Tariq Majeed v. Sajjad Hussain

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00679-CV

Tariq Majeed, Appellant

v.

Sajjad Hussain, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. D-1-GN-01-001209, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This appeal arises from a premises-liability suit seeking personal-injury damages

allegedly caused by third-party criminal acts. While working as a clerk in an East Austin

convenience store and gas station, appellee Sajjad Hussain was assaulted by an unidentified male.

Hussain subsequently sued the alleged owners or controllers of the premises, including appellant

Tariq Majeed, asserting premises-liability theories of negligence predicated on a duty on the

defendants' part to provide security measures to protect Hussain from a foreseeable and unreasonable

risk of crime. A jury found that the defendants' negligence had proximately caused Hussain's

injuries and awarded Hussain a total of $377,811.19 in actual damages. The district court rendered

judgment on the jury's verdict. Majeed appeals.

In three issues on appeal, Majeed challenges the legal and factual sufficiency of the

evidence establishing (1) a foreseeable risk of harm and concomitant duty to provide security

measures to protect Hussain from third-party criminal acts, (2) that any breach of such a duty

proximately caused Hussain's injuries, and (3) the damages for medical expenses and past and future

physical-impairment damages awarded by the jury. In addition to responding to Majeed's issues,

Hussain asserts that Majeed failed to preserve his current contentions for appeal.

As we explain below, we agree with both parties in part--while we conclude that the

district court's judgment must be reversed because there is legally insufficient evidence of proximate

cause, we also hold that Majeed preserved only a right to a remand for new trial rather than rendition

of a take-nothing judgment. Consequently, we will reverse the district court's judgment and remand

for a new trial.

BACKGROUND

The underlying events occurred at a convenience store and gas station located at

1425 East 12th Street in Austin. Unlike the typical "walk-in" convenience store at which customers

enter through a doorway and make purchases inside, customers at this store made purchases from

a store clerk through a sliding glass "drive-through" window that they would approach either in their

cars or on foot. At relevant times, appellee Hussain was employed as a clerk in the store, and his

responsibilities included staffing the sliding glass window. Hussain described the window as "really

big" and, at the time of the incident, "really broke." He elaborated that the window could not slide

back and forth or lock. This made it necessary, Hussain explained, "to take the window out" or "take

the window on the side" at the beginning of the work day so as to leave it open. When he closed the

store at the end of the day, Hussain added, he would "put the big stick in the back" to secure the

window shut.

Hussain testified that while he was staffing the aforesaid window on July 11, 2000,

at approximately 4:00 p.m., an unidentified black male whom Hussain estimated was between 5' 3"

and 5' 4" and appeared to be between 15 to 17 years of age approached the window and asked to

buy cigarettes. Hussain asked to see the individual's identification. After the individual could not

produce an ID, Hussain refused to sell him the cigarettes, and the individual left. A short while later,

the individual returned and asked to buy beer. Hussain again asked to see identification. At this

point, according to Hussain, the individual became angry and said, "I just told you I don't have

my ID on me." Then, Hussain recounted, the individual "walked back," picked up an object (later

determined to be an empty can of "Fix-a-Flat Tire"), and "just straight throw it and hit my eyes."

Hussain testified that the can flew through the open window and struck him in his right eye.

According to Hussain, the injury resulted in permanent vision loss in that eye.

Hussain sued appellant Majeed and a co-defendant, Muhammed Naeem, alleging that

each controlled the store premises and asserting negligence claims based on premises-liability

theories. These claims were predicated on the existence of a duty to provide reasonable security

measures that arose because "it was foreseeable that the premises, as owned, operated, managed,

and maintained by Defendants, exposed employees and business invitees on the premises,

like Plaintiff herein, to an unreasonable risk of harm from criminal activity." See Timberwalk

Apartments v. Cain , 972 S.W.2d 749, 756 (Tex. 1998); Barton v. Whataburger, Inc. , 276 S.W.3d

456, 466 (Tex. App.--Houston [1st Dist.] 2008, pet. denied). The case proceeded to trial.

Neither Majeed nor Naeem attended trial in person, and only Majeed appeared

through counsel. The jury heard evidence that, by time of trial, Naeem had left the country and

returned to his native Pakistan (1) and that Majeed was then incarcerated in a federal institution on

convictions for gambling offenses and money-laundering in connection with eight-liner operations

at convenience stores he owned or operated.

In his case-in-chief, Hussain presented his own testimony, photographs and

documentary evidence, and excerpts from depositions of Majeed. After Hussain rested, Majeed

moved for a directed verdict, which the district court denied. Thereafter, Majeed presented further

excerpts from his deposition and additional documentary evidence. After the close of evidence,

Majeed did not re-urge his directed-verdict motion.

