Hernandez v. Atieh (Tex.App.- Houston [14th Dist.] May 20, 2008)(Frost)
(auto accident case, negligence, jury trial, responsible third party)
AFFIRMED: Opinion by Justice Frost  
14-06-00582-CV Juan Jose Hernandez v. Adbedlsalam Atieh
Appeal from 190th District Court of Harris County
Trial Court
Judge: Jennifer Elrod Walker  

M E M O R A N D U M   O P I N I O N

In this personal injury case arising from a traffic accident, appellant, Juan Jose Hernandez, sued appellee,
Adbedlsalam Atieh, for negligence.  After the jury found Atieh=s negligence, if any, did not cause the accident,
the trial court entered judgment that Hernandez take nothing.  In a single issue, Hernandez contends the trial
court erred by allowing Atieh to designate a responsible third party after the close of evidence, but before the
case was submitted to the jury.  Concluding the designation did not result in reversible error, we affirm.[1]

I.  Background

On November 16, 2003, Hernandez was a passenger in the back seat of a vehicle driven by Hector Sisa when
the flat-bed tow truck Atieh was driving hit Sisa=s vehicle from the rear.  The accident occurred at the
interchange of I-45 and I-10 in Houston.  Aside from these facts, the parties presented differing versions of the
accident and the conversation immediately afterwards.

According to Atieh, he was traveling twenty to twenty-five miles per hour, it was Asprinkling,@ and traffic was
heavy.  As Atieh was approaching the exit from I-45 north to I-10 west, he was in the second lane from the
leftCone of two left lanes from which a driver may exit to I-10.  At the time, Sisa=s vehicle was to the right of
Atieh=s truck, in a lane designated only for drivers continuing on I-45.  Sisa abruptly pulled in front of Atieh=s
truck and suddenly stopped.  Although Atieh braked, his truck hit the rear of Sisa=s vehicle.

After the accident, Osman Mustafa, a passenger in Atieh=s truck, communicated with Sisa and Hernandez in
Spanish.  Atieh testified he did not talk with them because he does not speak Spanish.  At trial, Mustafa
essentially supported Atieh=s version of the accident and the events afterwards.

According to Hernandez, he was riding in the back seat with his wife and had his left arm behind his wife=s
headrest.  Sisa=s vehicle was in the far left lane as it approached the exit to I-10.  As he was exiting to I-10, Sisa
either stopped or slowed considerably because of heavy traffic, and Atieh=s truck unexpectedly struck their
vehicle.  Hernandez did not see Atieh=s truck before the collision and was therefore unaware of its movements
before the collision.  After the accident, Atieh exited his truck, apologized, and stated he would pay for the
damage to Sisa=s vehicle.   Eventually, Hernandez received medical treatment for shoulder injuries allegedly
sustained in the accident.

In November 2004, Hernandez sued Atieh, alleging multiple theories of negligence.[2]  In March 2006, the case
was tried to a jury.  In his live pleading, Atieh requested Athe Court and Jury to consider the relative damages
and conduct of the parties and all tortfeasors, including Plaintiff, and accord Defendant full benefit of Texas Civil
Practice & Remedies Code Chapter 33.@  Atieh also alleged, among other defenses, (1) the incident was
caused by parties or instrumentalities over which Atieh had no control, and (2) Aanother person, persons or
instrumentalities were the sole proximate cause of the accident in question and/or the injuries and damages
alleged.@  He did not specify Sisa as a responsible third party.

On March 6, the last day of trial, the following exchange occurred:

THE COURT:  We=re on the record.  Let the record reflect the jury is not present in the courtroom.  However, all
counsel are present in the courtroom.

MR. BECKCOM [Hernandez=s counsel]:  Your Honor, I just want to make it clear for the record that with respect
to the driver of the SUV, Mr. Sisa, he isB

THE COURT:  Just one second.  Just one second.

MR. BECKCOM:  He is not going to be a proper party to be submitted on the jury charge, and we=ve got a trial
brief to that effect.  So I just want to make very clear that we are not trying his negligence by consent in this case.

Now, they have got some defenses of unavoidable accidents, sudden emergency.  So I B I guess that some of
this evidence of what happened is relevant to those issues.  But as to Mr. Sisa=s negligence, we are not trying
that by consent.


. . . .

MR. MEYNIER [Atieh=s counsel]:  Do you want me to respond to their motions?  This is the first that I=ve heard
of this one.

THE COURT:  No.  I think he=s just making them to preserve his record, and then we=ll consider them at the
proper time.

MR. BECKCOM:  Yes.  Just to preserve the trial by consent issue.  Very clear about that.

