From Casetext: Smarter Legal Research

Majeed v. Hussain

Court of Appeals of Texas, Third District, Austin
Oct 22, 2010
No. 03-08-00679-CV (Tex. App. Oct. 22, 2010)

Summary

concluding failure to request appropriate relief could be cured

Summary of this case from Lopez-Juarez v. Kelly

Opinion

No. 03-08-00679-CV

Filed: October 22, 2010.

Appealed from the District Court of Travis County, 200th Judicial District No. D-1-GN-01-001209, Honorable Gus J. Strauss Jr., Judge Presiding.

Reversed and Remanded.

Before Justices PATTERSON, PURYEAR and PEMBERTON; Dissenting Opinion by Justice PATTERSON.


MEMORANDUM OPINION


This appeal arises from a premises-liability suit seeking personal-injury damages allegedly caused by third-party criminal acts. While working as a clerk in an East Austin convenience store and gas station, appellee Sajjad Hussain was assaulted by an unidentified male. Hussain subsequently sued the alleged owners or controllers of the premises, including appellant Tariq Majeed, asserting premises-liability theories of negligence predicated on a duty on the defendants' part to provide security measures to protect Hussain from a foreseeable and unreasonable risk of crime. A jury found that the defendants' negligence had proximately caused Hussain's injuries and awarded Hussain a total of $377,811.19 in actual damages. The district court rendered judgment on the jury's verdict. Majeed appeals.

In three issues on appeal, Majeed challenges the legal and factual sufficiency of the evidence establishing (1) a foreseeable risk of harm and concomitant duty to provide security measures to protect Hussain from third-party criminal acts, (2) that any breach of such a duty proximately caused Hussain's injuries, and (3) the damages for medical expenses and past and future physical-impairment damages awarded by the jury. In addition to responding to Majeed's issues, Hussain asserts that Majeed failed to preserve his current contentions for appeal.

As we explain below, we agree with both parties in part — while we conclude that the district court's judgment must be reversed because there is legally insufficient evidence of proximate cause, we also hold that Majeed preserved only a right to a remand for new trial rather than rendition of a take-nothing judgment. Consequently, we will reverse the district court's judgment and remand for a new trial.

BACKGROUND

The underlying events occurred at a convenience store and gas station located at 1425 East 12th Street in Austin. Unlike the typical "walk-in" convenience store at which customers enter through a doorway and make purchases inside, customers at this store made purchases from a store clerk through a sliding glass "drive-through" window that they would approach either in their cars or on foot. At relevant times, appellee Hussain was employed as a clerk in the store, and his responsibilities included staffing the sliding glass window. Hussain described the window as "really big" and, at the time of the incident, "really broke." He elaborated that the window could not slide back and forth or lock. This made it necessary, Hussain explained, "to take the window out" or "take the window on the side" at the beginning of the work day so as to leave it open. When he closed the store at the end of the day, Hussain added, he would "put the big stick in the back" to secure the window shut.

Hussain testified that while he was staffing the aforesaid window on July 11, 2000, at approximately 4:00 p.m., an unidentified black male whom Hussain estimated was between 5' 3" and 5' 4" and appeared to be between 15 to 17 years of age approached the window and asked to buy cigarettes. Hussain asked to see the individual's identification. After the individual could not produce an ID, Hussain refused to sell him the cigarettes, and the individual left. A short while later, the individual returned and asked to buy beer. Hussain again asked to see identification. At this point, according to Hussain, the individual became angry and said, "I just told you I don't have my ID on me." Then, Hussain recounted, the individual "walked back," picked up an object (later determined to be an empty can of "Fix-a-Flat Tire"), and "just straight throw it and hit my eyes." Hussain testified that the can flew through the open window and struck him in his right eye. According to Hussain, the injury resulted in permanent vision loss in that eye.

Hussain sued appellant Majeed and a co-defendant, Muhammed Naeem, alleging that each controlled the store premises and asserting negligence claims based on premises-liability theories. These claims were predicated on the existence of a duty to provide reasonable security measures that arose because "it was foreseeable that the premises, as owned, operated, managed, and maintained by Defendants, exposed employees and business invitees on the premises, like Plaintiff herein, to an unreasonable risk of harm from criminal activity." See Timberwalk Apartments v. Cain, 972 S.W.2d 749, 756 (Tex. 1998); Barton v. Whataburger, Inc., 276 S.W.3d 456, 466 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). The case proceeded to trial.

Neither Majeed nor Naeem attended trial in person, and only Majeed appeared through counsel. The jury heard evidence that, by time of trial, Naeem had left the country and returned to his native Pakistan and that Majeed was then incarcerated in a federal institution on convictions for gambling offenses and money-laundering in connection with eight-liner operations at convenience stores he owned or operated.

The jury heard testimony that all of the participants in the underlying events (with the exception of Hussain's assailant) were Pakistani immigrants who were connected through business, family, or religious ties within that community.

In his case-in-chief, Hussain presented his own testimony, photographs and documentary evidence, and excerpts from depositions of Majeed. After Hussain rested, Majeed moved for a directed verdict, which the district court denied. Thereafter, Majeed presented further excerpts from his deposition and additional documentary evidence. After the close of evidence, Majeed did not re-urge his directed-verdict motion.

The district court submitted two questions to the jury. Question 1 inquired whether the negligence, if any, of Majeed and/or Naeem "proximately cause[d] the occurrence in question involving the criminal acts of an unidentified third party." The jury answered in the affirmative as to both defendants. Predicated on an affirmative liability finding, Question 2 asked the jury to determine the amount of Hussain's damages. The jury awarded Hussain $65,000 for past pain and suffering, $50,000 for future pain and suffering, $5,720 in past lost wages, $165,000 in past physical impairment, $190,000 in future physical impairment, and $2,091.19 in past medical expenses, for a total of $377,811.19 in actual damages.

The district court rendered judgment on the jury's verdict. Thereafter, Majeed filed on the same day a motion for new trial and a notice of appeal. See Tex. R. App. P. 26.1(a)(1), 27.1. The new-trial motion was overruled by operation of law.

ANALYSIS Majeed brings three issues on appeal. In his first issue, Majeed argues that there is legally and factually insufficient evidence of the foreseeable risk of harm required to give rise to a duty on the part of Majeed to protect Hussain from an unreasonable risk of criminal activity. In his second issue, Majeed urges that the evidence is legally and factually insufficient to support a finding that any breach of a duty of Majeed to undertake reasonable security measures to protect Hussain from criminal activity proximately caused Hussain's injury. In his third issue, Majeed contends that the evidence is legally and factually insufficient to support the jury's award of damages for medical expenses and past and future physical impairment.

