Opinion
No. 05-02-01876-CV
Opinion Filed July 28, 2005.
On Appeal from the 134th District Court, Dallas County, Texas, Trial Court Cause No. 97-07915-G.
Reverse and Remand.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Memphis, Inc. appeals the trial court's judgment following a jury verdict in favor of Donald Coggswell on Coggswell's negligence claims. In nine issues, Memphis argues the judgment is not final, the trial court erred in admitting certain testimony, denying Memphis' motions for directed verdict and judgment notwithstanding the verdict because the evidence is insufficient to support the verdict, refusing to submit Memphis' proposed questions concerning percentage responsibility and "safe harbor" to the jury, entering judgment when the verdict contains irreconcilable conflicts, and entering judgment that presents the possibility of a double recovery. Memphis further argues the trial court's errors were so cumulatively harmful to Memphis that a new trial should be granted. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings. In August 1997, Coggswell filed his original petition alleging he arrived at Memphis' bar and grill at approximately 12:40 a.m. on September 2, 1995. While Coggswell was talking to two women at the bar, Jason Willey, who appeared intoxicated, came up and shoved one of the women. Memphis' bartenders did not intercede, but Coggswell stepped in front of Willey. Willey grabbed a beer mug and struck Coggswell in the face, slicing open his lip and knocking out or damaging several of his teeth. Coggswell alleged that, after Willey struck him, one of Memphis' bartenders put Coggswell in a choke hold and allowed Willey to continue attacking him. Based on these alleged facts, Coggswell asserted claims of assault and battery and negligence against both Willey and Memphis. Coggswell also asserted an intentional infliction of emotional distress claim against Willey and claims of injury to patron and premises liability against Memphis.
Memphis filed an answer asserting a general denial and the affirmative defense that Coggswell's actions were the proximate cause of his own damages and constituted "more than 50% negligence on a comparative basis." The case was finally tried to a jury in January 2002. At trial, Coggswell presented Willey's testimony by affidavit over Memphis' objection that the affidavit was inadmissible as hearsay. Willey's affidavit stated he went to another bar before going to Memphis on September 2, 1995. Willey was intoxicated at Memphis and so were all of the people in his party. Willey stated he was "pretty drunk" and "visibly drunk" while at Memphis, and "any reasonable person would have recognized I was intoxicated at the Memphis Bar Grill." However, "even though it was obvious I was drunk, the Memphis Bar Grill kept serving me drinks, including tequila shots." It was because Willey was "highly intoxicated" that he got into a fight with Coggswell and injured him. Ruth Hillborn, Willey's date on the night of the fight, testified Willey was intoxicated when he arrived at Memphis, but she saw Willey served at Memphis with tequila shots. Memphis requested a negligence question and a comparative negligence question inquiring as to the negligence of Coggswell, Willey, and Memphis. The trial court's charge, however, submitted a negligence question as to all parties but a percentage responsibility question only as to Coggswell and Memphis. The jury answered that the negligence of Memphis and Willey proximately caused the occurrence made the basis of the suit. The percentage responsibility question did not list Willey yet required the percentages to total one hundred percent. The jury allocated one hundred percent of the negligence that caused the occurrence to Memphis. The trial court entered judgment for Coggswell in accordance with the verdict, and this appeal followed.
In its first issue, Memphis argues there is no final, appealable judgment in this case because the judgment does not dispose of Coggswell's claims against Willey. However, the judgment contains a "Mother Hubbard" clause stating that all relief not specifically granted is denied. If there has been a full trial on the merits, this language indicates the court's intention to finally dispose of the entire matter. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001). Thus, we conclude the judgment is a final judgment for purposes of appeal. See id. We overrule Memphis' first issue.
We next address Memphis' fourth issue to the extent it argues there was no evidence to show (1) Memphis provided alcohol to Willey, (2) it was apparent that Willey was intoxicated at the time, (3) Willey presented a clear danger to himself or others, and (4) Willey was intoxicated at the time of his altercation with Coggswell. See Tex. Alco. Bev. Code Ann. § 2.02 (Vernon 1995). The Texas Supreme Court recently analyzed in detail the standards of no-evidence review (including legal sufficiency and motions for judgment notwithstanding the verdict) in City of Keller v. Wilson, No. 02-1012, 2005 WL 1366509 (Tex., June 10, 2005). In conducting a no-evidence review, "appellate courts must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller, slip op. at 1-2, 2005 WL 1366509, at *1. Here, Hillborn testified Willey was intoxicated when he arrived at Memphis, and Memphis served him tequila even though he was intoxicated. From this evidence, the jury was free to believe Memphis provided alcohol to an apparently intoxicated Willey, Willey presented a clear danger to himself or others, and Willey was intoxicated at the time of the altercation. See City of Keller, slip op. at 1-2, 2005 WL 1366509, at *1. We overrule Memphis' fourth issue to the extent it challenges the legal sufficiency of the evidence.
We next address Memphis' fifth issue in which it argues the trial court erred by not including Willey in the percentage responsibility question in the jury charge. The Texas Comparative Responsibility Act is applicable to a cause of action under Chapter 2 of the alcoholic beverage code. Smith v. Sewell, 858 S.W.2d 350, 356 (Tex. 1993). Application of the Comparative Responsibility Act to causes of action brought under Chapter 2 requires the trier of fact to determine the percentage of responsibility attributable to each of the parties involved in causing the injury. See Tex. Civ. Prac. Rem. Code Ann. § 33.003(a) (Vernon Supp. 2004-05); Smith, 858 S.W.2d at 356.
Here, Coggswell asserted claims of assault and battery, negligence, and intentional infliction of emotional distress against Willey, in addition to his claims against Memphis. The jury found that Willey's negligence proximately caused the occurrence made the basis of this suit. However, Willey's name was not included in the percentage responsibility question. We conclude this was error, and Memphis was harmed thereby. See Tex. Civ. Prac. Rem. Code Ann. § 33.003(a) (Vernon Supp. 2004-05); Smith, 858 S.W.2d at 356.
In reaching this conclusion, we reject Coggswell's argument that the Texas supreme court's opinion in F.F.P. Operating Partners, L.P. v. Duenez, No. 02-0381, 2004 WL 1966008 (Tex. Sept. 3, 2004) requires us to conclude the error in this case was harmless. In F.F.P., the court held that the proportionate responsibility statute applies to third-party actions under the Dram Shop Act, Chapter 2 of the alcoholic beverage code. See id. at *6. However, the court held the omission in that case was harmless because nothing prevented a jury from fairly apportioning responsibility between F.F.P. and the drunk driver in a separate, severed action against the drunk driver. See id. at *7. In this case, all the parties were before the court in a single action, and the negligence of all the parties was submitted to the jury. Under these circumstances, it was reversible error to fail to include all the parties in the proportionate responsibility question. We sustain Memphis' fifth issue. Because of our disposition of Memphis' fifth issue, we need not further address Memphis' remaining issues.
We reverse the trial court's judgment and remand for further proceedings.