MR. MEYNIER:  Well, I know we=re on the record, so obviously, I'm going to oppose that and we believe that
that=s happened. It=s already happened because they have discussed that at length, as we have, without
objections throughout the B

THE COURT:  Discussed what at length?  It=s not clear to me what you are objecting to.

MR. MEYNIER:  Mr. Sisa=s cause of this accident.  We believe that he has been pled in our answer, and they did
not object under the Texas Civil Practice [sic] Remedies Code within 15 days. And so the Court B

THE COURT:  You named him as a responsible third party in your answer?

MR. MEYNIER:  We designated everybody under the Civil Practice [sic] Remedies Code subject to that and cited
the specific code as B

THE COURT:  My question is, sir:  Did you designate Mr. Sisa as a responsible third party and follow designation
of responsible third party?

MR. MEYNIER:  We believe we did. And we also discussed him B

THE COURT:  You said, we believe we did?


THE COURT:  Yes or no?  Is he named as a responsible third party?

MR. MEYNIER:  We designated all responsible third parties.  We did not identify him specifically.

THE COURT:  That was my question is:  Did you designate Mr. Sisa as a responsible third party?

MR. MEYNIER:  Your Honor, we believe in connection with the request for disclosures we also named him.

THE COURT:  Is it B can I just ask you to answer my question?  You can make all of these many other
arguments about why you think he=s designated or why you think they have notice, but did you file a designation
of responsible third party and name Mr. Sisa as a responsible third party pursuant to the Remedies Code?

MR. MEYNIER:  His name was not specified in that initial answer, no.

THE COURT:  So the answer is no.  Okay.  But you believe you filed other documents that gave them notice?


By written motion filed the same day, and orally after the parties had rested, respectively, Atieh (1) requested
leave to designate Sisa as a responsible third party and (2) requested a trial amendment to that effect.  
Hernandez objected to the request and objected to including Sisa on the jury charge.  Hernandez argued that
the amendment contravened Civil Practice and Remedies Code section 33.004 and constituted prejudicial

The trial court overruled Hernandez=s objection and permitted the trial amendment.  Hernandez submitted, and
the trial court refused, a jury charge requesting a negligence finding solely with regard to Atieh.

In Question No. 1 of the jury charge, the trial court submitted both Atieh and Sisa as persons whose negligence
may have proximately caused the accident.  A non-unanimous jury answered the question as follows:

Did the negligence, if any, of any of the persons named below proximately cause the occurrence in question?

Answer AYes@ or ANo.@

(a)       Adbedlsalam Atieh                [NO]

(b)       Hector Sisa                            [YES]

If, you have answered AYES@ to Question No. 1 for more than one of those named below [Atieh and Sisa] then
answer the following question.  Otherwise, do not answer Question No. 2.

The trial court rendered a take nothing judgment on the jury=s verdict, and Hernandez filed a motion for new
trial, which the trial court denied.  Hernandez appealed.

II.  Discussion

In a single issue, Hernandez argues the trial court erred in allowing Atieh to designate a responsible third party
after the evidence was closed and before the jury was charged.  In the trial court, Hernandez=s counsel argued,
AI=m not saying that necessarily they couldn=t argue [Sisa is the person who caused the sudden emergency or
whatever], but the evidence is now closed.  And it=s very, very clear what you have to do to get a party
submitted under these circumstances in the jury charge.@  In this court, Hernandez complains, AAtieh did not
timely move to designate Sisa as a responsible third party under the clear language of the Responsible Third
Party provision and therefore Sisa should not have been included on the jury charge.@  Thus, although
Hernandez rests his argument on Civil Practice and Remedies Code section 33.004, his complaint is directed at
inclusion of the question of Sisa=s negligence in the jury charge.  Assuming, without deciding, that inclusion of
the question of Sisa=s negligence was error, we conclude the error was harmless.[4]

We reverse for error in the jury charge only, if after considering the record as a whole, including the pleadings,
the evidence presented at trial, and the charge in its entirety, we conclude the error probably caused rendition
of an improper verdict or probably prevented the appellant from presenting the case to the appellate court. See
Tex. R. App. P.  44.1; Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass=n, 710 S.W.2d 551, 555 (Tex.
1986); Wal‑Mart Stores, Inc. v. Redding, 56 S.W.3d 141, 149 (Tex. App.CHouston [14th Dist.] 2001, pet.
denied).  Submission of an improper jury question can be harmless error if the jury=s answers to other questions
render the improper question immaterial.  City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995).  We
consider a jury question immaterial when its answer can be found elsewhere in the verdict or when its answer
cannot alter the effect of the verdict.  Id.  Submission of an immaterial issue is not harmful error unless the
submission confused or misled the jury.  Id.  When determining whether a particular question could have
confused or misled the jury, we consider its probable effect on the minds of the jury in the light of the charge as
a whole.  Id.

