*3 BUTTS, Before PEEPLES and HARDBERGER, JJ.
OPINION
HARDBERGER, Justice. liability This premises is a case which raped Dorothy apartment was in her Perez tenant, by another Carlos Garcia. Perez complex, the apartment sued the owners of addition, Perez Venture. WRI/Palans Palans, Realty Seymour Weingarten sued SPL, a Inc. The court submitted SPL, against only. The Inc. issue SPL, guilty Inc. was found negligence, therefore lost the case. Perez appeals. She now Perez contends that trial court erred (1) in DTPA cluster of refusing to submit her (2) questions, refusing negli- to submit concerning gence question Defendants (3) SPL, Inc., by including instruc- than proximate tions on sole cause and new intervening charge. We cause court’s judgment. affirm the
Facts living Summerplace
Perez had been at the Apartments she about three months when raped. was had been told Summer- She security apart- man place lived given security ments tele- and she hand- phone and a number handbook. were both local uniformed book said there findings against predicated upon all guards that worked were police and non-uniformed Summerplace Apartments, given telephone beep- ownership of there. She was also “the servants, night agents of her get help. acting through any er number to On the of its rape, that several of the employees.” there was evidence security despite the safeguards did not exist must first decide whether Perez We earlier assurances. substantially to the court correct tendered early morning In the hours of December theory concerning DTPA questions her 16, 1989, heard an intruder her Perez theory. an is Failure to submit was, apartment. asked but the She who ground for unless cannot be a reversal sue away being Per- man ran without identified. proof has re party with the burden security beeper number ez then tried *4 “substantially correct quested the issue results. then called three times without She wording.” 278. There is no Tex.R.Civ.P. twenty-four got hour and an the number determining for re absolute test service, answering who said there was no quested “substantially correct.” issue around, security they but would call 911. However, “substantially correct” has been Garcia, rapist, knocked on Per- The Carlos an that is “in defined as issue substance falsely police ez’ door before the arrived. He correct, and that is not the main affirma apartment’s said he was the maintenance tively v. Indus. incorrect.” Placencio Allied man, entry. and asked for Perez did not let Int’l, (Tex.1987). Inc., 20, 21 A in, police report him after but the took their substantially request is not correct it con there, and left Garcia came back. He was he requires tains a term that a definition but the lied, report apartment to take a for the house party fails to tender the definition. Select and check her windows. then let him in She Boucher, Ins. Co. raped struggle get and he her. In her to the (Tex.1978). vague Jury issues which are too gun assailant’s she was shot. Garcia has substantially are not correct. See Ornelas caught, serving been convicted and is time Lines, Bus Moore Service rape. security guards for the There were no (Tex.Civ.App. Paso writ ref'd — El duty rape. on at the time of the n.r.e.). Summerplace Apartments by is owned the Perez, DTPA requested in her clus venture, joint Venture, which is WRI/Palans ter, ownership asked if “the of Summer- by Seymour by owned 50% Palans and 50% place,” acting through “employees, agents its Realty Investors, Weingarten a Real Estate servants”, wrongdoing. acts did various of Seymour Investment Trust. Palans owns First, requested adequate. is not This issue SPL, Inc., management of company, 50% the Summerplace Apartments was not a named corpora- and his two sons own the rest of the defendant in the lawsuit. The defendants tion. Venture, Sey this lawsuit were WRI/Palans Palans, SPL, Weingarten Realty mour (First Negligence DTPA and Issues “Ownership” was not defined nor were Inc. Error) and Second Points of agents “employees, or servants” identified. error, points In her first two of Perez lumped together All of the defendants were complains failing the trial court erred speculate was left to as to whose and the ground recovery to DTPA of submit her inquired conduct was about. negligence ground recovery against her of Venture, Weingar- problem The fundamental with Perez’ re- Defendants WRI/Palans Realty Seymour quested Palans. DTPA issues can be viewed from ten Investors Assuming perspective. the trial Perez contends she was entitled sub- different form requested questions of because court had submitted the issues the mission these by suggested by had an- pleadings were raised and the Perez the judg- affirmatively, requested Perez the submission of swered whom would evidence. against? judgment must con- ground recovery group her DTPA in a ment be The requested ques- DTPA the verdict. TexR.Civ.P. 801. Pre- questions. six The form to sumably, judgment against the requested negligence question would be tions and the specific Apartments.” centage on each defendant found to Summerplace “owners However, responsible. do this in her this would create a conflict Perez failed to requested negligence questions. provides 