Texas Department of Public Safety v. Frederick Dean Boswell--Appeal from County Court at Law No 2 of Travis County

NUMBER 13-06-327-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

 

v.

 

FREDERICK DEAN BOSWELL, Appellee.

On appeal from the County Court at Law No. 2

of Travis County, Texas.

MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Garza

Texas Department of Public Safety ("DPS") appeals from a final judgment entered awarding Frederick Dean Boswell damages for personal injuries suffered in an automobile accident. DPS challenges the trial court's judgment by nineteen issues. By sixteen issues, DPS claims jury charge error, and by three issues, DPS claims error in the trial court's failure to reduce the damages award by the amount of settlement between Boswell and Kathryn Serbanic, error in calculating pre-judgment interest, and error in awarding non-taxable court costs. Because we conclude the trial court erred in failing to submit Serbanic's negligence and proportionate responsibility to the jury as a responsible third party, we reverse and remand to the trial court.

I. Background

Boswell was involved in an automobile accident on February 12, 2002, with Sargeant Vester Roney, a DPS officer. Roney was on duty when he hit the rear of Boswell's vehicle as they were stopped at a traffic light. Boswell complained of injury to his neck.

On February 22, 2002, as Boswell was leaving the clinic where he had undergone x-rays of his neck, his vehicle was rear-ended by Kathryn Serbanic. Boswell immediately returned to the clinic complaining of greater pain to his neck.

Boswell sued DPS, Roney, and Serbanic alleging the negligence of Roney and Serbanic proximately caused an indivisible injury. Serbanic settled the claims made against her prior to trial. Boswell non-suited her from the case on April 16, 2004. On May 27, 2004, more than 60 days prior to trial, DPS and Roney filed a motion for leave to designate Serbanic as a "Responsible Third Party" pursuant to chapter 33 of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 33.004 (Vernon Supp. 2006). (1) Boswell did not object to this motion.

The case was tried to a jury. The jury found Roney's negligence proximately caused the February 12, 2002 collision and awarded damages. The cause was submitted to the jury in a three question charge. The first question asked, "Did the negligence, if any, of Vester Roney proximately cause the collision in question?" The jury answered "Yes" to this question. The second question asked, "What sum of money, if paid now in cash, would fairly and reasonably compensate Frederick Dean Boswell for his damages, if any, that resulted from the collision in question?" The jury awarded $5,000 for medical care, $5,000 for physical impairment, and $32,500 for physical pain and mental anguish. The third question asked, "What is the difference in the market value in Travis County, Texas, of the vehicle driven by Frederick Dean Boswell immediately before and immediately after the collision in question?" The jury answered "$525." This appeal ensued.

II. Jury Charge Error

a. Standard of Review

Jury charge error is reviewed for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 721-22 (Tex. App.-Dallas 1997, no writ). To determine whether an alleged jury charge error is reversible, we consider the parties' pleadings, the evidence presented at trial, and the charge in its entirety. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663 (Tex. 1999). The goal of a jury charge is to submit the issues for decision logically, simply, clearly, fairly, correctly, and completely, and the trial court has broad discretion in accomplishing that end as long as the charge is legally correct. Id. at 664. A trial court must submit "such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277; see also Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Williams, 85 S.W.3d at 166 (citing Tex. R. Civ. P. 278). This is a substantive, non-discretionary directive to trial courts, requiring them to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).

The omission of a proper question from a jury charge is reversible only if it "probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a)(1). Error in the omission of an issue is harmless "when the findings of the jury in answer to other issues are sufficient to support the judgment." Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam); (see Boatland of Houston, 609 S.W.2d at 750) (holding that even if submission was improper, error was harmless); see also City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (explaining that a jury question may be immaterial, and therefore its submission harmless, "when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict").

b. Analysis

By issues five, six, and seven, all of which can be appropriately addressed together, DPS argues that the trial court erred in not submitting Serbanic's negligence and proportionate responsibility in the court's charge because it had designated her as a "responsible third party" pursuant to section 33.004 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. 33.004. (2) Section 33.004 provides, in relevant part:

33.004 Designation of Responsible Third Party
(a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.

. . . .

 

(f) A court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served.

 

. . . .

 

(h) By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of this chapter without further action by the court or any party.

Id.

