No. 05-14-01451-CV

In the 

Court of Appeals 

for the Fifth District 

Dallas, Texas 

KHANH DAO, 

 Appellant 

v. 

ELISSA GARCIA, ON BEHALF OF THE ESTATE OF ROJELIO 

SALINAS, JR., AND ROJELIO SALINAS, SR. 

 Appellee 

APPELLEES ELISSA GARCIA, ON BEHALF OF THE ESTATE OF 

ROJELIO SALINAS, JR., AND ROJELIO SALINAS, SR.’S BRIEF 

Lorien Whyte

State Bar No. 24042440

lwhyte@brinandbrin.com

Brin & Brin, P.C.

6223 IH 10 West

San Antonio, Texas 78201

Tel: (210) 341-9711 

Fax: (210) 341-1854 

Dan McDonald

State Bar No. 13539300

dan@mcdonaldlawfirm.com

Preston J. Dugas III

State Bar No. 24050189

preston@mcdonaldlawfirm.com

McDonald Law Firm, P.C.

One Museum Place

3100 W. 7th Street, Suite 230

Fort Worth, Texas 76107

Tel: (817) 717-5081

Fax: (817) 717-5082

Attorneys for Appellees Elissa Garcia, on Behalf of the Estate of Rojelio Salinas, 

Jr., and Rojelio Salinas, Sr. 

ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

05-14-01451-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

4/10/2015 6:10:08 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 4/10/2015 6:10:08 PM LISA MATZ Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Appellant/Defendant: Khanh Dao 

Trial and Appellate Counsel: 

Chris Colby

State Bar No. 24031962

Stacy Thompson

State Bar No. 24046971

sthompson@mperrylaw.com

Meloney Perry

State Bar No. 00790424

mperry@mperrylaw.com

Tiffany Au

State Bar No. 24075842

tau@mperrylaw.com

Perry Law P.C.

10440 North Central Expressway

Suite 1120

Dallas, Texas 75231

Tel: (214) 265-6201

Fax: (214) 265-6226

Appellees/Plaintiffs: Elissa Garcia, on 

Behalf of The Estate Of Rojelio Salinas, 

Jr., and Rojelio Salinas, Sr.

Trial and Appellate Counsel: 

Lorien Whyte 

State Bar No. 24042440

lwhyte@brinandbrin.com

Brin & Brin, P.C.

6223 IH 10 West

San Antonio, Texas 78201

Tel: (210) 341-9711 

Fax: (210) 341-1854 

Dan McDonald

State Bar No. 13539300

dan@mcdonaldlawfirm.com

Preston J. Dugas III

State Bar No. 24050189

preston@mcdonaldlawfirm.com

Connie Squiers

State Bar No. 18978515

csquiers@mcdonaldlawfirm.com

McDonald Law Firm, P.C.

One Museum Place

3100 W. 7th Street, Suite 230

Fort Worth, Texas 76107

Tel: (817) 717-5081

Fax: (817) 717-5082
iii

Defendant: Komali Restaurant, L.L.C.

Trial Attorneys:

Jerry L. Ewing, Jr.

State Bar No. 06755470

jerry.ewing@wbclawfirm.com

Nathan R. Cash

State Bar No. 24072026

Walters, Balido & Crain, LLP

Meadow Park Tower, 15th Floor

10440 N. Central Expressway

Dallas, Texas 75231

Tel: (214) 749-4850

Fax: (214) 760-1670

Defendant: Tim Parks

Trial Attorneys:

Richard E. Harrison

State Bar No. 24087837

rharrison@hlaw.us

Harrison & Hull, L.L.P.

112 W. Virginia St.

McKinney, Texas 75069

Tel: (214) 585-0094

Fax: (214) 585-0942
iv

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL......................................................................ii

TABLE OF AUTHORITIES..............................................................................................vi

STATEMENT CONCERNING ORAL ARGUMENT .....................................................ix

FACTS................................................................................................................................. 1

A. Parks was drinking all day and during the time that Dao was with him at his house 1

B. Dao did not object to the jury charge, and her proposed submission included her 

name in the apportionment of liability question ......................................................... 2

SUMMARY OF THE ARGUMENT.................................................................................. 5

ARGUMENT....................................................................................................................... 7

I. The evidence was legally sufficient to support the jury’s finding that Dao 

negligently entrusted her vehicle to Parks .............................................................. 7

A. Standard of Review ................................................................................................ 7

B. The evidence adduced at trial was sufficient to support the jury’s finding that Dao 

negligently entrusted her vehicle to Parks.......................................................... 9

1. There was more than a scintilla of evidence that Dao entrusted her vehicle to 

Parks ................................................................................................................ 10

2. There was more than a scintilla of evidence that Dao knew or should have 

known that Parks was unlicensed, incompetent, or reckless........................... 17

II. The trial court did not abuse its discretion in submitting Dao in the apportionment 

of liability question, and the alleged error did not cause the rendition of an 

improper judgment................................................................................................ 20

A. Dao waived her complaint about her name being submitted in the apportionment 

of liability question ........................................................................................... 20

B. Dao invited any alleged error by submitting her own proposed apportionment of 

liability question with her name included in it ................................................. 22
v

C. The trial court did not abuse its discretion by submitting Dao in the 

apportionment of liability question................................................................... 26

1. Standard of Review ........................................................................................... 26

2. Dao in no way established the trial court abused its discretion......................... 27

D. Dao did not even attempt to establish any alleged error probably caused the 

rendition of an improper judgment ....................................................................... 31

III. The trial court properly held Dao jointly and severally liable ................................ 32

PRAYER ........................................................................................................................... 37

CERTIFICATE OF COMPLIANCE ................................................................................ 39

CERTIFICATE OF SERVICE.......................................................................................... 39
vi

TABLE OF AUTHORITIES

Cases

Atl. Indus., Inc. v. Blair, 

No. 08-12-00093-CV, 2014 WL 4250540 (Tex. App.—El Paso Aug. 28, 2014, pet. 

filed)............................................................................................................................... 34

Bedford v. Moore, 

166 S.W.3d 454 (Tex.App.—Fort Worth 2005, no pet.) ..................................29, 33, 34

Bowie v. Broussard, 

No. 01-04-00941-CV, 2006 WL 727718 (Tex. App.—Houston [1st Dist.] March 23, 

2006, no pet.) (mem. op.) .............................................................................................. 14

City of Keller v. Wilson,

168 S.W.3d 802 (Tex. 2005) ...........................................................................7, 8, 16, 20

Croucher v. Croucher, 

660 S.W.2d 55 (Tex. 1983) .......................................................................................7, 16

Demler v. Demler,

836 S.W.2d 696 (Tex. App.—Dallas 1992, no writ)..................................................... 21

Dow Chem. Co. v. Francis,

46 S.W.3d 237 (Tex. 2001) .................................................................................8, 11, 16

Drooker v. Saeilo Motors, 

756 S.W.2d 394 (Tex. App.—Houston [1st Dist.] 1988, writ denied)....................12, 14

Edwards v. Mid–Continent Office Distribs., L.P.,

252 S.W.3d 833 (Tex. App.—Dallas 2008, pet. denied) ................................................ 7

European Crossroads’ Shopping Ctr., Ltd. v. Criswell,

910 S.W.2d 45 (Tex. App.—Dallas 1995, writ denied)................................................ 26

F.F.P. Operating Partners, L.P v. Duenez, 

237 S.W.3d 680 (Tex. 2007) ...................................................................................33, 34

Fid. & Guar. Ins. Underwriters Inc. v. Wells Fargo Bank, Nat. Ass'n, 

No. CIV.A. H-04-2833, 2006 WL 870683 (S.D. Tex. Mar. 31, 2006)......................... 29