Although the issue was contested at trial, on appeal Majeed does not dispute that he had control of the store premises.

Preservation

As a threshold matter, Hussain argues that Majeed has failed to preserve any of the complaints he now brings on appeal. Specifically, Hussain contends that Majeed waived his directed-verdict motion by failing to renew it after the close of evidence, that his new-trial motion was "too general to preserve error," and that he did not attempt to preserve his no-evidence complaints through any other means. In the alternative, Hussain asserts that if Majeed preserved any of his current evidentiary-sufficiency complaints through his new-trial motion, that procedural mechanism, whether used to raise a legal-sufficiency or factual-sufficiency complaint, is a predicate for an appellate court merely to grant the relief requested in that motion — a new trial — rather than a rendition of a take-nothing judgment. But Majeed waived any right even to this remedy, Hussain insists, by praying solely for rendition, not a remand, in his appellant's brief.

The core principle underlying error-preservation requirements is that the trial court should be given the opportunity to correct potential errors before the case proceeds on appeal. See, e.g., In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). To that end, "our civil rules of procedure and our decisions thereunder require a party to apprise a trial court of its error before that error can become the basis for reversal of a judgment." Id. In particular, rule of appellate procedure 33.1 generally requires that before a complaint can be a prerequisite for appellate review, the record must show that (1) the complaint was raised before the trial court by timely request, objection, or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from context," (2) complied with the requirements of the rules of procedure or evidence, and (3) that the trial court ruled or refused to rule on the request. Tex. R. App. P. 33.1(a). In turn, rule of appellate procedure 43.3 provides that if we find reversible error in the trial court's judgment, we must "render the judgment the trial court should have rendered," except when "a remand is necessary for further proceedings," or "the interests of justice require a remand for another trial." Id. R. 43.3; see also id. R. 44.1.

To preserve his no-evidence complaints for appeal, Majeed was required to raise them in the district court through either (1) moving for directed verdict; (2) objecting to the submission of jury questions; (3) moving to disregard jury findings; (4) moving for judgment notwithstanding the verdict; or (5) moving for new trial. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992); cf. Tex. R. App. P. 33.1(d) (preservation rule in non-jury cases). However, only the first four methods are a predicate for an appellate reversal and rendition of a take-nothing judgment; the judgment the trial court should have rendered in response to a motion for new trial is the granting of a new trial, not rendition. See Horrocks v. Texas Dep't of Transp., 852 S.W.2d 498, 499 (Tex. 1993).

Majeed did not raise any of his no-evidence complaints through objecting to jury questions, moving to disregard jury findings, or moving for judgment notwithstanding the verdict. Consequently, he can obtain reversal and rendition of a take-nothing judgment based on such a complaint only if he preserved it through his motion for directed verdict. T.O. Stanley Boot Co., 847 S.W.2d at 220. Hussain argues that Majeed waived any no-evidence complaints raised in his directed-verdict motion by failing to re-urge the motion at the close of evidence. He relies on a long line of courts of appeals' cases holding that where, as here, a defendant unsuccessfully moves for directed verdict after the plaintiff rests his case-in-chief, the defendant waives error in the trial court's denial of the motion if he presents evidence and fails to renew or re-urge the motion after the evidence closes. See, e.g., Ratsavong v. Menevilay, 176 S.W.3d 661, 666-67 (Tex. App.-El Paso 2005, pet. denied) ("Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on its motion for instructed verdict, and proceeds with her own case, waives her motion for directed verdict unless the motion is reurged at the close of her case."); Humes v. Hallmark, 895 S.W.2d 475, 477 (Tex. App.-Austin 1995, no writ) (appellant defendant waived complaint that trial court erred in denying directed-verdict motion "because she did not re-urge her motion at the conclusion of evidence") (citing Shindler v. Marr Assoc., 695 S.W.2d 699, 706 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.); Texas Steel Co. v. Douglas, 533 S.W.2d 111, 114 (Tex. Civ. App.-Fort Worth 1976, writ ref'd n.r.e.)); Douglas, 533 S.W.2d at 111 ("The law is well settled that a defendant by electing not to stand on its motion for an instructed verdict made after the plaintiff had introduced its evidence and rested its case, and by proceeding with the introduction of its own evidence, waives its motion for an instructed verdict."); Grand Temple Tabernacle, etc. v. Johnson, 156 S.W. 532, 533 (Tex. Civ. App.-San Antonio 1913, no writ) ("Appellee insists that under the decisions of this state and the great weight of authority appellant is conclusively presumed to have waived its motion for an instructed verdict by having elected to proceed with its case and present its defenses rather than stand upon its motion and submit the case to the jury upon the evidence of appellee. There is no doubt about the correctness of appellee's position upon this point."). This principle follows from the fact that once the defendant elects to present its own evidence, that additional evidence, and any other evidence presented at trial, must be considered by the trial court in determining whether there is legally sufficient evidence to support submitting the case to the jury. See San Antonio Traction Co. v. Kelleher, 107 S.W 64, 66 (Tex. Civ. App.-San Antonio 1908, no writ). Thus, to preserve a complaint that the evidence was legally insufficient to support submission to the jury and that the trial court was therefore required to direct a verdict for the defendant, the defendant must challenge the entirety of the evidence by asserting or re-urging its directed-verdict motion after all of the evidence is in. See Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.-Houston [1st Dist.] 1996, no writ) ("When a second motion for directed verdict is made after the close of evidence, the court must consider all of the evidence, regardless of who offered it, to determine whether there is a fact issue for the jury."); Shindler, 695 S.W.2d at 706 ("Should the movant, after his [directed-verdict] motion is denied, offer additional evidence, he thereby waives his earlier motion and when he later moves again, the new motion is determined upon all of the evidence, regardless of by whom it is offered."). The original directed-verdict motion addressed solely to the plaintiff's evidence would not raise this challenge, and any error in denying that motion would, in effect, be rendered harmless by unchallenged additional evidence. See Mound Oil Co. v. F.W. Heitmann Co., 148 S.W. 1187, 1188 (Tex. Civ. App.-Galveston 1912, no writ) ("In order to avail itself of the error, if any, in the refusal of the trial court to direct a verdict in its favor upon the evidence for appellee, appellant should have rested its case on this evidence. If there is anything in the evidence introduced for appellant to help out appellee's case, it cannot be deprived of the benefit of it by the request to the court to instruct a verdict for appellant upon the evidence for appellee.").