The district court submitted two questions to the jury. Question 1 inquired whether

the negligence, if any, of Majeed and/or Naeem "proximately cause[d] the occurrence in question

involving the criminal acts of an unidentified third party." The jury answered in the affirmative as

to both defendants. Predicated on an affirmative liability finding, Question 2 asked the jury to

determine the amount of Hussain's damages. The jury awarded Hussain $65,000 for past pain and

suffering, $50,000 for future pain and suffering, $5,720 in past lost wages, $165,000 in past physical

impairment, $190,000 in future physical impairment, and $2,091.19 in past medical expenses, for

a total of $377,811.19 in actual damages.

The district court rendered judgment on the jury's verdict. Thereafter, Majeed filed

on the same day a motion for new trial and a notice of appeal. See Tex. R. App. P. 26.1(a)(1), 27.1.

The new-trial motion was overruled by operation of law.

ANALYSIS Majeed brings three issues on appeal. In his first issue, Majeed argues that there is

legally and factually insufficient evidence of the foreseeable risk of harm required to give rise to a

duty on the part of Majeed to protect Hussain from an unreasonable risk of criminal activity. (2) In his

second issue, Majeed urges that the evidence is legally and factually insufficient to support a finding

that any breach of a duty of Majeed to undertake reasonable security measures to protect Hussain

from criminal activity proximately caused Hussain's injury. In his third issue, Majeed contends

that the evidence is legally and factually insufficient to support the jury's award of damages for

medical expenses and past and future physical impairment.

Preservation

As a threshold matter, Hussain argues that Majeed has failed to preserve any of

the complaints he now brings on appeal. Specifically, Hussain contends that Majeed waived his

directed-verdict motion by failing to renew it after the close of evidence, that his new-trial motion

was "too general to preserve error," and that he did not attempt to preserve his no-evidence

complaints through any other means. In the alternative, Hussain asserts that if Majeed preserved any

of his current evidentiary-sufficiency complaints through his new-trial motion, that procedural

mechanism, whether used to raise a legal-sufficiency or factual-sufficiency complaint, is a predicate

for an appellate court merely to grant the relief requested in that motion--a new trial--rather than

a rendition of a take-nothing judgment. But Majeed waived any right even to this remedy, Hussain

insists, by praying solely for rendition, not a remand, in his appellant's brief.

The core principle underlying error-preservation requirements is that the trial court

should be given the opportunity to correct potential errors before the case proceeds on appeal. See ,

e.g. , In re C.O.S. , 988 S.W.2d 760, 765 (Tex. 1999). To that end, "our civil rules of procedure and

our decisions thereunder require a party to apprise a trial court of its error before that error can

become the basis for reversal of a judgment." Id. In particular, rule of appellate procedure 33.1

generally requires that before a complaint can be a prerequisite for appellate review, the record must

show that (1) the complaint was raised before the trial court by timely request, objection, or motion

that "stated the grounds for the ruling that the complaining party sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were

apparent from context," (2) complied with the requirements of the rules of procedure or evidence,

and (3) that the trial court ruled or refused to rule on the request. Tex. R. App. P. 33.1(a). In turn,

rule of appellate procedure 43.3 provides that if we find reversible error in the trial court's judgment,

we must "render the judgment the trial court should have rendered," except when "a remand is

necessary for further proceedings," or "the interests of justice require a remand for another trial."

Id. R. 43.3; see also id. R. 44.1.

To preserve his no-evidence complaints for appeal, Majeed was required to raise them

in the district court through either (1) moving for directed verdict; (2) objecting to the submission

of jury questions; (3) moving to disregard jury findings; (4) moving for judgment notwithstanding

the verdict; or (5) moving for new trial. See T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d

218, 220 (Tex. 1992); cf. Tex. R. App. P. 33.1(d) (preservation rule in non-jury cases). However,

only the first four methods are a predicate for an appellate reversal and rendition of a take-nothing

judgment; the judgment the trial court should have rendered in response to a motion for new trial is

the granting of a new trial, not rendition. See Horrocks v. Texas Dep't of Transp. , 852 S.W.2d 498,

499 (Tex. 1993).

Majeed did not raise any of his no-evidence complaints through objecting to jury

questions, moving to disregard jury findings, or moving for judgment notwithstanding the verdict.

