### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00679- CV

Tariq Majee d, App ellant

v. Sajjad Hus sain, Ap pellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-0 1-0 0120 9, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This appea l arises from a premises-liability suit seeking p er s o n al-inj ury damag es alleg edly cause d by third-par ty cr i m i n al ac t s . Whil e working as a cler k in an East Austin convenie nce store and g as station, appellee Sajjad Hussain was a ssaulted by an unidentified ma le. Hussain subsequently sued the al l eged owner s or controllers of the premises, including appellant Tariq Majee d, asser

ting premises-liability t h eo ri es of neg lige nce predic ated on a duty on the defe nda n ts ’ p a r t to p r o v id e s e curity measure s to protec t Hussain from a fore seea ble and unrea sonable risk of crime. A jury found that the defe ndants’ n egli g ence had proxi mately cause d Hussain’s injuries and awa

rded Hussain a total of $377,811.19 in actua l damag es. The district court rende red judgme nt on the jury ’s ver dict. Majee d appea ls.

I n three issues on appea l, Majee d challeng es the leg al and fac tual sufficie ncy of the evidenc e establishing (1) a fore seea ble risk of harm and concomi tant duty to provide secur itymeasure s to protec t Hussain from th i rd -p ar t y criminal acts, (2) that any brea ch of such a duty

proxi mately cause d Hussain’s injuries, and (3) the damag es for medical expenses and past and future phy sical-impairmen t d am ages awar ded by the j ury . I n addition to responding to Majee d’s i ssues, Hussain asser

ts that Majeed f

ailed to pre serve his curre nt contentions for a ppeal. As we explain below, we ag ree with both parties in part—while we conclude that the district court’s judgme nt must be reve rsed beca use there is leg ally insufficient evidenc e of proxi mate

cause , we also hold that Majee d prese rved only a rig ht to a rema nd for new trial rathe r than rendition of a take- nothing judgme nt. Consequently , we will reve rse the district court’s judgme nt and rema nd for a new tria l.

BACK GR OUND

The u n d erly ing events occur red at a convenie nce store and g as station located at 1425 East 12th Street in Austin. Unlike the ty pical “wa lk-in” convenie nce store at which customers enter throug h a doorway and make purcha ses i nside, customers at this st ore made purchases from

a store cler

k throug h a sliding g lass “drive -throug h” window that they would approa ch either in their

car s or on foot. At re levant ti mes, appellee Hussain was employ ed as a clerk i n the s tore, and his responsibilities included staffing the sliding g lass window. Hussain descr ibed the window as “re ally big” and, at the time of the incident, “re ally broke.” He elabor ated that the window could not slide back and forth or lock. This made it nece ssary , Hussain explained, “to take the window out” or “take the window on the side” at the beg inning of the work day so as to leave it open. When he closed the
store at the end of the day , Hussain added, he would “put the big sti ck i n t h e b ack” to secur e the window shut.

2Hussain testified that while he was staffing the afor esaid window on J uly 11, 2000,

at approximately 4:00 p.m., an unidentified black male whom Hussain estimated was betwee n 5' 3" and 5' 4" and appea

red to be betwee n 15 to 17 y ear s of age approa ched the window and asked to buy cig are ttes. Hussain asked to se e the individual’s identification. After the individual could not produce an I D, Hussain ref used to sell him the cig are ttes, and the individual left. A short while later, the individual returne d and asked to buy beer

. Hussain ag ain asked to see identification. At this point, acc ording to Hussain, the individual beca me ang ry and said, “I just to l d y ou I don’t have my I D on me.” Then, Hussain rec ounted, the individual “wa lked back,” picked up an object (later d et er m i n ed to be an empty can of “F ix -a- Flat Tire” ), and “just straig ht throw it and hit my ey es.” Hussain testified that the can flew throug h the open window and struck hi m i n h i s rig ht ey e. Acc ording to Hussain, the injury resulted in per

manent vision loss in t hat ey e. Hussain sued a

p p e ll a n t M a je ed and a co-de fenda

nt, Muhammed Nae em, alleg ing that

eac h controlled the store premises and asser ting neg lige nce claims based on premises-liability theories. These claims wer e predic ated on the exis t en ce o f a d u ty to provide rea sonable secur ity

m ea sures that arose beca

use “it was fore seea

ble that the premises, as owned, operated, manag ed,

an d maintained by Def

endants, exposed employ ees and business invitees on the premise s , l i k e P l ai ntiff here in, to an unrea sonable risk of harm from criminal activity .” See Timber w a l k Apartments v. C

ain , 972 S.W .2 d 7 49, 756 (Tex. 1998); Barton v. W hataburger, Inc. , 276 S.W .3d 456, 466 (Tex. App.—Houston [1s t Dist.] 2008, pet. denied) . The c ase pr ocee ded to trial.

Neith er Majee d nor Nae em attended trial in person, and only Majee d appea red throug h counsel. The j u ry h ea rd ev i dence that, by time of trial, Nae em had left the country and

3returne d to his native Pakistan and that M aj ee d wa s t h en incar cer ated in a fede ral instit ution on 1 convictions for g ambling offe nses and money -launde ring in connec tion with eig ht-liner opera tions
at conve nience stores he ow ned or ope rate d.

I n his ca se-in-c hief, Hussain prese nted his own testimony , photogr aphs and documentar

y evidenc e, and excerpts from depositions of Majee d. After Hussain rested, Maj ee d moved for a direc ted verdic t, which the district court denied. There afte r, Majee d prese nted further excerpts fro m h i s d eposition and additional documentar y evidenc e. After the close of evidenc e, Majee d did not re-ur g e his direc ted-ve rdict motion.

