Hudson v. City of Houston

No. 14-03-00565-CV

2005 | Cited 0 times | Court of Appeals of Texas | January 6, 2005

Affirmed in part and Reversed and Remanded in part; and Memorandum Opinion filed January 6, 2005.

MEMORANDUM OPINION

In this appeal we determine two principal issues: (1) whether the trial court erred in reducing the jury's damage award to a deceased child's mother and estate by the percentage of fault apportioned to the child's father; and (2) whether the trial court erred in allowing evidence of the father's alleged contributory negligence. We hold that the trial court erred in reducing the damages awarded to the mother and to the child's estate. Therefore, we reverse that portion of the trial court's judgment and remand this cause for further proceedings in accordance with this court's opinion. We affirm the remainder of the judgment.

I. Factual and Procedural Background

This suit stems from an accident in which a two-year-old child, Taylor Hudson, was struck and killed by a City of Houston ("City") sanitation truck driven by Gilda Green, a City employee. James McPeters, the child's father, was caring for him at the time of the accident. Appellants, McPeters, the Estate of Taylor Hudson (the "Estate"), and Shawn Hudson, the child's mother, filed suit against Green and the City (the "first action"). A default judgment was entered against Green for $3,500,000 in March 2001.1 The City answered in the first action and filed a counterclaim against McPeters. The City also requested a jury trial in its answer. Because of the City's request, after the default judgment was entered against Green, the parties agreed that the City was entitled to a jury trial on damages and that the damages assessed against Green would not be imputed to the City. To that end, three months after the default judgment was entered, appellants nonsuited the City. Following the non-suit, the City's counterclaim against McPeters was dismissed for want of prosecution. The default judgment became final on August 18, 2001.

On August 1, 2001, appellants refiled suit against the City based on respondeat superior and asserted several negligence causes of action (the "second action"). Shawn Hudson filed wrongful death and survival actions, and McPeters filed suit as a bystander. The City answered and counterclaimed against McPeters seeking contribution and indemnity. Prior to trial, appellants filed a motion for partial summary judgment on the City's liability.2 On September 3, 2002, one day before trial was to begin in the second action, the trial court granted appellants' partial summary judgment motion without specifying grounds.3 Later that day, the City filed an amended counterclaim against McPeters, adding negligence and negligence per se causes of action, in addition to its request for contribution and indemnity.

The following day during a pretrial conference, the parties and the trial court discussed at length the procedural posture of the case and the issues to be tried. Although the pretrial discussion reflects some confusion, the trial court concluded that liability issues regarding Green and the City had been resolved and that only the damages issue would be tried in the second action. It was also acknowledged that, because the City's derivative liability had been established through the court's grant of the partial summary judgment, Green's negligence would be imputed to the City, although the damages would not. The trial court also concluded the issue of comparative responsibility would be submitted to the jury as an element of damages, noting the jury would be asked to determine McPeters's and Green's percentage of responsibility. Appellants agreed with the court's conclusions;4 therefore, the only question submitted to the jury other than the damages question was: "What percentage of the negligence that caused the injury in question do you find to be attributable to each of those listed below?" Green and McPeters were the only parties listed.5

The jury found Green twenty-five percent negligent and McPeters seventy-five percent negligent and, therefore, awarded no damages to McPeters. The jury awarded $150,000 for past and future damages to Shawn Hudson and $30,000 to the child's estate. In its final judgment, signed on February 15, 2003, the trial court reduced Shawn Hudson's and the Estate's award by McPeters's comparative negligence, awarding $37,500 to Shawn Hudson and $7,500 to the Estate. On March 17, 2003, appellants filed a motion to modify the judgment, which the trial court denied, indicating it lacked jurisdiction. Appellants and the City appeal the trial court's judgment.

II. Issues

In three issues, appellants contend (1) the trial court erred in concluding it lacked jurisdiction to correct the judgment reducing the damages awarded to Shawn Hudson and the Estate; (2) there was no evidence to support the jury's finding that McPeters was negligent in his care of the child; and, in the alternative, (3) because the City was allowed to introduce evidence of McPeters's negligence, but McPeters was prevented from introducing evidence of Green's negligence, the trial was fundamentally unfair. In a cross-issue, the City argues there is no evidence to support the trial court's judgment against it.

III. Discussion

In their brief, appellants note that Shawn Hudson and the Estate appeal the reduction of their damages award, while McPeters appeals "the issues of law regarding the City's claim for contribution," the alleged fundamental unfairness of the trial, and whether the evidence was factually sufficient to support a finding that he acted negligently. We address these issues separately, beginning with Shawn Hudson's and the Estate's arguments.

A. Did the trial court err in reducing the award of damages to Shawn Hudson and Taylor Hudson's Estate?

Under issue one, in their first three sub-issues, appellants argue the trial court erred in reducing the jury's award to Shawn Hudson and to the Estate by McPeters's comparative responsibility and in concluding it lacked jurisdiction to correct this error in the judgment. We agree.

1. Proportionate Responsibility

Following the jury's award of damages, the trial court signed its judgment on February 15, 2003, reducing the damages awarded to Shawn Hudson and the Estate by seventy-five percent, the percentage of proportionate responsibility the jury attributed to McPeters.