The grounds for this motion were that (1) evidence regarding various contracts between Naeem and Majeed established that Naeem controlled the premises and would have any duty to provide security (a contention that Majeed has not brought forward on appeal); and (2) even if Majeed controlled the premises, a third-party criminal act was a superseding cause of Hussain's injuries as a matter of law and there was no evidence giving rise to a duty on Majeed's part to protect Hussain from such acts.

Although he acknowledges that this Court and our sister courts have long adhered to "the principle that an appeal of the denial of a directed verdict motion is waived if not reurged at the close of all evidence," Majeed questions whether we should continue to do so, suggesting that the rule "serves no obvious purpose in current trial practice." He observes that the principle has been criticized by one court of appeals justice, is not specifically mandated in the rules of civil procedure, and has apparently never been squarely adopted by the Texas Supreme Court. To the extent we continue to recognize the principle, Majeed urges that it governs only whether the denial of a directed-verdict motion can itself be appealed but not whether the directed-verdict motion suffices to preserve a no-evidence complaint for appeal. While "there is a body of law that finds that a directed verdict motion cannot be appealed if it is not reurged after the close of all evidence" and "a body of law . . . that holds that a legal sufficiency question can be preserved in a motion for directed verdict," Majeed insists, "there is no body of law that connects the two principles."

See SIPCO Servs. Marine, Inc. v. Wyatt Filed Servs. Co., 857 S.W.2d 602, 608, 609-12 (Tex. App.-Houston [1st Dist.] 1993, writ dism'd) (op. on reh'g) (Cohen, J. concurring); see also Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.-Houston [1st Dist.] 1996, no writ) (terming the rule "[l]ongstanding but criticized," and citing Justice Cohen's concurrence for that proposition). Justice Cohen urged that the principle should be abandoned because it is unfair to evaluate the legal sufficiency of the evidence based on both the plaintiff's and defendant's evidence — and concomitantly require the defendant to re-urge its directed-verdict motion at the close of all evidence in order to preserve a no-evidence complaint — when the additional evidence would not have been introduced "except for the [trial] judge's erroneous denial of the motion for directed verdict." SIPCO Servs. Marine, Inc., 857 S.W.2d at 609 (Cohen, J. concurring). "To determine legal sufficiency," Justice Cohen instead advocated "review[ing] only the evidence as it stood when the motion for directed verdict was denied." Id. at 612. To date, no reported Texas decision has adopted Justice Cohen's view.

See id. at 609 (rule "seems to have been created and enforced solely by the intermediate appellate courts"). Hussain has not contended otherwise.

Regardless whether the issue is or should be viewed in terms of Majeed "waiving" any no-evidence challenges he raised in his directed-verdict motion, what is dispositive here is that Majeed's motion did not raise any of the same no-evidence challenges that he now brings on appeal. In his directed-verdict motion, Majeed challenged whether Hussain had presented legally sufficient evidence during his case in chief to raise a fact issue. After the district court denied the motion, the jury heard additional evidence. To prevail on his no-evidence challenges on appeal, Majeed must show that there was legally insufficient evidence presented at trial — regardless when or by whom presented — to raise a fact issue. Majeed did not present any such complaints to the district court through his directed-verdict motion and his motion, therefore, did not preserve them for appeal. See Texas Animal Health Comm'n v. Miller, 850 S.W.2d 254, 255-56 (Tex. App — Eastland 1993, writ denied) ("The only time that the [defendant] Commission presented its `no evidence' contention to the trial court was in a motion for instructed verdict made at the close of [plaintiff] Miller's evidence. After this motion was denied, the Commission presented its evidence. The Commission did not re-urge its motion . . . after both sides closed. The Commission, by not electing to stand on its motion for instructed verdict and by proceeding with the introduction of its own evidence, waived its motion for instructed verdict. Thus, the Commission did not preserve its `no evidence' complaint for appellate review.") (citations omitted); see also Tex. R. App. P. 33.1(a); 6 McDonald Carlson, Tex. Civ. Prac., § 8:4, at 209-10 (2d ed.) ("Where the defendant moves for directed verdict when the plaintiff rests and the motion is denied, and the defendant then presents evidence, the motion for directed verdict is waived and will not preserve a challenge to the legal sufficiency of the evidence."); cf. Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex. App.-Houston [1st Dist.] 1990, no writ) (while holding that defendant Bryan "did not preserve error on her motion for directed verdict" because Bryan waived it by presenting evidence and not re-urging her motion, reaching no-evidence challenge because Bryan had preserved it through motion for judgment notwithstanding verdict).

In sum, we agree with Hussain that there is no predicate in the record for us to render a take-nothing judgment in favor of Majeed if we were ultimately to sustain his complaints that there is no evidence of duty, proximate cause, or damages. See Tex. R. App. P. 33.1, 43.3; Horrocks, 852 S.W.2d at 499. This leaves only Majeed's new-trial motion as a potential means by which he could have preserved his no-evidence challenges. Majeed was also required to raise his alternative factual-sufficiency challenges in his new-trial motion in order to preserve them for appeal. See Tex. R. Civ. P. 324(b).

Hussain asserts that Majeed's new trial motion was "too general to preserve error." The rules of civil procedure require that each point relied upon in a motion for new trial "shall briefly refer to that part of the ruling of the court . . . in such a way that the objection can be clearly identified and understood by the court." Tex. R. Civ. P. 321. Further, "[g]rounds of objections couched in general terms — as that the court erred in its charge, in sustaining and overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict is contrary to law, and the like — shall not be considered by the court." Id. R. 322. On the other hand, the Texas Supreme Court has explained, a general "no-evidence" complaint directed to a specific jury issue is usually sufficient to preserve error without further detail as to why the evidence is insufficient. Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). Similarly, while a single no-evidence objection to "all 79 jury answers [would be] too general, the same objection addressed to each individual issue is adequate." Id. (citing Biggers v. Cont'l Bus. Sys., Inc., 303 S.W.2d 359, 368 (Tex. 1957)). And, while acknowledging that "[i]f a single jury question involves many issues, it is possible that a general objection may not tell the trial court where to start," the supreme court has emphasized that such an objection made post-trial is not necessarily insufficiently specific considering the context in which it is made, as "post-trial objections will rarely be as detailed as an appellate brief because time is short, the record may not be ready, and the trial court is already familiar with the case." Id. at 388. Further, the court has stressed, "[l]ike all other procedural rules, those regarding the specificity of post-trial objections should be construed liberally so that the right to appeal is not lost unnecessarily." Id. The "cardinal rule" for error preservation, after all, is simply that "an objection must be clear enough to give the trial court an opportunity to correct it." Id. at 387.