Consequently, he can obtain reversal and rendition of a take-nothing judgment based on such

a complaint only if he preserved it through his motion for directed verdict. T.O. Stanley Boot Co. ,

847 S.W.2d at 220 . Hussain argues that Majeed waived any no-evidence complaints raised in his

directed-verdict motion by failing to re-urge the motion at the close of evidence. (3) He relies on a

long line of courts of appeals' cases holding that where, as here, a defendant unsuccessfully

moves for directed verdict after the plaintiff rests his case-in-chief, the defendant waives error

in the trial court's denial of the motion if he presents evidence and fails to renew or re-urge the

motion after the evidence closes. See, e.g. , Ratsavong v. Menevilay , 176 S.W.3d 661, 666-67

(Tex. App.--El Paso 2005, pet. denied) ("Texas law is well settled that a defendant who moves for

a directed verdict after the plaintiff rests, but thereafter elects not to stand on its motion for instructed

verdict, and proceeds with her own case, waives her motion for directed verdict unless the motion

is reurged at the close of her case."); Humes v. Hallmark , 895 S.W.2d 475, 477 (Tex. App.--Austin

1995, no writ) (appellant defendant waived complaint that trial court erred in denying directed-verdict motion "because she did not re-urge her motion at the conclusion of evidence") (citing

Shindler v. Marr & Assoc. , 695 S.W.2d 699, 706 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd

n.r.e.); Texas Steel Co. v. Douglas , 533 S.W.2d 111, 114 (Tex. Civ. App.--Fort Worth 1976,

writ ref'd n.r.e.)); Douglas , 533 S.W.2d at 111 ("The law is well settled that a defendant by electing

not to stand on its motion for an instructed verdict made after the plaintiff had introduced its

evidence and rested its case, and by proceeding with the introduction of its own evidence, waives

its motion for an instructed verdict."); Grand Temple & Tabernacle, etc. v. Johnson , 156 S.W. 532,

533 (Tex. Civ. App.--San Antonio 1913, no writ) ("Appellee insists that under the decisions of this

state and the great weight of authority appellant is conclusively presumed to have waived its motion

for an instructed verdict by having elected to proceed with its case and present its defenses rather

than stand upon its motion and submit the case to the jury upon the evidence of appellee. There is

no doubt about the correctness of appellee's position upon this point."). This principle follows from

the fact that once the defendant elects to present its own evidence, that additional evidence, and any

other evidence presented at trial, must be considered by the trial court in determining whether there

is legally sufficient evidence to support submitting the case to the jury. See San Antonio Traction

Co. v. Kelleher , 107 S.W 64, 66 (Tex. Civ. App.--San Antonio 1908, no writ). Thus, to preserve

a complaint that the evidence was legally insufficient to support submission to the jury and that the

trial court was therefore required to direct a verdict for the defendant, the defendant must challenge

the entirety of the evidence by asserting or re-urging its directed-verdict motion after all of

the evidence is in. See Cliffs Drilling Co. v. Burrows , 930 S.W.2d 709, 712 (Tex. App.--Houston

[1st Dist.] 1996, no writ) ("When a second motion for directed verdict is made after the close of

evidence, the court must consider all of the evidence, regardless of who offered it, to determine

whether there is a fact issue for the jury."); Shindler , 695 S.W.2d at 706 ("Should the movant, after

his [directed-verdict] motion is denied, offer additional evidence, he thereby waives his earlier

motion and when he later moves again, the new motion is determined upon all of the evidence,

regardless of by whom it is offered."). The original directed-verdict motion addressed solely to the

plaintiff's evidence would not raise this challenge, and any error in denying that motion would,

in effect, be rendered harmless by unchallenged additional evidence. See Mound Oil Co. v. F.W.

Heitmann Co. , 148 S.W. 1187, 1188 (Tex. Civ. App.--Galveston 1912, no writ) ("In order to avail

itself of the error, if any, in the refusal of the trial court to direct a verdict in its favor upon the

evidence for appellee, appellant should have rested its case on this evidence. If there is anything in

the evidence introduced for appellant to help out appellee's case, it cannot be deprived of the benefit

of it by the request to the court to instruct a verdict for appellant upon the evidence for appellee.").

Although he acknowledges that this Court and our sister courts have long adhered to

"the principle that an appeal of the denial of a directed verdict motion is waived if not reurged at the

close of all evidence," Majeed questions whether we should continue to do so, suggesting that the

rule "serves no obvious purpose in current trial practice." He observes that the principle has been

criticized by one court of appeals justice, (4) is not specifically mandated in the rules of civil procedure,

and has apparently never been squarely adopted by the Texas Supreme Court. (5) To the extent we

continue to recognize the principle, Majeed urges that it governs only whether the denial of a

directed-verdict motion can itself be appealed but not whether the directed-verdict motion suffices

to preserve a no-evidence complaint for appeal. While "there is a body of law that finds that a

directed verdict motion cannot be appealed if it is not reurged after the close of all evidence" and "a

body of law . . . that holds that a legal sufficiency question can be preserved in a motion for directed

verdict," Majeed insists, "there is no body of law that connects the two principles."

Regardless whether the issue is or should be viewed in terms of Majeed "waiving"

any no-evidence challenges he raised in his directed-verdict motion, what is dispositive here is that

Majeed's motion did not raise any of the same no-evidence challenges that he now brings on appeal.

