stephanie-mccullough-individually-as-as-next-friend-of-mary-constance ( 2005 )

                              NUMBER 13-04-366-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

STEPHANIE MCCULLOUGH, INDIVIDUALLY

AND AS NEXT FRIEND OF MARY CONSTANCE

MCCULLOUGH AND STEVEN MCCULLOUGH,

MINORS, ET AL.,                                                                           Appellants,

                                                             v.                               

WESTERN GECO, LLP AND TREK

INTERNATIONAL SAFARIS, INC.,                                        Appellees.

                   On appeal from the County Court at Law No. 4

                                      of Nueces County, Texas.

                               MEMORANDUM OPINION

           Before Chief Justice Valdez and Justices Castillo and Garza

                            Memorandum Opinion by Justice Garza

Appellants, Stephanie McCullough, et al., sued appellees, Western Geco, LLP (AWestern@) and Trek International Safaris, Inc. (ATrek@), for negligent undertaking and negligent misrepresentation following the death of Thomas McCullough from yellow fever.  The case was tried to a jury, which apportioned 70% of liability to Thomas. Based on this finding, the trial court entered a take-nothing judgment against appellants from which appellants now appeal by three issues.  Because we conclude that the trial court erred by including Thomas in the proportionate responsibility question without requiring that the jury first determine that he was negligent or otherwise culpable, we reverse the take-nothing judgment and remand for further proceedings consistent with this opinion.

In this case, the jury charge given by the trial court asked the jury to (1) decide whether appellees were liable for negligent undertaking, (2) decide whether appellees were liable for negligent misrepresentation, and (3) determine the proportionate responsibility of appellees and Thomas in causing the death of Thomas.  Appellants objected to the inclusion of Thomas in the proportionate responsibility question and submitted a proposed question that excluded Thomas from consideration.  See Tex. R. Civ. P. 274.  The trial court refused the requested question. 

Upon deliberation, the jury found for appellants on the questions of negligent undertaking and negligent misrepresentation.  In answering the comparative negligence question, the jury found that 20% of the negligence that caused Thomas=s death was attributable to Western, 10% to Trek, and 70% to Thomas.     

Subsequently, appellants filed a motion to disregard the jury=s answer to the proportionate responsibility question as it related to Thomas.  They argued, inter alia, that the jury=s findings of negligent undertaking and negligent misrepresentation rendered immaterial the comparative negligence question as it related to Thomas.  The trial court overruled the motion to disregard, and appellants then filed a motion for new trial, arguing, inter alia, that the verdict was conflicting.  The trial court denied the motion and this appeal ensued.        

Section 33.001 of the Texas Civil Practice and Remedies Code states that Aa claimant may not recover if his percentage of responsibility is greater than 50 percent.@  Tex. Civ. Prac. & Rem. Code Ann. ' 33.001 (Vernon 1997).  Section 33.003 provides that the trier of fact shall apportion responsibility Awith respect to each person=s causing or contributing to cause in any way the harm for which recovery of damages is sought.@  Tex. Civ. Prac. & Rem. Code Ann. ' 33.003 (Vernon Supp. 2004B05).  Finally, rule 277 gives the following instructions:

In any cause in which the jury is required to apportion the loss among the parties the court shall submit a question or questions inquiring what percentage, if any, of the negligence or causation, as the case may be, that caused the occurrence or injury in question is attributable to each of the persons found to have been culpable.

Tex. R. Civ. P. 277 (emphasis added).

The problem in this case is that Thomas was not Afound to have been culpable@ before the jury was asked to apportion responsibility to him.  Id.  Instead, the proportionate responsibility question asked the jury to determine the existence of Thomas=s negligenceCto find him Ato have been culpable@Cat the same time that it asked the jury to apportion responsibility to him.  This approach has no support in the rules of procedure or the pattern jury charges.

Rule 277 states the jury is to apportion the loss among Athe persons found to have been culpable.@  Id.  This means that a question on culpability must precede the apportionment question. Only those parties Afound to have been culpable@ are then to be considered in the apportionment question.  This is made clear in the relevant portion of the Texas Pattern Jury Charges:

PJC 4.3          Proportionate Responsibility

If you have answered AYes@ to Question ______ [applicable liability question] for more than one of those named below, then answer the following question.  Otherwise, do not answer the following question.

*   *   *

QUESTION _____

What percentage of the negligence that caused the [occurrence] [injury] [occurrence or injury] do you find to be attributable to each of those listed below and found by you, in your answer to Question ______ [applicable liability question], to have been negligent?

a.  Don Davis ___________________ %

b.  Paul Payne           ___________________ %

c.  Sam Settlor           ___________________ %

d. Responsible Ray___________________ %

     TOTAL                                 100                   %                

Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges-  General Negligence PJC 4.3 (2003).

In this case, the charge used by the trial court did not include the qualifying language Aeach of those listed below and found by you, in your answer to Question ______ [applicable liability question], to have been negligent.@  Id.  Instead, the charge asked, AWhat percentage of the negligence that proximately caused the death of Thomas McCullough do you find to be attributable to each of those listed below that you find to have been negligent?@  The charge thus allowed the jury to find, for the first time in the proportionate responsibility question, that Thomas had been negligent.  

In combining the question of Thomas=s negligence with the question of proportionate responsibility, the trial court failed to achieve its goal of Asubmit[-ting] to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely.@  Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).  The charge submitted by the court deviated from rule 277, as well as from the relevant pattern jury charge, and its submission to the jury, over the objections of appellants and despite their submission of a correct question, amounted to an abuse of discretion.

After considering the pleadings, the evidence, and the charge in its entirety, we have no doubt that the error probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1(a).  The harmfulness of the error is most easily observed by juxtaposing the jury=s answers to the three pertinent questions it was asked.  In response to the negligent undertaking question, the jury found that the negligence of appellees proximately caused the death of Thomas McCullough.  In response to the negligent misrepresentation question, the jury found that both defendants had Anegligently give[n] false information to Thomas McCullough on which Thomas McCullough reasonably relied which was a proximate cause of his death.@ Notwithstanding these findings, the jury later found Thomas to be 70% responsible for his own death.  This finding is particularly difficult to understand given that Thomas was found to have Areasonably relied@ on the false information negligently given to him by appellants and because the jury found that Thomas=s reasonable reliance on the false information proximately caused his death.   

This Court will not endeavor to reconcile what appear to be irreconcilable answers.  We nevertheless recognize that various explanations for these discrepancies could be posited by those involved in this case. However plausible such explanations may appear, we have no confidence that their plausibility negates the reality that the error in the jury charge probably confused the jury and probably led to the rendition of an improper judgment.  See id.  In our estimation, the error in the jury charge probably made all the difference in this case.  Appellants= first issue is therefore sustained.

In two issues raised on condition that any of appellants= issues are sustained, appellees seek to challenge the legal and factual sufficiency of the evidence supporting the jury=s findings of negligent undertaking and negligent misrepresentation.  Having sustained appellant=s first issue, we now remand the matter for a new trial.  We will not review the legal and factual sufficiency of the evidence to support findings related to a judgment that has already been reversed.  Even if this were a proper occasion for such challenges to be reviewed, we would dismiss appellees= cross-points because there is no indication in the record that these issues were properly raised before the trial court by a timely request, objection, or motion.  See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510B11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex. App.BHouston [1st Dist.] 2002, pet. denied).  The judgment of the trial court is reversed and the cause is remanded for a new trial.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and                                

filed this the 8th day of December, 2005.