The district court submitt ed two questions to the jury

. Question 1 inquired whether the neglig ence , if any , of Majeed and/or Nae em “prox imately cause [d] the occurre nce in question involving the criminal acts of an unidentified third party .” The jury answe red in the aff irmative as to both defe ndants. Predica ted on an aff irmative liability find ing, Question 2 asked the jury to deter mine the amount of Hussain’s damag es. The jury awa rded Hussain $65,000 for past pain and suffe ring , $50,000 for future pain and suffe ring , $5,720 in past lost wag es, $165,000 in past phy sical impairment, $190,000 in future phy sical impairment, and $2,091.19 in past medical ex penses, for a total of $377,811.19 in ac tual damag es.

The district court rende red judgme nt on the jury ’s verdic t. There afte r, Majee d filed

on the same day a motion for new trial and a notice of appea l. See Tex. R. App. P. 26.1(a) (1), 27.1. The ne w-trial motion was ove rruled by operation of law.

The jury hear d testimony that all of the p ar t i ci p ants in the underly ing events (with the 1 exception of Hussain’s assailant) wer e Pakistani immigra nts who wer e connec ted throug h business, family , or re ligious ties within that community

. 4ANALYSIS Majee d bring s three issues on appea l. I n his first issue, Majeed a rg ues that there is leg ally and fac tually insufficient evidenc e of the fore seea ble risk of ha

rm requir ed to g ive rise to a duty on the part of Majee d to protec t Hussain from an unrea sonable risk of criminal activity

. I n his 2 second issue, Majee d urg es that the evidenc e is leg ally and fac tually insufficient to support a finding that any brea ch of a duty of Maje ed t o u n d er take reasona ble s ecur ity measure s to protec t Hussain from criminal activity proxi mately cause d Hussain’s injury

. I n his third issue, Majee d contends that the evidenc e is leg ally and fac tually insufficient to s u p p o rt the jury ’s awa rd of damag es for medical e x penses a

nd past and futur e phy sical impairment.

P rese rvation As a threshold matter, Hussain arg ues that Majee d has fa i l ed to prese rve any of the complaints he now b ri ng s on appea l. Specifica lly , Hussain contends that Majee d waived his direc ted-ve rdict motion by failing to r enew it after the close of e vidence , that his new-tria l motion

was “too g ener al to prese rve err o r, ” an d that he did not attempt to prese rve his no-evide nce complaints throug h any other means. I n the alternative, Hussain asser ts that if Majee d prese rved any of his curr ent evidentiar

y -suffic iency complaints throug h his new- tr i al m o t ion, that proce dural mecha nism, whether used to raise a leg al-suff iciency or fac tual-suffic iency complaint, is a predic ate for an appe llate cour

t merely to gr ant the re lief re quested in tha t motion—a new trial—rathe r than

Although the issue was c ontested at trial, on a ppeal Majeed does not dispute that he had 2 control of the store premises. 5a rendition of a take- nothing judgme nt. But Majee d waived any rig ht even to this reme dy , Hussain

insists , by pray ing sole ly for r endition, not a rema

nd, in his appellant’s brief

. The core principle unde rly ing e rror -pre serva tion requireme nts is that the trial court should be g iven the opportunity to corr ect potential err ors befor e the case proce eds on appea l. See , e.g. , In re C.O.S. , 988 S.W .2d 760, 765 (Tex. 1999). To that end, “our civil rules of proce dure and

our decisions there under re q u i re a p ar t y to apprise a trial court of its err or befor e that err or can become the basis for reve rsal of a judgme nt.” Id. I n particula r, rule of appellate proce d u re 33.1 g ener ally require s that befor e a complaint can be a prer equisite for appellate revie w, the rec ord must show that (1) the complaint was raised befor e the trial court by timely reque st, objection, or motion that “s t at ed the g rounds for the ruling that the complaining party soug ht from the trial court with sufficie nt specific ity to make the trial court awa re of the complaint, unless the specific g rounds wer e appar ent from c ontext ,” (2) complied with the re quirements of the rules of pr ocedur e or e vidence , and (3) that the trial court ruled or ref used to rule on the reque st. Tex. R. App. P. 33.1( a). I n turn, rule of appellate proce dure 43.3 provides that if we find reve rsible err or in the trial court’s judgme nt,

we must “re nder the judgme nt the trial court should have re n d ered,” except when “a rema nd is

nece ssary for f urther pr ocee dings,” or “the interests of justice require a remand for another tr ial.” Id. R. 43.3; see also id. R. 44.1.

T o p r e s e r v e h is n o - e v id e nce complaints for appea l, Majee d was require d to raise th e m in the district court throug h either ( 1) moving for directed verdict; (2) objecting to the submissi on of jury questions; ( 3) moving to disre g ard jury finding s; ( 4) moving for judgme nt notwithst anding the verdic t; or (5) moving for new trial. See T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W .2d

6218, 220 (Tex. 1992); cf. Tex. R. App. P. 33.1(d) (pr eser vation rule in non-jury

case s). Howe ver, only the first four methods are a predic ate for an appellate reve rsal and rendition of a ta ke-nothing judgme nt; the judgme nt the trial court should have rende red in response to a motion for new trial is the g ranting of a new trial, not rendition. See Horrocks v. Texas Dep’ t of Transp. , 852 S.W .2d 498, 499 (Tex. 1993).

