Court of Appeals of Texas, Houston (14th Dist.).
Roy ARCENEAUX, Appellant
PINNACLE ENTERTAINMENT, INC., d/b/a PNK Casino, Inc., of Delaware, Appellee
Opinion filed February 23, 2017
On Appeal from the 268th District Court, Fort Bend County, Texas, Trial Court Cause No. 13–DCV–205979
Attorneys & Firms
Jan L. Fry, Houston, TX, for Appellant.
Kevin Riley, Houston, TX, for Appellee.
Panel consists of Justices Busby, Brown.
Marc W. Brown, Justice
At trial, the jury found that appellee Pinnacle Entertainment, Inc., d/b/a PNK Casino Inc., of Delaware, committed an assault against appellant Roy Arceneaux; Arceneaux caused or contributed to the occurrence or injuries; Arceneaux was 70 percent responsible, while Pinnacle was 30 percent responsible; and a total of $40,000 would fairly and reasonably compensate Arceneaux for his injuries. On competing motions for entry of judgment, the trial court rendered a final take-nothing judgment in favor of Pinnacle. In a single issue, Arceneaux argues that the trial court *747 erred by not granting the damages awarded to him by the jury. Because chapter 33 of the Texas Civil Practice and Remedies Code applies to Arceneaux’s assault claim and his percentage of responsibility was greater than 50 percent, Arceneaux may not recover damages. We affirm.
On May 6, 2012, Arceneaux was drinking and gambling at a casino owned by Pinnacle. After Arceneaux became disruptive, a casino security officer requested that he cash his chips in and leave. Arceneaux failed to comply and continued to be disruptive. At that point, casino security officers brought him to the ground in an effort to subdue him.
Arceneaux filed suit against Pinnacle for various claims, including assault. The case was tried before a jury. The jury charge included questions regarding: whether Pinnacle through its employee committed an assault against Arceneaux; whether Arceneaux’s actions or omissions caused or contributed to causing the alleged occurrence or injuries; what percentage of responsibility was attributable to Arceneaux and Pinnacle; and what amount of money would fairly and reasonably compensate Arceneaux for his injuries. The jury found that: Pinnacle committed an assault against Arceneaux; Arceneaux contributed to the occurrence or injuries; Arceneaux was 70 percent responsible and Pinnacle was 30 percent responsible; and that a total of $40,000 would fairly and reasonably compensate Arceneaux for his injuries.
Pinnacle filed a motion for entry of a final take-nothing judgment based on the application of 33.002 of the Texas Civil Practice and Remedies Code. Arceneaux filed a motion for entry of final judgment in his favor, arguing that chapter 33 does not apply. The trial court rendered a final take-nothing judgment in favor of Pinnacle based on the jury’s findings. Arceneaux filed a motion for new trial, which was overruled by operation of law. Arceneaux timely appealed.
In his sole issue, Arceneaux argues that the trial court erred in refusing to grant his motion for entry of final judgment. Arceneaux points to the jury’s finding that Pinnacle assaulted him. According to Arceneaux, where the question instructed that the use of force is justified to protect person or property, the jury’s “yes” answer constituted a rejection of Pinnacle’s defenses to assault. Arceneaux contends the fact that the jury answered “yes” to the question of whether Arceneaux caused or contributed to causing the alleged occurrence or injuries was therefore immaterial and should have been disregarded by the trial court.
Pinnacle responds that the trial court correctly entered a take-nothing judgment based on the jury’s determination that Arceneaux was 70 percent responsible for his injuries because chapter 33 widely applies to all causes of action based on tort. According to Pinnacle, because chapter 33 applies to Arceneaux’s claim, the jury’s findings that Arceneaux contributed to causing and was 70 percent responsible for his injuries were not immaterial. We agree with Pinnacle.
The proportionate-responsibility statute, as set forth in chapter 33, provides a framework for apportioning percentages of responsibility in the calculation of damages in any case in which more than one person, including the plaintiff, is alleged to have caused or contributed to cause the harm for which recovery of damages is sought. See Tex. Civ. Prac. & Rem. Code § 33.003.
If chapter 33 applies to a claim, “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.” Underwriters at Lloyds, 2008 WL 5441225, at *3.1
Certain, specific claims are excluded under the statute. See City of Watauga v. Gordon, 434 S.W.3d 586, 589–90 (Tex. 2014).
JCW Elecs., 257 S.W.3d at 704 (emphasis in original).
Texas courts have rejected arguments that chapter 33 does not apply to the intentional tort of fraud. See JCW Elecs., 257 S.W.3d at 704–06).
Finally, Arceneaux has not presented, nor have we found, any case to support the proposition that the jury’s rejection of an affirmative defense to the intentional tort of assault acts to displace the broad application of chapter 33. The jury was asked a separate question regarding whether Arceneaux’s “actions or omissions cause[d] or contribute[d] to causing the alleged occurrence or injuries,” and it answered “Yes.”2 This finding was the basis upon which the jury assigned a percentage of responsibility to Arceneaux.
Therefore, we conclude that chapter 33 applies to Arceneaux’s tort claim of assault, and because the jury found that his comparative responsibility exceeded 50 percent, he may not recover damages on his claim. See 33.003. Accordingly, the trial court did not err by rendering its final take-nothing judgment in favor of Pinnacle.
We overrule Arceneaux’s sole issue and affirm the trial court’s judgment.
Compare Werner v. KPMG LLP, 415 F.Supp.2d 688, 703 & n.15 (S.D. Tex. 2006).
Arceneaux has not asked us to consider, and we do not address, whether this finding is sufficient to establish that Arceneaux “caus[ed] or contribut[ed] to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these,” as required before the jury should be asked to determine the percentage of his responsibility. Tex. Civ. Prac. & Rem. Code § 33.003(a); cf. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges—Business, Consumer, Insurance, Insurance & Employment PJC 115.36 cmt. (2014) (“The plaintiff ... should be submitted in [the proportionate-responsibility] question only if the law governing the cause of action provides an ‘applicable legal standard’ by which the plaintiff’s conduct is measured and the jury is asked in a predicate question whether [the plaintiff] violated that standard.”).