Under the proportionate responsibility statute, the trier of fact determines the percentage of responsibility6 for each claimant, each defendant, each settling person, and each responsible third party, for that person's causing or contributing to cause in any way the harm for which recovery is sought. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.003, 1995 Tex. Gen. Laws 971, 972 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE§ 33.003(a) (Vernon Supp. 2004-05)). If the percentage of responsibility attributed to a claimant exceeds fifty percent, her recovery is barred under the proportionate responsibility statute; otherwise, the amount of damages awarded to that claimant is reduced by the percentage of responsibility attributed to that claimant. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001, 33.012(a) (Vernon 1997).

In this case, there was no finding of responsibility attributed to Shawn Hudson or to the Estate,7 and their names were not submitted to the jury in proportioning fault. Under the proportionate responsibility statute, Shawn Hudson and the Estate were claimants as to the wrongful death and survival actions. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.011(1), 1995 Tex. Gen. Laws 971, 973 (amended 2003); Hermann Hosp. v. Martinez, 990 S.W.2d 476, 479-80 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). Further, in relation to those claims, the City sought contribution from McPeters. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.016(a) (Vernon 1997). As a contribution defendant, McPeters's percentage of responsibility would be for purposes of contribution to the defendants, not as part of the global apportionment of liability. See id. § 33.016(c); In re Arthur Andersen, 121 S.W.3d 471, 482 n.33 (Tex. App.--Houston [14th Dist.] 2003, orig. proceeding). Thus, whatever right of contribution the City may have had against McPeters as a contribution defendant, it could not diminish the recovery of damages to Shawn Hudson or the Estate. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.003, 33.011(1), 1995 Tex. Gen. Laws 971, 972-73 (amended 2003);TEX. CIV. PRAC. & REM. CODE ANN. § 33.016; Union City Body Co. v. Ramirez, 911 S.W.2d 196, 207 (Tex. App.--San Antonio 1995, no writ); Duke v. Wilson, 900 S.W.2d 881, 883 (Tex. App.--1995, writ denied).

Therefore, under the proportionate responsibility statutory scheme, the reduction in the jury's award of damages to Shawn Hudson and the Estate was error.8 See, e.g., Haney Elec. Co. v. Hurst, 624 S.W.2d 602, 611-12 (Tex. Civ. App.--Dallas 1981, writ dism'd) (stating that claim for damages of each plaintiff must be considered as if it were presented in a separate suit and awarded in proportion to the "amount of negligence of each plaintiff as compared to the negligence of the defendants, without considering the negligence of the other plaintiff").

2. Motion to Modify

On March 17, 2003, thirty days after the trial court signed its judgment reducing the damages awarded to Shawn Hudson and the Estate by the percentage of proportionate responsibility attributed to McPeters, appellants filed a motion to modify and correct the judgment.9 The trial court denied the motion, noting on the docket sheet "no jurisdiction."

A trial court retains plenary power over a final judgment for a minimum of thirty days after signing that judgment. See TEX. R. CIV. P.329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The date the judgment is signed determines "the beginning of the periods . . . for the court's plenary power." TEX. R. CIV. P.306a(1). Under Texas Rule of Civil Procedure 329b, appellants had thirty days from February 15, 2003 to file their motion to modify the judgment. See TEX. R. CIV. P.329b(a), (g). Thus, because appellants timely filed their motion, the trial court had plenary power to correct the judgment and, to the extent it determined it lacked jurisdiction to do so, we find the trial court erred.

In sum, we hold the trial court erred in reducing the damages awarded to Shawn Hudson and to the Estate and erred in denying appellants' motion to modify the judgment. Accordingly, we reverse the trial court's judgment and order that the jury's award of damages, with any applicable interest, be reinstated to Shawn Hudson and the Estate. We now address the appellate issues raised by McPeters.

B. Did the trial court err in allowing the City to proceed on its claim against McPeters for comparative responsibility?

McPeters also argues in his first issue that the trial court erred in allowing the City to pursue its comparative responsibility claim against him because (1) the City failed to plead for such relief; (2) the City is collaterally estopped from pursuing comparative negligence or contribution from McPeters; (3) the City's attempt to re-litigate McPeters's comparative responsibility is a collateral attack on the court's judgment in the first action; and (4) McPeters's comparative fault was a compulsory counterclaim in the first action and is barred in the second action.

1. The First Action

McPeters's collateral estoppel, collateral attack, and compulsory counterclaim arguments are based on the default judgment rendered against Green in the first action. However, there is no copy of the default judgment in the appellate record before us. The burden is on appellants to introduce into evidence the judgment and pleadings from the prior suit.10 See Traweek v. Larking, 708 S.W.2d 942, 945 (Tex. App.--Tyler 1986, writ ref'd n.r.e.). Their failure to do so bars application of the doctrine of collateral estoppel--and likewise precludes application of the compulsory counterclaim rule.