Ford Motor Co. v. Ridgway,

135 S.W.3d 598 (Tex. 2004) ........................................................................................... 8

Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757 (Tex. 2003) ...............................................................................8, 11, 16

Goodyear Tire & Rubber Co. v. Mayes,

236 S.W.3d 754 (Tex. 2007) (per curiam) ................................................................9, 17

Haler v. Boyington Capital Grp., Inc., 

411 S.W.3d 631 (Tex. App.—Dallas 2013, pet. denied) .............................................. 25

Hoffmann v. Dandurand,

143 S.W.3d 555 (Tex. App.—Dallas 2004, no pet.) ....................................................... 9

Holubec v. Brandenberger, 

111 S.W.3d 32 (Tex. 2003) ........................................................................................... 21
vii

In re Dep’t of Family & Protective Servs.,

273 S.W.3d 637 (Tex. 2009) ......................................................................................... 25

Jamar v. Patterson,

910 S.W.2d 118 (Tex. App.—Houston [14th Dist.] 1995, writ denied)................10, 12

Loom Craft Carpet Mills, Inc. v. Gorrell,

823 S.W.2d 431 (Tex. App.—Texarkana 1992, no writ).............................................. 34

MRT, Inc. v. Vounckx,

299 S.W.3d 500 (Tex. App.—Dallas 2009, no pet.) ..................................................... 26

North American Van Lines, Inc. v. Emmons, 

50 S.W.3d 103 (Tex. App.—Beaumont 2001, pet. denied) .......................................... 35

Reinhart v. Young, 

906 S.W.2d 471 (Tex. 1995) ...................................................................................31, 32

Religious of Sacred Heart v. City of Houston,

836 S.W.2d 606 (Tex. 1992) ......................................................................................... 21

Romero v. KPH Consol., Inc.,

166 S.W.3d 212 (Tex. 2005) ......................................................................................... 31

Rosell v. Cent. W. Motor Stages, Inc., 

89 S.W.3d 643 (Tex. App.—Dallas 2002, pet. denied) .........................................passim

Royal Indem. Co. v. H.E. Abbott & Sons, Inc., 

399 S.W.2d 343 (Tex. 1966) ..................................................................................passim

Russell v. Ramirez, 

949 S.W.2d 480 (Tex. App.—Houston [14th Dist.] 1997, no writ).............................. 19

Russell v. Russell,

865 S.W.2d 929 (Tex. 1993) ........................................................................................... 9

Sanders v. Total Heat & Air, Inc.,

248 S.W.3d 907 (Tex. App.—Dallas 2008, no pet.) ....................................................... 7

Soodeen v. Rychel,

802 S.W.2d 361 (Tex. App.—Houston [1st Dist.] 1991, writ denied)....................13, 14

Tex. Dep’t of Human Servs. v. E.B.,

802 S.W.2d 647 (Tex. 1990) ......................................................................................... 26

Thota v. Young,

366 S.W.3d 678 (Tex. 2012) ......................................................................................... 21

Tittizer v. Union Gas Corp.,

171 S.W.3d 857 (Tex. 2005) ......................................................................................... 25

Transp. Ins. Co. v. Moriel,

879 S.W.2d 10 (Tex. 1994) ............................................................................................. 7

Vaughn v. Watkins. 

344 S.W.2d 9022 (Tex. Civ. App.—Eastland 1961, writ ref’d n.r.e.) ....................14, 15

Walker v. Cotter Props., Inc.,

181 S.W.3d 895 (Tex. App.—Dallas 2006, no pet.) .................................................8, 16

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ........................................................... 26
viii

Statutes

TEX. CIV. PRAC. & REM. CODE § 33.003 ..........................................................6, 27, 28, 35

TEX. CIV. PRAC. & REM. CODE § 33.003(a)...................................................................... 27

TEX. CIV. PRAC. & REM. CODE § 33.003(b)...................................................................... 32

TEX. CIV. PRAC. & REM. CODE § 33.013........................................................................... 36

Other Authorities

PJC 10.12........................................................................................................................... 30

PJC 4.3............................................................................................................................... 30

William D. Underwood & Michael D. Morrison, Apportioning Responsibility in Cases 

Involving Claims of Vicarious Derivative, or Statutory Liability for Harm Directly 

Caused by the Conduct of Another, 55 BAYLOR L. REV. 617, 647–48 (2003) ......... 34

Rules

TEX. R. APP. P. 33.1........................................................................................................... 21

TEX. R. APP. P. 44.1(a)(1).................................................................................................. 31

TEX. R. CIV. P. 272 ............................................................................................................ 21

TEX. R. CIV. P. 274 ............................................................................................................ 21
ix

STATEMENT CONCERNING ORAL ARGUMENT

Appellees have not requested oral argument because they believe that oral 

argument is not necessary since the issues before this court can be determined 

based on the briefing and the record before this Court. However, if this Court 

determines oral argument will be helpful to its determination, appellees do not 

wish to waive their right to participate in oral argument.
1

TO THE HONORABLE FIFTH COURT OF APPEALS: 

Appellees, Elissa Garcia, on Behalf of The Estate of Rojelio Salinas, Jr., and 

Rojelio Salinas, Sr., respectfully file Appellees’ Brief, and in support of which 

submit the following:

FACTS

A. Parks was drinking all day and during the time that Dao was with him at 

his house. 

Dao’s Statement of Facts contains many misstatements. First, Dao attempts 

to paint the picture that Dao had no idea that Parks had been drinking before he got 

in her vehicle and took the life of Rojelio Salinas. However, the evidence was not 

only clear that Parks had been drinking alcohol throughout the day leading up to 

his dinner with Dao and prior to the accident, but there was also evidence that 

Parks had been drinking while with Dao. 3 RR 218-19, 222. In the police video 

played at trial, Parks told the officer he had a glass of wine at 8:00 p.m. and at 9:00 

p.m. 3 RR 41. This is the same time period he was at his apartment cooking and 

eating dinner with Dao. 

Dao testified she got to Parks’ apartment around 8:00 or 8:30 p.m. on the 

night of the accident, and Parks cooked her dinner. 4 RR 81. Parks left the 

apartment in Dao’s vehicle around 10:00 p.m., and arrived at Komali’s around 

10:10 p.m. 3 RR 220-21. Parks testified that once at Komali’s he was only served 

about a half of a glass of wine by Leann, which he did not finish. 3 RR 231, 33. 
2

Dickey’s testimony confirmed Parks only had a half glass of wine while at 

Komali’s. 3 RR 90. According to both Parks’ and Dickey’s testimony, he was 

only at Komali’s for about 10 minutes. 3 RR 273; 3 RR 89.

Dao testified that she hadn’t been asleep for very long when her phone rang 

and Parks told her he had been in an accident in her vehicle and he needed the 

insurance information. 4 RR 84. The accident occurred at approximately 11:05 

p.m. 7 RR Plaintiffs’ Exhibit 10C. The toxicologist testified that Parks had a blood 

alcohol content of .22, which was almost three times over the legal limit. 3 RR 

138-39. The toxicologist also testified that in his opinion, at the point Parks was at 

Komali’s he would have been showing signs of intoxication. 3 RR 146. 

B. Dao did not object to the jury charge, and her proposed submission 

included her name in the apportionment of liability question. 

A primary complaint of Dao’s in this appeal is that her name should not 

have been included in the apportionment of liability question. As a precursor to 

that argument, in her statement of facts Dao completely misrepresents to the Court 

that she “submitted her proposed jury instructions which followed this court’s 

reasoning in Rosell and did not include Ms. Dao in the negligence or 

apportionment questions. (CR 126).” Appellant’s Brief at 4. The record before this 

Court clearly indicates that this is untrue: 
3

CR 121.