In his motion for new trial, Majeed "challenges the sufficiency of the evidence for the jury's answer to question 1." He continues, in separate subparagraphs, to argue both that "[t]here is no evidence" and "the evidence is insufficient" to support the jury's answer to Question 1. Question 1, as previously noted, was a broad-form submission that inquired whether "the negligence, if any, of [Majeed or Naeem] proximately cause[d] the occurrence in question involving the criminal acts of an unidentified party." Guided by the foregoing principles, we conclude that this portion of Majeed's new-trial motion was sufficiently specific to preserve his complaints that there was legally and factually insufficient evidence of the duty and proximate cause elements of Hussain's negligence claim. See id. at 387-88; Edward D. Jones Co. v. Fletcher, 975 S.W.2d 539, 543 (Tex. 1998) (general no-evidence point preserved objection that defendant had no duty to ascertain client's mental capacity) (cited with approval in Arkoma Basin Exploration Co., 249 S.W.3d at 388 n. 25); Chavez Constr., Inc. v. McNeeley, 177 S.W.3d 593, 598-99 (Tex. App.-Houston [1st Dist.] 2005, pet. granted, judgm't vacated w.r.m.) (no-duty challenge preserved "by timely moving for new trial on general no-evidence-of-negligence grounds").

Majeed's new-trial motion also asserted similar no-evidence and insufficient-evidence challenges to "the jury's answer to question 2." Question 2 asked the jury to award damages separately for each of (1) past physical pain and mental anguish, (2) future pain and mental anguish, (3) lost wages, (4) past physical impairment, (5) future physical impairment, and (6) past medical expenses. Majeed did not specify the damage elements to which his no-evidence and insufficient-evidence complaints pertained. For reasons we explain below, we need not reach and express no opinion as to whether Majeed's new-trial motion was sufficiently specific to preserve his appellate challenge to the jury's damage awards for medical expenses and impairment.

In the event we conclude that Majeed's new-trial motion preserved error, Hussain argues in the alternative that Majeed waived any entitlement to a remand for new trial by failing to request such relief in his appellant's brief. Although Majeed argued in his appellant's brief that the evidence is both legally and factually insufficient and cited a leading factual-sufficiency review case, he prayed solely for rendition of a take-nothing judgment, not a remand for new trial. After Hussain's appellee's brief asserted that Majeed had waived any entitlement to a new trial by failing to explicitly request such relief, Majeed argued in his reply brief that a request for remand had been implicit in his factual-sufficiency arguments, and added, "To the extent Majeed is required as a technical matter to expressly request an alternative remand, he hereby does so." Later, in response to an inquiry from the Court during oral argument, Majeed requested leave to amend his opening brief to add an alternative prayer for a remand. Hussain filed a response in opposition to Majeed's request for leave.

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

In contending that Majeed waived any right to a remand, Hussain emphasizes the principle that "[a] party generally is not entitled to relief it does not seek." State v. Brown, 262 S.W.3d 365, 370 (Tex. 2008). In one case frequently cited for this general principle, see id., the Texas Supreme Court denied a petition for review despite holding that the petitioner's charge-error complaint was meritorious because the petitioner had "specifically requested that this Court not remand for a new trial and prayed only for rendition," and thus "did not request appropriate relief for granting its petition for review." Stevens v. National Ed. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000) (per curiam) (op. denying pet.) (emphasis added); see also id. (observing that new trial is appropriate remedy for charge error). Some of our sister courts have since cited Stevens for the proposition that if an appellant requests reversal and rendition of judgment but not remand, an appellate court cannot reverse and remand. See Molina v. Moore, 33 S.W.3d 323, 327 (Tex. App.-Amarillo 2000, no pet.); see also Jay Petroleum, L.L.C. v. EOG Resources, Inc., No. 01-08-00541-CV, 2009 Tex. App. LEXIS 3182, at *8 (Tex. App.-Houston [1st Dist.] May 7, 2009, pet. denied).

Here, Majeed did not wholly fail to request remand as a remedy, but did so after he had filed his appellant's brief. Cf. Brown, 262 S.W.3d at 370 ("We do not believe it proper to sua sponte grant relief Brown has not sought."). Hussain insists that Majeed's request in his reply brief for a remand came too late. He relies on the line of authorities holding that appellants cannot raise new "issues" or "arguments" for the first time in a reply brief. See, e.g., Howell v. Texas Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.-Austin 2004, pet. denied) ("The rules of appellate procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by appellant's original brief. See Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) ("Pointing out the absence of an appellant's argument does not raise the argument or entitle appellant to assert that argument for the first time in his reply brief. If the rule were construed otherwise, an appellee could never point out matters not raised by an appellant for fear of reopening the door."). In Hussain's view, this principle extends not only to the substantive issues and arguments Majeed raises, but the remedies he is requesting if his issues are sustained.

Our resolution of the parties' contentions is guided by the text and evident purposes of the rules of appellate procedure's briefing requirements. As appellant, Majeed was required to file an opening brief that, among other things, "state[d] concisely all issues or points presented for review" (which are to "be treated as covering every subsidiary question that is fairly included") and "contain[ed] a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(f), (i). The rules further instruct us to construe the briefing requirements "liberally" and that "substantial compliance" is sufficient, as the point of having briefs in the first place is merely to "acquaint the court with the issues in a case and to present argument that will enable the court to decide the case" and not to impose formal requirements as ends in themselves. Id. R. 38.9. The rules further contemplate that appellate courts will afford parties the opportunity to cure any formal or substantive briefing defects before disposing of the appeal based on such a defect rather than the merits. See id.; see also Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300, 300 (Tex. 1987) (regarding parallel provisions of former appellate rules). Finally, "[a] brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe." See Tex. R. App. P. 38.7.

There is no contention that Majeed failed to comply with these requirements in presenting, in his appellant's brief, the merits of the legal and factual-insufficiency grounds on which he seeks reversal. Hussain's contention is solely that Majeed initially requested the wrong appellate remedy for the errors he claims, seeking rendition when this Court could grant him no more than a remand because he had preserved error solely through his motion for new trial. The appellate rules did require that Majeed include a "prayer" in his opening brief, which is described as "a short conclusion that clearly states the nature of the relief sought." Id. R. 38.1(j). Elsewhere, however, rule 43.3 instructs appellate courts, "[w]hen reversing a trial court's judgment," to "render the judgment that the trial court should have rendered, except when: (a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for a new trial." Tex. R. App. P. 43.3. Some of our sister courts have construed rule 43.3 in conjunction with the liberal briefing rules to conclude that an appellate court is empowered either to render judgment or remand for new trial based on its own application of rule 43.3 without regard to whether the appellant specifically prayed for such relief. See, e.g., Ibrahim v. Young, 253 S.W.3d 790, 807 (Tex. App.-Eastland 2008, pet. denied); Jakab v. Gran Villa Townhouses Homeowners Assoc., Inc., 149 S.W.3d 863, 870 n. 7 (Tex. App.-Dallas 2004, no pet.) (citing Kaspar v. Thorne, 755 S.W.2d 151, 156-58 (Tex. App.-Dallas 1988, no writ) (supp. op. on reh'g); Resource Savs. Ass'n v. Neary, 782 S.W.2d 897, 903-04 (Tex. App.-Dallas 1986, writ denied)); National Café Servs., Ltd. v. Podaras, 148 S.W.3d 194, 200-01 (Tex. App.-Waco 2004, pet. denied). Under the reasoning of these decisions, a prayer that omits a request for the appellate remedy that is appropriate under rule 43.3 or requests the wrong one is considered to be the sort of briefing defect or irregularity that should either have no impact on the appellate court's judgment or that the parties should be permitted to cure. See Kaspar, 755 S.W.2d at 156-58.