Moreover, after obtaining a default judgment against Green, appellants nonsuited the City in the first action. A non-suit is a termination of the pleaded causes of action and asserted defenses without an adjudication of those issues. Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex. App.--Amarillo 1997, no writ). Consequently, a non-suit does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Id. Thus, in the second action, the City was not estopped from asserting the same claims against appellants that it would have been able to assert in the first action. Indeed, appellants' trial counsel stated as much during pretrial discussions, noting the summary judgment as to liability in favor of his clients did not "preclude [the City] from going forward with their counterclaim, but we would then have a trial . . . where they are going to be trying the contributory - or comparative negligence of my two clients." For these reasons, we reject McPeters's argument that the City is collaterally estopped from pursuing its defenses against him based on his assertion that those issues were litigated in the first action. Likewise, we reject McPeters's assertion that the City is precluded from raising a comparative responsibility claim in the second action based on his contention that it was a compulsory counterclaim in the first action.

We also reject McPeters's argument that the City is asserting a collateral attack on the default judgment. Collateral attacks seek to set aside judgments that are void or involve fundamental error. Tex. Dep't of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.--Austin 1997, pet. denied). A judgment is void if it is shown that the court lacked jurisdiction (1) over a party or the subject matter, (2) to enter a particular judgment, or (3) to act as a court. Id. Fundamental error exists where "the record shows the court lacked jurisdiction or that the public interest is directly or adversely affected as that interest is declared in the statutes or the Constitution of Texas." Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)). The City is not asserting any of these arguments; it is merely asserting an affirmative defense that was not litigated in the first action.

In sum, we reject McPeters's arguments regarding the alleged estoppel effects of the default judgment rendered in the first action.

2. The Second Action

Regarding the second action, McPeters argues the City should not have been allowed to go forward on its proportionate responsibility claim because the City failed to timely plead for such relief.

Proportionate responsibility is an affirmative defense. See Estate of Barrera v. Rosamond Village L.P., 983 S.W.2d 795, 799 (Tex. App.--Houston [14th Dist.] 1998, no pet.). Therefore, a defendant must plead a plaintiff's comparative fault and introduce evidence of that responsibility. See Kroger v. Keng, 23 S.W.3d 347, 351 (Tex. 2000).

Here, the record reflects the City initially asserted a counterclaim against McPeters for contribution and indemnity. On September 3, 2002, one day before trial, the City filed an amended counterclaim against McPeters, adding negligence and negligence per se causes of action, in addition to their request for contribution and indemnity. The record also indicates the City served the amended pleading on appellants via certified mail. Appellants claim that because the pleading was served in this manner, they were unaware of the amended pleading until after trial and could not have asserted surprise.11

During the pretrial discussions on September 4, 2002, the following transpired:

THE COURT: The damages you pled . . . on behalf of the father . . . I think is directly affected by comparative negligence and I think they are close enough in what all they've pled to get to comparative negligence. So we've got to try that. . . . In order to make those comparisons we have to compare the negligence of the parents with the negligence of the driver. . . . Are you with me so far?

APPELLANTS' COUNSEL: Right.

APPELLANTS' COUNSEL: No, Your Honor, you are absolutely correct . . . . Now, that does not preclude them from going forward with their counterclaim, but we would then have a trial . . . where they are going to be trying the contributory - or comparative negligence of my two clients.

APPELLANTS' COUNSEL: That's what I think they are trying to prove, but comparative is the only claim I think they could go forward with. They would be trying to prove that and we would be trying to prove damages and we would be trying to reduce the percentage of responsibility of my clients and that's the only issues that would be tried.

THE COURT: So the estate claims are not subject to the comparative responsibility reduction and the parents' claims are subject to comparative responsibility reduction just as to the City?

APPELLANTS' COUNSEL: That is correct.

Thus, appellants' counsel agreed that his clients' alleged negligence was an issue for trial. It is well settled that a party cannot lead a trial court into error and then complain about it later on appeal. Nesmith v. Berger, 64 S.W.3d 110, 119 (Tex. App.--Austin 2001, pet. denied) (citing Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984)). The following day, before voir dire, appellants did request a running objection to the City being able to proceed on comparative negligence "based upon their [sic] pleadings." However, the trial court overruled the objection and appellants failed to lodge any subsequent objections on this ground. Moreover, even after appellants' objection, discussions between the parties and the trial court reflect that appellants agreed their comparative responsibility was an issue at trial. In fact, even during discussions regarding the jury charge, appellants agreed that McPeters's comparative fault was to be submitted to the jury for determination. A party fails to preserve charge error when that party invites the alleged error by acquiescing to submitting the theory the party later claims is erroneous. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 785 (Tex. App.--Houston [1st Dist.] 2004, no pet.). We conclude McPeters waived his complaints on appeal concerning the submission of his comparative responsibility to the jury. Accordingly, we overrule appellants' first issue.

Also, because of appellants' acquiescence in the proceedings, we reject McPeters's argument asserted in the third issue on appeal, that the trial was fundamentally unfair because he was prohibited from offering evidence of the driver's negligence. Appellants agreed the trial was proceeding on damages and expressly acknowledged this would entail evidence of McPeters's contributory negligence. Moreover, appellants did not attempt to offer evidence of the driver's negligence because of the procedural posture of the case in the trial court. Finally, appellants failed to properly preserve issues regarding McPeters's comparative responsibility for our review. For these reasons, we reject appellants' "fundamental unfairness" claim and overrule their last issue. See generally In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (noting because of Texas's "strong policy considerations favoring preservation," fundamental error is a discredited doctrine).

