NO. 07-00-0458-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B NOVEMBER 7, 2001

______________________________ RUDY D. PENA , JR., APPELLANT

V. AMARILLO BOWL, INC., APPELLEE

_________________________________ FROM THE 108 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 82516-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before BOYD, C.J., and QUINN and JOHNSON, JJ. Appe llant

Rudy D. Pena, Jr., appeals from a take -nothing judgment in his su i t agains t appellee A marillo Bow l, Inc., for per sonal injur ies. Appella nt urges that the trial court erred in fail ing to gr ant a new tri al because the j ury’s verdict was incomplete and/or incons isten t. We affirm.1 The jury question re ad : “Did the ne gligence, if any, of those named below

proximatelycause the occur rence or inj ury in q ues tion?” See T EXAS P ATTERN J URY C HARGES PJC 4. 1 (2000). Fur ther references to the Pattern J ury Char ges wi ll be by reference to “PJC_.” 2 BACKGROUND Appellant

slipped and fell while bow ling at appel lee’s place of business. He suffered a broken ankle and sued appellee for neglige nce. T he case was t ried to a jur y. Jury Question No. 1, in a broad-form submission, directed the jury

to find whether

the neglig ence, if any, of appell ant or appellee proximately caused the occurrence or injury in question. 1 The jury w as directed to answer “

Yes” or “ No” as to both appellant

and appellee, and w

as provid ed a blank to answer for each party. Jury Question No. 2 was condit ioned on a “Yes” answer asto more than one of the parties in Question No. 1. Qu e stion No. 2 instructed the jury to find the pe rcentage of negligence attributable to appellant and appelle e if, in answer to Question 1, both had been found negligent in causing the occurrence. Jury Question No. 3 instructed the jury to find what sum of m one y, if a ny, wou ld fa irly an d rea sona bly c ompe nsate appellant for his injur ies resulting from the occurr ence. The damages el ements of past and future physical pain and mental anguish, l oss of earning ca pacity, di sfigurement, phy sical impai rment and medical care were su bmit ted s epa rate ly. Question 3 w as not conditi oned on a find ing of liabi lity, thatis, a “Yes” answer t o either Questi on 1 or 2. See PJC 8.1, Comment; PJC 8.2. Jury Question No. 4 submitted the question o f ap pellee’s gross neg ligence, conditioned on a finding in answer

to Question 1 t hat appellee’s negligence proximatel y caused the3

occurrence. Quest ion No . 5 sub mi tted th e amount of exemplary damages, if any , to be awarded for any

gross neg ligence found by the jury in answer

to Question 4. The jury returned a unanimous verdict. The trial courtreceived t he written charge from the jury , then read aloud and confirmed the verdict in ope n court: THE COURT: Counsel, wit h respect t o Question Number 1 Subsection 1 as to Rudy

Pena, the ans wer is no. As to Amarillo Bowl, Incorporated, t he answer i s no. Question 2, of course, is blank. As to Question Number 3(a) is none, (b) is none, (c) i s $3,500, (d) is none, (e) is none , (f) is none, (g) is none, (h) is none, (i) is 7,885.56, (j) is n one. Number 5 is z ero. Number 4 is blank. Did y’all not – mean not to answ er that eith er ye s or no, Ms. [Presiding juror]? PRESIDI NG JUROR : It’s no becaus e we answered no to Number 1. THE COURT: Okay . I just w anted to mak e sure. That would be your–it is a unanimous ver

dict. Ladies and ge ntle men , let me as k you wi th r espect to Questi on Number 4 with r espect to the gross neg ligence. Is it your answer, all of you, that that would be no. JURY PAN EL: N ods h ead [sic] aff irma tivel y. THE COURT: That is unanimous. I see ever ybody noddi ng their head that it would be no. All right. And as I said, i t is a unanimous verdict, Counsel, si gned by the presiding juror.4

The trial cour

t then thanked the jurymembers for their service, released them fr om their prior instructions not to discuss the case, and gave in structi ons how jur ors who needed letters documenting their jury service could obtain those letters from the clerk. The court then allowed the jury to leave. Ne ither appella nt nor appellee sought to ex amine the jury char ge on whi ch the verd ict was written, objected to re ceipt of the ver dict or manner in which the court received or confirmed it, or requested that th e jury be individ ually pol led as to the ver

dict. Appellant

filed a Motion for New Trial. In ithe referenced a note the jury sent out during deliberation s which asked “If we find Amarillo Bowl was not negligent can we still as k for mone tary compensation for Mr. Pena? ” The Motion for New Trial likewise referenced the jury ’s answer to Question N o. 1 which had the wo rd “No” s uperimposed over a question mar k in the answ er blank for