Majee d did not raise any of his no-evide nce complaints throug h ob jecting to jury questions, moving to disre g ard jury finding s, or moving for judgme nt notwithstanding the verdic t. Con sequently , he can obtain reve rsal and rendition of a take- nothing judgme nt based on such

a complaint only if he prese rved it throug h his motion for direc ted verdic t. T.O. Stanley Boot Co. , 847 S.W .2d at 220. Hussain arg ues t hat Majee d waived a ny no-evide nce c omplaints raised i n his direc ted-ve rdict motion by failing to re- urg e the motion at the clos e o f ev i d en ce . He relies on a 3 long line of courts of appea ls’ case s hold i n g t h at wher e, as here , a defe ndant unsucce ssfully

moves for direc ted verdic t afte r the plaintiff rests his case -i n -c h i ef, the defe ndant waives err or in the trial court’s denial of the motion if he prese nts ev i d en ce and fails to rene w or re- urg e the motion afte r the evidenc e closes. See, e.g. , Ratsavong v. Me n ev i l a y , 176 S.W .3d 661, 666-67 (Tex. App.—El Paso 2005, pet. denied) (“Te x as law is well settled that a defe ndant who moves for

a direc ted verdic t afte r the plaintiff rests, but there afte r elec ts not to stand on its motion for instructed

T h e grounds for this motion wer e that (1) evidence reg arding various contracts between 3 Nae em an d M aj eed established that Nae em controlled the premises and would have any duty to provide secur ity (a contention that Majee d has no t b ro u ght forwa rd on appea l); and (2) even if Majee d controll ed the premises, a third-par ty criminal act was a superse ding cause of Hussain’s injuries as a matter of law and there was no evidenc e g iving rise to a duty on Majee d’s part to protec t Hussain from suc h acts. 7verdic t, and proc eeds w ith her own case , waives her motion for direc ted ver dict unless the motion is reur g ed at the close of her case .”); Humes v. Hallmark , 895 S.W .2d 475, 477 (Tex. App.—Austin 1995, no writ) (appe llant defe ndant waived complaint that trial court err ed in deny ing direc t edverdic t motion “bec ause she did not re- urg e her motion at the conclusion of evidenc e”) (citing Shindler v. Marr & Assoc. , 695 S.W .2d 699, 706 (Tex. App.—Houston [1st Dist.] 1985, writ ref ’d n.r.e.) ; Texas Steel Co. v. Douglas , 533 S.W

. 2 d 1 1 1 , 1 1 4 (Tex. Civ. App.—For t Worth 1976, writ ref ’d n.r.e.) ); Douglas , 533 S.W .2d at 111 (“The law is well settled that a defe ndant by elec ting
not to stand on its motio n fo r an instructed verdic t made afte r the plaintiff had introduced its evidenc e and rested its case , and b y p roceeding with the i ntroduction of i ts own evidence, waives its motion for an instructed verdic t.”); Grand Temple & Tabernacle, etc. v. Johnson , 156 S.W

. 532, 533 (Tex. Civ. App.—San Antonio 1913, no writ) (“A ppellee insists that under the decisions of this
state and the g reat weig ht of authority appellant is conclusively presumed to have waived its motion for an instructed verdict by having elec ted t o proce ed with its case and pres en t i t s d ef en ses rather than stand upon its motion and submit the case to the jury upon the evidenc e of appellee

. There is

no doubt about the corr ectne ss of appellee ’s position upon this point.”). This principle follows from the fac t that once the defe ndant elec ts to prese nt its own evidenc e, that additional evidenc e, and any other evidenc e prese nted at trial, must be considere d by the trial court in deter mining whether there is leg ally sufficie nt evidence to support submit ting the c ase to the jury

. See San A ntonio Tr action Co. v. Kelleher , 107 S.W 64, 66 (Tex. Civ. App.—S an Antonio 1908, no writ). Thus, to preserve

a complaint that the evidenc e was leg ally insufficient to support submissi on to the jury and that the trial court was there fore require d to direc t a verdic t for the defe ndant, the defe ndant must challeng e

8the entirety of the ev i d en ce by asser ting or re- urg ing its direc ted-ve rdict motion afte r all of the evidenc e is in. See Clif fs Drilling Co. v. Burrows , 930 S.W .2d 709, 712 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“When a second motion for direc ted verdic t is made afte r the close of evidenc e, the court m u s t co nsider all of the evidenc e, reg ardle ss of who offe red it, to deter mine whether there is a fac t issue for the jury .”); Shindler , 695 S.W .2d at 706 (“Should the movant, afte r his [di rec ted-ve rdict] motion is denied, offe r additional evidenc e, he there by waives his ear lier motion and when he later moves ag ain, the new motion is deter mined upon all of the evidenc e, reg ardle ss of by whom it is offe red.” ). The orig inal direc ted-ve rdict motion addre ssed solely to the plaintiff’s evidenc e would not raise this challeng e, and any err or in d eny ing that motion would, in eff ect, be rende red harmless by unchalleng ed additi o n al ev i d ence . See Mound Oil Co. v. F.W

. Heitmann Co. , 148 S.W

. 1187, 1188 (Tex. Civ. App.—Galve ston 1912, no writ) (“I n order to avail itself of the err or, if any , in the ref usal of the trial court to direc t a verdic t in its fa v or upon the evidenc e for appellee , appellant should have rested its case on this evidenc e. I f there is any thing in the evidenc e introduced for appellant to help out appellee ’s case , it cannot be deprive d of the benef it of it by the reque st to the court to instruct a verdic t f or appellant upon the evidenc e for appellee .”). Although he acknow ledg es that this Court and our sister courts have long adher ed to “the principle that an appea l of the denial of a direc ted verdic t motion is waived if not reur g ed at the close of a ll evidence ,” Maje ed questions whethe r we should continue to do so, sugg esting that the rule “ serve s no obvious purpose in curr ent trial pra ctice.” He obse rves that the principle has be en

9criticized by one court of appea ls justice, is not specific ally mandated in the rules of civil proce dure, 4 and has appar ently never been square ly adopted by the Texas Suprem e C o u rt

. To the extent we 5 continue to rec og nize the principle, M aj ee d u rges that it g overns only whether the denial of a direc ted-ve rdict motion can itself be appea led but not whether the direc ted-ve rdict motion suffice s to prese rve a no-evide nce complaint for appea l. Whil e “ther e is a body of law that fi n d s t h at a direc ted verdic t motion cannot be appea led if it is not reur g ed afte r the close of all evidenc e” and “a body of law