C. Evidence of McPeters's Negligence

In his second issue, McPeters claims there was no evidence to support the jury's finding he was seventy-five percent responsible for the fatal accident. According to McPeters, the only evidence adduced at trial indicated McPeters placed his son inside a latched--but not locked--gate and crossed the street to speak with a neighbor. McPeters claims that, given the parental immunity doctrine, this evidence is insufficient to establish negligence.

Under the parental immunity doctrine, an unemancipated minor is restricted in bringing a negligence action against his parents if the actionable conduct involves a reasonable exercise of parental authority or discretion. Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992). The doctrine is limited to ordinary negligence and unintentional wrongs. McGee v. McGee, 936 S.W.2d 360, 367 (Tex. App.--Waco 1996, writ denied). If a child is prohibited from pursuing a claim against his parents, a defendant is likewise unable to assert a claim for contribution against the parents because the contribution claim is derivative of the child's right to recover damages. Id. at 369.

Here, although the City did claim McPeters failed to properly supervise the child and that this failure allowed the child to run into the street where he was struck by the City's truck, appellants failed to bring the issue of parental immunity to the attention of the trial court and thus, waived this issue for our review. See TEX. R. APP. P.33.1(a).

Moreover, a jury's apportionment of responsibility, as contrasted with its threshold findings of negligence, is within the sound discretion of the jury. Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.--Texarkana 2004, no pet.). We cannot substitute our judgment for that of the jury even if a different percentage allocation could be supported by the evidence. Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). In this case the only question submitted to the jury regarding McPeters's negligence was one of apportionment and, as acknowledged by appellants, there was some evidence presented that although McPeters knew the child could unlatch the gate, McPeters had placed the child inside the gate, failed to lock it, and then proceeded to cross the street to speak with a neighbor. Accordingly, we overrule appellants' second issue and address the City's cross-issue.

D. Was there evidence Green was acting within the course and scope of employment?

On appeal, the City argues the trial court erred in rendering judgment for appellants because there was no evidence Green was acting within the course and scope of her employment. However, the record contains an admission by the City that Green was acting in the course and scope of her employment and, prior to trial, the court granted summary judgment in favor of appellants on the issue of the City's liability based on this admission. Moreover, during the proceedings, the trial court acknowledged that the issue of liability had been resolved prior to trial through the partial summary judgment, and as established previously, damages was the only issue to be tried. We overrule the City's issue on appeal.

IV. Conclusion

In sum, we sustain that portion of appellants' first issue regarding the reduction of damages to Shawn Hudson and the Estate and, accordingly, reverse that portion of the trial court's judgment and remand this cause for an award of damages in accordance with this opinion. We overrule all other appellate issues presented in this case and affirm the remainder of the trial court's judgment.

Judgment rendered and Memorandum Opinion filed January 6, 2005.

1. There is no copy of the default judgment in this appellate record; however, the City does not dispute that Green was found liable in the first action.

2. In their motion, appellants argued they were entitled to summary judgment because their proof established that at the time of the accident Green was an employee of the City and was acting within the course and scope of her employment. Appellants also asserted that the issue of Green's liability had been established in the first action and collateral estoppel barred re-litigation of that issue. In their prayer, appellants requested the trial court "grant summary judgment [sic] against the [City] as to liability and allow this matter to proceed only as to damages." There is no indication in the record that the City responded to the motion.

3. There is no reporter's record regarding any proceedings on September 3, 2002. On appeal, neither party contests the validity of the partial summary judgment.

4. Before the start of trial, on September 5, 2002, appellants did request a running objection "concerning the issue of [the City] being able to go forward on [McPeters's] comparative or contributory negligence" based on the City's pleadings. However, the trial court overruled the objection and appellants failed to make further objections on this ground.

5. There was no predicate question submitted on McPeters's negligence. Neither party argues that this lack of a predicate question was error.

6. "Percentage of responsibility" is defined as "that percentage . . . attributed by the trier of fact to each claimant, each defendant, each settling person, or each responsible third party with respect to causing or contributing to cause in any way . . . the personal injury, property damage, death, or other harm for which recovery of damages is sought." TEX. CIV. PRAC. & REM. CODE§ 33.011(4) (Vernon 1997).

7. We acknowledge that the child could not be negligent in this case and there could be no percentage of responsibility assigned to his estate. See Mitchell v. Akers, 401 S.W.2d 907, 909 (Tex. Civ. App.--Dallas 1966, writ ref'd n.r.e.).

8. On appeal, appellants also claim that the doctrine of parental immunity applies to bar reduction of the damages awarded. Although appellants pleaded the affirmative defense of parental immunity, they failed to otherwise raise that issue in the trial court and consequently, failed to preserve the issue for our review. See TEX. R. APP. P.33.1(a); see also McGee v. McGee, 936 S.W.2d 360, 369 (Tex. App.--Waco 1996, writ denied).

9. Before this, on November 18, 2002, appellants filed a motion for new trial that was overruled on February 6, 2003. The fact appellants' motion for new trial was filed in November 2002, does not affect our conclusion that appellants' motion to modify was timely. See TEX. R. CIV. P.306a(1), 306c.

