Opinion
NO. 01-11-00270-CV
06-14-2012
DOMINO'S PIZZA, L.L.C. AND HUGO ESPINOSA, Appellants v. CHRISTOPHER UMANZOR, LETICIA UMANZOR, AND MANUEL UMANZOR, Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2007-39909
MEMORANDUM OPINION
While in the course and scope of his employment as a delivery driver for appellant Domino's Pizza, L.L.C., (hereinafter, Domino's, L.L.C.) appellant Hugo Espinosa ran over fifteen-year-old appellee Christopher Umanzor, who had been riding his skateboard. Seeking damages for the serious injuries suffered by Christopher, his parents, appellees Manuel Umanzor and Letitia Umanzor, individually and as next friend to their then-minor child, filed suit. The jury attributed 50% of the responsibility to Espinosa and 50% to Christopher, and the trial court rendered judgment against Espinosa and Domino's, L.L.C., jointly and severally, for (1) $775,000 to Christopher for future medical expenses, past and future physical pain and mental anguish, future disfigurement, and past and future physical impairment (2) and $91,619.84 to Leticia, for past medical expenses.
In two issues, Espinosa and Domino's Pizza, L.L.C. contend that the trial court erred in not identifying Manuel as a potentially responsible third party, and in implicitly ruling that Manuel was no longer a claimant under Civil Practice and Remedies Code section 33.011(1). TEX. CIV. PRAC. & REM. CODE. ANN. § 33.011(1) (West 2008). The trial court's error, they argue, deprived them of an opportunity to have the jury determine the proportionate responsibility of both Christopher and his father, Manuel, with the potential result that any recovery by or on behalf of Christopher would be barred if their combined responsibility was greater than 50%. See TEX. CIV. PRAC. & REM. CODE. ANN. § 33.001 (West 2008). We affirm.
Procedural Background
The facts in the case are not disputed. Christopher was fifteen at the time of the accident and turned eighteen after the trial, but before the judgment was signed. The lawsuit was originally brought in June 2007 by Manuel and Leticia, individually and as next friends of Christopher, against Espinosa—the driver—and Domino's, L.L.C. In June 2008, Espinosa and Domino's, L.L.C. counterclaimed against Manuel for contribution. In January 2009, the Umanzors added Domino's Pizza, Inc. as a defendant (hereinafter, Domino's, Inc.). In April 2009, Espinosa and Domino's, L.L.C. filed an amended counterclaim, adding a contributory negligence claim against Christopher and Manuel and also designating Christopher as a responsible third party. In May 2009, Domino's, Inc. counterclaimed against Manuel for contribution and against Manuel and Christopher for contributory negligence, and designated both of them as responsible third parties. On June 30, 2009, the trial court reset the trial for the two-week period beginning September 7, 2009.
In August 2009, Espinosa, Domino's, L.L.C., and Domino's, Inc. filed a "motion to determine jury questions" in which they proposed an instruction in the charge that would direct the jury not to answer the damages question unless the combined negligence of both Christopher and Manuel did not exceed 50%. This motion was reurged in a September 2009 "motion to reconsider." On September 18, 2009, the trial court denied the motion "as premature." In October 2009, Espinosa and Domino's, L.L.C. filed a petition for a writ of mandamus in this Court complaining of the trial court's September 18, 2009 order. This Court denied the petition on November 2, 2009. In re Domino's Pizza, L.L.C., No. 01-09-00863-CV (Tex. App. [1st Dist.] Nov. 2, 2009) (orig. proceeding, mem. op.).
See Cruz v. Andrews Restoration, Inc., 55 Tex. Sup. Ct. J. 608, 618-19 (Apr. 20, 2012) ("A charge filed before trial begins rarely accounts fully for the inevitable developments during trial. For these reasons, our procedural rules require that requests be prepared and presented to the court 'within a reasonable time after the charge is given to the parties or their attorneys for examination.' TEX. R. CIV. P. 273 []).").
On August 27, 2009, an eighth amended original petition was filed that omitted Manuel as a plaintiff, leaving him in the case only as a counterdefendant.On September 8, 2009, Espinosa, Domino's, L.L.C., and Domino's, Inc. filed a "motion for leave to designate responsible third party" seeking that Manuel be so designated. On September 25, 2009, the trial was reset for the two-week period beginning November 2, 2009. On September 28, 2009, the trial court denied the motion "to designate" and on October 9, 2009, Espinosa and Domino's, L.L.C. filed a motion to reconsider that ruling.