. . . that holds that a leg al sufficie ncy question can be prese rved in a motion for direc ted verdic t,” Majee d insists , “ther e is no body of law tha t connec ts the two principles.” Reg ardle ss whether

the issue is or shoul d be viewed i n terms of Maje ed “w aiving ” any no-evide nce challeng es he raised in his direc ted-ve rdict motion, what is dispositi ve here is that Majee d’s motion did not raise any of the same no-evide nce challeng es that he now bring s on appea l. I n his direc ted-ve rdict motion, Majee d challeng ed whether Hussain had prese nted leg ally sufficie nt evidenc e during his case in chief to raise a fac t issue. After the district court denied the motion, the

See SIPCO Servs. Marine, Inc. v. W yatt Filed Servs. Co. , 857 S.W .2d 602, 608, 609-12 4 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d) (op. on reh’ g ) (Cohen, J

. concur ring ); see also Clif fs Drilling Co. v. Burrows , 930 S.W .2d 709, 712 (Tex. App.—Houston [1st Dist.] 1996, no writ) (terming the rule “[l] o n gs t an ding but criticized,” and citing J ustice Cohen’s concur renc e for that proposition). J ustice Cohen urg ed that the principle should be abandone d beca use it is unfair t o evalua te the leg al sufficie ncy of the evidenc e based on both the plaintiff’s and defe ndant’s evidenc e—and concomitantly require the defe ndant to re- urg e its direc ted-ve r d ic t mo ti o n a t th e close of all evidenc e in order to prese rve a no-evide nce complaint—when the additional evidenc e would not have been introduced “except for the [t rial] judge ’s err oneous denial of the motion for direc ted v er d i ct

. ” SIPCO Servs. Marine, Inc. , 857 S.W .2d at 609 (Cohen, J

. concur ring ). “To deter m i n e leg al sufficie ncy ,” J ustice Cohen instead advocated “re view[ing] only the evidenc e as it stood when the motion for direc ted verdic t was denied.” Id. at 612. To date, no repor ted Texas d ec i s i o n has adopted Justi ce Cohe n’s view. See id. at 609 (rule “see ms to have been created and enfor ced sol ely by the i ntermedia te 5 appellate courts”) . Hussain has not conte nded other wise. 10jury

hear d additional evidenc e. To pre vail on his no-evidenc e cha lleng es on appe al, Majee d must show that there was lega lly insufficient evidence prese nted at tri al

— re g ardle ss when or by whom prese nted—to raise a fac t issue. Majee d did not prese n t an y s u ch compl aints to the district court throug h his direc ted-ve rdict motion and his motion, there fore , did not prese rve them for appea l. See Texas Ani ma l He a l t h Comm’n v. Miller , 850 S.W .2d 254, 255-56 (Tex. App—Eastland 1993, writ denied) (“The only time that the [defendant] Commi ssion prese nted its ‘no evidenc e’ contention
t o t h e trial court was in a motion for instructed verdic t made at the close of [pl aintiff] M i l l er ’s evidenc e. After this motion was denied, the Commi ssion prese nted its evidenc e. The Commi ssion did not re- urg e its motion

. . . afte r both sides closed. The Commi ssion, by not elec ting to stand on its motion for instructed verdic t and by proce eding with the introduction of its own evidenc e, waived its motion for instructed verdic t. Thus, the Commi ssion did not prese rve its ‘no evidenc e’ complaint for appellate revie w.”) (citations omitted); see also Tex. R. App. P. 33.1(a) ; 6 McDona ld & Carlson, Tex. Civ. Prac., § 8:4, at 209-10 (2d ed.) (“Where th e d ef en d an t m oves for direc ted verdict when the p l aintiff rests and the motion is denied, and the defe ndant then prese nts evidenc e, the motion for direc ted verdic t is waived and will not p re s er v e a challeng e to the leg al sufficie ncy of the evidenc e.”) ; cf. Bryan v. Dock ery , 788 S.W .2d 447, 449 (Tex. App.—Houston [1st Dist.] 1990,

n o writ) (while holding that defe ndant Br y an “did not prese rve err or on her motion for direc t ed verdic t” beca

use Br y an waived it by prese nting evidenc e and not re- urg ing her motion, rea ching noevidenc e challeng e b ec au s e Bry an had prese rved it throug h motion for judgment notwit hstanding verdic t). I n sum, we ag ree with Hussain that there is no predic ate in the rec ord for us to rende r

a take- nothing judgme nt in favor of M aj eed if we wer e ultimately to sustain his complaints that 11there is no evidenc e of duty , proxi mate cause , or damag es. See Tex. R. App. P. 33.1, 43.3;

Horrocks , 852 S.W .2d at 499. This leave s only Majee d’s new- trial motion as a potential means by which he could have prese rved his no-evide nce challeng es. Majee d was a lso require d to raise his alterna tive fac tual-suffic iency challeng es in his new- trial motion in order to prese rve them for appea l. See Tex. R. C iv. P. 324(b).