10. The appellate record in this case is sparse.

11. Appellants objected to the amended pleading in their motion for new trial.

Affirmed in part and Reversed and Remanded in part; and Memorandum Opinion filed January 6, 2005.

MEMORANDUM OPINION

In this appeal we determine two principal issues: (1) whether the trial court erred in reducing the jury's damage award to a deceased child's mother and estate by the percentage of fault apportioned to the child's father; and (2) whether the trial court erred in allowing evidence of the father's alleged contributory negligence. We hold that the trial court erred in reducing the damages awarded to the mother and to the child's estate. Therefore, we reverse that portion of the trial court's judgment and remand this cause for further proceedings in accordance with this court's opinion. We affirm the remainder of the judgment.

I. Factual and Procedural Background

This suit stems from an accident in which a two-year-old child, Taylor Hudson, was struck and killed by a City of Houston ("City") sanitation truck driven by Gilda Green, a City employee. James McPeters, the child's father, was caring for him at the time of the accident. Appellants, McPeters, the Estate of Taylor Hudson (the "Estate"), and Shawn Hudson, the child's mother, filed suit against Green and the City (the "first action"). A default judgment was entered against Green for $3,500,000 in March 2001.1 The City answered in the first action and filed a counterclaim against McPeters. The City also requested a jury trial in its answer. Because of the City's request, after the default judgment was entered against Green, the parties agreed that the City was entitled to a jury trial on damages and that the damages assessed against Green would not be imputed to the City. To that end, three months after the default judgment was entered, appellants nonsuited the City. Following the non-suit, the City's counterclaim against McPeters was dismissed for want of prosecution. The default judgment became final on August 18, 2001.

On August 1, 2001, appellants refiled suit against the City based on respondeat superior and asserted several negligence causes of action (the "second action"). Shawn Hudson filed wrongful death and survival actions, and McPeters filed suit as a bystander. The City answered and counterclaimed against McPeters seeking contribution and indemnity. Prior to trial, appellants filed a motion for partial summary judgment on the City's liability.2 On September 3, 2002, one day before trial was to begin in the second action, the trial court granted appellants' partial summary judgment motion without specifying grounds.3 Later that day, the City filed an amended counterclaim against McPeters, adding negligence and negligence per se causes of action, in addition to its request for contribution and indemnity.

The following day during a pretrial conference, the parties and the trial court discussed at length the procedural posture of the case and the issues to be tried. Although the pretrial discussion reflects some confusion, the trial court concluded that liability issues regarding Green and the City had been resolved and that only the damages issue would be tried in the second action. It was also acknowledged that, because the City's derivative liability had been established through the court's grant of the partial summary judgment, Green's negligence would be imputed to the City, although the damages would not. The trial court also concluded the issue of comparative responsibility would be submitted to the jury as an element of damages, noting the jury would be asked to determine McPeters's and Green's percentage of responsibility. Appellants agreed with the court's conclusions;4 therefore, the only question submitted to the jury other than the damages question was: "What percentage of the negligence that caused the injury in question do you find to be attributable to each of those listed below?" Green and McPeters were the only parties listed.5

The jury found Green twenty-five percent negligent and McPeters seventy-five percent negligent and, therefore, awarded no damages to McPeters. The jury awarded $150,000 for past and future damages to Shawn Hudson and $30,000 to the child's estate. In its final judgment, signed on February 15, 2003, the trial court reduced Shawn Hudson's and the Estate's award by McPeters's comparative negligence, awarding $37,500 to Shawn Hudson and $7,500 to the Estate. On March 17, 2003, appellants filed a motion to modify the judgment, which the trial court denied, indicating it lacked jurisdiction. Appellants and the City appeal the trial court's judgment.

II. Issues

In three issues, appellants contend (1) the trial court erred in concluding it lacked jurisdiction to correct the judgment reducing the damages awarded to Shawn Hudson and the Estate; (2) there was no evidence to support the jury's finding that McPeters was negligent in his care of the child; and, in the alternative, (3) because the City was allowed to introduce evidence of McPeters's negligence, but McPeters was prevented from introducing evidence of Green's negligence, the trial was fundamentally unfair. In a cross-issue, the City argues there is no evidence to support the trial court's judgment against it.

III. Discussion

In their brief, appellants note that Shawn Hudson and the Estate appeal the reduction of their damages award, while McPeters appeals "the issues of law regarding the City's claim for contribution," the alleged fundamental unfairness of the trial, and whether the evidence was factually sufficient to support a finding that he acted negligently. We address these issues separately, beginning with Shawn Hudson's and the Estate's arguments.

A. Did the trial court err in reducing the award of damages to Shawn Hudson and Taylor Hudson's Estate?

Under issue one, in their first three sub-issues, appellants argue the trial court erred in reducing the jury's award to Shawn Hudson and to the Estate by McPeters's comparative responsibility and in concluding it lacked jurisdiction to correct this error in the judgment. We agree.

1. Proportionate Responsibility

Following the jury's award of damages, the trial court signed its judgment on February 15, 2003, reducing the damages awarded to Shawn Hudson and the Estate by seventy-five percent, the percentage of proportionate responsibility the jury attributed to McPeters.