CR 126.
4

The proposed submission of Dao clearly included her name in the 

negligence and the apportionment of liability questions. Her representation to this 

Court to the contrary is completely without support. As is her contention that, 

“The trial court overruled Ms. Dao’s objection to including her name in the 

apportionment question, electing to include the Plaintiffs’ proposed version of the 

apportionment question in the final charge. (CR 186-87).” Appellant’s Brief at 4. 

Dao fails to direct this Court to anywhere in the record that would indicate she 

objected to her name being included in the apportionment question. Id. In fact, a 

review of both the reporter’s record and the clerk’s record indicates that no such 

objection was ever made. RR 146-49 (formal jury charge conference); CR 126 

(Dao’s submission of Question 2).
5

SUMMARY OF THE ARGUMENT

The tragedy of Mr. Salinas’ death was the result of a series of negligent acts 

by a number of people—namely the driver, Tim Parks, and Khanh Dao, whose 

vehicle Parks was driving while he was almost three times over the legal limit. 

The jury agreed and found Parks 85% liable and Dao 10% liable. 

The evidence established Parks and Dao had a close relationship and he had,

on almost a weekly basis, driven Dao’s vehicle with her permission. Parks had 

been drinking most of the day leading up to the accident, and then he had

continued that downward spiral with wine during the time period he was with Dao. 

While Dao testified Parks did not drink nor appear intoxicated when she was with 

him, the jury was free to determine her credibility. The jury found that Dao had 

negligently entrusted her vehicle to Parks. There is evidence in the record 

supporting the jury’s finding, and, therefore, the jury’s verdict must stand. 

As for Dao’s complaint that she was improperly included in the 

apportionment of liability question in the jury charge, Dao invited any such 

complaint by providing the Court with a proposed jury charge that actually listed 

her own name in the question. Further, she waived the complaint because she 

never objected to the question being submitted, even though she represents to this 

Court that she did in fact object to it.
6

Even assuming Dao did not invite error or waive her complaint, which this 

Court cannot ignore, Dao failed to establish the trial court abused its discretion in 

submitting her name in the apportionment of liability question. Section 33.003 of 

the Texas Civil Practice and Remedies Code mandates the submission and case 

law supports the trial court including her name in the apportionment of liability 

question. As such, this Court cannot find the trial court abused its discretion. 

Likewise, Dao in no way argues to this Court that any alleged error probably 

caused the rendition of an improper judgment, which is a prerequisite to reversing 

the judgment. 

Finally, Dao’s complaint that she cannot be held jointly and severally liable 

for 95% of the judgment (Parks’ 85% liability and Dao’s 10% liability) is 

unavailing. A finding that Dao negligently entrusted her vehicle to Parks made her 

liable for her and Parks’ liability. The case law clearly establishes that. Dao’s 

attempt to only be held 10% liable is even contradicted by her own statements in 

her brief that she had derivative liability exposure for the negligent entrustment of 

her vehicle to Parks’. The jury’s verdict and the trial court’s judgment must stand. 
7

ARGUMENT

I. The evidence was legally sufficient to support the jury’s finding that 

Dao negligently entrusted her vehicle to Parks.

A. Standard of Review.

When, as here, Dao attacks the legal sufficiency of an adverse finding on an 

issue for which they did not have the burden of proof, they must demonstrate there 

is no evidence to support the adverse finding. See Croucher v. Croucher, 660 

S.W.2d 55, 58 (Tex. 1983). When conducting a legal sufficiency review, this 

Court must view the evidence in a light most favorable to the finding, crediting 

favorable evidence if a reasonable fact-finder could and disregarding contrary 

evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 

S.W.3d 802, 807, 822 (Tex. 2005); Sanders v. Total Heat & Air, Inc., 248 S.W.3d 

907, 912 (Tex. App.—Dallas 2008, no pet.). This Court must determine whether 

the evidence as a whole rises to a level that would enable reasonable and fairminded people to differ in their conclusions. Transp. Ins. Co. v. Moriel, 879 

S.W.2d 10, 25 (Tex. 1994); Edwards v. Mid–Continent Office Distribs., L.P.,252 

S.W.3d 833, 836 (Tex. App.—Dallas 2008, pet. denied).

Evidence is legally sufficient to support the jury’s finding unless: (1) the 

record discloses a complete absence of evidence of a vital fact; (2) the court is 

barred by rules of law or of evidence from giving weight to the only evidence 

offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no 
8

more than a mere scintilla; or (4) the evidence establishes conclusively the 

opposite of the vital fact. City of Keller, 168 S.W.3d at 810. Evidence does not 

exceed a scintilla if it is “so weak as to do no more than create a mere surmise or 

suspicion” that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 

(Tex. 2004). Anything more than a scintilla of evidence is legally sufficient to 

support a challenged finding. Walker v. Cotter Props., Inc., 181 S.W.3d 895, 899 

(Tex. App.—Dallas 2006, no pet.).

This Court must indulge every reasonable inference in support of that 

finding. City of Keller, 168 S.W.3d at 822. “Jurors are the sole judges of the 

credibility of the witnesses and the weight to give their testimony. They may 

choose to believe one witness and disbelieve another. Reviewing courts cannot 

impose their own opinions to the contrary.” Id. at 819. “Courts reviewing all the 

evidence in a light favorable to the verdict thus assume that jurors credited 

testimony favorable to the verdict and disbelieved testimony contrary to it.” Id.

This Court must defer to the jury as the sole judge of the witnesses’ credibility. 

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see Golden Eagle 

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The jury may choose 

to believe one witness over another, and a reviewing court may not impose its own 

opinion to the contrary. Golden Eagle Archery, 116 S.W.3d at 761.
9

Further, any ultimate fact may be proved by circumstantial evidence. Russell 

v. Russell, 865 S.W.2d 929, 933 (Tex. 1993); see also Hoffmann v. 

Dandurand, 143 S.W.3d 555, 559 (Tex. App.—Dallas 2004, no pet.) (ultimate fact 

is one that is essential to cause of action and would have direct effect on 

judgment). An ultimate fact is established by circumstantial evidence when the 

fact may be fairly and reasonably inferred from other facts proved in the 

case. Russell, 865 S.W.2d at 933.

B. The evidence adduced at trial was sufficient to support the jury’s 

finding that Dao negligently entrusted her vehicle to Parks. 

To establish liability under a negligent entrustment theory, plaintiffs were 

required to establish that (1) Dao entrusted her vehicle to Parks; (2) Parks was 

unlicensed, incompetent, or reckless driver; (3) that Dao knew or should have 

known at the time of entrustment to be unlicensed, incompetent, or reckless; (4) 

Parks was negligent on the occasion in question; and (5) Park’s negligence 

proximately caused the accident. See Goodyear Tire & Rubber Co. v. Mayes, 236 

S.W.3d 754, 758 (Tex. 2007) (per curiam).

Dao only challenges the legal sufficiency of the evidence to establish (1) 

Dao entrusted her vehicle to Parks, and (3) that Dao knew or should have known at 

the time of entrustment to be unlicensed, incompetent, or reckless.
10

1. There was more than a scintilla of evidence that Dao entrusted 

her vehicle to Parks. 

The Texas Supreme Court has been clear that a party can establish the owner 

entrusted their vehicle from either express or implied permission. See Royal 

Indem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex. 1966); see also 

Jamar v. Patterson, 910 S.W.2d 118, 119 (Tex. App.—Houston [14th Dist.] 1995, 

writ denied). “[I]mplied permission may be inferred from a course of conduct or 

relationship between the parties in which there is mutual acquiescence or lack of 

objection signifying consent.” Id. “It is usually shown by usage and practice of 

the parties over a period of time preceding the occasion on which the automobile 

was being used.” Id. 