306 which that “the Tex.R.Civ.P. entry judgment contain the full shall questions argues proposed Perez her parties, plead- names of as stated substantially the own- were correct because against Judg- ings, for whom and whom Summerplace ership Apartments was not con- ment is rendered.” Does the trial court Perez, dispute. According there was no pleadings or the form the question that Venture WRI/Palans practical problem Another would be verdict? Summerplace Apartments. There- owner of proposed questions. Perez’ Pre- created fore, says, requested Perez were finding, suming if the affirmative substantially form. tendered correct judgment against court enters “the owner- problem argument with this is that there Summerplace against ship Apartments,” concerning which de- were fact issues raised judgment? the sheriff whom does execute premises controlled and was fendant reasons, these hold that Perez’ For we security. sponsible for Perez maintains that questions substan- DTPA cluster was not Seymour responsible Defendant Palans was tially correct tendered. Apart- management Summerplace *5 Appellees argue that Defendant ments. requested negligence Perez’ SPL, re- management company Inc. the for the as her were defective same reasons apartments. sponsible security for at questions. used the same DTPA Perez disagreement concerning is also which “ownership Summerplace Apart of There phrase “servants, entity onsite man- acting through agents employed individual or ments” its main- ager apartments. Again, There to the Perez employees.” is no reference of Seymour in the lawsuit. the actual specific defendants named tains that Palans was ownership argue of employer There is no definition of the while the defendants Apartments jury SPL, is Summerplace and the the employer. Inc. was speculate it is again left to on whose conduct multiple a trial defen- perspective From judge. being to asked entity single a a dants that own request foregoing, In addition to the problem. This is further difficult submission two, question percentage number of ed language complicated when much of the question, responsibility was not substan entity simply nonlegal to a such as refers two, Question tially form. as correct number Apartments.” “Summerplace Perez’ Perez, jury to find a asked the tendered jury attempted lump to all quested questions responsibility owner percentage of for “the “ownership together: defendants of Summerplace acting ship Apartments of Apartments acting through Summerplace its through any employees, agents of its or ser By agents phras- employees, or servants.” attempted lump all of the Perez to vants.” manner, questions requested in this ing the and thus single question into a defendants simplicity expense achieved Perez asking jury to request to an failed issue something There is to be said for specificity. for each percentage responsibility find a saying it this effort and Court is is required settling as person defendant to If there is no always incorrect do so. comparative negligence law. under Texas’ dispute as to which of the named defendants (Vernon § 33.003 Rem.Code, Tex.Civ.PRAC. & act, negligent or if responsible for the are 1986). dispute responsible is no that all are there act, negligent single generic substantially question a submis- negligence A for the correct con- proper appropriate inquired negligence of be have about the sion would defendant, percentage It would be question. in the specific as named tribution each there was fact improper this case as for which some evidence pleadings, there was responsibility Furthermore, substantially raised as who had the negligence. issue security and who should question providing percentage responsibility correct doing so. See per- get the for not place properly blame have asked would longer no questions which are Railroad ential rebuttal Alvarez v. Missouri-Kansas-Texas (Tex.1984). Co., 375, 377 allowed. Kilgarlin As Justice wrote: there is such a issue When fact 277 confines inferential rebuttal is- Rule raised, there is no choice but to submit the and definitions sues to the instructions separately. question as to each defendant charge. issues which portion of the Those cumbersome, This is more but must be done. plaintiffs action are no negate a cause of generic finding A results questions. A better longer submitted in an en that cannot be written inferential approach may be to eliminate Dulling forceable manner. See J & Co. v. C altogether. Instructing the rebuttal issues Salaiz, (Tex.App. — San jury concerning particular defensive the- writ). If Antonio finds ory undoubtedly a comment on the is submitted, parties and all the are evidence, weight of the as it cues the likely place will also able plaintiff lose if the defen- that the specific the blame on one or more defen is correct. dant’s version the events dants. prohibit both case law and the rules Since weight direct comments on the of the evi- Therefore, the trial court did not err dence, paradoxical to allow it is somewhat refusing requested to submit Perez’ clus highlighting story. one side’s negligence questions. DTPA and ter of both They substantially were not tendered in cor (Tex) Kilgarlin, George Quesada William W.