Under the proportionate responsibility statute, the trier of fact determines the percentage of responsibility6 for each claimant, each defendant, each settling person, and each responsible third party, for that person's causing or contributing to cause in any way the harm for which recovery is sought. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.003, 1995 Tex. Gen. Laws 971, 972 (amended 2003) (current version at TEX. CIV. PRAC. & REM. CODE§ 33.003(a) (Vernon Supp. 2004-05)). If the percentage of responsibility attributed to a claimant exceeds fifty percent, her recovery is barred under the proportionate responsibility statute; otherwise, the amount of damages awarded to that claimant is reduced by the percentage of responsibility attributed to that claimant. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001, 33.012(a) (Vernon 1997).

In this case, there was no finding of responsibility attributed to Shawn Hudson or to the Estate,7 and their names were not submitted to the jury in proportioning fault. Under the proportionate responsibility statute, Shawn Hudson and the Estate were claimants as to the wrongful death and survival actions. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.011(1), 1995 Tex. Gen. Laws 971, 973 (amended 2003); Hermann Hosp. v. Martinez, 990 S.W.2d 476, 479-80 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). Further, in relation to those claims, the City sought contribution from McPeters. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.016(a) (Vernon 1997). As a contribution defendant, McPeters's percentage of responsibility would be for purposes of contribution to the defendants, not as part of the global apportionment of liability. See id. § 33.016(c); In re Arthur Andersen, 121 S.W.3d 471, 482 n.33 (Tex. App.--Houston [14th Dist.] 2003, orig. proceeding). Thus, whatever right of contribution the City may have had against McPeters as a contribution defendant, it could not diminish the recovery of damages to Shawn Hudson or the Estate. See Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.003, 33.011(1), 1995 Tex. Gen. Laws 971, 972-73 (amended 2003);TEX. CIV. PRAC. & REM. CODE ANN. § 33.016; Union City Body Co. v. Ramirez, 911 S.W.2d 196, 207 (Tex. App.--San Antonio 1995, no writ); Duke v. Wilson, 900 S.W.2d 881, 883 (Tex. App.--1995, writ denied).

Therefore, under the proportionate responsibility statutory scheme, the reduction in the jury's award of damages to Shawn Hudson and the Estate was error.8 See, e.g., Haney Elec. Co. v. Hurst, 624 S.W.2d 602, 611-12 (Tex. Civ. App.--Dallas 1981, writ dism'd) (stating that claim for damages of each plaintiff must be considered as if it were presented in a separate suit and awarded in proportion to the "amount of negligence of each plaintiff as compared to the negligence of the defendants, without considering the negligence of the other plaintiff").

2. Motion to Modify

On March 17, 2003, thirty days after the trial court signed its judgment reducing the damages awarded to Shawn Hudson and the Estate by the percentage of proportionate responsibility attributed to McPeters, appellants filed a motion to modify and correct the judgment.9 The trial court denied the motion, noting on the docket sheet "no jurisdiction."

A trial court retains plenary power over a final judgment for a minimum of thirty days after signing that judgment. See TEX. R. CIV. P.329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The date the judgment is signed determines "the beginning of the periods . . . for the court's plenary power." TEX. R. CIV. P.306a(1). Under Texas Rule of Civil Procedure 329b, appellants had thirty days from February 15, 2003 to file their motion to modify the judgment. See TEX. R. CIV. P.329b(a), (g). Thus, because appellants timely filed their motion, the trial court had plenary power to correct the judgment and, to the extent it determined it lacked jurisdiction to do so, we find the trial court erred.

In sum, we hold the trial court erred in reducing the damages awarded to Shawn Hudson and to the Estate and erred in denying appellants' motion to modify the judgment. Accordingly, we reverse the trial court's judgment and order that the jury's award of damages, with any applicable interest, be reinstated to Shawn Hudson and the Estate. We now address the appellate issues raised by McPeters.

B. Did the trial court err in allowing the City to proceed on its claim against McPeters for comparative responsibility?

McPeters also argues in his first issue that the trial court erred in allowing the City to pursue its comparative responsibility claim against him because (1) the City failed to plead for such relief; (2) the City is collaterally estopped from pursuing comparative negligence or contribution from McPeters; (3) the City's attempt to re-litigate McPeters's comparative responsibility is a collateral attack on the court's judgment in the first action; and (4) McPeters's comparative fault was a compulsory counterclaim in the first action and is barred in the second action.

1. The First Action

McPeters's collateral estoppel, collateral attack, and compulsory counterclaim arguments are based on the default judgment rendered against Green in the first action. However, there is no copy of the default judgment in the appellate record before us. The burden is on appellants to introduce into evidence the judgment and pleadings from the prior suit.10 See Traweek v. Larking, 708 S.W.2d 942, 945 (Tex. App.--Tyler 1986, writ ref'd n.r.e.). Their failure to do so bars application of the doctrine of collateral estoppel--and likewise precludes application of the compulsory counterclaim rule.