We find these authorities persuasive and consistent with our understanding of the appellate rules and their underlying purposes. Stevens is not to the contrary. That case involved the oddity of a petitioner having explicitly requested the supreme court not to remand. Stevens, 11 S.W.3d at 185. The petitioner did not, as Majeed here, simply omit a request for a remand or request the wrong remedy in its prayer.

We hold that Majeed's omission of an explicit prayer for a remand in his appellant's brief does not waive his entitlement to such relief or limit our power to award it under rule 43.3 if we sustain any of his issues on appeal. And, to the extent there is any doubt, we grant, for the same reasons, Majeed's motion to amend his opening brief to add an explicit alternative prayer for a remand. See Tex. R. App. P. 38.7. In opposing leave to amend, Hussain disputes that "justice requires" that Majeed "be allowed to waive his right to a remand in his original brief and then unwaive that right after the case has been argued and submitted." Hussain presumes a view of the appellate rules' operation and purposes that we have rejected.

In sum, we hold that Majeed has preserved his no-evidence complaints for appeal — albeit solely through his motion for new trial — at least with respect to the duty and/or proximate cause elements of Hussain's negligence claim.

Standard of review

When a party is challenging the legal sufficiency of the evidence supporting an adverse finding on an issue on which an opposing party has the burden of proof, he prevails if the record shows any one of the following: (1) there is no evidence supporting a vital fact, (2) the evidence offered to prove a vital fact is no more than a mere scintilla, (3) the evidence conclusively establishes the opposite of the vital fact, or (4) the court is barred by law or the rules of evidence from considering the only evidence offered to prove the vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). Conversely, evidence conclusively establishes a vital fact when the evidence is such that reasonable people could not disagree in their conclusions. City of Keller, 168 S.W.3d at 814-17.

When conducting a legal-sufficiency review, we must view the evidence in the light most favorable to the trial court's findings, "crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller, 168 S.W.3d at 807. Moreover, we must indulge every reasonable inference that would support the district court's findings. Id. at 822. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827.

When a party challenges the factual sufficiency of the evidence supporting an adverse finding on which the opposing party had the burden of proof, we should set aside the finding only if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the finding should be set aside. See id.; Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

Proximate cause

In his second issue, Majeed argues that there is legally or factually insufficient evidence that any breach of duty on his part to provide reasonable security measures proximately caused Hussain's injury. In this issue, Majeed focuses on the cause-in-fact component of proximate cause. Whether an act or omission is a cause in fact "cannot be established by mere conjecture, guess, or speculation." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005) (citing Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003)). If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. Id. (citing IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004)). "`The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of the resulting injuries. . . . [and] justify the conclusion that such injury was the natural and probable result thereof.'" Doe, 907 S.W.2d at 477 (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)).

Hussain attributes his injury to Majeed's failure to repair and install with bulletproof glass the sliding window through which his assailant threw the Fix-a-Flat can. Hussain argues that the jury could have reasonably inferred that "a working window with bulletproof glass would have stopped the Fix-a-Flat can from hitting Hussain's eye." In Hussain's view, "It is not speculation to infer that a window that can stop a bullet will more likely than not stop a Fix-a-Flat can thrown by a teenager." Assuming without deciding that is so, it nonetheless remains speculative on this record whether or not the window would have been closed at the time Hussain's assailant threw the can. In his testimony, Hussain described the circumstances surrounding the incident and how, in his view, the broken window was to blame for his injury:

Q: Now, when the incident occurred, could you just go through exactly how everything happened as far as your interaction with the person who assaulted you?

A: Yeah. The young kid came in and asked me for the cigarettes, and I refused him because he doesn't have an ID. He looked young, between 15 and 17. Then he came back. It was not a walk-in store; it was a drive-thru window, but the window was really big. And the window, you can only — if you're going to open, you're going to open one time in the morning. If you close, you put the stick behind that. There was no safety you can slide around, nothing. It was really broke.

. . . .

Q: So is your testimony that he initially came and asked for cigarettes?

A: Yeah, and then beer. And he doesn't have — the second time he came back, he said, I just told you I don't have my ID on me. And he walked back and he got the Fix-a-Flat Tire and just straight throw it and hit my eyes.

On cross-examination, Hussain provided the following additional details:

Q: Can you explain — since we don't appear to have a picture of the store, can you explain what it looks like? Do you have to walk into the store to buy things, or is there a drive-thru?

A: It was a drive-thru. It was a window probably like that big (indicating), but the window door was broke. I mean, when you opened the door in the morning, you've got to take the window on the side. So when you close, you put the big stick in the back to just close it. So there was no lock and nothing on the window.

Q: All right. So it was a sliding window?

A: Sliding window, but the sliding window was not working. It was broke.

Q: Did not work.

A: Yeah.

Q: Okay. And then — so you had to take the window out?

A: Yeah, you've got to take the window out.

Q: Okay. All right. Now when this black male came in and — the one that threw the can at you —

. . . .

A: You cannot walk into the store. It's only a drive-thru, but the window was big.

. . . .

Q: So he was in a car?

. . . .

A: He was on foot.

. . . .

Q: When's the — did you see him get the can —

A: No.

Q: — or you just saw him throw it?

A: No. he was like — the window is like this, and we had a display on the top for the cigarettes. He asked me for the cigarettes, and I just went like this, and he just threw it straight to my eye, straight in my eye —

Q: Okay.

A: — with the can, yeah.