Hussain asser

ts tha t Ma jeed’ s new trial motion wa s “too g ener al to prese rve err or.” The rules of civil proce dure require that eac h point relied upon in a motion for new trial “shall briefly ref er to that part of the rul i n g o f t h e co u rt

. . . in such a way that the objection can be clea rly identified and understood by the cou rt

. ” T ex . R. Civ. P. 321. Fur ther, “[g]rounds of objections couche d in g ener al terms—as that the court err ed in its char g e, in sustai n i n g and overr uling except i o n s t o t h e pleading s, and in excluding or admitting evidenc e, the verdic t is contra ry to law, and the like—shall not be considere d b y t h e co u rt.” Id. R. 322. On the other hand, the Texas Supreme Court ha s explained, a g ener al “no-e vidence ” complaint direc ted to a specific jury issue is usually sufficie nt to prese rve err or without further detail as to why the evidenc e is insufficient. Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd. , 249 S.W .3d 380, 387 (Tex. 2008). Simi larly , while a single no-evide nce objection to “all 79 jury answe rs [would be] too g ener al, the same objection addre ssed to eac h individual issue is adequate.” Id. (c i t i ng Biggers v. C ont’l Bus. Sys., Inc. , 303 S.W .2d 359, 368 (Tex. 1957)). And, while a cknowledg ing tha t “[i] f a si ng le j ury question involves many issues, it is possible that a gene ral objection may not tell the trial court wher e to start,” the supreme court has emphasized that such an objection made post-trial is not nece ssarily insufficiently specific con s i d ering the contex t in which it is made, as “post-trial objections will rare ly

be as de tailed as a

n appellate brief beca

use t ime is short, the rec ord may not 12be rea dy , and the t ri al court is alre ady familiar with the case .” Id. at 388. Fur ther, the court has stressed, “[l] ike all other proce dural rules, tho s e re g arding the specific ity of post-trial objections should be construed liberally so that the rig ht to appea l is not lost unnece ssarily .” Id. The “ca rdinal rule” for e rror

prese rvation, af

ter a ll, is si mply

that “an obje ction must be clea r enoug h to give the trial court a

n opportunity

to corre ct it.” Id . at 387. I n his motion for new t rial, Majeed “challeng es t he s u ff i ci en cy of t he evidence for the jury ’s answe r to question 1.” He continues, in separ ate subpara g raphs, to arg ue both that “[t] here i s n o evidenc e” and “the evidenc e is insufficient” to support the jury ’s answe r to Questi o n 1

. Question 1, as previously noted, was a broad- form submissi on that in q u ir e d w hether “the neg lige nce, if any , of [Majeed or Nae em] proxi mately cause [d] the occur renc e in question involving the criminal
acts of an unidentified party .” Guided by the fore g oing principles, we conclude that this portion of Majee d’s new- trial motion was sufficie ntly specific to prese rve his complaints that there was leg ally and fac tually insufficient evidenc e of the duty and proxi mate cause elements o f H u s s a in’s neg lige nce claim. See id. at 387-88; Edward D. Jones & Co. v. F l et ch er , 975 S.W .2d 539, 543 (Tex. 1998) (general no-evide nce point prese rved objection that defe ndant had no duty to asce rtain client’s mental capa city

) (cited with a

pproval in Arkoma Basin E xploration Co. , 249 S.W .3d at 388 n.25); Chavez Constr., Inc. v. McNee ley , 177 S.W .3d 593, 598-99 (Tex. App.—Houston [1st Dist.] 2005, pet. g rante d, judgm’ t vaca ted w.r.m.) (no-duty challeng e prese rved “by timely moving for new trial on g ener al no-e vidence -of- neg lige nce g rounds”)

.

M a je e d ’ s n e w - tr ia l mo ti o n a ls o a s s e r te d s im il a r n o - e v ide nce and in s u f

f ic ie n t- e v id e n c e ch al l en ges to “the jury ’s answe r to question 2.” Question 2 asked the jury to awa rd damag es separ ately for eac h of (1) past phy sical pain and mental ang uish, (2) future pain and mental ang uish, 13(3) lost wag es, (4) past phy sical i mpairment, (5) future phy sical i mpairm ent, and (6) past medical

expenses. Majee d did not specify the damag e elements to w hich his no- evidenc e and insufficientevidenc e complaints perta ined. For re as o n s we ex plain below, we need not rea ch and express no opinion as to whether Majee d’s new- trial motion was sufficie ntly specific to prese rve his appellate challeng e to the jury ’s damag e aw ards f or medica l expenses and impairment. I n the event we conclude that Majee d’s new- trial motion prese rved er ror, Hussain arg ues in the alterna tive that Majee d waived any entitlement to a rema nd for new trial by failing to reque st such relief in his appellant’ s brief. Although Majee d arg ued in his appellant’ s brief that the

ev idence is both leg ally and fac tually insufficient and cited a leading fac tual-suffic iency revie w

case , he pray ed solely for rendition of a ta ke-nothing judgme nt, not a rema nd for ne w trial. After 6 Hussain’s appellee ’s brief asser ted that Majee d had waived any entitlement to a new trial by failing
to expli citly reque st such relief , Majee d arg ued in his reply brief that a reque st for rema nd had been implicit in his fac tual-suffic iency arg uments, and add ed , “To the extent Majee d is require d as a technica l matter to expressly reque st an alternative rema nd, he here by does so.” L ater , in response to an inquiry from the Court during oral arg ument , M ajee d reque sted leave to amend his opening brief to add an alternative pray er for a rema nd. Hussain filed a response in opposition to Majee d’s reque st for leave.

I n contending that Majee d waived any rig ht to a rema nd, Hu s s ai n emphasizes the principle that “[a] party g ener all y i s n o t en t i tled to relief it does not seek.” State v. Brown , 262 S.W .3d 365, 370 (Tex. 2008). I n one case fre quently cited for this g ener al principle, see id. , the

Pool v. Ford Motor Co. , 715 S.W .2d 629, 635 (Tex. 1986). 6 14Texas Supreme Court denied a petition for revie w despite holding that the petitioner’s char g e-e rror

complaint was meritorious b ec au s e the petitioner had “spec ifically reque sted that this Court

n ot rema nd for a new trial and pray ed only for rendition,” and thus “did not reque st appropr i at e relief for g ranting its pe tition for revie w.” Steve ns v. National Ed. Ctrs., Inc. , 11 S.W .3d 185, 185 (Tex. 2000) (per curiam) (op. deny ing pet.) (empha sis added) ; see also id. (obser ving that new trial is appropria te re medy

for c harg e er

ror)

. Some of our sister courts ha ve since cited Steve ns for the propositi on that if an appellant reque sts reve rsal and rendition of judgme nt but not rema nd,

an appellate court cannot reve rse and rema nd. See Molina v. Moore , 33 S.W .3d 323, 327 (Tex

. App.—Amar illo 2000, no pet.); see also Jay Petroleum, L.L.C

. v. EOG Resource s, Inc. , No. 01-08-00541- CV, 2009 Tex. App. L EXI S 3182, at *8 (Tex. App.—Houston [1st Dist.] May 7, 2009, pet. denied)

.