Moreover, after obtaining a default judgment against Green, appellants nonsuited the City in the first action. A non-suit is a termination of the pleaded causes of action and asserted defenses without an adjudication of those issues. Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex. App.--Amarillo 1997, no writ). Consequently, a non-suit does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Id. Thus, in the second action, the City was not estopped from asserting the same claims against appellants that it would have been able to assert in the first action. Indeed, appellants' trial counsel stated as much during pretrial discussions, noting the summary judgment as to liability in favor of his clients did not "preclude [the City] from going forward with their counterclaim, but we would then have a trial . . . where they are going to be trying the contributory - or comparative negligence of my two clients." For these reasons, we reject McPeters's argument that the City is collaterally estopped from pursuing its defenses against him based on his assertion that those issues were litigated in the first action. Likewise, we reject McPeters's assertion that the City is precluded from raising a comparative responsibility claim in the second action based on his contention that it was a compulsory counterclaim in the first action.

We also reject McPeters's argument that the City is asserting a collateral attack on the default judgment. Collateral attacks seek to set aside judgments that are void or involve fundamental error. Tex. Dep't of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.--Austin 1997, pet. denied). A judgment is void if it is shown that the court lacked jurisdiction (1) over a party or the subject matter, (2) to enter a particular judgment, or (3) to act as a court. Id. Fundamental error exists where "the record shows the court lacked jurisdiction or that the public interest is directly or adversely affected as that interest is declared in the statutes or the Constitution of Texas." Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)). The City is not asserting any of these arguments; it is merely asserting an affirmative defense that was not litigated in the first action.

In sum, we reject McPeters's arguments regarding the alleged estoppel effects of the default judgment rendered in the first action.

2. The Second Action

Regarding the second action, McPeters argues the City should not have been allowed to go forward on its proportionate responsibility claim because the City failed to timely plead for such relief.

Proportionate responsibility is an affirmative defense. See Estate of Barrera v. Rosamond Village L.P., 983 S.W.2d 795, 799 (Tex. App.--Houston [14th Dist.] 1998, no pet.). Therefore, a defendant must plead a plaintiff's comparative fault and introduce evidence of that responsibility. See Kroger v. Keng, 23 S.W.3d 347, 351 (Tex. 2000).

Here, the record reflects the City initially asserted a counterclaim against McPeters for contribution and indemnity. On September 3, 2002, one day before trial, the City filed an amended counterclaim against McPeters, adding negligence and negligence per se causes of action, in addition to their request for contribution and indemnity. The record also indicates the City served the amended pleading on appellants via certified mail. Appellants claim that because the pleading was served in this manner, they were unaware of the amended pleading until after trial and could not have asserted surprise.11

During the pretrial discussions on September 4, 2002, the following transpired:

THE COURT: The damages you pled . . . on behalf of the father . . . I think is directly affected by comparative negligence and I think they are close enough in what all they've pled to get to comparative negligence. So we've got to try that. . . . In order to make those comparisons we have to compare the negligence of the parents with the negligence of the driver. . . . Are you with me so far?

APPELLANTS' COUNSEL: Right.

APPELLANTS' COUNSEL: No, Your Honor, you are absolutely correct . . . . Now, that does not preclude them from going forward with their counterclaim, but we would then have a trial . . . where they are going to be trying the contributory - or comparative negligence of my two clients.

APPELLANTS' COUNSEL: That's what I think they are trying to prove, but comparative is the only claim I think they could go forward with. They would be trying to prove that and we would be trying to prove damages and we would be trying to reduce the percentage of responsibility of my clients and that's the only issues that would be tried.

THE COURT: So the estate claims are not subject to the comparative responsibility reduction and the parents' claims are subject to comparative responsibility reduction just as to the City?

APPELLANTS' COUNSEL: That is correct.

Thus, appellants' counsel agreed that his clients' alleged negligence was an issue for trial. It is well settled that a party cannot lead a trial court into error and then complain about it later on appeal. Nesmith v. Berger, 64 S.W.3d 110, 119 (Tex. App.--Austin 2001, pet. denied) (citing Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984)). The following day, before voir dire, appellants did request a running objection to the City being able to proceed on comparative negligence "based upon their [sic] pleadings." However, the trial court overruled the objection and appellants failed to lodge any subsequent objections on this ground. Moreover, even after appellants' objection, discussions between the parties and the trial court reflect that appellants agreed their comparative responsibility was an issue at trial. In fact, even during discussions regarding the jury charge, appellants agreed that McPeters's comparative fault was to be submitted to the jury for determination. A party fails to preserve charge error when that party invites the alleged error by acquiescing to submitting the theory the party later claims is erroneous. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 785 (Tex. App.--Houston [1st Dist.] 2004, no pet.). We conclude McPeters waived his complaints on appeal concerning the submission of his comparative responsibility to the jury. Accordingly, we overrule appellants' first issue.

Also, because of appellants' acquiescence in the proceedings, we reject McPeters's argument asserted in the third issue on appeal, that the trial was fundamentally unfair because he was prohibited from offering evidence of the driver's negligence. Appellants agreed the trial was proceeding on damages and expressly acknowledged this would entail evidence of McPeters's contributory negligence. Moreover, appellants did not attempt to offer evidence of the driver's negligence because of the procedural posture of the case in the trial court. Finally, appellants failed to properly preserve issues regarding McPeters's comparative responsibility for our review. For these reasons, we reject appellants' "fundamental unfairness" claim and overrule their last issue. See generally In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (noting because of Texas's "strong policy considerations favoring preservation," fundamental error is a discredited doctrine).