rect form. Tex.R.Civ.P. 278. If one of a Russell, Practicing & Robin Law questions cluster of tendered is not substan Age”: “New The 1988 Amendments correct, tially the trial court does not err in Procedure, Texas Rules Civil 19 Tex.Tech. *6 refusing to submit the entire tendered clus (1988). 881, L.Rev. 915 Priest, 894, ter. v. 650 901 S.W.2d Shwiff why Intellectually, justify hard to an is 1983, (Tex.App Antonio writ ref'd . —San bad, question rebuttal is but inferential n.r.e.). points Perez’ of error one and two good. rebuttal instruction is Yar inferential are overruled. (Tex. Berner, borough 188 v. 467 S.W.2d 1971),prohibited inferential re submission of
Inferential Rebuttal Instructions accident and buttal issues on unavoidable (Third Error) Point of 1973, by emergency. sudden In amendment 277, Supreme elimi to rule the Texas Court point In of error com- number three Perez altogether. rebuttal nated inferential plains that the trial court committed revers- change vexing problem eliminated the This submitting ible error in to the in its answers, conflicting but inferential rebuttal charge proximate definitions of “sole cause” vestige of instructions remained an unwanted intervening and “new and cause.” Perez ob- past. eliminated in Several states have jects ground to these instructions on the that See, e.g., Bu ferential instructions. rebuttal weight both are comments on the Co., 652, tigan v. Yellow 49 Cal.2d 320 Cab evidence. Perez contends there is no (1958) (eliminating acci P.2d 500 unavoidable support in- evidence to submission of both instruction); Knapp Stanford, 392 dent v. Perez, According rape by structions. (sudden (Miss.1980) emergency in So.2d 196 very Carlos Garcia is the act that the Defen- abolished); Thompson, v. Cowell struction charged negligently failing dants were (Mo.App.1986)(emergency in 713 52 S.W.2d words, prevent. In other Garcia’s act was McClymont longer no permitted); structions alleged independent of the Defendants’ 390, 768 Morgan, v. 238 Neb. 470 N.W.2d negligence. (1991) emergency instruc (giving of sudden actions). in appealing argument This is an and there is tion not warranted in inferential rebuttal instructions truth in it. Several learned commentators The vice unfairly emphasize position they may inferential the defendant’s have taken poisonous as as infer- evidence. buttal instructions are
496 Court, however, warranting is an was some evidence the court’s
This interme court, job interpret is to diate whose on instruction both defenses. existing Supreme law and follow the Court on matters. dictate such law is law, existing the trial court Under clear, proximate “sole cause” and “new and giving not in in inferential error these independent cause” are inferential rebuttal rebuttal instructions. The trial court has defenses which be submitted to the submitting explan considerable discretion questions. as instructions but not Lemos v. definitions; is, atory instructions and
Montez, (Tex.1984); 680 798 Ameri S.W.2d considerably trial court more discre has Jet, 121, Leyendecker, can Inc. v. 683 S.W.2d submitting tion instructions than it has 1984, writ); (Tex.App.—San 126 Antonio no Berry submitting jury questions. Proper proper An Tex.R.Civ.P. 277. instruction is 644, ty Management Bliskey, 850 S.W.2d support any it finds of the evidence or the 1993, (Tex.App.—Corpus writ 661 Christi it, might be from and inferences which drawn dism’d); 192; Eoff, 811 Wisenbar might if the instruction be of some aid or Inc., ger Springs Hosp. v. Gonzalez Warm answering ques assistance 688, (Tex.App.—Corpus 789 S.W.2d tion Hal Peter submitted. & Charlie Eoff denied). 1990, Christi writ (Tex. Foundation, 187, son 811 S.W.2d writ). 1991, App.—San Antonio Abuse Bliskey, approved the court of a “sole discretion is the standard of review. Green proximate ap cause” instruction but also Combs, Acceptance, Tree Inc. v. 745 S.W.2d denying independent proved a “new and 1988, (Tex.App.—San Antonio writ Bliskey, in the instant cause” instruction. denied). case, a criminal’s conduct in con involved proximate upon Sole cause is based junction with the defendant’s conduct party the conduct of a third and is a viable premises security Obviously, case. different defense cases. Herrera v. Bal requested trial courts have handled these Feeders, Inc., morhea differently. place of It is not the (Tex.Civ.App.