in Re Apparajan Ganesan ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00159-CV

In re Apparajan Ganesan

Original Proceeding

MEMORANDUM  Opinion

            At petitioner’s request, we filed a letter as a petition for writ of mandamus.  On May 14, 2008, this Court ordered petitioner to pay the original filing fee of $125, within 21 days from the date of the filing.  Petitioner was warned that if the fees were not timely paid, the proceeding would be dismissed.  More than 21 days have passed, and petitioner has not paid the fees.

            Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998).  See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov’t Code Ann. § 51.207(b) (Vernon 2005).  Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2. 

            Accordingly, this proceeding is dismissed.  Tex. R. App. P. 5; 42.3(c).

                                                                                    TOM GRAY

                                                                                    Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Petition dismissed

Opinion delivered and filed July 2, 2008

[CV06]

style='font-size:14.0pt;font-family:"CG Times"'>TENTH COURT OF APPEALS

No. 10-03-00113-CV

John Lingafelter et al.,

                                                                      Appellants

 v.

Brent J. Shupe, JCJ Trucking

And Midwest Coast Transport

D/B/A MCT,

                                                                      Appellees

From the 249th District Court

Somervell County, Texas

Trial Court # C2K09299

Dissenting Opinion

          On appeal, the plaintiffs complain that their burden at trial was not enough.  They complain that the trial court erred by not imposing on them, as an instruction in the charge, all the elements of negligent entrustment.  The defendants make various responses including one by MCT that the plaintiffs failed to prove even the elements that were submitted so, if there was error, it was harmless.  The Court agrees with the plaintiffs.  The plaintiffs are wrong; ergo, the Court is wrong.

Absurd Result

          If the damage to the parties, the law, and this Court’s reputation was not so severe, what the Court does in this case would be an amusing logic problem to be discussed by philosophy students.  But the result should come as quite a shock to any skilled appellate practitioner.  In this case, a defense verdict is being reversed because the plaintiff objected to having fewer elements to prove than would have been required under a proper instruction for negligent entrustment.  The plaintiffs were unable to prove even two, of five, required elements the Court says a plaintiff must establish to recover under a theory of negligent entrustment.  How bizarre can it get if we reverse this case because three elements of a cause of action were not submitted but the plaintiff could have recovered by proving only two of the five elements?  In this case, the plaintiffs had a lighter burden than required by law.  But yet the plaintiffs failed to meet even this lighter burden, and the Court is still reversing the judgment so that the plaintiffs can try again!  What the trial court did cannot be harmful error.  The Court has been unable to direct the reader to a single case in which the complaining party on appeal successfully argued that elements upon which the complaining party had the burden of proof were omitted from the charge. I too have been unable to find any similar case.

Needless Submission

          Next, it is not error to refuse to submit immaterial issues or instructions.  Louisiana & Arkansas Ry. Co. v. Blakely, 773 S.W.2d 595, 599 (Tex. App.—Texarkana 1989, writ denied).  MCT and the plaintiffs agree that according to Federal Motor Carrier Regulations, MCT is liable for Shupe’s negligence, if any, in the course and scope of his employment because he was treated as MCT’s employee.  49 C.F.R. §390.5 (2004).  It is undisputed that Shupe was operating the truck in the course and scope of his employment at the time of the collision.  Thus, there was no need to charge the jury on negligent entrustment because if the plaintiffs successfully proved Shupe negligent, MCT was liable for the full extent of the resulting damages caused by Shupe without regard to the need to prove the other elements of a negligent entrustment claim.

          Further, to recover for negligent entrustment, it must be shown on the trial of the case that the driver, in this case, Shupe, was negligent.  See Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex. 1985). Upon the trial of this case, after hearing all the evidence the Court repeats in its mantra, the jury refused to find Shupe negligent.  Thus, any error in not instructing the jury on all the elements of one of multiple theories of negligence, specifically negligent entrustment, was harmless.

Rejection of the Jury’s Verdict

          And if anyone questions why the Court is doing this, they need not search outside the opinion.  The majority of this Court dismisses the jury’s refusal to find that the plaintiffs proved Shupe negligent saying:  “We believe that the evidence strongly supports a finding Shupe was negligent.”  We have never been authorized to substitute our view of the evidence for the jury’s view of it.  See e.g. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2000) (“It is a familiar principle that in conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury.”).

          It is clear from a full review of the record that this case was about causation.  Viewed objectively, the jury’s verdict tells us that when Heppler was unable to stop in his lane of traffic and bounced his pick-up off the back-side of a van and into the oncoming lane of traffic directly into the path of an oncoming truck, it did not matter who was driving that truck or how that driver was operating it; there was going to be a wreck.

          That was the first wreck.  This Court’s opinion is the second.  Paraphrasing the Court, I believe that the record strongly supports the jury’s refusal to find that anything other than Heppler’s failure to control his vehicle was the proximate cause of this multi-vehicle wreck.

Conclusion

          Because it cannot be error to refuse to submit an immaterial instruction, because it cannot be harmful error to the party with the burden of proof to submit less than all the elements of a claim, because it cannot be harmful error to submit other elements of a claim if the party with the burden of proof was unable to prove even the elements submitted, and because the Court simply disagrees with the jury’s refusal to find Shupe negligent and reverses the judgment, I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed November 17, 2004