The district clerk's filemark indicates the amended petition was filed on November 4, 2009, but it was electronically filed on August 27, 2009. The certificate of service in the petition reflects an August 27, 2009 date.
At the time the September 8, 2009 "motion for leave to designate responsible third party" was filed, the case had been set for trial for the two-week period beginning September 7, 2009, but the trial court on August 31, 2009 granted a continuance.
The trial court's docket indicates an order denying the motion for reconsideration was signed on October 16, 2009, but the order is not in the appellate record. At that time, Manuel was still a party to the case as a counterdefendant.
On October 8, 2009, Leticia "nonsuited" all causes of action against Domino's, Inc. The same day Manuel, as a counterdefendant, moved for summary judgment against Espinosa and Domino's, L.L.C.'s claims for contribution, on the basis that any such claim is derivative of any claim Christopher might have, which would be barred by the doctrine of parental immunity. See Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992). On October 30, 2009, the trial court granted Manuel's motion and rendered a partial summary judgment dismissing with prejudice the contribution counterclaims brought by Espinosa and Domino's, L.L.C. against Manuel.
This was technically a voluntary dismissal of a party under either Texas Rule of Civil Procedure 63 or 163, rather than a Rule 162 nonsuit. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306-07 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The trial court's docket indicates an order of partial "nonsuit" was signed on October 15, 2009, but the order is not in the appellate record.
The trial was held from November 5 to 17, 2009. At the charge conference, the sole challenge to the charge from Espinosa and Domino's, L.L.C. was the following: "Your Honor, the defendant tenders an instruction which it believes it would be appropriate to add to question, advance Question No. 2, citing back the definition of claimant under Chapter 33." The trial court rejected it and indicated the tendered instruction would be "included in the Court's file." The rejected instruction is not included in the appellate record. Espinosa and Domino's, L.L.C. specifically stated that they had no further objections to the charge. As a result, the charge was submitted to the jury with the following question:
QUESTION 2Nowhere in the charge was the jury asked to determine the percentage of responsibility attributable to Manuel.
For each person you found caused or contributed to cause the occurrence, find the percentage of responsibility attributable to each:a. Hugo Espinosa ___________________________ %
b. Christopher Umanzor ___________________________ %
Total 100 %
On November 17, 2009, the jury reached a verdict for Christopher and Leticia, which the trial court accepted. The jury found that both Espinosa and Christopher proximately caused the occurrence, attributed 50% of the responsibility to each of them, and awarded a total of $2,000,000 in damages for medical expenses, physical pain and mental anguish, disfigurement, and physical impairment. Christopher reached majority on November 22, 2009 and appeared in the case individually as a plaintiff.
On January 25, 2010 the trial court signed a final judgment based on the jury verdict against Espinosa and Domino's, L.L.C., jointly and severally, for the following: (1) $91,619.84 for past medical expenses to Leticia; (2) $775,000 to Christopher for future medical care and disfigurement, and past and future physical pain and mental anguish and physical impairment; and (3) pre-and postjudgment interest to both Christopher and Leticia. On February 22, 2010, Espinosa and Domino's, L.L.C. filed a motion for new trial. On April 9, 2010, Espinosa and Domino's, L.L.C. filed a notice of appeal.
The trial court's docket indicates an order denying the new trial was signed on March 12, 2010, but the order is not in the appellate record.
Discussion
In their first issue, Espinosa and Domino's, L.L.C. contend that the trial court erred in not allowing them to designate Manuel as a responsible third party. This initially came before the trial court on September 8, 2009 when Espinosa, Domino's, L.L.C., and Domino's, Inc. filed a "motion for leave to designate responsible third party." The trial court denied the motion on September 28, 2009. On October 9, 2009, Espinosa and Domino's, L.L.C. filed a motion to reconsider that ruling. There is no formal ruling on the motion in the record, but there is a docket entry indicating it was denied.