Amarillo Bow l. Appellant’s motion urged t hat the jury ( 1) found that “both R udy Pena and Ama rillo Bow l were no t responsibl e for the accident,” (2) “did not determine any of the par

ti es responsibl e for the accident, ” (3) apparently thought that damag es for lost w ages and medical expenses w ould be awar

ded if no liabili ty was

found for either par

ty, and (4)

rendered a verdict in co ntradiction to the evidence that Amar illo B owl left oil on the a pproach to the bow ling lane after being asked to clean the substance up. The argument pres ented by the motion was to the effect that the jury’s liabilit y answers to Questi on 1 conflicted w ith its damag es answers to Question 3, and that the jury appar ently thoug ht that appellant’ s lost wages in the pa st and medical expenses coul d be awarded regardles s of liabili ty. The tri al court deni ed the motion.5

Appellant’s oneissue urg es that the tri al court reversibly erred in r

efusing to grant a new tri al bas ed on the jury’s incomplete and/or incon sistent verdict. Appellant’s argument

is twofold: (1) the ju ry’s answer to Question 1 is

unclear becaus e of a clerical error by the jury

in placing both a questi on mark and the w ord “No” i n the answer

blank for Amarillo Bowl; and (2) assuming the jury found noliability for the occurrence as to Amarillo Bowl in response to Question 1, su ch answer is in fatal conflict wi th the jur y’s findi ng of damages in res ponse to Question 3. Appellee asserts that the trial court did not abuse its discr etion in deny ing the Motion for New Trial beca use (1) there was no clerical error by the jury in recording its answers to the jury

questions, and (2) the jury’s answers were not i n conflict. Appellee also urges thatappellant

neither pres erved err

or for revi ew by mak ing timely objection in the trial court as to the alleged clerical error or the alleged conflict in answers to the jury questions, nor raised the q uestion of cleri cal error by the jur

y in his Motion for New

Trial. LAW The decision w hether to gr ant a motion for new tri al is addres sed to the trial court's discretion, and the court's ruling w ill not be di sturbed on appeal absent a show ing of an abuse of discretion. See Simo n v. York Crane & Ri gging Co. , 739 S.W .2d 7 93, 7 95 (T ex. 1987); Strackbein v . Prewit t , 671 S.W .2d 3 7, 38 (Tex. 1984). An abuse of discretion does no t exist i f the trial cour t bases its de cision on confli cting ev idence and some e videnc e reasonably supports the trial cour t's decisi on , or if some ev idence in the r ecord shows the2 A rule of civ il pr

ocedu re wi ll be

referred to her

eafter a s “TRCP

_.” 3 A rule of appe llate

proce dure w ill be refer red to hereafte r as “TR AP_.” 6 trial court followed guiding rules and pr inciples. See In re Epic Holdings, Inc. , 985 S.W.2d 41, 57 (Tex. 199 8). When the jury returns its verdict, the verdict is to be read aloud in court. T EX . R. C IV . P. 293. 2 If the verdict is in pro per form, n o juror obje cts to its a ccuracy, no juror represented as agreeing to the verdict dissents therefrom, and ne ither party requests a poll of the jury , the verdi ct is to be entered on the minu tes of the court. Id

. Any party has the right to have the j ury poll ed as to the v erdict. TRCP 294. If any juror supposedly agreeing to the verdi ct as read r esponds in the neg ative when polled, th e jury s hall be reti red for further deliber

ations. Id

. If the jury ’s purported verdict is defective , the trial court may d irect it to be reformed. TRCP 295. If the ver

dict is in complete, no t respo nsive to the jury charge questions or if the answers to the questions a re in conflic t, then the court

shall gi ve further pr

oper writte n instruction s and retirethe jury for further deli berations. Id . A timely request or

objection to the trial court specify ing the objecting party’s complaint is required in orde r to pr eser ve error for appel late revi ew. T EX . R. A PP . P. 33.1(a)(1)(A). 3 The trial court’s duty

is to asce rtain the i nten tion of t he ju ry’s an swers, harm onize or reconcile the answers and issues and render a judg ment in confor mity wit h them. See State v. Hale , 136 Tex. 29, 41, 146 S.W.2d 731, 739 (1941). A fatal conflict betw een answers to jury questionsoccurs if, considering one answer alone, a judg ment should be7

entered in favor of the plaintiff; but considering another answer alone, judg ment should be entered in favor of the defendant. See Little Rock Furn. Mfg. Co. v . Dunn , 148 Tex. 197, 206, 222 S.W.2d 985, 991 (1949). Appell ate courts are mandated to try to interpret jury findin gs in such manner as to uphold the tri al court judg ment. See First Fed. Sav. & Loan Ass’n of Dallas v. Sharp , 359 S.W.2d 902, 903 (Tex. 1962). ANALYSIS A. Clerical Error in Jury’s Answer After the jury returned its v erdict the trial court read the jury’s answers out loud in the presence of the ju ry and both parties. The verdict was unanimous. The an swer which was read for Questi on 1 as to Amaril lo Bowl w as “no.” N o juror dis sented. Later, t he presiding juror stated to the trial judge during a discussion as to Question 4 that the jury’s answer to Question 1 w