Her e, Majee d did not wholly fail to reques t re m an d as a reme dy , but did so afte r he had filed hi s appellant’ s brief. Cf. Brown , 262 S.W .3d at 3 7 0 (“ We do not believe it proper to

sua sponte g rant relief Br own has not soug ht.”). Hussain insists that Majee d’s re quest in his reply brief for a rema

nd came too late. He relies on the line of authorities holding that appellants cannot raise new “issues” or “ar g uments” for the first time in a reply brief. See, e.g. , How ell v. Texas W orkers’ Comp. Comm’n , 143 S.W .3d 416, 439 (Tex. App.—Austin 2004, pet. denied) (“The rules of appellate proce dure do not allow an appellant to inc lude in a reply brief a new issue in r esponse to some matter point ed out in the app el l ee’ s brief but not raised by appellant’ s orig inal brief. See Tex. R. App. P. 38.3; Barrios v. State , 27 S.W .3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref ’d) (“Pointing out t h e ab s en ce of an appellant’ s arg ument does not raise the arg ument

or entitle appellant to asser t that argu ment for the first time in his reply brief. I f the rule wer e

15construed otherwise, an appellee could never point out matters not raised by an appellant for fea r of reope ning the door.”)

. I n Hussain’s view, this principle e x tends not only to the substantive issues and ar g uments Majeed r aises, but the re medies he is re questing if his issues are sustaine d.

Our resolution of the parties’ contentions is g uided by the text and evident purposes of t he rules of appellate procedure ’s brief ing r equire ments. As appellant, Majeed was require d to file an opening brief that, among other things, “state[d] conc isely all issues or points pre sented for revie w” (which are to “be trea ted as cover ing ever y subsidiary question that is fairly included”) and “conta in[ ed] a clea

r and concise arg ument for the contentions made, with appropr iate citati ons to authorities and to the rec ord.” Tex. R. App. P. 38.1(f) , (i). T h e ru l es further instruct us to construe the briefing require ments “libera lly ” and that “substantial compliance ” is sufficie nt, as the point o f h av i n g briefs in the first place is mere ly to “ac quaint the court with the issues in a case and to prese nt arg

ument that will enable the court t o d ec i d e t h e case ” and not to impose formal require ments as ends in themselves. Id

. R. 38.9. The rules further contemplate that appellate courts will aff ord parties the opportunity to cure any formal or substantive briefing defe cts befor e disposing of the a ppeal ba sed on such a

defe ct ra ther than the merits. See id. ; see also Inpe tco, Inc . v. Texas Am. Bank/Houston , 729 S.W .2d 300, 3 0 0 (T ex . 1987) (re g arding para llel provisions of former appellate rules). Finally , “[a] brief may be amende d or supplemented whene ver justice require s, on whateve r re asonable terms the cour t may presc ribe.” SeeTex. R. App. P . 38.7. T here is no contention that Majee d failed to comply with these require ments i n prese nting, in his appellant’ s brief, the merits of the leg al and fac tual-insufficie ncy g rounds on which he seeks reve rsal. Hussain’s contention is solely that Majee d initially reque sted the wrong appellate

reme dy for the err ors he claims, seeking rendition when this Court could g rant him no more than a 16rema

nd beca use he had prese rved err or solely throug h his motion for new trial. The appellate rules did require that Majee d include a “pra y er” in his opening brief, wh i ch i s d escribed as “a short conclusion that cle arly

states the natur e of the relief soug ht.” Id. R. 38.1(j). Elsewher e, however, rule 43.3 instructs ap p el l at e courts, “[w]hen reve rsing a trial court’s judgme nt,” to “re nder the judgme nt that t h e trial court should have rende red, except when: (a) a rema nd is nece ssary for fu rther proce eding s; or (b) the i ntere sts of j ustice require a rema nd for a new trial.” Tex. R. App. P. 43.3. Some of our sister c ourts have c onstrued rule 43.3 in conjunction with the liberal briefing rules to conclude that an appellate court is empower ed either to rende r judgme nt or rema nd for new trial based on its own application of rule 43.3 without reg ard to whether the appe llant specifica lly pray ed for such relief

. See, e.g. , Ib r a h i m v. Y

oung , 253 S.W .3d 790, 807 (Tex. App.—Eastland 2008, pet. denied) ; Jakab v. Gran Villa Townhouses Homeowne rs Assoc., Inc. , 149 S.W .3d 863, 870 n.7 (Tex. App.—Dallas 2004, no p et .) (citing Kaspar v. Thorne , 755 S.W .2d 151, 156-58 (Tex. App.—Dallas 1988, no writ) (supp. op. on reh’ g ); Resource Savs. Ass’n v. Neary , 782 S.W .2d 897, 903-04 (Tex. App.—Dallas 1986, writ denied) ); National Caf é S ervs., Ltd. v. Podaras , 148 S.W .3d 194, 200-01 (Tex. App.—Waco 2004, pet. denied)

. Under the rea soning of th ese decisions, a pray er that omits a reque st f or the appellate reme dy that is a ppropriate under rule 43.3

or re quests the wrong one is considere d to be the sort of briefing defe ct or irregularity that should either have no impact on the appellate court’s judgme nt or that the parties should be permitted to

cure . See Kaspar , 755 S.W .2d at 156-58.

