Majeed v. Hussain, 03-08-00679-CV

CourtCourt of Appeals of Texas
PartiesTariq Majeed, Appellant v. Sajjad Hussain, Appellee
Docket NumberNO. 03-08-00679-CV,03-08-00679-CV
Decision Date22 October 2010

Tariq Majeed, Appellant
Sajjad Hussain, Appellee

NO. 03-08-00679-CV


Filed: October 22, 2010



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

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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.


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.

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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

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returned to his native Pakistan1 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.

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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.


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

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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...

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