C. Evidence of McPeters's Negligence

In his second issue, McPeters claims there was no evidence to support the jury's finding he was seventy-five percent responsible for the fatal accident. According to McPeters, the only evidence adduced at trial indicated McPeters placed his son inside a latched--but not locked--gate and crossed the street to speak with a neighbor. McPeters claims that, given the parental immunity doctrine, this evidence is insufficient to establish negligence.

Under the parental immunity doctrine, an unemancipated minor is restricted in bringing a negligence action against his parents if the actionable conduct involves a reasonable exercise of parental authority or discretion. Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex. 1992). The doctrine is limited to ordinary negligence and unintentional wrongs. McGee v. McGee, 936 S.W.2d 360, 367 (Tex. App.--Waco 1996, writ denied). If a child is prohibited from pursuing a claim against his parents, a defendant is likewise unable to assert a claim for contribution against the parents because the contribution claim is derivative of the child's right to recover damages. Id. at 369.

Here, although the City did claim McPeters failed to properly supervise the child and that this failure allowed the child to run into the street where he was struck by the City's truck, appellants failed to bring the issue of parental immunity to the attention of the trial court and thus, waived this issue for our review. See TEX. R. APP. P.33.1(a).

Moreover, a jury's apportionment of responsibility, as contrasted with its threshold findings of negligence, is within the sound discretion of the jury. Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.--Texarkana 2004, no pet.). We cannot substitute our judgment for that of the jury even if a different percentage allocation could be supported by the evidence. Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). In this case the only question submitted to the jury regarding McPeters's negligence was one of apportionment and, as acknowledged by appellants, there was some evidence presented that although McPeters knew the child could unlatch the gate, McPeters had placed the child inside the gate, failed to lock it, and then proceeded to cross the street to speak with a neighbor. Accordingly, we overrule appellants' second issue and address the City's cross-issue.

D. Was there evidence Green was acting within the course and scope of employment?

On appeal, the City argues the trial court erred in rendering judgment for appellants because there was no evidence Green was acting within the course and scope of her employment. However, the record contains an admission by the City that Green was acting in the course and scope of her employment and, prior to trial, the court granted summary judgment in favor of appellants on the issue of the City's liability based on this admission. Moreover, during the proceedings, the trial court acknowledged that the issue of liability had been resolved prior to trial through the partial summary judgment, and as established previously, damages was the only issue to be tried. We overrule the City's issue on appeal.

IV. Conclusion

In sum, we sustain that portion of appellants' first issue regarding the reduction of damages to Shawn Hudson and the Estate and, accordingly, reverse that portion of the trial court's judgment and remand this cause for an award of damages in accordance with this opinion. We overrule all other appellate issues presented in this case and affirm the remainder of the trial court's judgment.

Judgment rendered and Memorandum Opinion filed January 6, 2005.

1. There is no copy of the default judgment in this appellate record; however, the City does not dispute that Green was found liable in the first action.

2. In their motion, appellants argued they were entitled to summary judgment because their proof established that at the time of the accident Green was an employee of the City and was acting within the course and scope of her employment. Appellants also asserted that the issue of Green's liability had been established in the first action and collateral estoppel barred re-litigation of that issue. In their prayer, appellants requested the trial court "grant summary judgment [sic] against the [City] as to liability and allow this matter to proceed only as to damages." There is no indication in the record that the City responded to the motion.

3. There is no reporter's record regarding any proceedings on September 3, 2002. On appeal, neither party contests the validity of the partial summary judgment.

4. Before the start of trial, on September 5, 2002, appellants did request a running objection "concerning the issue of [the City] being able to go forward on [McPeters's] comparative or contributory negligence" based on the City's pleadings. However, the trial court overruled the objection and appellants failed to make further objections on this ground.

5. There was no predicate question submitted on McPeters's negligence. Neither party argues that this lack of a predicate question was error.

6. "Percentage of responsibility" is defined as "that percentage . . . attributed by the trier of fact to each claimant, each defendant, each settling person, or each responsible third party with respect to causing or contributing to cause in any way . . . the personal injury, property damage, death, or other harm for which recovery of damages is sought." TEX. CIV. PRAC. & REM. CODE§ 33.011(4) (Vernon 1997).

7. We acknowledge that the child could not be negligent in this case and there could be no percentage of responsibility assigned to his estate. See Mitchell v. Akers, 401 S.W.2d 907, 909 (Tex. Civ. App.--Dallas 1966, writ ref'd n.r.e.).

8. On appeal, appellants also claim that the doctrine of parental immunity applies to bar reduction of the damages awarded. Although appellants pleaded the affirmative defense of parental immunity, they failed to otherwise raise that issue in the trial court and consequently, failed to preserve the issue for our review. See TEX. R. APP. P.33.1(a); see also McGee v. McGee, 936 S.W.2d 360, 369 (Tex. App.--Waco 1996, writ denied).

9. Before this, on November 18, 2002, appellants filed a motion for new trial that was overruled on February 6, 2003. The fact appellants' motion for new trial was filed in November 2002, does not affect our conclusion that appellants' motion to modify was timely. See TEX. R. CIV. P.306a(1), 306c.

10. The appellate record in this case is sparse.

11. Appellants objected to the amended pleading in their motion for new trial.

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