In his directed-verdict motion, Majeed challenged whether Hussain had presented legally sufficient

evidence during his case in chief to raise a fact issue. After the district court denied the motion, the

jury heard additional evidence. To prevail on his no-evidence challenges on appeal, Majeed must

show that there was legally insufficient evidence presented at trial--regardless when or by whom

presented--to raise a fact issue. Majeed did not present any such complaints to the district court

through his directed-verdict motion and his motion, therefore, did not preserve them for appeal. See

Texas Animal Health Comm'n v. Miller , 850 S.W.2d 254, 255-56 (Tex. App--Eastland 1993,

writ denied) ("The only time that the [defendant] Commission presented its 'no evidence' contention

to the trial court was in a motion for instructed verdict made at the close of [plaintiff] Miller's

evidence. After this motion was denied, the Commission presented its evidence. The Commission

did not re-urge its motion . . . after both sides closed. The Commission, by not electing to stand on

its motion for instructed verdict and by proceeding with the introduction of its own evidence, waived

its motion for instructed verdict. Thus, the Commission did not preserve its 'no evidence' complaint

for appellate review.") (citations omitted); see also Tex. R. App. P. 33.1(a); 6 McDonald & Carlson,

Tex. Civ. Prac., § 8:4, at 209-10 (2d ed.) ("Where the defendant moves for directed verdict when

the plaintiff rests and the motion is denied, and the defendant then presents evidence, the motion

for directed verdict is waived and will not preserve a challenge to the legal sufficiency of the

evidence."); cf. Bryan v. Dockery , 788 S.W.2d 447, 449 (Tex. App.--Houston [1st Dist.] 1990,

no writ) (while holding that defendant Bryan "did not preserve error on her motion for directed

verdict" because Bryan waived it by presenting evidence and not re-urging her motion, reaching no-evidence challenge because Bryan had preserved it through motion for judgment notwithstanding

verdict).

In sum, we agree with Hussain that there is no predicate in the record for us to render

a take-nothing judgment in favor of Majeed if we were ultimately to sustain his complaints that

there is no evidence of duty, proximate cause, or damages. See Tex. R. App. P. 33.1, 43.3;

Horrocks , 852 S.W.2d at 499 . This leaves only Majeed's new-trial motion as a potential means by

which he could have preserved his no-evidence challenges. Majeed was also required to raise his

alternative factual-sufficiency challenges in his new-trial motion in order to preserve them for

appeal. See Tex. R. Civ. P. 324(b).

Hussain asserts that Majeed's new trial motion was "too general to preserve error."

The rules of civil procedure require that each point relied upon in a motion for new trial "shall briefly

refer to that part of the ruling of the court . . . in such a way that the objection can be clearly

identified and understood by the court." Tex. R. Civ. P. 321. Further, "[g]rounds of objections

couched in general terms--as that the court erred in its charge, in sustaining and overruling

exceptions to the pleadings, and in excluding or admitting evidence, the verdict is contrary to

law, and the like--shall not be considered by the court." Id. R. 322. On the other hand, the

Texas Supreme Court has explained, a general "no-evidence" complaint directed to a specific jury

issue is usually sufficient to preserve error without further detail as to why the evidence is

insufficient. Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd. , 249 S.W.3d 380, 387

(Tex. 2008). Similarly, while a single no-evidence objection to "all 79 jury answers [would be] too

general, the same objection addressed to each individual issue is adequate." Id. (citing Biggers

v. Cont'l Bus. Sys., Inc. , 303 S.W.2d 359, 368 (Tex. 1957)). And, while acknowledging that "[i]f

a single jury question involves many issues, it is possible that a general objection may not tell the

trial court where to start," the supreme court has emphasized that such an objection made post-trial

is not necessarily insufficiently specific considering the context in which it is made, as "post-trial

objections will rarely be as detailed as an appellate brief because time is short, the record may not

be ready, and the trial court is already familiar with the case." Id. at 388 . Further, the court has

stressed, "[l]ike all other procedural rules, those regarding the specificity of post-trial objections

should be construed liberally so that the right to appeal is not lost unnecessarily." Id. The "cardinal

rule" for error preservation, after all, is simply that "an objection must be clear enough to give the

trial court an opportunity to correct it." Id . at 387.

In his motion for new trial, Majeed "challenges the sufficiency of the evidence for

the jury's answer to question 1." He continues, in separate subparagraphs, to argue both that "[t]here

is no evidence" and "the evidence is insufficient" to support the jury's answer to Question 1.