 

DPS filed its "Motion for Leave to Designate Responsible Third Party" well before the 60-day requirement of section 33.004(a). Id. 33.004(a). Boswell did not file an objection pursuant to subsection (f). Id. 33.004(f). Therefore, the court was required to grant the leave to designate Serbanic as a responsible third party. Id.

Because DPS was entitled to have Serbanic designated as a responsible third party, we next address DPS' contention that Serbanic's name should have been submitted to the jury for a determination of liability and a determination of her proportionate responsibility, if any.

Pursuant to subsection (h) of section 33.004, by granting a motion for leave to designate a person as a responsible third party, the person is designated as a responsible third party for purposes of chapter 33 of the Texas Civil Practice and Remedies Code without further action by the court or any party. Id. 33.004(h). Pursuant to section 33.003(a)(4) the designation of a responsible third party under section 33.004 requires the trier of fact to determine the percentage of responsibility for that person, in this case, Serbanic. See id. 33.003(a)(4) (Vernon Supp. 2006). Specifically, section 33.003(a)(4) provides,

 

(a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004.
(b) This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission.

 

Id.

 

We have already determined that Serbanic was properly (or should have been) designated as a responsible third party. At trial, and on appeal, Boswell argues that because the collision in which Serbanic was involved was on a separate date, it was a separate cause of action and, therefore, her name should not have been submitted to the jury. The trial court agreed with Boswell and refused DPS's proposed liability and proportionate responsibility questions which included Serbanic's name. (3) In fact, the jury was asked to find Roney's responsibility for the "collision-in-question", the February 12, 2002 collision.

Chapter 33 defines "responsible third party" as:

[A]ny person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.

 

Tex. Civ. Prac. & Rem. Code Ann. 33.011(6) (Vernon Supp. 2006).

Both the proportionate responsibility statute and the definition of responsible third party use the terms "harm for which recovery of damages is sought." What is significant here is the harm for which Boswell was seeking recovery. We look to the record to review the claims made by Boswell to determine whether there was sufficient evidence to support the submission of Serbanic as a responsible third party. Id. 33.003(b).

Boswell initially sued for both accidents in one lawsuit. In his original petition, Boswell alleged negligence against Roney and Serbanic and claimed their negligence was the proximate cause of his injuries and of his and his wife's damages. (4) Boswell claimed, "the injuries and damages sustained by Plaintiffs may be an indivisible injury." His claim for damages included medical expenses, loss of earning capacity, physical pain and mental anguish, and loss of physical capacity, in the past and future.

After Serbanic filed her original answer, she filed a motion to sever Boswell's claims against her from his claims against Roney. She alleged,

[T]he claims levied against Serbanic are wholly unrelated to the causes of action directed toward Defendants DPS and Roney. Further, the claims against Serbanic comprise complete causes of action in and of themselves and can stand alone as a separate lawsuit and do not involve the same facts and circumstances forming the basis for the lawsuit against Defendants DPS and Roney. Thus, the claims against Serbanic should be severed from the claims brought against Defendants DPS and Roney.

 

Interestingly, Boswell opposed Serbanic's motion. In his written objection to the court, Boswell argued,

Plaintiffs filed this lawsuit jointly against Defendants. Plaintiff has suffered an injury to his neck and body generally as a result of two vehicle collisions that occurred within ten days of each other. In both cases, Plaintiff was hit from the rear.

 

Before these two collisions, Plaintiff Boswell had a metal plate stabilizing the bones in his neck. This plate was attached by four screws. In the course of the two collisions, three of the screws were broken, and Plaintiff has had a surgery to re-affix the screws. Plaintiffs anticipate that each Defendant will blame the other party or a pre-existing condition for the surgery. In fact, Defendants Texas Department of Public Safety and Roney have done just that in their responses to Requests for Disclosure.

 

Plaintiff Boswell has alleged that he suffered an indivisible injury. Plaintiffs would be prejudiced if required to maintain two lawsuits. Each defendant could make the "empty chair" argument. It is therefore preferable to try the claims together. [citations omitted] It would be error to sever these claims. [citations omitted].

 

Even if Plaintiff is wrong in his contention that this involves an indivisible injury, the damages issues in the two claims are interwoven. The same medical evidence will be necessary for all parties for their claims or defenses, that is, to prove or disprove that the damages suffered by Dean Boswell resulted from one or both or neither of the collisions in question. A single proceeding will therefore promote judicial economy.

