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UMLIC VP LLC v. T&M Sales and Environmental Systems9/15/2005
charge of perjury. Dover Corp. v. Perez, 587 S.W.2d 761, 767 (Tex. App.-Corpus Christi 1979, writ ref'd n.r.e.). Whether an argument is incurable depends on "the degree of prejudice flowing from the argument - whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict." Tex. Employers' Ins. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858 (1954).
UMLIC alleges the following six instances of improper jury argument by appellees' counsel: (1) counsel mentioned a settlement letter sent by UMLIC to T&M, (2) counsel told the jury that the Lozanos had no notice of the tax judgment in violation of the motion in limine and without evidence to support the statement, (3) counsel called UMLIC a "vulture" coming to Texas to "pick on a carcass," (4) counsel claimed he was mislead by a letter UMLIC sent to appellees when there was no evidence to support the claim and both Tomas and Perla Lozano had testified that they were not mislead by the letter, (5) counsel told the jury that UMLIC had done "the same thing" to other businesses without evidence to support the claim, and (6) counsel told the jury not to let a corporation from out of state treat businesses in "the Valley" the way UMLIC treated appellees. At no point during jury argument did UMLIC's counsel object or ask for an instruction to the jury regarding the argument. UMLIC argues that these remarks engendered regional bias and discussed evidence that was not eventually offered at trial. We conclude, however, that these remarks do not rise to the level of incurable arguments. Therefore, UMLIC's failure to object did not preserve error, and the issue is waived. Appellant's twenty-eighth issue is overruled.
In light of our disposition of these issues, it is unnecessary to address UMLIC's remaining issues. Tex. R. App. P. 47.1.
We REVERSE that part of the trial court's judgment awarding (1) exemplary damages to T&M in the amount of $2,500,000, (2) actual damages to Tomas Lozano in the amount of $8,250, and (3) actual damages to Perla Lozano in the amount of $9,880. We RENDER judgment that Tomas Lozano and Perla Lozano take nothing by their counterclaim.
We REFORM the remaining part of the trial court's judgment to show that T&M have judgment against UMLIC for wrongful foreclosure in the amount of $1,148.99, together with post-judgment interest at the rate of ten percent per annum from August 15, 2002 until paid. As reformed, the trial court's judgment is AFFIRMED.
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