Question 1, as previously noted, was a broad-form submission that inquired whether "the negligence,

if any, of [Majeed or Naeem] proximately cause[d] the occurrence in question involving the criminal

acts of an unidentified party." Guided by the foregoing principles, we conclude that this portion of

Majeed's new-trial motion was sufficiently specific to preserve his complaints that there was legally

and factually insufficient evidence of the duty and proximate cause elements of Hussain's negligence

claim. See id. at 387-88 ; Edward D. Jones & Co. v. Fletcher , 975 S.W.2d 539, 543 (Tex. 1998)

(general no-evidence point preserved objection that defendant had no duty to ascertain client's

mental capacity) (cited with approval in Arkoma Basin Exploration Co. , 249 S.W.3d at 388 n.25);

Chavez Constr., Inc. v. McNeeley , 177 S.W.3d 593, 598-99 (Tex. App.--Houston [1st Dist.] 2005,

pet. granted, judgm't vacated w.r.m.) (no-duty challenge preserved "by timely moving for new trial

on general no-evidence-of-negligence grounds").

Majeed's new-trial motion also asserted similar no-evidence and insufficient-evidence

challenges to "the jury's answer to question 2." Question 2 asked the jury to award damages

separately for each of (1) past physical pain and mental anguish, (2) future pain and mental anguish,

(3) lost wages, (4) past physical impairment, (5) future physical impairment, and (6) past medical

expenses. Majeed did not specify the damage elements to which his no-evidence and insufficient-evidence complaints pertained. For reasons we explain below, we need not reach and express no

opinion as to whether Majeed's new-trial motion was sufficiently specific to preserve his appellate

challenge to the jury's damage awards for medical expenses and impairment.

In the event we conclude that Majeed's new-trial motion preserved error, Hussain

argues in the alternative that Majeed waived any entitlement to a remand for new trial by failing to

request such relief in his appellant's brief. Although Majeed argued in his appellant's brief that the

evidence is both legally and factually insufficient and cited a leading factual-sufficiency review

case, (6) he prayed solely for rendition of a take-nothing judgment, not a remand for new trial. After

Hussain's appellee's brief asserted that Majeed had waived any entitlement to a new trial by failing

to explicitly request such relief, Majeed argued in his reply brief that a request for remand had been

implicit in his factual-sufficiency arguments, and added, "To the extent Majeed is required as a

technical matter to expressly request an alternative remand, he hereby does so." Later, in response

to an inquiry from the Court during oral argument, Majeed requested leave to amend his opening

brief to add an alternative prayer for a remand. Hussain filed a response in opposition to Majeed's

request for leave.

In contending that Majeed waived any right to a remand, Hussain emphasizes

the principle that "[a] party generally is not entitled to relief it does not seek." State v. Brown ,

262 S.W.3d 365, 370 (Tex. 2008). In one case frequently cited for this general principle, see id. , the

Texas Supreme Court denied a petition for review despite holding that the petitioner's charge-error

complaint was meritorious because the petitioner had "specifically requested that this Court

not remand for a new trial and prayed only for rendition," and thus "did not request appropriate

relief for granting its petition for review." Stevens v. National Ed. Ctrs., Inc. , 11 S.W.3d 185, 185

(Tex. 2000) (per curiam) (op. denying pet.) (emphasis added); see also id. (observing that new trial

is appropriate remedy for charge error). Some of our sister courts have since cited Stevens for the

proposition that if an appellant requests reversal and rendition of judgment but not remand,

an appellate court cannot reverse and remand. See Molina v. Moore , 33 S.W.3d 323, 327

(Tex. App.--Amarillo 2000, no pet.); see also Jay Petroleum, L.L.C. v. EOG Resources, Inc. ,

No. 01-08-00541-CV, 2009 Tex. App. LEXIS 3182, at *8 (Tex. App.--Houston [1st Dist.] May 7,

2009, pet. denied).

Here, Majeed did not wholly fail to request remand as a remedy, but did so after

he had filed his appellant's brief. Cf. Brown , 262 S.W.3d at 370 ("We do not believe it proper to

sua sponte grant relief Brown has not sought."). Hussain insists that Majeed's request in his reply

brief for a remand came too late. He relies on the line of authorities holding that appellants cannot

raise new "issues" or "arguments" for the first time in a reply brief. See, e.g. , Howell v. Texas

Workers' Comp. Comm'n , 143 S.W.3d 416, 439 (Tex. App.--Austin 2004, pet. denied) ("The rules

of appellate procedure do not allow an appellant to include in a reply brief a new issue in response

to some matter pointed out in the appellee's brief but not raised by appellant's original brief. See

Tex. R. App. P. 38.3; Barrios v. State , 27 S.W.3d 313, 322 (Tex. App.--Houston [1st Dist.] 2000,

pet. ref'd) ("Pointing out the absence of an appellant's argument does not raise the argument

or entitle appellant to assert that argument for the first time in his reply brief. If the rule were

construed otherwise, an appellee could never point out matters not raised by an appellant for fear of

reopening the door."). In Hussain's view, this principle extends not only to the substantive issues

and arguments Majeed raises, but the remedies he is requesting if his issues are sustained.