—El Paso writ ref'd our for that this court substitute n.r.e.). independent The term “new and court, rather, to decide if the but separate cause” is “the act or omission of a case were arbi trial court’s actions independent agency, destroys which Bliskey, trary or unreasonable. *7 negligent act causal connection between the 662; at Multi-Moto v. ITT Commercial Fi injury or omission of the defendant the nance, 560, (Tex.App.— 569-70 of, becomes, itself, thereby in complained denied). 1990, Dallas hold writ We injury.” the immediate cause of such Phoe were not. 69, Refining Tips, nix Co. 125 Tex. 81 60, (1935); Eoff, 61 also 811 S.W.2d See Perez directs this court’s attention to First at 192. S.W.2d Roper Corp., 686 International Bank v. (Tex.1985), supporting her S.W.2d 602 undisputed It is that the Defendants contention that it was error for the trial proximate the of cause” raised “sole in court to submit a sole cause instruction independent and “new and cause” their liability Roper prod- this ease. was a strict pleadings. Jury Charges The Texas Pattern Roper did not involve ucts ease. suggest of that when there is evidence “sole liability ques- products In a case the claims. proximate independent cause” and “new and defect, a did the defect tions are “was there given. should cause” these instructions be damages.” damage, the cause and what are Jury See 3 State Texas, Bar of Pattern that Supreme at stated Id. 605. The Court (1990). 50.05, Existing CHARGES PJC 65.04 liability party’s a products a case third agrees. Tarry case law See & Warehouse matter. Id. is an extraneous Duvall, 466, Storage Co. v. 131 Tex. Roper support thus cannot Perez’ contention Jet, (1938); American Inc. v. case, (Tex. premises security is that which Leyendecker, writ). grounded negligence, it is reversible error App.—San Antonio no There supreme proximate The court considers amendments a sole cause instruction. to submit procedure on a point to the Texas rules of civil Perez’ third of error is overruled. may regular It be assumed that the basis. judgment of trial court is affirmed. The the argument of inferential rebuttal for abolition negate would an element instructions which BUTTS, Justice, concurring. opposing party’s cause of action of the fact, judgment. I concur in the on this been, be, presented. has and will defense agree. The panel all the members of the argument is not without merit which The Hardberger, author of debate between J. the emphasizes party that the with the burden opinion, Peeples and J. is one that is elements, required proof prove must quietly ongoing among of the the members instructions are un- the inferential rebuttal intellectually bar. And while it is an inter- negate necessary to rebut or that burden. esting topic, proponents tell- and both make words, plaintiff prove In other since must ing arguments, it has no effect on the out- action, then “X” as an element of his cause of this case. come instruction, not entitled to an defendant is of the Proce- Rule 277 Texas Rules Civil effect, plaintiff proved “X” if “Y” has not prohibits dure submission of inferential re- proved. It has been is contended jury, expressly it di- buttal issues to but party present proof, burden proper rects that inferential rebuttal matters fails, dire, jury and if he then voir evidence may be submitted. “Inferential rebuttal trial, jury argument about “Y” will questions shall not be submitted sufficiently permit plain- to find that charge. placing proof of the burden proof. tiff sustained his has not burden accomplished by instructions rather worthy advancing advocates aboli- With question.” than inclusion Tex. positions supreme tionist and retention to the purpose R.Civ.P. 277. The obvious court when it comes time consideration of conflicting jury rule tois avoid an- procedure, amendments to the rules permit presentation swers but to affirmative pass task to on the matter. At court’s negating factors. time, supreme we must surmise the noteworthy It is that several such rebuttal court has declined abolish inferential gone by wayside, dying matters have although the amendment buttal instructions natural peril, death. These include imminent of 1988 rule 277. rewrote chance, open last clear and obvious. I Therefore, join judgment I with this However, suspect that others will follow. concurrence. power this intermediate court to abol- has ish inferential rebuttal PEEPLES, Justice, concurring. face of the rule. join panel’s I and most of