Dao relies on her own testimony by contending Parks only drove her car on 

a “handful of occasions” and for “specific business purposes.” Appellant’s Brief at 

14 (citing 4 RR 51-52). However, a review of Dao’s testimony in no way 

establishes that she testified that Parks only used her vehicle a “handful of times.” 

See 4 RR 51-52. 

Further, the evidence presented to the jury established a very close 

relationship between Dao and Parks and a pattern of Dao lending her vehicle to 

Parks. First, Jeffrey Dickey, someone who had no interest in this proceeding,

testified that for the longest time Parks did not drive a car, and then toward “the 

most recent occurrence” he drove Dao’s car “maybe once a week.” 3 RR 111-112. 
11

Dickey himself had even seen Parks drive Dao’s vehicle. 3 RR 122. Further, both 

Parks and Dao acknowledged that Parks had driven Dao’s vehicle on a number of 

occasions in the past. 4 RR 51. Parks testified that although he didn’t remember 

specifically why he had driven Dao’s vehicle, he would drive it when “I would 

need a car.” 3 RR 214. Further, he acknowledged that when he needed Dao’s 

vehicle she would let him use it. 3 RR 215. Finally, Parks testified Dao’s keys 

were on the dining room table. 3 RR 230. 

The jury is the sole judge of the witnesses’ credibility, and the jury could 

choose to believe one witness over another. Dow Chem. Co., 46 S.W.3d at 242; see

Golden Eagle Archery, Inc., 116 S.W.3d at 761. The jury was free to presume that 

Dao frequently let Parks drive the vehicle for more than just business related 

purposes, and instead for his personal use. 

Further, the evidence presented at trial established Parks and Dao had a very 

close relationship. Parks testified he met Dao in the 1990’s, he generally saw Dao 

on a daily basis, and he was roommates with her for two years. 3 RR 209, 212-13. 

Dickey confirmed Dao and Parks’ close relationship when testified that Dao and 

Parks were close friends and had lived together. 3 RR 112. Dickey even went so 

far as to say that Dao was at Parks’ house so frequently that she “had some form of 

belonging there. It appeared always to be a secondary residence.” Id. 

The evidence establishing Dao and Parks’ close relationship and that Dao 
12

frequently lent Parks her vehicle was sufficient to support the jury’s finding. In 

Drooker v. Saeilo Motors, the Court found that the driver’s use of the vehicles on 

many occasions with knowledge and consent of the owner presented some 

evidence that the driver was authorized to drive the owner’s vehicles in general. 

756 S.W.2d 394, 399 (Tex. App.—Houston [1st Dist.] 1988, writ denied). The 

Court found that if the driver was authorized to drive the vehicles, the fact that the 

owner did not know that the driver would drive the car on that day would not 

preclude as a matter of law a finding that the owner entrusted the driver with their 

vehicles. Id. 

Likewise, in Jamar v. Patterson, the owner challenged the sufficiency of the 

evidence after the jury found him liable for negligent entrustment. 910 S.W.2d at

119. At trial, the driver testified that the owner had given her permission to drive 

the dune buggy the night before the accident, and had impliedly given her 

permission to do so by seeing her drive, saying she was doing fine, and not telling 

her not to drive. Id. at 121. Relying on Royal Indemnity, the Court noted that, 

“Express permission is that which is affirmatively stated, while implied permission 

may be inferred from conduct between the parties in which there is acquiescence or 

lack of objection signifying consent.” Id. (citing Royal Indem. Co., 399 S.W.2d at 

345). The Court found, “Thus, depending on the jury’s assessment of the 

credibility of the witnesses, there was conflicting evidence of both express and 
13

implied permission, and, therefore, entrustment.” Id. at 123. The Court 

concluded, “Although the evidence was disputed, we cannot conclude that the 

verdict was so contrary to the overwhelming weight of the evidence as to be 

clearly wrong and unjust.” Id. Such is the case here. 

Dao appears to argue that Parks’ prior use of the vehicle with the express 

permission of Dao was insufficient to establish implied permission. In support of 

which, Dao dedicates a large part of her analysis to Soodeen v. Rychel. 802 S.W.2d 

361 (Tex. App.—Houston [1st Dist.] 1991, writ denied). But even Dao’s own 

analysis indicates the facts in Soodeen were entirely different than those here. 

Appellant’s Brief at 14-17. In Soodeen, there was no evidence the owner had ever

lent his vehicle to the driver; therefore, there was no evidence of prior use. 

Soodeen, 802 S.W.2d at 363-64. The only evidence presented was that: (1) the 

owner socialized with the driver during the year before the accident and visited her 

apartment on an estimated 20 occasions; (2) he let her sit in his car to wait for him 

to return and unlocked the car door so that she could do so; (3) he had earlier left 

an extra ignition key hidden in the car and admitted that the key was found in the 

car’s ignition after the accident; and (4) he did not file theft charges against the 

driver. Id. at 363. 

The facts in Soodeen are so distinguishable from the case at hand that it 

lends no support for this Court’s analysis of the issue. In fact, the Court in 
14

Soodeen acknowledged that “[a] person’s consent for another to operate his 

automobile can be proved by circumstantial evidence.” Id. at 364. The Court went 

on to distinguish the case from those like Drooker, relied on earlier in Appellee’s 

Brief, because in Drooker there was evidence of past use of the vehicle by the 

driver but that was present in Soodeen. Id. 

Further, Dao’s reliance on Bowie v. Broussard is unavailing. No. 01-04-

00941-CV, 2006 WL 727718, at *2-3 (Tex. App.—Houston [1st Dist.] March 23, 

2006, no pet.) (mem. op.). Dao contends that in Bowie there was more evidence 

than was presented in the present case, yet the Court still held the evidence was not 

sufficient. Appellant’s Brief at 17. Specifically, Dao contends that in Bowie the 

driver had “express permission to drive the car on other occasions.” Id. (emphasis 

added). This completely misrepresents the facts of Bowie. In Bowie, the driver 

had only driven the vehicle on one occasion, and that was when the owner of the 

vehicle was too sick to drive herself and the driver had to take the owner to the 

doctor. Bowie, 2006 WL 727718, at * 2-3. This is a far cry from the current case 

where there was evidence that Parks drove Dao’s car on a regular basis with her 

permission. 3 RR 111-112, 122.

Next, Dao relies on Vaughn v. Watkins. 344 S.W.2d 902, 902 (Tex. Civ. 

App.—Eastland 1961, writ ref’d n.r.e.). The Court in Vaughn considered whether 

to reverse the jury finding that the owner had not negligently entrusted the vehicle, 
15

which a different review than the present case. Vaughn, 344 S.W.2d at 902-03. 

Further, the Court specifically found that the “controlling question is whether he 

was entrusted with the vehicle at the time of the collision.” Id. at 902. However, 

Vaughn was issued five years prior to Royal Indemnity, which modified the 

standard and held that implied permission can be inferred from prior usage of the 

vehicle or the relationship between the parties. See Royal, 399 S.W.2d at 345. 

Finally, Dao relies on Royal Indemnity. Royal, 399 S.W.2d at 344. Again, 

in Royal Indemnity the Supreme Court recognized that “implied permission may be

inferred from a course of conduct or relationship between the parties in which there 

is mutual acquiescence or lack of objection signifying consent.” Id. at 345. 