W e fi n d these authorities persua sive and consistent with our understanding of the appellate rules and their underlying purposes. Steve ns is not to the contra ry . That case involved
t he oddity of a petitioner having expli citly reque sted the supreme court not to rema nd. Steve ns , 1711 S. W

. 3 d at 1 8 5

. The petitioner did not, as Majee d here , simply omit a reque st for a rema nd or reque st the wrong reme dy in its pray er. We hold that Majee d’s omission of an expli cit pray er for a rema nd in his appellant’ s brief doe s not waive his entitlement to such re lief or limit our power to a war d it under rule 43.3 if

we sustain any of his issues on appea l. And, to the extent there is any doubt, we g rant, for the same

rea sons, Majee d’s motion to amend his opening brief to add an ex p l icit alternative pray er for a

rema nd. See Tex. R. App. P. 38.7. I n op p o s i n g l ea v e to amend, Hussain disputes that “justice require s” that Majee d “be allowed to waive his rig ht to a remand in his orig inal brief and then unwaive that rig ht a fter the case has been arg ued and submitt ed.” Hussain presumes a view of the appellate rules’ ope ration and pur poses that we ha

ve re jected. I n sum, we hold that Majee d has prese rved his no-evide nce complaints for appea l— albeit solely throug h his motion for new trial—at least with resp ect to the duty and/or proxi mate

cause elements of H ussain’s neg lige nce c laim.

Stand ard of review

When a party is challeng ing the leg al sufficie ncy o f the evidenc e supporting an adver se finding on an issue on which a n opposing party has t he burden of proof, he prevails if the

rec o rd s h o ws an y o n e of the following : (1) there is no evidenc e supporting a vital fac t, (2) the evidenc e offe red to prove a vital fac t is no more than a mere scintilla, (3) the evidenc e conclusively

es t ab l i s h es the opposite of the vital fac t, or (4) the court is barr ed by law or the rules of eviden ce from considering the only evidenc e offe red to prove the vital fac t. S ee C i t y o f Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2 005). More than a scintilla of evidenc e exis ts when the evidenc e

18supporting the finding , as a whole, “rises to a level that would enable re as o n ab le and fair- minded

people to differ in their conclusions.” Mer r el l Do w Pharms. v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997) ; Transport ation I ns. Co. v

. Moriel , 879 S.W .2d 10, 25 (Tex. 1994)

. I f the evidenc e is

so weak as to do no more than cre ate a mere surmise or suspicion of its exis tence , its leg al eff ect is that it is no evidenc e. Hayne s & Boone v. Bowser Bouldin, Ltd. , 896 S.W .2d 179, 182 (Tex. 1995). Conversely , evidenc e conclusively establishes a vital fac t when the evidenc e is such that rea sonable people c ould not disagr ee in their conclusions. City of Keller , 168 S.W .3d at 814-17. When conducting a leg al-suff iciency revie w, we must view the evidenc e in the light
most favor able to the trial court’s finding s, “cr editing favor able evidenc e if rea sonable jurors could, and disreg arding contra

ry evidenc e unless rea sonable jurors could not.” City of Keller , 168 S.W .3d
at 807. Moreove r, we must indulge ever y rea sonable infere nce that would support the district court’s finding s. Id

. at 822. The ult imate t est for lega l sufficie ncy i s wh ether the evidence at trial would enable rea sonable a

nd fair- minded people to re ach the verdic t under re view. See id

. at 827. When a p a

rty challeng es the fac tual sufficie ncy of the evidenc e supporting an adver se finding on which the opposing party had the burden of pr oof, we should set aside the finding only if the evidenc e supporting the finding is so weak as to be clea rly wrong and manifestly unjust. See Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). We must c onsider, weig h, and examine a ll of the evidenc e in the rec ord, both supporting and ag ainst the finding , to decide whether the finding should be set aside. See id .; Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W

. 2 d 4 4 2 , 4 45 (Tex. 1989); Pool v. Ford Motor Co. , 715 S.W .2d 629, 635 (Tex. 1986).

19P roxim ate c ause I n his second issue, Majee d arg ues that t h er e is leg ally or fac tually insufficient

ev i d ence that any brea ch of duty on his part to provide rea sonable secur ity measure s proxi mat el y

cause d Hussain’s injury

. I n this issue, Majee d focuse s on the cause -in-fa ct component of proxi mate

cause . Whether an act or omission is a cause in fac t “ca nnot be established by mere conjecture, g uess, or specula tion.” Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W .2d 472, 477 (Tex. 1995). The test for cause in fac t is whether the act or o m i s s i o n wa s a substantial fac tor in causing the injury without which the harm would not have occur red. W estern Invs., Inc. v. Urena , 162 S.W .3d 547, 551 (Tex. 2005) (citing Marathon Corp. v. Pitzner , 106 S.W .3d 724, 727 (Tex. 2003)). I f the defe ndant’s neg lige nce mere ly furnished a condition that made the injuries po s s i b l e, there can be

no cause in fac t. Id

. (citing IHS Cedars Treatment Ctr. ofDesoto, Tex., Inc. v. Mason , 143 S.W .3d 794, 799 (Tex. 2004)). “‘The evidenc e mus t g o further , and show that such neg lige nce was the proxi mate, and not the remote, cause of the resulting injuries

. . . . [and] justify the conclusion that such injury was the natura l a nd probable result there of.’” Doe , 907 S.W .2d at 477 (quoting Carey v. Pure D istrib. C orp. , 133 Tex. 31, 124 S .W.2d 847, 849 (1939)).