If inferential rebuttal instructions aid the Hardberger’s opinion. respect- But I verdict, Justice assuming imper- *8 render fully disagree his criticism of this state’s with weight missible comment on evi- of the juries result, practice instructing about inferential jury dence which aims the ato certain by law, rebuttal matters that are raised the evi- may present they then under the Texas particular, I dence. take issue with Objections be submitted. that an inferential suggestions they weight that comment on the jury, instruction does not assist the is confus- evidence, improperly emphasize the of the jury ing, question is not relevant to the sub- case, theory of and serve no mitted, defendant’s pleaded proved, has not been or or is purpose. improper comment on the evidence are proper objections. often system juries by putting tre- trusts Our give pointed by Hardberger, power out certain mendous in their hands. We As J. credi- inferential instructions are contained them considerable discretion to assess rebuttal facts, damages. Jury Charges. bility, and determine the Texas Pattern These find But regularly jury charges as The evidence seldom raises sole cause. are submitted does, jurors I can trust with correct. when it think we they acquit. That is an infer- simple causes should an instruction that tells them occurrence ential rebuttal instruction. nonparty If a caused the truism: necessarily that percent, then it follows may given on the Similar caused it in parties of the could have none of alibi. See Mil inferential rebuttal defense juries part. If are not intellectu- whole or (Tex.Crim. State, 96-97 ler understanding ally capable of an inferential (affirmative App.1983) instruction on alibi instruction, need to ask whether rebuttal we is, though the state proper). That even capacity their for ex- we have overestimated that prove part have to of its case chief given ercising power the vast we have them scene, present at a crime the defendant was deciding controlling issues. jury that if the our law allows an instruction alibi, it should ac believes the defendant’s instructions serve the Inferential rebuttal quit. That is an inferential rebuttal instruc juries helping focus on the purpose valid tion. If that parties’ contentions. believes nonparty’s acts or omissions were the sole in- Why trial courts to should we allow incident, jury supposed cause of an isn’t the juries criminal defendant’s struct about a conduct did not to find the defendant’s theory but forbid them to do the defensive cause it? It rational thing same a civil ease? seems pointing out that to allow instructions instruc- It is said that inferential rebuttal accepted, version of events is certain theory emphasize tions the defendant’s logical consequence is a defense verdict. every emphasizes But instruction case. truthful, promote rational The instructions most something about the case. And by juries, which should be decisionmaking charge emphasize the parts goal. our negligence and plaintiffs theory of the case— good prac- It to me proximate cause. seems enough has to do without Our law work litigant’s explain to the each tice to instructions, change attempting to settled es- existing ques- theory the case within our causing problems pecially are not instructions and then to let the tions and serving goal are the worthwhile but instead theory accept. choose which clarifying parties’ contentions for the jury. existing instructions acknowledge I simply. more But if the
could be worded instructions are complaint is that is to im- confusing, the answer esoteric wording, prohibit them prove their completely. juries compara- are trusted with
Criminal “It ble instructions. is well established JACKSON, Jr., Appellant, Ira is entitled to an sub- a defendant affirmative theory every raised mission of defensive evidence, omitted]. This rule [citations STINNETT, Appellee. John applies equal force to defensive theories pros- in murder regarding the cause of death No. 08-93-00288-CV. State, 713, 714 ecutions.” Hill v. Texas, Appeals of Court of original) (Tex.Crim.App.1979) (emphasis *9 El Paso. (criminal to instruction defendant entitled theory that victim died submitting defensive July 1994. causes, natural and was not choked beaten). words, though the state prove part of its case chief decedent, our
the defendant murdered the telling the law allows an instruction of natural believe the decedent died