However, the Court concluded that under the facts of the case, the evidence 

established “neither a relationship nor a prior course of conduct from which 

implied permission might fairly be inferred.” Id. at 347. Specifically, the Court 

relied on the following in making its finding:

Landers was employed as a ranch hand. He had never 

driven one of the vehicles off the ranch except when 

specifically instructed to do so, and had never used any 

of them for a personal errand. His employer had always 

driven him to town whenever he wanted to go, and had 

no reason to believe that he intended or might need to use 

one of the vehicles on the evening of the accident. In 

view of these undisputed facts, the limited privileges 

Landers was allowed in the Herring house, his occasional 

pleasure trips with Herring, the availability of the 

vehicles, his use of the same on the ranch, Herring's 

inquiry about his driver's license, and the absence of any 
16

prior instruction not to take the vehicles off the ranch, 

afford no basis for concluding that Landers had implied 

permission to use the truck for a trip to San Angelo on a 

personal mission. We hold that there is no evidence to

support a finding that the vehicle was being operated 

with the implied permission of the named insured.

Id. 

Royal Indemnity is wholly distinguishable from the case at hand where the 

relationship between Dao and Parks was undisputed and there was evidence that 

Dao lent her vehicle to Parks on a regular basis and it was not limited to just 

business purposes as Dao argues. 3 RR 213-15 (Parks’ Testimony); 3 RR 111-12, 

122 (Dickey’s Testimony); 4 RR 51 (Dao’s Testimony). 

Dao has in no way discharged her burden to demonstrate there was no 

evidence that Dao impliedly entrusted her vehicle to Parks. See Croucher, 660 

S.W.2d at 58. Anything more than a scintilla of evidence is legally sufficient to 

support a challenged finding, and at a minimum there was more than a scintilla of 

evidence. See Walker, 181 S.W.3d at 899. This Court must assume the jurors 

credited testimony favorable to the verdict and disbelieved testimony contrary to it, 

and must defer to the jury as the sole judge of the witnesses’ credibility. 

City of Keller , 168 S.W.3d at 819. Dow Chem. Co., 46 S.W.3d at 242; see Golden 

Eagle Archery, Inc., 116 S.W.3d at 761. Indulging every reasonable inference in 

support of that finding, the evidence is legally sufficient to support the jury’s 

finding. See City of Keller, 168 S.W.3d at 807, 822.
17

2. There was more than a scintilla of evidence that Dao knew or should 

have known that Parks was unlicensed, incompetent, or reckless.

Dao also contends the evidence presented at trial conclusively established 

Dao did not know and had no reason to know that Parks was an unlicensed or 

intoxicated driver at the time he took her vehicle. Appellant’s Brief at 20. First, it 

is important to note that the standard is not just whether she knew Parks was 

unlicensed or intoxicated, but whether she also knew or should have known that 

unlicensed, intoxicated, incompetent or reckless. See Goodyear, 236 S.W.3d at

758 (holding that one of the elements of negligent entrustment is that the owner 

knew or should have known at the time of entrustment to be unlicensed, 

incompetent, or reckless).

Dao relies on the testimony of witnesses that Parks did not appear 

intoxicated. Appellant’s Brief at 21. Those witnesses include the employee of 

Komali Restaurant, Leann Barry. Id. Komali was also a defendant in the suit for 

their role in serving Parks. CR 8 (Plaintiffs’ Original Petition). As such, the 

witness had an interest in testifying that Parks did not appear to be intoxicated, and 

the jury could judge her credibility. 

Parks testified that he had consumed two to three glasses of wine while he 

was at Peckers for an hour or an hour and half earlier in the day. 3 RR 218-19.

Parks further testified that once he arrived home from Peckers at about 2:00 or 

2:30 p.m., he consumed “a few more glasses of wine.” 3 RR 222. Dao testified 
18

she got to Parks’ apartment around 8:00 or 8:30 p.m. on the night of the accident, 

and Parks cooked her dinner. 4 RR 81. In the police video played at trial, Parks 

told the officer he had a glass of wine at 8:00 p.m. and at 9:00 p.m., which is the 

same time period he was at his apartment cooking and eating dinner with Dao. 

Id.; 3 RR 41. 

Parks left the apartment in Dao’s vehicle around 10:00 p.m., and arrived at

Komali’s around 10:10 p.m. 3 RR 220-21. Once at Komali’s, Parks testified he 

was only served about a half of a glass of wine by Leann, which he did not finish. 

3 RR 231, 33. Dickey’s testimony confirmed Parks only had a half glass of wine

while at Komali’s. 3 RR 90. According to both Parks’ and Dickey’s testimony, he 

was only at Komali’s for about 10 minutes. 3 RR 273; 3 RR 89.

Dao testified that she hadn’t been asleep for very long when her phone rang 

and Parks told her he had been in an accident in her vehicle and he needed the 

insurance information. 4 RR 84. The accident occurred at approximately 11:05 

p.m. 7 RR Plaintiffs’ Exhibit 10C. Further, the toxicologist testified that Parks had 

a blood alcohol content of .22, which was almost three times over the legal limit. 3 

RR 138-39. The toxicologist also testified that in his opinion at the point Parks 

was at Komali’s he would have been showing signs of intoxication. 3 RR 146. He 

was only at the bar for 10 minutes, so the jury could have determined that Parks

would have been also showing signs of intoxication at his apartment with Dao also. 
19

The jury could have believed based on all of the evidence presented that Parks was 

indeed intoxicated when he left in Dao’s vehicle and Dao knew he was intoxicated. 

Additionally, Dao testified that she was Parks’ employer. 3 CR 209-10. It is 

undisputed that Parks did not have a driver’s license. 3 RR 213. The jury could 

have believed that as Parks’ employer she knew he did not have a driver’s license. 

Further, in a written statement introduced as Plaintiffs’ Exhibit 20 at trial, 

Dao admitted she knew Parks was “not good at driving a big car.” 7 RR Plaintiffs’ 

Exhibit 20. This is sufficient to provide some evidence that Dao knew Parks was 

incompetent or reckless. In Russell v. Ramirez, the Court found the evidence 

sufficient to uphold the jury finding of negligent entrustment when the father and 

mother (owners of the vehicle) allowed their son to drive their vehicle. 949 

S.W.2d 480, 490 (Tex. App.—Houston [14th Dist.] 1997, no writ). The evidence 

at trial showed that although the father did not know of his son’s bad driving 

record, four years prior to the accident at issue he had commented to his son about 

his bad driving habits. Id. The Court found this sufficient to uphold the jury’s 

finding of negligent entrustment. Id. The Court also held that the jury could have 

found that a reasonable owner should have inquired into his son’s driving record 

and that failure to do so constituted negligence. Id. 

Again, after viewing this evidence in the light most favorable to the verdict, 

crediting favorable evidence if reasonable jurors could and disregarding contrary 
20

evidence unless reasonable jurors could not, this Court must hold that Dao failed to 

demonstrate that there is no evidence to support the jury’s finding that Dao knew 

or had reason to know that Parks was unlicensed, intoxicated, incompetent, and/or 

reckless. See City of Keller, 168 S.W.3d at 810. This Court should conclude that 

the evidence at trial is legally sufficient to enable reasonable and fair-minded 

people to reach the verdict under review here. Id. 

II. The trial court did not abuse its discretion in submitting Dao in the 

apportionment of liability question, and Dao failed to establish the 

alleged error caused the rendition of an improper judgment.

A. Dao waived her complaint about her name being submitted in the 

apportionment of liability question.