Hussain attributes his injury to Majee d’s failure to repa ir and install with bulletproof g lass the sliding window throug h which his assailant threw the Fix-a-F lat can. Hussain arg ues that the jury could have rea sonably inferr ed that “a working window with bulletproof g lass would have stopped the Fix-a-F lat can from hitting Hussain’s ey e.” I n Hussain’s view, “I t is not specula tion to infer that a window that can stop a bullet w ill more likely than not stop a Fix-a-F lat can thrown by

a teena g er.” Assuming without deciding that is so, it nonetheless rema ins specula tive on this rec ord whether or not the window would have bee n closed at the time H ussain’s assailant thre w the ca n. 20I n his testimony , Hussain descr ibed the circ umstances surrounding the incident and how, in his view,

the broke n window was to blame for his injury : Q: Now, when the incident occ u rred, could y ou just g o throug h exactly how ever y thing happene d as far as y our interac tion with the person who assaulted y ou? A: Yea

h. The y oung kid came in and asked me for the cig are ttes, and I ref used him be cause he doesn’t have an I D. He looke d y oung , betwee n 15 and 17. Then he came back. I t w as not a walk-in store ; it was a drive-thr u window, but the window was rea lly big. And the window, y ou can only —if y ou’re g oing to open, y ou’re g oing to open one time in the m o rn i n g. I f y ou close, y ou put the stick behind that. There was no saf et y y ou can slide around, nothing. I t was re ally

broke.

. . . . Q: So is y our testimony that he initially

came and aske d for c iga

rettes? A: Yea

h, and then beer

. And he doesn’t have—the second time he came back, he said, I just tol d y ou Idon’t have my I D on me. And he walked ba ck and he g ot the Fix-a-F lat Tire a nd just straight throw it and hit my ey es.

On cr oss-examination, Hussain provided the following additional details:
Q: Can y ou explain—si nce we don’t appea r to have a picture of the store, can y ou explain what it looks like? Do y o u have to walk into the store to buy things, or is ther e a dr ive-thru? A: I t w as a drive-thr

u. I t was a w indow probably like that big (indicating ), but the window door was broke. I m ean, when y ou opened the door in the morning , y ou’ve g ot to take the window on the side. So when y ou close, y ou put the big stick in the back to just close it. So there was no lock and nothing on the window. Q: All rig ht. So it was a sliding window? A: Slidi ng window, but the sliding window w as not working . I t was broke

.

21Q: Did not work.

A: Yea

h. Q: Okay . And then—so y ou had to take the window out? A: Yea

h, y ou’ve g ot to take the window out. Q: Okay

. All rig ht. Now when this black male came in and—the one that threw the ca n at y ou—

. . . . A: You cannot walk int o the s tore. I t’s only a drive-thru , b u t the window was big.

. . . . Q: So he was in a c ar?

. . . . A: He wa s on foot.

. . . . Q: When’s the—did y ou see him g et the ca n— A: No. Q: —or y ou just saw him throw it? A: No. he was like—the window is like this, and we had a display on the top for the cigar ettes. He asked m e for the cigar ettes, and I just went like this, and he just threw it straig ht to my ey e, straig ht in my

ey e— Q: Okay

. A: —with the can, y eah.

22Fr om the above te s ti mo n y , a ju ry could only specula te as to whether the window, even if it had not been br oken and consisted of bulletproof g lass, would have been c losed at the time of the assault. There was no evidenc e prese nted that would enable a fa ct-finde r to dr aw a rea sonable infere nce as to w hether

or whe n Hussain would have opened the window when serving customers (e.g ., whether he would open the window when speaking with them versus only wh en ac t u al ly exchang ing money or goods) and whether or not Hussain would have had the window ope n when speaking to his assailant. Nor was there evidenc e to support rea sonable infere nces that Hussain could have rea cted to his assailant’s actions in time to g ra b t h e wi n d o w and succe ed in closing it befor e the can came fly ing at him. To the contra ry , Hussain testified that he did not see the customer pick up the can and that the customer “just threw it straig ht” at Hussain. Hussain’s testimony does
not support a rea sonable infere nce that if the window had been repa ired and bulletproof g lass installed, it would have pre vented his injuries.

Hussain also testified that there was no secur ity g uard or on- or off- duty police office r

on the premises. Howeve r, Hussain provided no evidence, either in the form of expert testimony

or his own lay opinion, that the prese nce of a g uard or s i m i l ar s ec u ri ty measure s would have
actua lly preve nted or deter red the assault, es p ec i al l y g iven the sudden manner in which Hussain testified it occur

red. We conclude that there is no evidenc e that Hussain’s in j u ry wo u ld not have

occur red but for the alleg ed neg lige nce b y M aj ee d

. See Jea v. Cho , 183 S.W .3d 466, 469 (Tex. App.—Houston [14t h Dist.] 2005, no pet.) (in case involving inj ury arising from robbery at convenie nce store, finding that injured employ ee failed to prove proxi mate cause beca use “ther e is

no empirica l data, expert opinion, or other evidenc e that such [security ] measure s have actua lly had 23any eff

ect on preve nting or reduc in g s u ch cr i m es wher e they have been implemented, let alone a

rea sonable probability that this particula r robber y or shooting would have been deter red or thwarte d by using them”). I n the alterna tive, we hold that the evidenc e of causa tion was fac tually insufficient. We sustain Majeed’s se cond issue.

CONCLUSION Be cause our dispositi on of Majee d’s second issue establishes his e ntitlement to the appellate reme dy for which he has prese rved err or—a new trial— we need not rea ch his other issues. See Tex. R. App. P. 47.1. We reve rse the district court’s judgme nt and rema nd Hussain’s claims for

a new trial.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton; Dissenting O pinion by J ustice Patterson Reverse d and Remande d Filed: Oc tober 22, 2010

24