COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-294-CV
ROBERT CROWSON APPELLANT
V.
STEVE BOWEN APPELLEES
AND LEIGH BOWEN
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
In one point, Appellant Robert Crowson appeals the trial court’s take
nothing judgment on his negligence claim against Appellees Steve and Leigh
Bowen (collectively “the Bowens”). We affirm.
II. Factual and Procedural History
Crowson filed suit against the Bowens, claiming he was the victim of a
dog attack proximately caused by the Bowens’ negligent failure to secure their
rottweiler, Roxy. The Bowens entered a general denial.
At the time of the incident, Crowson lived next door to the Bowens in a
shed behind Howard Koon’s house. Two fences separated the Bowens’ yard
from Koon’s yard. The Bowens had a four-foot chain-link fence surrounding
their property, and Koon had a wooden fence that was missing a number of
planks around his.
At trial, Crowson testified that he walked along a path between the shed
and Koon’s house several times a day for various reasons, including to use
Koon’s shower and restroom. According to Crowson, on one of those
occasions and without provocation from him, Roxy jumped over the Bowens’
chain-link fence, entered Koon’s yard through one of the gaps in the wooden
fence, and bit him on the nose. The Bowens testified that Roxy was no more
than two feet six inches tall, had hip dysplasia, and could not jump to the top
of the chain-link fence.
The trial court admitted Crowson’s medical records pertaining to the bite.
The records contained notes written by a nurse that read, “per EMS: [patient]
drinking [with] friends, neighbor on vacation, [patient] doesn’t like dog, started
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shooting [with] bebe [sic] gun, got too close to dog, dog bit him.” Crowson
admitted drinking at least eight beers before the incident but maintained that
he did not shoot the BB gun until after Roxy bit him.
At the charge conference, Crowson objected to the submission of his
negligence to the jury, arguing that neither the evidence nor the pleadings
supported the question. Over Crowson’s objections, the trial court submitted
the following question to the jury:
Did the negligence, if any, of those named below proximately cause
the occurrence in question?
Answer “Yes” or “No” as to each of the following:
a. Steve Bowen:
b. Leigh Bowen:
c. Robert Crowson:
A separate question on damages instructed the jury not to reduce any damages
it found as a result of the negligence, if any, of Crowson.
The jury found: (1) the Bowens were not the proximate cause of the
occurrence, (2) Crowson was the proximate cause of the occurrence, and (3)
there were zero dollars in damages. The trial court signed a take nothing
judgment and subsequently denied Crowson’s motion for new trial. This appeal
followed.
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III. Jury Charge Error
In his sole point, Crowson asserts that the “[Bowens] did not plead that
[Crowson] was negligent and therefore the issue of [his] negligence should not
have been submitted to the jury.”
Jury questions must be supported by the pleadings. Gibbins v. Berlin,
162 S.W.3d 335, 341 (Tex. App.—Fort Worth 2005, no pet.); McReynolds v.
First Office Mgmt., 948 S.W.2d 342, 345 (Tex. App.—Dallas 1997, no writ);
see also Tex. R. Civ. P. 278 (“The court shall submit the questions,
instructions, and definitions in the form provided by Rule 277, which are raised
by the written pleadings and the evidence.”). Although issues may be tried by
consent, “written pleadings, before the time of submission, shall be necessary
to the submission of questions . . . .” Tex. R. Civ. P. 67; Gibbins, 162 S.W.3d
at 342. Trial by consent does not occur when the complaining party properly
objects to the submission of issues not raised by the pleadings. Harkey v. Tex.
Employers’ Ins. Ass’n, 146 Tex. 504, 509, 208 S.W.2d 919, 922 (1948).
Stated differently, trial by consent is precluded where proper objection is made
on the record before submission to the jury. Tex. Indus., Inc. v. Vaughan, 919
S.W.2d 798, 803 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
We review claimed error in the jury charge under an abuse of discretion
standard. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). A clear abuse of
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discretion exists when the trial court submits a jury question that is neither
supported by the pleadings nor tried by consent. Stephanz v. Laird, 846
S.W.2d 895, 902 (Tex. App.—Houston [1st Dist.] 1993, writ denied); see also
Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 380 (Tex. App.—Dallas
2009, no pet.) (op. on reh’g).
Here, Crowson filed suit against the Bowens for negligence. The Bowens
responded with a general denial, which did not raise the issue of Crowson’s
negligence. At the charge conference, Crowson objected to the submission of
his negligence to the jury on the ground that the pleadings did not support it.
See Harkey, 146 Tex. at 509, 208 S.W.2d at 922 (concluding issues were not
tried by consent when appellant made no objection to the evidence supporting
unpleaded issues but did object to the submission of the issues to the jury).
Despite Crowson’s objection, the Bowens did not seek leave to amend or
attempt to amend their answer prior to submission of the jury charge.
Therefore, the trial court abused its discretion by submitting a question
pertaining to Crowson’s negligence that was neither supported by the pleadings
nor tried by consent. Webb, 298 S.W .3d at 380; Stephanz, 846 S.W.2d at
902.
To obtain a reversal based on the trial court’s error, however, Crowson
must show that the error probably caused the rendition of an improper
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judgment or probably prevented him from properly presenting his case to this
court. See Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166
S.W.3d 212, 225 (Tex. 2005). Submission of an improper jury question can
be harmless error if the jury’s answers to other questions render the improper
question immaterial. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752
(Tex. 1995); see Pojar v. Cifre, 199 S.W.3d 317, 348 (Tex. App.—Corpus
Christi 2006, pet. denied) (noting a line of cases holding that when a jury finds
no damages, findings on liability are immaterial and harmless). A jury question
is immaterial when its answer can be found elsewhere in the verdict or when
its answer cannot alter the effect of the verdict. Alvarado, 897 S.W.2d at 752.
Submission of an immaterial issue is not harmful unless it confuses or misleads
the jury, which we determine by considering its probable effect on the jury in
light of the charge as a whole. Id.
Here, reading the charge as a whole, we do not find that the question
submitted was ambiguous or misleading. The question asked the jury to
determine separately the negligence of the Bowens and Crowson. A finding
that the Bowens were not the proximate cause of the occurrence in question
exonerated them from liability. Consequently, the question pertaining to
Crowson’s negligence was immaterial—in other words, any answer pertaining
to Crowson’s negligence would not have altered the verdict. See Alvarado,
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897 S.W.2d at 752–53 (holding question of contributory negligence was
harmless because once jury found defendant did not proximately cause the
occurrence in question, defendant was exonerated of liability such that neither
an affirmative nor a negative answer to plaintiff’s negligence could have altered
the verdict). Furthermore, putting the findings on liability aside, the jury
unconditionally considered damages and awarded Crowson zero dollars in
damages, which rendered the jury’s findings on liability immaterial and
harmless. See Mitchell v. Chaparral Chrysler-Plymouth Sales, Inc., 572 S.W.2d
359, 360–61 (Tex. Civ. App.—Fort Worth 1978, writ ref’d n.r.e.) (concluding
findings on issues of liability are immaterial and harmless when jury finds no
damages). Thus, the submission of Crowson’s negligence to the jury was not
harmful error. Id. Accordingly, we overrule Crowson’s sole point.
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IV. Conclusion
Having overruled Crowson’s sole point, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: GARDNER and MCCOY, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: July 29, 2010
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