Opinion
No. 01-02-01336-CV
Opinion issued June 16, 2005.
On Appeal from the County Court at Law No. 3, Harris County, Texas, Trial Court Cause No. 773,473.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
MEMORANDUM OPINION
In this personal injury case, appellant, Todor Spassov Blagoev, challenges a take-nothing judgment rendered in favor of the appellees, Rashell McNeil Hinderman and Willie J. McNeil. In three issues, Blagoev contends that (1) the trial court erred in applying a contributory negligence theory because contributory negligence is an affirmative defense that must be specifically pleaded (2) the judgment of the trial court is not supported by the greater weight of the credible evidence admitted at trial and (3) the trial court erred in deciding that he and Hinderman where equally negligent in causing the auto collision. We affirm.
Factual Background
As Blagoev drove on the South Loop East freeway, one of his tires blew out. He then drove his car onto a protective median located between the traffic lanes and an entrance ramp. While on the median, Blagoev discovered that his right, rear tire had completely blown out. He decided to move his car to the far right shoulder lane, which was wider and more secure. As Blagoev moved from the median, across the entrance ramp toward the right shoulder, a car driven by Hinderman struck the rear of Blagoev's car. At the time of the collision, Blagoev had temporarily stopped the car on the entrance ramp. The force of the collision lifted Blagoev's car off of the ground and propelled it across the entrance ramp onto the far right shoulder lane. Both cars were "totaled."
The investigating police officer issued Hinderman a ticket for failing to maintain financial responsibility and for failing to control speed. After unsuccessful settlement negotiations, Blagoev sued Hinderman and McNeil, the owner of the car driven by Hinderman. Following a bench trial, the trial court entered a take-nothing judgment in favor of Hinderman and McNeil.
Hinderman testified that the ticket for failing to control speed was "recalled" because Blagoev "was parked in the middle of the freeway and he could have threatened lots of people's lives."
Contributory Negligence
In his first issue, Blagoev argues that the trial court erred by applying a contributory negligence theory to the case. Specifically, Blagoev contends that, because contributory negligence is an affirmative defense, it should not have been considered unless Hinderman and McNeil pled it.
Contributory negligence is no longer recognized as a valid affirmative defense under current Texas law. See Tex. Civ. Prac. Rem. Code Ann. § 33.001 (Vernon 1997). The Texas Comparative Responsibility Act was amended by Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.03, 1987 Tex. Gen. Laws 40, amended by, Act of May 8, 1995, 74th Leg., R.S., ch 136, § 1, 1995 Tex. Gen. Laws 971, and is now known as the Proportionate Responsibility Act. See Tex. Civ. Prac. Rem. Code Ann. §§ 33.001-.017 (Vernon 1997). Section 33.001 provides in pertinent part that ". . . a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." Tex. Civ. Prac. Rem. Code Ann. § 33.001 (Vernon 1997).
Without findings of fact and conclusions of law regarding liability and damages considered by the trial court, we cannot say that the trial court considered a theory of contributory negligence in making its findings. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 876 (Tex. 1990). In this case, nothing in the take-nothing judgment indicates that the trial court made its findings by applying a theory of contributory negligence. See id. Accordingly, we hold that Blagoev's first issue is without merit.
At the close of evidence, the trial court stated, "under the circumstances it does appear in my view on the issue of liability that comparatively speaking it probably would be a 50-50 sort of situation." The trial court, however, never incorporated this analysis into findings of fact, conclusions of law, or the take-nothing judgment. Even if the trial court's analysis could be construed as "findings," the record indicates that the trial court based its take-nothing judgment on Blagoev's failure to properly prove damages.
We overrule Blagoev's first issue.
Factual Sufficiency
In his second issue, Blagoev argues that the evidence is factually insufficient to support the judgment.When a party attacks the factual sufficiency of an adverse finding on an issue where he had the burden of proof, he must demonstrate, on appeal, that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing a great weight and preponderance issue, we must (1) examine the record to determine if there is some evidence to support the finding and, if so, (2) determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See id. In doing so, we must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id. We must also employ appropriate deference so that we do not substitute our judgment for that of the fact finder. See Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Transmission Exch. v. Long, 821 S.W.2d 265, 271 (Tex.App.-Houston [1st Dist.] 1991, writ denied). Because it turns on an evaluation of credibility and demeanor, it is within the province of the fact finder to determine what weight to give contradictory testimonial evidence. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Miller v. Kendall, 804 S.W.2d 933, 939 (Tex.App.-Houston [1st Dist.] 1990, no writ).
In this case, Blagoev testified that he was initially within the boundaries of the protective median, but eventually crossed the entrance ramp to go onto the right shoulder lane. Blagoev also explained that, at the time of the collision, he had temporarily stopped the car on the entrance ramp. In response, Hinderman testified that she hit Blagoev's car from behind in an effort to avoid hitting another car. The other car had swerved in front of Hinderman to avoid hitting Blagoev. Furthermore, the police report acknowledged some degree of fault for Hinderman for failing to control speed and for Blagoev for being disabled in a traffic lane.
Having viewed all of the evidence in a neutral light, we hold that the finding made at trial was not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See Francis, 46 S.W.3d at 242 We overrule Blagoev's second issue.
Causation
In his third issue, Blagoev argues that the trial court erred in deciding that Blagoev and Hinderman were equally negligent in causing the auto collision.Although he lists this issue in the table of contents of his brief, Blagoev does not address the point in the body of the brief. Accordingly, because Blagoev's brief does not contain argument, authority, or citations to the record relevant to support this contention, the point of error is waived. See Tex.R.App.P. 38.1(h); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (holding that, where appellant's brief does not contain argument, authority, or record citations to support his argument, his argument is thereby waived).
We overrule Blagoev's third issue.
Conclusion
We affirm the judgment of the trial court.