Our resolution of the parties' contentions is guided by the text and evident purposes

of the rules of appellate procedure's briefing requirements. As appellant, Majeed was required to

file an opening brief that, among other things, "state[d] concisely all issues or points presented for

review" (which are to "be treated as covering every subsidiary question that is fairly included") and

"contain[ed] a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record." Tex. R. App. P. 38.1(f), (i). The rules further instruct us to

construe the briefing requirements "liberally" and that "substantial compliance" is sufficient, as the

point of having briefs in the first place is merely to "acquaint the court with the issues in a case

and to present argument that will enable the court to decide the case" and not to impose formal

requirements as ends in themselves. Id . R. 38.9. The rules further contemplate that appellate courts

will afford parties the opportunity to cure any formal or substantive briefing defects before disposing

of the appeal based on such a defect rather than the merits. See id. ; see also Inpetco, Inc. v. Texas

Am. Bank/Houston , 729 S.W.2d 300, 300 (Tex. 1987) (regarding parallel provisions of former

appellate rules). Finally, "[a] brief may be amended or supplemented whenever justice requires, on

whatever reasonable terms the court may prescribe." See Tex. R. App. P. 38.7.

There is no contention that Majeed failed to comply with these requirements in

presenting, in his appellant's brief, the merits of the legal and factual-insufficiency grounds on which

he seeks reversal. Hussain's contention is solely that Majeed initially requested the wrong appellate

remedy for the errors he claims, seeking rendition when this Court could grant him no more than a

remand because he had preserved error solely through his motion for new trial. The appellate rules

did require that Majeed include a "prayer" in his opening brief, which is described as "a short

conclusion that clearly states the nature of the relief sought." Id. R. 38.1(j). Elsewhere, however,

rule 43.3 instructs appellate courts, "[w]hen reversing a trial court's judgment," to "render the

judgment that the trial court should have rendered, except when: (a) a remand is necessary for

further proceedings; or (b) the interests of justice require a remand for a new trial." Tex. R. App.

P. 43.3. Some of our sister courts have construed rule 43.3 in conjunction with the liberal briefing

rules to conclude that an appellate court is empowered either to render judgment or remand for new

trial based on its own application of rule 43.3 without regard to whether the appellant specifically

prayed for such relief. See, e.g. , Ibrahim v. Young , 253 S.W.3d 790, 807 (Tex. App.--Eastland

2008, pet. denied); Jakab v. Gran Villa Townhouses Homeowners Assoc., Inc. , 149 S.W.3d 863 ,

870 n.7 (Tex. App.--Dallas 2004, no pet.) (citing Kaspar v. Thorne , 755 S.W.2d 151, 156-58

(Tex. App.--Dallas 1988, no writ) (supp. op. on reh'g); Resource Savs. Ass'n v. Neary , 782 S.W.2d

897, 903-04 (Tex. App.--Dallas 1986, writ denied)); National Café Servs., Ltd. v. Podaras ,

148 S.W.3d 194, 200-01 (Tex. App.--Waco 2004, pet. denied). Under the reasoning of these

decisions, a prayer that omits a request for the appellate remedy that is appropriate under rule 43.3

or requests the wrong one is considered to be the sort of briefing defect or irregularity that should

either have no impact on the appellate court's judgment or that the parties should be permitted to

cure. See Kaspar , 755 S.W.2d at 156-58 .

We find these authorities persuasive and consistent with our understanding of

the appellate rules and their underlying purposes. Stevens is not to the contrary. That case involved

the oddity of a petitioner having explicitly requested the supreme court not to remand. Stevens ,

11 S.W.3d at 185 . The petitioner did not, as Majeed here, simply omit a request for a remand or

request the wrong remedy in its prayer.

We hold that Majeed's omission of an explicit prayer for a remand in his appellant's

brief does not waive his entitlement to such relief or limit our power to award it under rule 43.3 if

we sustain any of his issues on appeal. And, to the extent there is any doubt, we grant, for the same

reasons, Majeed's motion to amend his opening brief to add an explicit alternative prayer for a

remand. See Tex. R. App. P. 38.7. In opposing leave to amend, Hussain disputes that "justice

requires" that Majeed "be allowed to waive his right to a remand in his original brief and then

unwaive that right after the case has been argued and submitted." Hussain presumes a view of the

appellate rules' operation and purposes that we have rejected.

In sum, we hold that Majeed has preserved his no-evidence complaints for appeal--

albeit solely through his motion for new trial--at least with respect to the duty and/or proximate

cause elements of Hussain's negligence claim.