as “no.” N o juror dis sented from such sta tement by the presidin g juro r. The jury w

as instructed to answer “Yes” or “No” as to Question 1 and t he verdi c t form reflects the w

ord “No” writte n in the proper blank for

the answer

to Question 1 as

to Amarillo Bowl. Al though a ques tion mark isalso in the answer blank , either placed over or under the w ritten word “No,” there is evidence to support the trial court’s concl usion that the jury i ntended to and did foll ow the cou rt’s instru ctions in the jury cha rge when it pl aced “No” in th e blank as its

answer as

to Amarillo Bowl. Followi ng the reading of the j ury’s verdict and the trial cour t’s discus sion wit h the presiding juror and inquiri es of the remaining jurors asto the answers to the q uestions, the trial judge addressed the j urors at some l ength before disc harging them. Appellant did not,8

during that time , requ est p ermi ssio n to re view the ve rdict form, re quest that the jury be polled, or lodge any

objection to t he proceeding s. Appellant now asserts that the jury was discharged before he had opport unity to m ake such requests or to lodge objections; the record does not support his position. It was appellant’s burden to timely and specifically object to the trial court in order to preserve error for appeal or to req uest that the tr ial court grant opportu ni ty for ap pellan t to take actions such as re viewing the ori ginal jury cha rge form or making timelyobjections; it was not the trial court’s burden to assur e that appellant had no objections before discharg ing the jury

. See TRAP 33.1(a)( 1)(A); TRAP44.1(a)(2); Lewis v. Texas Emp. Ins. Ass’n , 151 Tex. 95, 99, 246 S.W.2d 599, 601 (1952). The trial cour

t’s duty i s to ascertai n the intention of thejury’s answers and rend er a judgment in conformity w ith them. See Hale , 136 Te x. a t 4 1 , 1 4 6 S

. W. 2 d a t 7 3 9

. We do not perceive that the tria l court v iolated any of the Rules of Civil Procedure or any other guiding rule or pr inciple in receivi ng and confirmin g the jury ’s verdi ct. See TRCP 293, 294. The record doesnot reflect that the trial court abused its discretion in overruling appellant’s Motion for

New Trial on the bas is that a cl erical err or was made by the jur y in its answer to Question 1. M oreover, a ppellant has not preserved error for appel late revi ew as to such contention. See Lewis , 151 Tex. at 99, 246 S.W.2d at 601.

B. Conflicting Answers to Jury Questions Appell ant also a sserts that, even assuming the jury found no liabili ty for the occurrence as to Amaril lo Bowl i n response to Que stion 1, such answer is in fatal conflict with the j ury’s findi ng of damages in response to Ques tion 3. We disagree.9

Question 3 asked, independen t of any other question in the ju ry charge, as to amounts of money , if any, w hich woul d fairly and reasonably compensate appellant for injuriesfrom the occurr ence. It was not submitted conditioned on a “Yes”answer to Question 1 as to appelle e, nor on any other negli gence or pr

oximate causefinding by the jury. Question 3 did not c onta in an y negli genc e or p roxim ate c ause refe renc es in tern ally. To recover

from appellee, appel lant had the burden to prove and obtain findings that appellant

was neg ligent and t hat such negl igence was a pro ximate cause of injury to appellant. See , e.g. , Corbin v. Safeway Stores, Inc. , 648 S .W.2d 292, 29 6 (Tex. 1983). Itfollow s that an inj ured pe rson i s not a llowed to r ecov er jud gment for damag es from a defendant in the absence of liability f indings against the defendant, see Turner v. Lon e Star Indus., Inc. , 733 S.W.2d 242, 246 (Tex.App–Houston [1 s t Dist] 1987, writ ref’d n.r.e.). Damages finding s in the absenceof liability findings areimmaterial. Id

. Considering the jury ’s answer to Question 3 al one, judgment w as properly

entered in favor of appellee because appellant did not secure a finding that appellant w as liable to him. Consideri ng the jury ’s answer to Question 1 alone, judgment was properly

entered in favor of appellee because appellant did not secure a finding that appellant was liable to him. Thus, the jury’s answers to Questio ns 1 and 3 are no t in conflict. See Little Rock Furn. Mfg. Co. , 222 S.W.2d at 991. Regardles s of whether appella nt would be able to assert appellate err

or based on hisfirst asser ting a conflict in jury answ ers via a motion for new trial, we find his assertion that the jury’s answers to Questions 1 and 3 wer e in fatal conflict is w ithout merit. We overrule appellant’s issue.10 CONCLUSION Having overrul ed appellant’s sole issue, we affirm the judg ment of the trial court.

Phil Johnson Justice

Publish.