Dao contends, “Prior to trial, Ms. Dao submitted her proposed jury 

instructions which followed this Court’s reasoning in Rosell and did not include 

Ms. Dao in the apportionment question.” Appellant’s Brief at 23. Dao goes on to 

argue that, “The trial court overruled Ms. Dao’s objection and allowed 

Plaintiffs[sic] requested submission of the apportionment question in the jury 

charge.” Id. This is a complete misstatement of the facts. In fact, there is nothing 

in the record indicating Dao ever objected to the submission of her name in the 

apportionment question. RR 146-49 (formal jury charge conference); CR 126

(Dao’s submission of Question 2). Even Dao fails to give this Court any reference 

to the record supporting her contention that she objected to the apportionment of 
21

liability question in anyway. Dao’s Brief at 23. Further, as more fully addressed 

below, Dao’s own submission of Question 2 included her name in the 

apportionment question. CR 126.

The Texas procedural rules “govern the preservation requirements for 

raising a jury charge complaint on appeal and require the complaining party to 

make an objection before the trial court.” Thota v. Young, 366 S.W.3d 678, 689 

(Tex. 2012); see TEX. R. CIV. P. 272; TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1. 

Dao had to object to an erroneous question being included in the Court’s charge. 

See Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003); Holu See 

Religious of Sacred Heart v. City of Houston, 836 S.W.2d 606, 613–14 (Tex. 1992)

(objection is proper method of preserving complaint about defective issue 

submission regardless of who has burden of proof). In the absence of an indication 

in the record that the issue was presented to the trial court and refused, no error can 

be shown. Demler v. Demler, 836 S.W.2d 696, 698-99 (Tex. App.—Dallas 1992, 

no writ).

In order to complain about the submission of her name in the apportionment 

of liability question, Dao had to object to her name being included in that question. 

The record clearly reflects that Dao never did that. RR 146-49 (formal jury charge 

conference); CR 126 (Dao’s submission of Question 2). Further, she could have 

submitted her own Question 2 with only Salinas, Parks, and the Komali Restaurant 
22

(omitting her name altogether). But she did not, even though she represents to this 

Court that she did. CR 126. As such, a complaint was never made to the trial 

court that it was improperly submitting Dao in the apportionment of liability 

question. As such, Dao has waived any complaint on appeal regarding this 

submission.

B. Dao invited any alleged error by submitting her own proposed 

apportionment of liability question with her name included in it.

In fact, even though Dao argues to this Court that she should not have been 

listed in the apportionment of liability question, her own proposed submission of 

the jury charge actually included her name. CR 121, 126. This is completely 

contrary to Dao’s representation she makes to this Court that she “submitted her 

proposed jury instructions which followed this court’s reasoning in Rosell and did 

not include Ms. Dao in the negligence or apportionment questions. (CR 126).” 

Appellant’s Brief at 4. Dao’s proposed Questions 1 and 2 were as follows:
23

CR 121.

CR 126.
24

Questions 1 and 2 as submitted to the jury were as follows:

CR 186. 1

 

1

The only difference between Dao’s proposed jury charge and the actual jury charge was Dao’s 

instruction that “Answer the question as to Khanh Dao only if you have answered “Yes” as to 

Tim William Parks.” CR 121, 186. However, as the charge indicates, Parks stipulated that he 

was negligent; therefore, the proposed instruction was unnecessary and Dao does not complain 

about the lack of the instruction in this appeal. CR 186. 
25

CR 187.

The jury question was specifically requested by Dao in her charge. As this 

Court has made clear, “A party cannot ask something of the trial court and then 

complain that the court erred by granting [her] request.” Haler v. Boyington 

Capital Grp., Inc., 411 S.W.3d 631, 637 (Tex. App.—Dallas 2013, pet. denied)

(citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005)). Even if 

this Court were to assume, which it should not, that the charge was erroneous, “the 

doctrine of invited error provides that a party may not complain of an error which 

the party invited.” Id. (citing In re Dep’t of Family & Protective Servs., 273 

S.W.3d 637, 646 (Tex. 2009)). 

Not only did Dao not object to the submission (contrary to what she 

represents to this Court), but she actually submitted a question that included her

name in the question. Dao cannot submit her own name in the apportionment of 

liability question and then later complain that the trial court erred in doing so. 

Because Dao requested the submission that she now complains about, this Court 

should not consider the merits of the alleged error. See Haler, 411 S.W.3d at 637

(holding that the Court will not consider the merits of an alleged error that resulted 

from language in the charge requested by the party complaining of it on appeal). 
26

C. The trial court did not abuse its discretion by submitting Dao in the 

apportionment of liability question.

Dao presents the issue of whether it was proper to apportion responsibility to 

Dao under direct as well as derivative liability theories. Dao’s Brief at 1. Even if 

this Court were to assume Dao did not waive her complaint nor did she invite 

error, which this Court should not, Dao has not provided this Court with anything 

that establishes the trial court abused its discretion in submitting Dao in the 

apportionment question. 

1. Standard of Review. 

A trial court has wide discretion in submitting instructions and jury 

questions. European Crossroads’ Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 

54 (Tex. App.—Dallas 1995, writ denied). Dao’s allegation of jury charge error is 

reviewed for an abuse of discretion. Tex. Dep’t of Human Servs. v. E.B., 802 

S.W.2d 647, 649 (Tex. 1990); MRT, Inc. v. Vounckx, 299 S.W.3d 500, 505 (Tex. 

App.—Dallas 2009, no pet.). To satisfy the clear abuse of discretion standard, Dao

must show “that the trial court could reasonably have reached only one decision.” 

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). With 

regard to the resolution of matters committed to the trial court’s discretion, “a 

reviewing court may not substitute its judgment for that of the trial court.” Only “a 

clear failure by the trial court to analyze or apply the law correctly will constitute 

an abuse of discretion.” Id. “Even if the reviewing court would have reached the 
27

issue differently, it cannot disturb the trial court’s decision unless it is shown to be 

arbitrary and unreasonable.” Id.

2. Dao in no way established the trial court abused its discretion. 

Dao has a high burden to overcome regarding her complaint about the jury 

charge. Dao outright ignores this burden in her Brief. Instead, Dao analyzes this 

Court’s holding in Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 657 

(Tex. App.—Dallas 2002, pet. denied). And, as previously discussed, Dao 

misrepresents to this Court that her proposed jury instruction followed this Court’s 

reasoning in Rosell and “did not include Ms. Dao in the apportionment question.” 

Appellant’s Brief at 23. 

Dao claims, “Since any negligence assigned to Mr. Parks by the jury would 

be passed on to Ms. Dao, her inclusion in the apportionment question resulted in 

the jury assigning a percentage of individual negligence to a party with only 

derivative liability exposure.” Id. Dao’s analysis on this issue ends there. At no 

point does Dao even attempt to establish the trial court abused its discretion. 

Section 33.003 of the Civil Practice and Remedies Code mandates that the 

following be submitted in the jury charge when determining the percentage of 

responsibility: (1) each claimant; (2) each defendant; (3) each settling person; and 

(4) each responsible third party. TEX. CIV. PRAC. & REM. CODE § 33.003(a). 
28

Therefore, on its face section 33.003 required the trial court to include Dao in the 

jury charge when determining the percentage of responsibility of each defendant. 

Rosell in no way forbids the trial court from including Dao in the 

apportionment of liability question. Rosell, 89 S.W.3d at 657. In Rosell, this 

Court considered whether the trial court abused its discretion in failing to allow the 

jury to consider the negligence of the owner of the bus in the apportionment 

question. Id. at 656. The plaintiffs argued that the failure to include the owner in 

the apportionment question violated section 33.003 of the Texas Civil Practice and 

Remedies Code. Id. This Court held there was no abuse of discretion in not 

including the owner in the apportionment question because the driver’s negligence 

would be passed on to the owner. Id. at 657. 

