’s deficiencies and Jackson and McElwrath
emphasizing his capabilities—was not the case-turning issue Takara
and the court of appeals made it out to be. Instead, the central disputed
issue was whether any negligent conduct of Jackson, Hitchcock, or both
was a proximate cause of Hitchcock’s fall. McElwrath, who was not an
eyewitness to the incident, had little to offer on this score. Regardless
of which side the jury ultimately believed about the level of Hitchcock’s
abilities, it seemingly—and rationally—found that no negligence on
Jackson’s part, if any, proximately caused Hitchcock’s fall and resulting
injuries. That conclusion is consistent with the uncontroverted
documentary evidence of Hitchcock’s own assessment in the emergency
room—elicited on cross-examination and repeated in closing—of the
central issue in the case: the cause of his fall was his loss of balance.
Accordingly, the other disagreement between the majority and dissent
below—whether McElwrath’s testimony was “cumulative”—is
ultimately immaterial. There was no basis for a new trial either way.
Finally, the court of appeals’ harm analysis wrongly ascribed
importance to the fact that McElwrath testified last. See 640 S.W.3d at

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306 (“McElwrath was the last witness to testify at trial and we presume
her placement at the end was strategic rather than accidental.”).
McElwrath was Jackson’s last witness because she was Jackson’s only
witness. The placement of her testimony at the end of the two-day trial,
dictated by court procedure, simply cannot lend support to the court of
appeals’ conclusion that her testimony was harmful.
We conclude the court of appeals erred in holding that the trial
court abused its discretion by allowing McElwrath to testify and in
concluding that the admission of her testimony probably caused the
rendition of an improper judgment. Without hearing oral argument, see
TEX. R. APP. P. 59.1, we grant the petition for review, reverse the court
of appeals’ judgment, and render judgment for Jackson.

OPINION DELIVERED: September 1, 2023

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