From the above testimony, a jury could only speculate as to whether the window, even if it had not been broken and consisted of bulletproof glass, would have been closed at the time of the assault. There was no evidence presented that would enable a fact-finder to draw a reasonable inference as to whether or when Hussain would have opened the window when serving customers (e.g., whether he would open the window when speaking with them versus only when actually exchanging money or goods) and whether or not Hussain would have had the window open when speaking to his assailant. Nor was there evidence to support reasonable inferences that Hussain could have reacted to his assailant's actions in time to grab the window and succeed in closing it before the can came flying at him. To the contrary, Hussain testified that he did not see the customer pick up the can and that the customer "just threw it straight" at Hussain. Hussain's testimony does not support a reasonable inference that if the window had been repaired and bulletproof glass installed, it would have prevented his injuries.

Hussain also testified that there was no security guard or on-or off-duty police officer on the premises. However, Hussain provided no evidence, either in the form of expert testimony or his own lay opinion, that the presence of a guard or similar security measures would have actually prevented or deterred the assault, especially given the sudden manner in which Hussain testified it occurred.

We conclude that there is no evidence that Hussain's injury would not have occurred but for the alleged negligence by Majeed. See Jea v. Cho, 183 S.W.3d 466, 469 (Tex. App.-Houston [14th] 2005, no pet.) (in case involving injury arising from robbery at convenience store, finding that injured employee failed to prove proximate cause because "there is no empirical data, expert opinion, or other evidence that such [security] measures have actually had any effect on preventing or reducing such crimes where they have been implemented, let alone a reasonable probability that this particular robbery or shooting would have been deterred or thwarted by using them"). In the alternative, we hold that the evidence of causation was factually insufficient.

We sustain Majeed's second issue.

CONCLUSION

Because our disposition of Majeed's second issue establishes his entitlement to the appellate remedy for which he has preserved error — a new trial — we need not reach his other issues. See Tex. R. App. P. 47.1. We reverse the district court's judgment and remand Hussain's claims for a new trial.


DISSENTING OPINION

In this appeal from a jury trial in which the jury found that appellant Tariq Majeed's negligence proximately caused damage to appellee Sajjad Hussain, the majority overturns the jury's verdict by concluding that there was no evidence or factually insufficient evidence of the cause-in-fact component of proximate cause. The majority invades the classic function of the jury. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005) (reviewing court "must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it"); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (credibility determinations, weighing of the evidence, and drawing reasonable inferences from the facts are jury functions). Because I would conclude that the evidence was legally and factually sufficient to support the jury's findings, I would affirm the district court's judgment awarding damages to Hussain. I therefore respectfully dissent.

The district court awarded damages totaling $377,811.19 based upon the jury's findings of $65,000 for past physical pain and mental anguish, $50,000 for future physical pain and mental anguish, $5,720 for past lost wages, $65,000 for past physical impairment, $190,000 for future physical impairment, and $2,091.19 for past medical expenses. The final judgment is also against a co-defendant, Muhammad Naeem, who did not appear, was not represented by counsel at trial, and is not a party to this appeal.

I limit my analysis to the issue of cause in fact addressed by the majority. See Tex. R. App. P. 47.1, 47.5. In two other issues unaddressed by the majority, Majeed challenges the sufficiency of the evidence to support foreseeable risk of harm, duty, and the medical expenses and physical impairment damages. I also would overrule these issues because I would conclude that the evidence was sufficient to support the jury's findings. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

Background

Hussain worked for Majeed as a cashier at Corner Quick Stop, a gas station and convenience store located at 1425 East 12th Street in Austin. The store was not a "walk-in" store. Customers ordered their items and paid for their gas through a "drive-thru" window. The window, however, was broken and had to be removed each day in order for Hussain, as the cashier, to transact business with the store's customers. One afternoon in July 2000, Hussain was injured at the store when an unidentified third party threw a can through the open window. The can struck Hussain in the right eye.

Whether Hussain worked for Majeed or for the co-defendant Naeem was disputed at trial.

Hussain thereafter filed suit against Majeed alleging among his claims that Majeed negligently failed to provide a safe work place and that his negligence caused Hussain's injuries. Hussain alleged that Majeed owed a duty to maintain a secure and safe work environment for Hussain, and that Majeed was negligent in carrying out this duty by, among other things, "[f]ailing to provide or required [sic] adequate security devices, including a safe and secure transaction window such as those provided by similar convenience stores in the area, to ensure the safety of the employees and business invitees on the premises."

The Trial

At the jury trial in April 2008, two witnesses testified — Hussain and Majeed. Majeed, however, did not attend the trial and testified by way of deposition. Majeed testified that he did not know Hussain before the lawsuit, that he sublet the store to Naeem who then employed Hussain, and that Naeem was responsible for the store. In contrast, Hussain testified that Majeed hired him, that he worked for Majeed at the store for several months before the assault, and that Majeed visited the store every week. The documentary evidence admitted at trial included Austin crime statistics for the years 1998 through 2000, Hussain's medical records concerning his eye injury, and lease and other agreements concerning the store.

Viewing the evidence in the light most favorable to the verdict, the evidence showed that (i) the store was located in the "highest crime area" in Austin; (ii) at the time of Hussain's injury, the transaction window was broken, and Hussain physically had "to take the window out" when he began work each day; and (iii) Hussain's eye was permanently injured when the unidentified third party threw the can through the open space of the missing window.

Hussain testified:

Q. Do you have any knowledge of the crime activity that goes on in the area around the 1425 East 12th Street?

A. It's the highest crime area in Austin, Texas.

Hussain also testified that the co-defendant Naeem "got stabbed really bad at the same location." He further testified that "if you just watch Channel 8 Austin News, you're going to hear everything what happened on East 12th Street, Chicon Area." The record also includes City of Austin crime statistics for the area immediately surrounding the store for the years 1998, 1999, and 2000. The statistics show numerous aggravated assaults in the area for each year, as well as robberies, burglaries, rapes, and murders.

Hussain testified at trial: "It was not a walk-in store; it was a drive-thru window, but the window was really big. And the window, you can only — if you're going to open, you're going to open one time in the morning. If you close, you put the stick behind that. There was no safety you can slide around, nothing. It was really broke." He further testified:

Q. All right. So it was a sliding window?

A. Sliding window, but the sliding window was not working. It was broke.

Q. Did not work.

A. Yeah.

Q. Okay. And then — so you had to take the window out?

A. Yeah, you've got to take the window out.

Concerning the assault, Hussain testified that a male customer tried to purchase cigarettes at the store but, when Hussain asked the customer for identification, the customer left. A short time later, the customer came back and asked Hussain to buy some beer. Hussain again asked the customer for identification. This time, the customer got angry and threw a can at Hussain that hit Hussain's right eye.
Hussain's medical records concerning the injury to his right eye were admitted at trial, and he testified that, as a result of his injury, he was permanently blind in that eye. He testified that he was 20 years old and experienced "really bad pain" at the time of his injury and that the pain did not stop until he went to the hospital and received treatment. Hussain also testified that he has not been able to see out of his right eye since he was injured and that everything is "completely dark."