Rosell was the opposite situation that we have here. Here, Dao had to 

establish “that the trial court could reasonably have reached only one decision”—

that the trial court could have only submitted a charge without Dao in the 

apportionment of liability question. See Walker, 827 S.W.2d at 840. Because the 

standard of review requires that Dao establish the trial court abused its discretion in 

submitting her in the apportionment question, Rosell cannot be used to hold that 

such an abuse occurred. Rosell simply stands for the proposition that it is 

permissible to submit only the driver and not the entrustor in the negligence 

question, and in no way mandates it. 
29

And, in fact, there appears to be a split of authority as to whether an owner 

should be submitted in the apportionment question in a negligent entrustment case. 

See Rosell, 89 S.W.3d at 657; compare with Bedford v. Moore, 166 S.W.3d 454, 

462-63; see also Fid. & Guar. Ins. Underwriters Inc. v. Wells Fargo Bank, Nat. 

Ass’n, No. CIV. A. H-04-2833, 2006 WL 870683, at *5 (S.D. Tex. Mar. 31, 2006)

(noting the difficulty courts have faced in reconciling the Proportionate 

Responsibility Statute and vicarious and/or derivative liability claims such as 

negligent entrustment). 

In Bedford, the Court of Appeals found it was error (although later 

determined it to be harmless) for the trial court to not submit the entrustor in the 

jury charge questions. Id. The Court found that like the Dram Shop Act, “if the 

...entrusting employer is negligent, his liability for the acts of the driver is 

established, but by submitting both the driver’s and the hiring or entrusting 

employer’s negligence to the jury, allowance is made for recovery by the hiring or 

entrusting employer from the driver, based on the percentages of responsibility 

assessed by the jury. Id. at 462. The Court concluded, “the proper submission in a 

simple negligent entrustment or hiring claim, based upon sufficient evidence to 

warrant the submission, is to include the alleged negligent hiring or entrusting 

employer in an initial liability question and in the comparative negligence 

questions.” Id. 
30

Further, the Pattern Jury Charge 4.3 (Proportionate Responsibility) suggests 

that each person found to have caused or contributed to cause the occurrence or 

injury be listed in the apportionment of responsibility question and makes no 

exception for an owner/defendant sued for negligent entrustment. PJC 4.3 (2014). 

In fact, the comments to PJC 4.3 specifically reference the “entrustor” and directs 

us to PJC 10.12. See PJC 4.3 and comments. PJC 10.12 (Negligent Entrustment) 

specifically includes both the driver and the owner of the vehicle in the negligence 

question. PJC 10.12. Further, the comments to PJC 10.12 note that “[w]hether the 

entrustor should be submitted in the comparative causation question is uncertain.” 

Id. 

Even if this Court would have reached the issue differently, “it cannot 

disturb the trial court’s decision unless it is shown to be arbitrary and 

unreasonable.” Walker, 827 S.W.2d at 840. There was nothing arbitrary or 

unreasonable about the trial court’s submission of the jury charge. Both the 

plaintiffs and Dao submitted drafts of question 1 and 2 that included Dao in both

questions. Dao’s failure to object or request a question that would put the trial 

court on notice of the complaint she now appears to make on appeal cannot lead to 

the finding the trial court abused its discretion. The jury charge was submitted to 

the jury in compliance with both proposed charges and in compliance with the 

PJC. There was absolutely nothing that mandated the trial court to remove Dao 
31

from the apportionment of liability question. And, in fact there was case law to 

support the trial court’s submission. As such, Dao cannot and did not even attempt 

to meet her high burden that the trial court abused its discretion. 

D. Dao did not even attempt to establish any alleged error probably 

caused the rendition of an improper judgment. 

Even assuming there was error in the charge that was not waived nor invited, 

which plaintiffs strenuously assert there was not, a trial court only commits 

reversible error if, in light of the whole record, the error probably caused the 

rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Romero v. KPH 

Consol., Inc., 166 S.W.3d 212, 225 (Tex. 2005); Reinhart v. Young, 906 S.W.2d 

471, 473 (Tex. 1995). Nowhere in Dao’s Brief does she provide record citations or 

arguments addressing harm and that the complained of submission “probably 

caused the rendition of an improper judgment.” Instead, she simply states “[s]ince 

any negligence assigned to Mr. Parks by the jury would be passed on to Ms. Dao, 

her inclusion in the apportionment question resulted in the jury assigning a 

percentage of individual negligence to a party with only derivative liability 

exposure.” Appellant’s Brief at 23. This is not sufficient to establish for this Court 

that the jury charge error complained of probably resulted in the rendition of an 

improper judgment. 

Further, even in Dao’s prayer she only asks for a reversal of “the jury’s 

findings” and that judgment be rendered in her favor. Id. at 27. Alternatively, she 
32

asks that the Court render judgment and only hold Dao responsible for 10% of the 

damages. Id. She asks for no relief with regard to her apparent complaint that she 

should not have been listed in the apportionment of liability question. Id. 

All the while, any alleged error is harmless because the jury found Dao 

negligent for negligent entrustment. CR 184 (negligent entrustment instruction as 

to Dao), 186 (jury question regarding Dao’s negligence). As such, even if Dao had 

not been assigned a percentage of responsibility, she would have still been liable 

for Park’s negligence (more fully addressed below). Even Dao agrees with this in 

her Brief. Appellant’s Brief at 23. 

III. The trial court properly held Dao jointly and severally liable.

Finally, Dao presents the issue of whether it is proper for a defendant to be 

held jointly and severally liable when she was assigned only 10% of the 

negligence. Appellant’s Brief at 1. Dao relies on Section 33.013(b) of the Texas 

Civil Practice and Remedies Code for the proposition that under the plain language 

of the statute Dao cannot be found jointly and severally liable because she was not 

assessed 50% or more liability. Id. However, the effect of Dao’s argument is that 

even though Dao submitted a jury question to the trial court with her name listed 

with the other defendants, and the jury apportioned liability among all of the 

defendants, that the judgment had to then strictly adhere to those percentages. 

However, such a strict adherence, while appropriate in a traditional negligence 
33

action, is not appropriate when the submitted theories involve negligent 

entrustment claims. 

The Restatement provides that:

A person whose liability is imputed based on the tortious 

acts of another is liable for the entire share of 

comparative responsibility assigned to the other, 

regardless of whether joint and several liability or several 

liability is the governing rule for independent tortfeasors 

who cause an indivisible injury.

RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIABILITY § 13 (2000). The

Restatement makes it clear that a party to whom liability is imputed and who is 

also independently liable “is responsible for the share of the verdict assigned to 

[the party whose liability is imputed] and is also responsible for the share of the 

verdict assigned to its own negligence.” Id. § 7 cmt. j (2000). 

The Supreme Court, courts and commentators have recognized the difficulty 

in reconciling the language of the Proportionate Responsibility Statute with 

vicarious and derivative liability actions. See, e.g., F.F.P. Operating Partners, L.P 

v. Duenez, 237 S.W.3d 680, 686-87 (Tex. 2007) (considering the apparent conflict 

between the proportionate responsibility statute and the vicarious liability imposed 

by the Dram Shop Act); Bedford, 166 S.W.3d at 466 (analyzing the impact of the 

proportionate responsibility statute on vicarious and derivative liability causes of 

action); see generally William D. Underwood & Michael D. 

Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious 
34

Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of 

Another, 55 BAYLOR L. REV. 617, 647–48 (2003) (proposing that the 

Legislature, in enacting the original and present versions of section 33.003, did not 

consider derivative or vicarious liability cases).

