Dao v. Garcia ex rel. Estate of Salinas

486 S.W.3d 618, 2016 Tex. App. LEXIS 441, 2016 WL 164610
CourtCourt of Appeals of Texas
DecidedJanuary 14, 2016
DocketNo. 05-14-01451-CV
StatusPublished
Cited by4 cases

This text of 486 S.W.3d 618 (Dao v. Garcia ex rel. Estate of Salinas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dao v. Garcia ex rel. Estate of Salinas, 486 S.W.3d 618, 2016 Tex. App. LEXIS 441, 2016 WL 164610 (Tex. Ct. App. 2016).

Opinion

MEMORANDUM OPINION

Opinion by

Justice Lang-Miers

. Tim Parks borrowed appellant Khahn Dao’s car to pick up a friend at a restaurant. As Parks and his friend drove away from the restaurant, they collided with Rojelio Salinas Jr. Mr. Salinas died from the injuries he sustained in the collision. Appellees Elissa Garcia, on behalf of the estate of Rojelio Salinas Jr., and Rojelio Salinas Sr. sued Parks, appellant, Komali Restaurant, LLC, and Lien Nguyen. After a jury trial" and verdict in appellees’ favor, the trial court entered a judgment of joint and several liability against appellant and Parks.

In two issues on appeal, appellant argues that appellees did not present legally sufficient evidence to support a finding of negligent entrustment against her and that the trial court erred in apportioning responsibility to appellant under direct and derivative liability and in imposing joint and several liability on appellant. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2 (a), 47:4. We affirm.

BACKGROUND

Appellant and Tim Parks wéreí business associates, friends, and former roommates. One evening, after completing her work day, appellant went to Parks’s apartment, where she had dinner with Parks and then fell asleep. While appellant slept, Parks [621]*621took appellant’s ear keys and drove appellant’s car to pick up a friend at a nearby restaurant, Komali Restaurant, LLC. While waiting for his friend at Komali, Parks. drank part of a glass . of wine. Parks testified that he consumed numerous glasses of wine that day, beginning in the early afternoon. Parks and his friend left Komali and drove out of Komali’s parking lot and initially began to turn the wrong way on a one-way street. Parks then tried to drive across the street to enter a driveway. Rojelio Salinas Jr. was driving a moped down that street and Parks collided with Mr. Salmas. Mr. Salinas died from his injuries.

Appellees filed suit against appellant, Parks, and Komali asserting negligence claims, including the claim that appellant negligently entrusted her car to Parks.1 After trial, a jury found appellant, Parks, and Komali negligent and awarded appel-lees $737,000 in damages. The jury apportioned ten percent of the responsibility to appellant, five percent to Komali, and eighty-five percent to Parks. Komali settled with appellees prior to the entry of judgment. The court then rendered judgment for appellees and ordered that appel-lees recover from appellant and Parks, jointly and severally, the remaining $700,150 in damages, plus interest and costs. Appellant filed a motion for new trial or to reform the final judgment, which was overruled by operation of law. She then brought this appeal.

Legal Sufficiency ,

In her first issue, appellant argues that the evidence is not legally sufficient to support ■ the jury finding that appellant negligently entrusted her car to Parks. To establish liability for negligent entrustment, appellees must show that (1) appellant entrusted her car to Parks, (2) Parks was an unlicensed, incompetent, or reckless driver, (3) at the time of the entrustment, appellant knew or should have known that Parks was an unlicensed, incompetent, or reckless driver, (4) Parks was negligent on the occasion in question, and (5) Parks’s negligence proximately caused the collision. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex.2007). Appellant argues that there is no legally sufficient evidence to support the jury’s findings on two elements: (1) that appellant entrusted her car to Parks and (2) that, at the time of the alleged entrustment, appellant knew or should have known that Parks was unlicensed, incompetent, or reckless.

Standard of Review

When an appellant attacks the legal sufficiency of an adverse finding on an issue on which the appellant did not have the burden of proof, the appellant must demonstrate that there is no evidence to support the adverse finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex.2011). We will sustain a no-evidence challenge on appeal if the record shows (1) a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex.2011). “Evidence is legally sufficient if it ‘would enable reasonable and fair-minded people to reach the verdict under review.’ ” Exxon Corp., 348 [622]*622S.W.3d at 215 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)).

In conducting our review, we examine the evidence in the light most favorable to the jury’s verdict. City of Keller, 168 S.W.3d at 822. We must assume that the jury resolved conflicting evidence and made reasonable inferences from the evidence in favor of the prevailing party. Id. at 821.

The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and it is improper to substitute our judgment for the jury’s simply because we may. disagree with its findings. Id. at 819, The jury may choose to believe one witness and disbelieve another. Id. We must assume jurors decided all credibility questions in favor of the verdict if reasonable people could do so. Id.

Whether Appellant Entrusted Her Car to Parks

Appellant argues that there is no evidence that she entrusted her car to Parks, contending that there is no evidence that she gave Parks’ either express or implied permission to use her car. Express permission is “affirmatively stated,” while “implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent.” Royal Indem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex.1966). Implied permission “is usually shown by usage and practice of the parties over a period of time preceding the occasion on which the automobile was being used.” Id. Because of out’ conclusion regarding implied permission, we need not consider appellant’s arguments concerning express permission.

Implied Permission: Arguments of the Parties

Appellant argues that the evidence of implied permission is not sufficient as a matter of law. Appellant contends that the evidence appellees presented included that she and Parks were Mends,'that-she allowed Parks to use her car on a “handful of occasions” “for specific business purposes!,]” and that Parks had access to the car that evening.2

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486 S.W.3d 618, 2016 Tex. App. LEXIS 441, 2016 WL 164610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dao-v-garcia-ex-rel-estate-of-salinas-texapp-2016.