Evidence of Cause In Fact

Generally, a person has no legal duty to protect another from criminal acts of a third party. Timberwalk Apts. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). Employers, however, "have a duty to use ordinary care in providing a safe work place." Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); see Sears, Roebuck Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955) (an employer has a duty "to use reasonable care to provide his [employees] with a reasonably safe place to work"). And this duty includes using ordinary care to protect employees against unreasonable and foreseeable risks of harm from criminal acts of third parties. See Allen v. Connolly, 158 S.W.3d 61, 66 (Tex. App.-Houston [14th] 2005, no pet.) (concerning criminal acts of third parties, employer's duty to employee to provide safe work place the same as premises occupier's duty to protect invitees from such criminal acts).

To prevail on his negligence cause of action then, Hussain had to establish that Majeed failed in his duty to use ordinary care to provide a safe work place, including against unreasonable and foreseeable risks of harm from criminal acts of third parties, and that this failure proximately caused Hussain damages. See id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) ("The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty."). Concerning proximate cause, Hussain had to establish cause in fact and foreseeability. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).

In its analysis, the majority discusses only the cause-in-fact component of proximate cause. The majority reverses the jury's verdict by concluding that, even if the window "had not been broken and consisted of bulletproof glass," there was no evidence that it would have prevented the assault because it "remains speculative on this record whether or not the window would have been closed at the time Hussain's assailant threw the can." See Doe, 907 S.W.2d at 477 (cause in fact "cannot be established by mere conjecture, guess, or speculation"). The majority focuses on the store's actual window, misconstruing Hussain's allegations. Hussain alleged that Majeed should have provided a "safe and secure transaction window such as those provided by similar convenience stores in the area." In other words, his complaint included that the store's transaction window, even if it had been functioning at the time of the assault, was not adequate to protect him.

The majority's desultory analysis also fails to view the evidence in the light most favorable to the verdict in the context of the unchallenged definitions and instructions submitted to the jury. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (reviewing court measures sufficiency of the evidence against instructions and definitions when unchallenged). The jury was asked to determine whether the negligence of Majeed "proximately cause[d] the occurrence in question involving the criminal acts of an unidentified third-party." The jury instructions accompanying this question included the following definition of proximate cause:

"Proximate cause" means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. But, if an act or omission of anyone who is not a party to the suit was the "sole proximate cause of an occurrence, then the act or omission of any party could not have been a proximate cause.

The jury also was given the following definitions of "negligence," "ordinary care," and "new and independent cause":

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

"Ordinary Care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

. . .

"New and independent cause" means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.

The jury was further instructed generally that facts are established by direct and circumstantial evidence and that "[a] fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved."

Majeed does not challenge the jury's finding that the failure to provide security for the store's employees, including a secure transaction window, was negligent. The issue then concerning cause in fact is whether, viewing the evidence in the light most favorable to the verdict and indulging all reasonable inferences in favor of the verdict, there is some evidence to support the jury's finding that "the act or omission complained of" — the failure to provide a secure transaction window — was a cause which, "in a natural and continuous sequence, unbroken by any new and independent cause, produce[d] [Hussain's injury]", and "without which cause such [injury] would not have occurred."

To the extent the majority considers the sufficiency of the evidence based upon (i) the test of cause in fact whether the act or omission was a "substantial factor" in causing the injury or (ii) the principle of law that there can be no cause in fact if the defendant's negligence merely furnished a condition that made the injury possible, the jury was not so instructed. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); see, e.g., Transcontinental Ins. Co. v. Crump, No. 09-0005, 2010 Tex. LEXIS 616, at *29-33 (Tex. 2010) (discussion of "substantial factor" definition for cause in fact); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007) (in products liability context, definition of "producing cause" submitted to jury should contain "substantial factor" language); see also State Bar of Tex., Texas Pattern Jury Charges-General Negligence PJC 2.4, Comment (2008) (comment raises question whether proximate cause definition should include "substantial factor" language in light of supreme court's analysis in Ledesma).

This causation determination does not require "scientific or technical explanation." See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360-61 (Tex. 2000). The types of transaction windows available and typically utilized by self-service gas stations and convenience stores in high crime areas when the window serves as the only contact point with customers is a matter of fact within the common knowledge of the community. See Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007) (submission of causation issue to a jury is warranted when, under the evidence, layperson's "general experience and common sense" will enable a layperson "to determine, with reasonable probability, the causal relationship between the event and the condition"); Honeycutt, 24 S.W.3d at 360-61 (expert testimony on causation "not helpful to the jury . . . [on] matters within the average juror's common knowledge"); Missouri Pac. R.R. v. Kimbrell, 334 S.W.2d 283, 286 (Tex. 1960) (jury may consider as proven any matter that is in common knowledge of community). And the primary purpose of these types of transaction windows — i.e., security — is obvious and a matter of common sense and knowledge. It was within the jury's competence, therefore, to determine the ultimate question of whether the lack of a secure transaction window was a cause in fact of Hussain's injury. See Honeycutt, 24 S.W.3d at 361; see also Farley v. M.M. Cattle Co., 529 S.W.2d 751, 755-56 (Tex. 1975) (citation omitted) ("[W]hether a particular act of negligence is a cause in fact of an injury has been said to be a particularly apt question for jury determination."). Here the jury could have credited the evidence of how the assault occurred to fairly and reasonably infer that, had the store had such a window, the can would not have struck Hussain's eye. See City of Keller, 168 S.W.3d at 822; see also Farley, 529 S.W.2d at 755-56 (proximate cause, "like any other ultimate fact," may be established by circumstantial evidence). Although the record does not contain a picture of the store or its broken transaction window, Hussain described both to the jury, including with physical demonstrations that are not explicitly transcribed in the record. He testified:

A. It was a drive-thru. It was a window probably like that big (indicating), but the window door was broke. I mean, when you opened the door in the morning, you've got to take the window on the side. So when you close, you put the big stick in the back to just close it. So there was no lock and nothing on the window.

. . .

A. . . . the window is like this, and we had a display on the top for the cigarettes. . .

The jury observed Hussain's physical demonstrations, and it was within its province to credit this evidence, as well as his testimony concerning the security at the store and the assault. Further, Majeed did not object to Hussain's physical demonstrations to the jury and failed to request that the record reflect the substance of his demonstrations. The burden was on Majeed "to see that a sufficient record is presented to show error requiring reversal." See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). And we presume that missing portions of the record are relevant and support the judgment. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996).