Courts have consistently found that in a negligent entrustment situation the 

driver’s liability is imputed to the owner of the vehicle. Duenez, 237 S.W.3d at 

686 (noting that negligent entrustment is form of vicarious liability); Atl. Indus., 

Inc. v. Blair, No. 08-12-00093-CV, 2014 WL 4250540, at *3 (Tex. App.—El Paso 

Aug. 28, 2014, pet. filed)(holding negligent entrustment serves as a manner of 

establishing vicarious liability); Bedford, 166 S.W.3d at 462 (holding that, “if the 

hiring or entrusting employer is negligent, his liability for the acts of the driver is 

established, but by submitting both the driver’s and the hiring or entrusting 

employer’s negligence to the jury, allowance is made for recovery by the hiring or 

entrusting employer from the driver, based on the percentages of responsibility 

assessed by the jury.”); Rosell, 89 S.W.3d at 657 (“Once negligent ...entrustment 

is established, the owner/employer is liable for the acts of the driver.”); Loom Craft 

Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex. App.—Texarkana 1992, 

no writ)(indicating that negligent entrustment vests the owner with liability for the 

driver’s wrong). 
35

Dao provides an analysis of North American Van Lines, Inc. v. Emmons, 

but misconstrues the holding. 50 S.W.3d 103 (Tex. App.—Beaumont 2001, pet. 

denied). There, the Court considered whether any of the plaintiffs’ theories of 

recovery could support the judgment that held the driver, the moving company 

who owned the van, and the interstate motor carriers jointly and severally liable for 

the entire judgment. Id. at 116-22. The Court analyzed each of the jury’s findings 

on conspiracy, joint enterprise, the lease, alter ego, and single business enterprise, 

and, after setting aside the jury findings on conspiracy and joint enterprise, 

concluded there was no basis to support the trial court’s judgment imposing joint 

and several liability. Id. at 122. In no way did the Court address whether an owner 

of a vehicle could be held jointly and severally liable for her and the driver’s 

percentage of liability under a negligent entrustment theory. Id. In fact the Court’s 

analysis of each theory of liability indicates that it considered each theory and jury 

finding to determine whether there was sufficient evidence and/or whether the 

theory itself subjected the parties to joint and several liability even in light of 

Section 33.013. See id. 

Further, Dao’s argument is somewhat perplexing because while Dao appears 

to argue she cannot be held jointly and severally liable for Park’s share of the 

judgment, immediately before this argument she specifically states that she had 

derivative liability exposure. Appellant’s Brief at 23 (“Since any negligence 
36

assigned to Mr. Parks by the jury would be passed on to Ms. Dao, her inclusion in 

the apportionment question resulted in the jury assigning a percentage of individual 

negligence to a party with only derivative liability exposure.”). 

The trial court held Dao jointly and severally liable for 95% of the judgment 

(Parks’ 85% and Dao’s 10%). CR 347. Because she was derivatively liable for 

Parks’ portion of the judgment, it follows that she is jointly and severally liable for 

the entire 95% (their combined portion of the judgment). Further, under Dao’s 

theory, had Dao not been submitted in the apportionment of liability question and 

only Komali Restaurant and Parks had been submitted, then when the trial court 

went to enter the judgment if it strictly followed section 33.013 there would be no 

way to hold Dao responsible for Parks’ negligence—even though Dao 

acknowledges she was derivatively liable. 

The import of the trial court’s judgment is that because Dao was submitted 

in the proportionate responsibility question, without objection and as agreed to by 

all parties, and she was derivatively liable for Parks’ share and her own share 

assessed by the jury, she is jointly and severally liable for 95% of the judgment. 

Dao would like this Court to only assign her 10% liability when she herself admits 

she was derivatively liable for Parks’ 85% portion because of her negligent 

entrustment of the vehicle. Appellant’s Brief at 23. Again, there is nothing to 

establish the judgment as rendered was improper. 
37

CONCLUSION

The jury rendered a proper verdict finding Dao negligently entrusted her 

vehicle to Parks. There is evidence in the record to support that finding. As such, 

there are absolutely no grounds to overturn the jury’s verdict. 

Additionally, Dao failed to properly preserved and raise charge error and 

actually invited the error she now complains of by submitting her own name in the 

apportionment of liability question. Also, Dao failed to meet her burden to show 

the trial court abused its discretion. The trial court had case law to support its 

submission and in no way was there anything that mandated that Dao left off of the 

jury question. But even beyond finding an abuse of discretion in the charge, which 

has not been established, this Court must also find the error probably caused the 

rendition of an improper judgment. Dao made no attempt to establish this, and it is 

clear that there was no improper judgment rendered here. The outcome would 

have been the same even if Dao had not been apportioned liability. 

Finally, the trial court was well within its discretion to hold Dao jointly and 

severally liable. The jury’s finding that Dao negligently entrusted her vehicle to 

Park made her liable for Park’s negligence. That is what the judgment 

accomplishes by finding Dao jointly and severally liable. 

PRAYER

For the foregoing reasons, Appellees Elissa Garcia, on behalf of the Estate 
38

of Rojelio Salinas, Jr., and Rojelio Salinas, Sr. respectfully request that this Court 

affirm the judgment of the 14th Judicial District Court, Dallas County, Texas, the 

Honorable Eric V. Moye presiding. Appellees further pray for such relief to which 

they may be entitled at law and in equity, including their costs of this appeal. 

Respectfully submitted,

By: /s/ Lorien Whyte

Lorien Whyte

State Bar No. 24042440

Brin & Brin, P.C.

6223 IH 10 West

San Antonio, Texas 78201

Tel: (210) 341-9711 

Fax: (210) 341-1854 

lwhyte@brinandbrin.com

Dan McDonald

State Bar No. 13539300

dan@mcdonaldlawfirm.com

Preston J. Dugas III

State Bar No. 24050189

preston@mcdonaldlawfirm.com

Connie Squiers

State Bar No. 18978515

csquiers@mcdonaldlawfirm.com

McDonald Law Firm, P.C.

One Museum Place

3100 W. 7th Street, Suite 230

Fort Worth, Texas 76107

Tel: (817) 717-5081

Fax: (817) 717-5082

ATTORNEYS FOR APPELLEES

ELISSA GARCIA, ON BEHALF OF 

THE ESTATE OF ROJELIO SALINAS, 

JR., AND ROJELIO SALINAS, SR.
39

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that there are 

8,407 words in this document, excepting those portions of the brief listed in Rule 

9.4(i)(1), as calculated by the word count feature of Microsoft Word 2010, which 

was used to prepare this document.

/s/ Lorien Whyte

CERTIFICATE OF SERVICE

I hereby certify that on the 10th day of April, 2015, in accordance with the 

Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure, a true 

and correct copy of the foregoing document has been forwarded to the following:

Stacy Thompson

Meloney Perry

Tiffany Au

Christopher T. Colby

Perry Law P.C.

10440 North Central Expressway

Suite 1120

Dallas, Texas 75231

Counsel for Appellant

Preston J. Dugas III

Dan McDonald

McDonald Law Firm, P.C.

One Museum Place

3100 W. 7th Street, Suite 230

Fort Worth, Texas 76107

Counsel for Appellee

Jerry L. Ewing, Jr.

Nathan R. Cash

Walters, Balido & Crain, LLP

Meadow Park Tower, 15th Floor

10440 N. Central Expressway

Dallas, Texas 75231

Counsel for Komali Restaurant, L.L.C.

Richard E. Harrison

Harrison & Hull, L.L.P.

112 W. Virginia St.

McKinney, Texas 75069

Counsel for Tim Parks

/s/ Lorien Whyte

Lorien Whyte