Here, the jury=s finding with respect to Atieh rendered submission of Sisa=s negligence immaterial.  Once the
jury found Atieh=s negligence, if any, did not proximately cause the accident, its finding that Sisa=s negligence
did proximately cause the accident could not have altered the effect of the verdict.  See id. at 751B52 (holding
that any error in submitting claimants= deceased, in addition to defendant, in jury charge was harmless; once
jury found defendant was not negligent, its finding that deceased was negligent could not have altered the effect
of the verdict); Sell v. C.B. Smith Volkswagen, Inc., 611 S.W.2d 897, 903 (Tex. Civ. App.CHouston [14th Dist.]
1981, writ ref=d n.r.e.) (holding, even if trial court erred in submitting issues on contributory negligence, such
error would not warrant new trial because jury did not find defendants liable on primary negligence issues).

Considering the charge in its entirety, we further conclude submission of the question on Sisa=s negligence
could not have misled or confused the jury.  The court instructed the jury, AThere may be more than one
proximate cause of an event.@  The court also instructed the jury to allocate percentages of negligence only if it
found the negligence of both Atieh and Sisa proximately caused the occurence (i.e., more than one of the
persons named).  Therefore, the jury was not misled into believing it had to choose between finding Atieh
negligent or finding Sisa negligent.

Finally, the record as a whole demonstrates the  submission of the inquiry on Sisa=s negligence did not cause
rendition of an improper verdict.  Throughout the trial, Atieh questioned witnesses to establish Sisa had
improperly changed lanes, cutting in front of Atieh=s vehicle and stopping suddenly.  Therefore, we cannot
conclude the mere presence of Sisa in the jury question caused the jury to find no liability on Atieh=s part.

In sum, designation of Sisa as a responsible third party with the resultant submission of his name in the
negligence question was not reversible error.[5]  We overrule Hernandez=s sole issue.

The judgment of the trial court is affirmed.

/s/        Charles Seymore


Judgment rendered and Memorandum Opinion filed May 20, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.


[1]  Because the dispositive issue is clearly settled in law, we issue this memorandum opinion.  Tex. R. App. P.

[2]  Hernandez also sued Atieh=s employer and the owner of the tow truck, but non-suited these defendants
before trial.

[3]  Civil Practice and Remedies Code section 33.004 provides in relevant part:

(a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to
designate that person as a responsible third party. The motion must be filed on or before the 60th day before
the trial date unless the court finds good cause to allow the motion to be filed at a later date.

. . . .

(f) A court shall grant leave to designate the named person as a responsible third party unless another party
files an objection to the motion for leave on or before the 15th day after the date the motion is served.

(g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a
responsible third party unless the objecting party establishes:

(1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the
pleading requirement of the Texas Rules of Civil Procedure;  and

(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the
alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.

. . . .

(l) After adequate time for discovery, a party may move to strike the designation of a responsible third party on
the ground that there is no evidence that the designated person is responsible for any portion of the claimant's
alleged injury or damage.  The court shall grant the motion to strike unless a defendant produces sufficient
evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's
injury or damage.

Tex. Civ. Prac. & Rem. Code Ann. ' 33.004 (Vernon Supp. 2007).

[4]  In this simple negligence case, we are presented with ample evidence of third party liability on the part of the
driver of a vehicle occupied by appellant who elected not to sue that driver.  The trial court implicitly found
Agood cause@ for late filing of the designation of responsible third party even though Atieh filed his written
designation after the evidence was closed.  Because we resolve this issue based on the harmless error rule,  we
do not address whether defendants in civil cases may file designations of responsible third parties after the
evidence is closed.

[5]  If Hernandez is suggesting submission of a responsible third party in the jury charge is per se reversible
error when that party was not timely designated under Civil Practice and Remedies Code section  33.004, we
disagree.  Hernandez relies on Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000); and Wal‑Mart
Stores, Inc. v. Redding, 56 S.W.3d 141 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  In Casteel, the
supreme court concluded error in submitting, over timely and specific objection, a single broad‑form liability
question that commingled valid and invalid liability grounds, was harmful because the erroneous submission
prevented the appellant from isolating the error and presenting its case on appeal.  Casteel, 22 S.W.3d at 388.  
In Redding, this court extended the Casteel rationale to a broad form damages question that commingled valid
and invalid measures of damages.  Redding, 56 S.W.3d at 154B55.  Unlike Casteel and Redding, the present
case does not involve a broad-form question.  Instead, the jury was instructed to make separate findings
regarding Atieh and Sisa; and, as discussed above, the negative finding regarding Atieh rendered submission of
the question regarding Sisa harmless.