Hussain testified concerning the security at the store:

Q. Okay. Now, I would like to talk to you about the security at the Corner Quick Stop. Was there an on-duty police officer at the Corner Quick Stop?

A. No, sir.

Q. Was there an off-duty police officer at the Corner Quick Stop?

A. No, sir.

Q. Was there any form of a security guard at the Corner Quick Stop?

A. No, sir.

Q. Was there a bulletproof glass that covered the entire counter over at the Corner Quick Stop?

A. No, sir.

Majeed denied knowledge of the security measures at the store prior to the suit. For example, when asked if he had "any information in relation to a functioning bulletproof glass at all at that location," Majeed answered "I don't know." Crediting the evidence that Majeed visited the store every week for several months prior to the assault, Majeed's denial of knowledge of the store's security measures was highly improbable. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

The jury also could have credited the evidence of the "missing" videotape from the day of Hussain's injury. Hussain testified that there was a security camera with seven videotapes that were used on a rotating basis — one for each day of the week. Hussain did not go back to the store after he was taken to the hospital for some time, the videotape was not turned over to the police although the police immediately investigated the incident, and Majeed did not make it available for viewing at any time. Majeed also failed to provide an explanation as to what happened to the videotape. The jury could fairly and reasonably have inferred that Majeed did not make the videotape available because it further would have shown that a secure transaction window would have prevented Hussain's injury. See id.

It is simply common sense that the failure to provide a secure transaction window was a cause in fact of Hussain's injury. See, e.g., Del Lago Partners v. Smith, 307 S.W.3d 762, 774-75 (Tex. 2010) (jury verdict upheld against the owners of a bar in favor of a patron who was seriously injured when a fight broke out among bar customers at closing time; citing evidence including testimony that the situation "easily could've been avoided," court concluded that jury could have found "mere presence of uniformed security personnel" could have defused the situation and prevented the "violent brawl at closing time" or that the jury could have reasonably determined that the bar's personnel "moved too slowly to notify security after the fight broke out, and that this delay was a proximate cause of [patron's] injuries"); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992) (although the precise circumstances of a convenience store clerk's murder were unknown, evidence that clerk probably would be alive had employer provided proper security presented fact issue whether employer's failure to provide such security was cause in fact of death); Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333, 349-50 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (evidence sufficient to support jury's finding of cause in fact where evidence that additional security measures such as access gates probably would have prevented attack at apartment complex); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 62 (Tex. App.-Fort Worth 1999, pet. denied) (evidence sufficient to support jury's finding of cause in fact where evidence that presence of additional security guards probably would have prevented attack); Garcia v. Fifth Club, Inc., No. 03-03-00697-CV, 2005 Tex. App. LEXIS 861, at *11-14 (Tex. App.-Austin Feb. 3, 2005, pet. denied) (mem. op.) (plaintiff who was shot in the parking lot adjoining a bar established that material fact issue existed whether club's negligence — the failure to provide adequate security and the failure to coordinate inside and outside security — was a cause in fact of injury).

This case is unlike cases against premises owners in which courts have concluded that there was no evidence that the defendant's negligence was a cause in fact of the plaintiff's injury. See, e.g., East Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466, 468-69 (Tex. 1970) (finding no cause in fact because no evidence that, had a theater operator removed "rowdy persons" from a balcony, the person who injured the plaintiff would have been removed); Price v. Ford, 104 S.W.3d 331, 332-33 (Tex. App.-Dallas 2003, pet. denied) (no evidence of cause in fact because no evidence that bar's security guards could have responded within 30 seconds to prevent injuries of bar patron who was beaten for three minutes with pool cue); Yarborough v. Erway, 705 S.W.2d 198, 202-03 (Tex. App.-Houston [14th] 1985, writ ref'd n.r.e.) (no evidence of cause in fact where fight occurred suddenly and no evidence that bar employees could have taken any action to prevent injuries "even if they had known the fight was imminent").

Further, to the extent the majority relies upon our sister court's analysis in Jea v. Cho, 183 S.W.3d 466 (Tex. App.-Houston [14th] 2005, no pet.), that case is inapposite. Although the facts in that case involved an employee who was injured during a robbery at a convenience store, the convenience store was a walk-in store, and the court found the lack of "empirical data" and "expert" opinion significant to the determination of whether the security measures asserted by the employee — a key to lock the door from the inside, proper exterior lighting, and the presence of a second employee — would have prevented the robbery. Id. at 468-69. In contrast, the jury here did not need assistance to determine that a secure transaction window at this type of store would have prevented Hussain's injury. See Honeycutt, 24 S.W.3d at 361 (jury did not need assistance to determine whether lack of a top railing was unreasonable).

"The division of labor between judges and juries is an important one. Who decides what happened, whether the conduct of the actors involved violated applicable standards of care, and the institutional deference accorded those determinations in the litigation process are critical questions." William V. Dorsaneo, III, Judges, Juries, and Reviewing Courts, 53 SMU L. Rev. 1497, 1537 (Fall 2000). Given the jury's collective common sense and general experience, the evidence was far from "mere conjecture, guess, or speculation" that the failure to provide a secure transaction window was a proximate cause of Hussain's injury. See Doe, 907 S.W.2d at 477. The majority nonetheless throws the jury's determination out the window it now finds. I therefore respectfully dissent.


Summaries of

Majeed v. Hussain

Court of Appeals of Texas, Third District, Austin
Oct 22, 2010
No. 03-08-00679-CV (Tex. App. Oct. 22, 2010)

concluding failure to request appropriate relief could be cured

Summary of this case from Lopez-Juarez v. Kelly

concluding failure to request appropriate relief could be cured

Summary of this case from Lopez-Juarez v. Kelly

noting that brief must state concisely all issues or points presented for review "which are to be treated as covering every subsidiary question that is fairly included"

Summary of this case from Wichita Cnty. v. Envtl. Eng'g & Geotechnics, Inc.
Case details for

Majeed v. Hussain

Case Details

Full title:Tariq Majeed, Appellant v. Sajjad Hussain, Appellee

Court:Court of Appeals of Texas, Third District, Austin

Date published: Oct 22, 2010

Citations

No. 03-08-00679-CV (Tex. App. Oct. 22, 2010)

Citing Cases

Wichita Cnty. v. Envtl. Eng'g & Geotechnics, Inc.

The Texas Supreme Court has "firmly mandated that courts broadly construe issues to encompass the core…

DeNucci v. Matthews

We have held that “omission of an explicit prayer for a remand in [an] appellant's brief does not waive his…