 

There is no order in the record indicating a ruling by the trial court on Serbanic's motion to sever.

In his Fifth Amended Petition, Boswell claimed the February 12 collision aggravated his pre-existing condition. Boswell claimed in the alternative that the February 12 collision and the February 25 collision "together caused an indivisible injury, including any aggravation of a pre-existing condition." Boswell further claimed in the alternative that if the February 25 collision caused a separate injury, "that injury was a subsequent aggravation of the injury suffered [in the February 12 collision]."

At trial Boswell testified about the February 25 collision involving Serbanic. He testified that he was in a stopped position and was rear-ended by Serbanic. He blamed her for the accident and alleged she was negligent. Photographs of both vehicles depicting the physical damage that occurred to each were admitted into evidence. Immediately after the February 25 collision, he returned to the clinic because he felt more pain. He requested additional x-rays of his neck "for this reason." The progress note for the x-ray done approximately one week later indicates he was there because of the February 25 collision and he "did not hurt until about 2 days later when he developed upper thoracic pain, some posterior neck pain and right shoulder pain." Subsequent medical evaluations determined Boswell's condition required surgery.

Throughout trial, DPS alleged the second collision was a factor in the harm claimed by Boswell. Its expert, Dr. Nicholas Tsourmas, reviewed all of Boswell's medical records and testified that the February 25 collision contributed to Bosell's injury.

Looking at the accident No. 1, I've concluded that there really wasn't much in the way of complaints noted by his doctors. Certainly there was a reason to check an x-ray. In reviewing those x-rays, I think it was two weeks after the accident involved, there was further demonstration that this patient had incompetent hardware that was different from Dr. Hansen's 2000 notes at least. And then this medical care continued after the second motor vehicle accident, certainly under Dr. Spann who had the opportunity to see him each time after each of the accidents, noted increased pain and ordered new x-rays. And then his care expanded after that.

 

On cross-examination, Dr. Tsourmas testified that either of the collisions could have caused the fracture of the screw.

Based on the record before us, we conclude there was sufficient evidence to support the submission of Serbanic as a responsible third party and to have the trier of fact determine her negligence and her proportionate responsibility for the harm claimed by Boswell, specifically his neck injury. See Tex. Civ. Prac. & Rem. Code Ann. 33.003(a)(4),(b). We further conclude that the trial court's failure to submit Serbanic's name for a determination of liability and proportionate responsibility probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). Accordingly, we sustain DPS' issues relating to the trial court's failure to submit Serbanic's negligence and proportionate responsibility to the jury as a responsible third party. It is therefore unnecessary to consider DPS' alternative issues regarding the trial court's denial of its motion to submit Serbanic's negligence to the jury as a settling person, specifically, issue four. See Tex. R. App. P. 47.1. (5)

 

III. Conclusion

We reverse the judgment of the trial court and remand to the trial court for proceedings consistent with this opinion.

__________________________

DORI CONTRERAS GARZA,

Justice

 

Memorandum Opinion delivered and

filed this the 31st day of August, 2007.

1. Boswell filed his lawsuit after July 1, 2003.

2. We note that our analysis and disposition of these issues also effectively resolves DPS' complaints in issues thirteen, fourteen, fifteen, sixteen, and seventeen on appeal. Specifically, because by including Serbanic as a responsible third party and by requiring the jury to determine her proportionate responsibility, the jury will necessarily have to decide whether to allocate responsibility, if any, to Serbanic for Boswell's injuries sustained in the February 25 collision.

3. We emphasize that pursuant to section 33.004(f), because Boswell did not file an objection to DPS' motion for leave to designate Serbanic as a responsible third party, the trial court was required to grant the leave. See Tex. Civ. Prac. & Rem. Code Ann. 33.004 (Vernon Supp. 2006). In addition, we note that DPS re-urged its request to designate and submit Serbanic's name as a responsible third party during the charge conference. The trial court denied DPS' request.

4. Boswell's wife filed a loss of consortium claim.

5. DPS has not raised any issues that, if sustained, would require rendition of judgment. Accordingly, given our disposition of issues five, six, and seven, we need not address DPS' remaining issues. See Tex. R. App. P. 47.1.