Standard of review

When a party is challenging the legal sufficiency of the evidence supporting an

adverse finding on an issue on which an opposing party has the burden of proof, he prevails if the

record shows any one of the following: (1) there is no evidence supporting a vital fact, (2) the

evidence offered to prove a vital fact is no more than a mere scintilla, (3) the evidence conclusively

establishes the opposite of the vital fact, or (4) the court is barred by law or the rules of evidence

from considering the only evidence offered to prove the vital fact. See City of Keller v. Wilson ,

168 S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists when the evidence

supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions." Merrell Dow Pharms. v. Havner , 953 S.W.2d 706, 711

(Tex. 1997); Transportation Ins. Co. v. Moriel , 879 S.W.2d 10, 25 (Tex. 1994). If the evidence is

so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is

that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd. , 896 S.W.2d 179, 182 (Tex. 1995).

Conversely, evidence conclusively establishes a vital fact when the evidence is such that reasonable

people could not disagree in their conclusions. City of Keller , 168 S.W.3d at 814-17 .

When conducting a legal-sufficiency review, we must view the evidence in the light

most favorable to the trial court's findings, "crediting favorable evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not." City of Keller , 168 S.W.3d

at 807 . Moreover, we must indulge every reasonable inference that would support the district court's

findings. Id . at 822. The ultimate test for legal sufficiency is whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review. See id . at 827.

When a party challenges the factual sufficiency of the evidence supporting an adverse

finding on which the opposing party had the burden of proof, we should set aside the finding only

if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See

Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). We must consider, weigh, and examine all of the

evidence in the record, both supporting and against the finding, to decide whether the finding should

be set aside. See id .; Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989); Pool

v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986).

Proximate cause

In his second issue, Majeed argues that there is legally or factually insufficient

evidence that any breach of duty on his part to provide reasonable security measures proximately

caused Hussain's injury. In this issue, Majeed focuses on the cause-in-fact component of proximate

cause. Whether an act or omission is a cause in fact "cannot be established by mere conjecture,

guess, or speculation." Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477 (Tex. 1995).

The test for cause in fact is whether the act or omission was a substantial factor in causing the

injury without which the harm would not have occurred. Western Invs., Inc. v. Urena , 162 S.W.3d

547, 551 (Tex. 2005) (citing Marathon Corp. v. Pitzner , 106 S.W.3d 724, 727 (Tex. 2003)). If the

defendant's negligence merely furnished a condition that made the injuries possible, there can be

no cause in fact. Id . (citing IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason , 143 S.W.3d

794 , 799 (Tex. 2004)). "'The evidence must go further, and show that such negligence was the

proximate, and not the remote, cause of the resulting injuries . . . . [and] justify the conclusion that

such injury was the natural and probable result thereof.'" Doe , 907 S.W.2d at 477 (quoting Carey

v. Pure Distrib. Corp. , 133 Tex. 31 , 124 S.W.2d 847, 849 (1939)).

Hussain attributes his injury to Majeed's failure to repair and install with bulletproof

glass the sliding window through which his assailant threw the Fix-a-Flat can. Hussain argues that

the jury could have reasonably inferred that "a working window with bulletproof glass would have

stopped the Fix-a-Flat can from hitting Hussain's eye." In Hussain's view, "It is not speculation to

infer that a window that can stop a bullet will more likely than not stop a Fix-a-Flat can thrown by

a teenager." Assuming without deciding that is so, it nonetheless remains speculative on this record

whether or not the window would have been closed at the time Hussain's assailant threw the can.

In his testimony, Hussain described the circumstances surrounding the incident and how, in his view,

the broken window was to blame for his injury:

Q: Now, when the incident occurred, could you just go through exactly how

everything happened as far as your interaction with the person who assaulted

you?

A: Yeah. The young kid came in and asked me for the cigarettes, and I refused

him because he doesn't have an ID. He looked young, between 15 and 17.

Then he came back. It was not a walk-in store; it was a drive-thru window,

but the window was really big. And the window, you can only--if you're

going to open, you're going to open one time in the morning. If you close,

you put the stick behind that. There was no safety you can slide around,

nothing. It was really broke.

. . . .

Q: So is your testimony that he initially came and asked for cigarettes?

A: Yeah, and then beer. And he doesn't have--the second time he came back,

he said, I just told you I don't have my ID on me. And he walked back and

he got the Fix-a-Flat Tire and just straight throw it and hit my eyes.

On cross-examination, Hussain provided the following additional details:

Q: Can you explain--since we don't appear to have a picture of the store, can

you explain what it looks like? Do you have to walk into the store to buy

things, or is there a drive-thru?

A: It was a drive-thru. It was a window probably like that big (indicating), but

the window door was broke. I mean, when you opened the door in the

morning, you've got to take the window on the side. So when you close, you

put the big stick in the back to just close it. So there was no lock and nothing

on the window.

Q: All right. So it was a sliding window?

A: Sliding window, but the sliding window was not working. It was broke.

Q: Did not work.

A: Yeah.

Q: Okay. And then--so you had to take the window out?

A: Yeah, you've got to take the window out.