In their initial motion to designate, Espinosa and Domino's, L.L.C. stated the following:
The Motion is Filed Out of Abundance of Caution(Citations and footnotes omitted). The motion to reconsider restated the argument quoted above, except for the concluding sentence, and added the following:
Defendants believe that the making of contributory negligence assertions and contribution claims against existing parties to a lawsuit
does not fall within the purview of third party practice. Indeed CPCR [Civil Practice and Remedies Code] §33.003 "Determination of Percentage Responsibility" states that such a determination is to be made amongst[:][](1) each claimant;See §33.003(a). Thus, by statute, there is a difference between claimants and responsible third parties. However, as the Court has already heard, Defendants contend that, according to statute, Manuel Umanzor is already a claimant. Therefore, Defendants contend they would have had no obligation to seek leave under §33.004 from this Court to then designate him as a "responsible third party." Nevertheless, in order to preclude needless wrangling at pretrial of this action, Defendants have filed the instant motion.
(2) each defendant;
(3) each settling person; and,
(4) each responsible third party who has been designated under §33.004.[]
Further, the CPRC §33.004(e) and (l) make it clear that "a responsible third party is neither joined in the lawsuit, made subject to the court's jurisdiction, nor otherwise prejudiced by a determination of fault." Clearly that is not the case here as Manual Umanzor has been a party to the lawsuit for almost two years. Thus, he cannot be a "responsible third party" as he has been "joined in the lawsuit," "made subject to the court's jurisdiction" and will indeed "be prejudiced by a determination of fault." The three prong description of what a responsible third party will be as set forth in the statute makes it clear that Manuel Umanzor cannot actually be a "responsible third party" under that statute, but if the Court is interpreting the statute so as to require him to be so designated for purposes of §33.001, then Defendants are seeking permission from the Court to do so accordingly.(Citations and footnotes omitted). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.003, .004 (West 2008 & Supp. 2011). Espinosa and Domino's, L.L.C.'s position at trial was that Manuel was a claimant, and we agree. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(1)(B) (West 2008) (defining "claimant," in part, as person seeking recovery of damages, including a plaintiff, which includes any person who could seek recovery of damages for the injury or harm of that person).
Without deciding whether the trial court could properly allow Manuel to be designated as a responsible third party when he was simultaneously a claimant, we hold that the trial court's initial ruling was, at worst, harmless because Manuel was a claimant, thus bringing him within the purview of Chapter 33 in any event. We overrule the first issue.
In their second issue, Espinosa and Domino's, L.L.C. contend, "The trial court erred in implicitly ruling, as a matter of law, that Manuel Umanzor was no longer a 'claimant' as defined by Tex. Civ. Prac. & Rem. Code Sec. 33.011(1) after the August 27, 2009 filing of Plaintiffs' Eighth Amended Petition such that his negligence could not be considered by the trier of fact." We do not agree that the trial court made any such "implicit" ruling.
Because appellants' brief raises an issue against Manuel, i.e., that he should be a claimant, and Manuel was a party to the trial court's final judgment, Manuel is an appellee. See Showbiz Multimedia, L.L.C. v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
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As discussed above, at the charge conference the only challenge from Espinosa and Domino's, L.L.C. was the following: "Your Honor, the defendant tenders an instruction which it believes it would be appropriate to add to question, advance Question No. 2, citing back the definition of claimant under Chapter 33." The tendered instruction is not a part of the appellate record and it was not read aloud or otherwise described during the charge conference, so we do not know what specific instruction was requested. As the instruction is not before us, we must assume that the instruction was solely one defining a "claimant," because the record of the charge conference reflects no request by Espinosa and Domino's, L.L.C. that Manuel's percentage responsibility for the accident—assuming that sufficient evidence was adduced to support it—be submitted to the jury as a claimant or a responsible third party. What was submitted, without specific objection, was the following question:
QUESTION 2
For each person you found caused or contributed to cause the occurrence, find the percentage of responsibility attributable to each:a. Hugo Espinosa ___________________________ %
b. Christopher Umanzor ___________________________ %
Total 100 %
The only relevance of Manuel's characterization as either a claimant or a responsible third party would have been if the jury had been asked to determine the percentage of his responsibility.
Because the jury was never asked to weigh Manuel's percentage responsibility and Espinosa and Domino's, L.L.C. never objected to that aspect of the question or requested that the trial court include Manuel in the question, Espinosa and Domino's, L.L.C. have not preserved for appellate review their claim that the jury might have found Christopher and Manuel's combined responsibility to be greater than 50%. See TEX. R. CIV. P. 279; State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). In their request for an instruction, Espinosa and Domino's, L.L.C. did not make it apparent to the trial court that it should ask the jury Manuel's comparative responsibility, or that sufficient evidence in the record supported a claim of negligence against him.
We overrule the second issue.
Conclusion
We affirm the trial court's judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.