Sean Hampton v. Lynna N. Nguyen

Opinion issued July 28, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00473-CV ——————————— Sean Hampton, Appellant V. Lynna N. Nguyen, Appellee On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2008-62882 MEMORANDUM OPINION Appellant Sean Hampton sued appellee Lynna N. Nguyen for injuries sustained in an automobile accident. On appeal, Hampton complains about the sufficiency of the evidence to support the jury’s finding that he was negligent and its assignment of his proportionate responsibility. Hampton also contends that the jury’s failure to award damages for future impairment and disfigurement is against the great weight and preponderance of the evidence. We affirm. Background Hampton, a college student, was driving to class when Nguyen’s vehicle struck his vehicle from behind. Hampton sustained injuries to his neck and hand, and his vehicle was also damaged. He sued Nguyen for negligence. At trial, Nguyen argued that Hampton was negligent and that the accident was not the cause of his injuries. Hampton testified that he stopped to make a left turn into an apartment complex. He stated that he had been completely stopped for approximately 60 seconds before Nguyen’s vehicle collided with his. When the collision occurred, Hampton was speaking with a pedestrian through the passenger side of the vehicle. He testified that he was leaning to the right and reaching into the center console for a pen. Nguyen testified, however, that Hampton stopped suddenly and without warning. Nguyen recalled seeing the pedestrian to her right and stated that Hampton’s vehicle had passed the entry for the apartment complex and was at an intersection. She testified that Hampton’s vehicle was “pulled to the right” and that he was not positioned to make a left-hand turn. She also testified that the left-rear side of Hampton’s bumper was damaged, as opposed to the center or right-rear side, in the collision. The trial court’s charge submitted questions to the jury on both Hampton’s and Nguyen’s negligence, and in the event that both were found negligent, the charge asked the jury to assign a percentage of responsibility to each person. The jury found both Hampton and Nguyen negligent and assigned 40% responsibility to Hampton and 60% to Nguyen. The trial court also submitted questions to the jury on past and future damages, including future disfigurement and future physical impairment. The jury awarded Hampton $3,332.30 in damages for past disfigurement, physical pain and mental anguish, physical impairment, and medical expenses, but it awarded no damages for future disfigurement and physical impairment. The trial court reduced the award by Hampton’s percentage of responsibility and entered judgment against Nguyen in the amount of $2,031.02. Hampton filed a motion for judgment notwithstanding the verdict, arguing that there was no evidence to support the jury’s assignment of 40% responsibility to him and assessment of no future damages. The trial court denied the motion, and Hampton appealed. Analysis I. Negligence finding and assignment of proportionate responsibility In his first issue, Hampton challenges the sufficiency of the evidence to support the jury’s finding of negligence and assignment of 40% responsibility to him. Hampton argues that the evidence was undisputed and conclusively established that he was rear-ended, and therefore he could not be negligent. Nguyen argues that Hampton’s factual sufficiency issues are not preserved and that there was legally sufficient evidence to support the jury’s verdict. A. Legal sufficiency In a legal sufficiency, or no-evidence, review, we determine whether the evidence would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and we disregard contrary evidence unless a reasonable fact-finder could not. Id. We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight accorded to their testimony. Id. at 819. Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822. The mere occurrence of a rear-end collision is not of itself evidence of negligence as a matter of law. See, e.g., Benavente v. Granger, 312 S.W.3d 745, 749 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.—Houston [1st Dist.] 1992, writ denied). The plaintiff must prove specific acts of negligence on the part of the defendant driver and must prove proximate cause. Neese, 845 S.W.2d at 314. With regard to rear-end collisions, “standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.” Id. Conflicts in the witnesses’ testimony present credibility questions for the jury to resolve. Id. at 314–15. Hampton contends that the “undisputed evidence was that at the time of the accident [he] was lawfully stopped with his left turn signal blinking and brake lights on waiting for traffic to clear.” Relying, in part, on section 545.062 of the Transportation Code, he argues that the evidence of Nguyen’s negligence was conclusive because she rear-ended his vehicle and admitted to being 100% at fault. Section 545.062(a) provides: An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway. Tex. Transp. Code Ann. § 545.062(a) (West 2011). But Nguyen did not admit fault, and there was disputed evidence suggesting Hampton’s negligence. Hampton testified that he had been completely stopped for approximately 60 seconds before Nguyen’s vehicle collided with his, but Nguyen testified otherwise, stating that Hampton stopped suddenly and without warning. She stated that she saw Hampton’s brake lights come on when he made a sudden stop, and that she applied her brakes, but she was unable to avoid colliding with Hampton’s vehicle. Hampton also testified that he was making a left turn into an apartment complex. He testified that he was leaning to the right, talking to a pedestrian through the passenger-side window, and trying to find a pen in his center console. Nguyen recalled seeing the pedestrian to her right and stated that Hampton’s vehicle had passed the entry for the apartment complex and was at the intersection. She testified that Hampton’s vehicle was “pulled to the right” and that he was not positioned to make a left turn. She also testified that the left-rear side of Hampton’s bumper was damaged, as opposed to the center or right-rear side, in the collision. The jury could have concluded based upon Hampton’s and Nguyen’s testimony that Hampton stopped suddenly or that he was distracted by a conversation with a pedestrian. The jury is the sole judge of the credibility of the witnesses and the weight accorded to their testimony. City of Keller, 168 S.W.3d at 819. When viewed in the light most favorable to the jury’s finding, the evidence raises an issue as to whether Hampton acted negligently. See McDonald v. Dankworth, 212 S.W.3d 336, 340–45 (Tex. App.—Austin 2006, no pet.). Therefore, we hold that the evidence was legally sufficient to support the jury’s finding that Hampton was negligent and that his negligence was a proximate cause of the collision. With respect to apportionment of fault, the jury is given wide latitude in determining the negligent parties’ proportionate responsibility. Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.—Texarkana 2004, no pet); Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex. App.—Dallas 2002, pet. denied.). As with our review of the sufficiency of the evidence to support the negligence finding, we consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. If the evidence is sufficient to support the jury’s negligence finding, the Court may not substitute its judgment for that of the jury, even if the evidence could support a different percentage allocation. Rosell, 89 S.W.3d at 659–60; Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Having found sufficient evidence that both Hampton and Nguyen were at fault, we find no basis for interfering with the jury’s assignment of 40% responsibility to Hampton. B. Factual sufficiency Hampton also challenges the factual sufficiency of the evidence to support the verdict, and he argues that the findings are against the great weight and preponderance of the evidence. The filing of a motion for new trial is a prerequisite to an appellate complaint challenging the factual sufficiency of the evidence supporting a jury finding. See Tex. R. Civ. P. 324(b)(2); see, e.g., U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Pro se litigants are held to the same standards as attorneys and must comply with all applicable and mandatory rules of pleading and procedure. De Mino v. Sheridan, 176 S.W.3d 359, 369 n.17 (Tex. App.—Houston [1st Dist.] 2004, no pet.). To apply a different set of rules to pro se litigants would give them an unfair advantage over litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). Hampton did not file a motion for new trial. Accordingly, we hold that he has failed to preserve this complaint on appeal. Hampton’s first issue is overruled. II. Future damages In his second issue, Hampton contends that jury’s failure to award damages for future impairment and disfigurement is against the great weight and preponderance of the evidence. In order to preserve a complaint about the inadequacy or excessiveness of damages found by the jury, the complaining party must file a motion for new trial. See Tex. R. Civ. P. 324(b)(4). Because Hampton did not file a motion for new trial, we hold that this issue was not preserved, and we overrule his second issue. Conclusion We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Jennings, Bland, and Massengale.