Q: Okay. All right. Now when this black male came in and--the one that threw

the can at you--

. . . .

A: You cannot walk into the store. It's only a drive-thru, but the window was

big.

. . . .

Q: So he was in a car?

. . . .

A: He was on foot.

. . . .

Q: When's the--did you see him get the can--

A: No.

Q: --or you just saw him throw it?

A: No. he was like--the window is like this, and we had a display on the top for

the cigarettes. He asked me for the cigarettes, and I just went like this, and

he just threw it straight to my eye, straight in my eye--

Q: Okay.

A: --with the can, yeah.

From the above testimony, a jury could only speculate as to whether the window, even

if it had not been broken and consisted of bulletproof glass, would have been closed at the time of

the assault. There was no evidence presented that would enable a fact-finder to draw a reasonable

inference as to whether or when Hussain would have opened the window when serving customers

(e.g., whether he would open the window when speaking with them versus only when actually

exchanging money or goods) and whether or not Hussain would have had the window open when

speaking to his assailant. Nor was there evidence to support reasonable inferences that Hussain

could have reacted to his assailant's actions in time to grab the window and succeed in closing it

before the can came flying at him. To the contrary, Hussain testified that he did not see the customer

pick up the can and that the customer "just threw it straight" at Hussain. Hussain's testimony does

not support a reasonable inference that if the window had been repaired and bulletproof glass

installed, it would have prevented his injuries.

Hussain also testified that there was no security guard or on- or off-duty police officer

on the premises. However, Hussain provided no evidence, either in the form of expert testimony

or his own lay opinion, that the presence of a guard or similar security measures would have

actually prevented or deterred the assault, especially given the sudden manner in which Hussain

testified it occurred.

We conclude that there is no evidence that Hussain's injury would not have

occurred but for the alleged negligence by Majeed. See Jea v. Cho , 183 S.W.3d 466, 469

(Tex. App.--Houston [14th Dist.] 2005, no pet.) (in case involving injury arising from robbery at

convenience store, finding that injured employee failed to prove proximate cause because "there is

no empirical data, expert opinion, or other evidence that such [security] measures have actually had

any effect on preventing or reducing such crimes where they have been implemented, let alone a

reasonable probability that this particular robbery or shooting would have been deterred or thwarted

by using them"). In the alternative, we hold that the evidence of causation was factually insufficient.

We sustain Majeed's second issue.

CONCLUSION

Because our disposition of Majeed's second issue establishes his entitlement to the

appellate remedy for which he has preserved error--a new trial-- we need not reach his other issues.

See Tex. R. App. P. 47.1. We reverse the district court's judgment and remand Hussain's claims for

a new trial.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton;

Dissenting Opinion by Justice Patterson

Reversed and Remanded

Filed: October 22, 2010

1. The jury heard testimony that all of the participants in the underlying events (with the

exception of Hussain's assailant) were Pakistani immigrants who were connected through business,

family, or religious ties within that community.

2. Although the issue was contested at trial, on appeal Majeed does not dispute that he had

control of the store premises.

3. The grounds for this motion were that (1) evidence regarding various contracts between

Naeem and Majeed established that Naeem controlled the premises and would have any duty to

provide security (a contention that Majeed has not brought forward on appeal); and (2) even if

Majeed controlled the premises, a third-party criminal act was a superseding cause of Hussain's

injuries as a matter of law and there was no evidence giving rise to a duty on Majeed's part to protect

Hussain from such acts.

4. See SIPCO Servs. Marine, Inc. v. Wyatt Filed Servs. Co. , 857 S.W.2d 602, 608, 609-12

(Tex. App.--Houston [1st Dist.] 1993, writ dism'd) (op. on reh'g) (Cohen, J. concurring); see also

Cliffs Drilling Co. v. Burrows , 930 S.W.2d 709, 712 (Tex. App.--Houston [1st Dist.] 1996, no writ)

(terming the rule "[l]ongstanding but criticized," and citing Justice Cohen's concurrence for that

proposition). Justice Cohen urged that the principle should be abandoned because it is unfair to

evaluate the legal sufficiency of the evidence based on both the plaintiff's and defendant's

evidence--and concomitantly require the defendant to re-urge its directed-verdict motion at the close

of all evidence in order to preserve a no-evidence complaint--when the additional evidence would

not have been introduced "except for the [trial] judge's erroneous denial of the motion for directed

verdict." SIPCO Servs. Marine, Inc. , 857 S.W.2d at 609 (Cohen, J. concurring). "To determine

legal sufficiency," Justice Cohen instead advocated "review[ing] only the evidence as it stood when

the motion for directed verdict was denied." Id. at 612 . To date, no reported Texas decision has

adopted Justice Cohen's view.

5. See id. at 609 (rule "seems to have been created and enforced solely by the intermediate

appellate courts"). Hussain has not contended otherwise.

6. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986).