                     In The
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana


                    No. 06-19-00009-CV



GEICO COUNTY MUTUAL INSURANCE COMPANY, Appellant

                             V.

                 TIYA BOGALE, Appellee



       On Appeal from the County Court at Law No. 1
                   Travis County, Texas
            Trial Court No. C-1-CV-17-009428




        Before Morriss, C.J., Burgess and Stevens, JJ.
         Memorandum Opinion by Justice Stevens
                                     MEMORANDUM OPINION
         Thuong Thi Nguyen and Tiya Bogale were involved in an automobile collision in an

Austin, Texas, parking lot. 1         After Nguyen’s damages were compensated by her insurance

company, GEICO County Mutual Insurance, GEICO filed a subrogation suit alleging that Bogale’s

negligence caused the collision. Since a bench trial determined otherwise, GEICO appeals from

the take-nothing judgment entered in favor of Bogle. Because we overrule GEICO’s legal and

factual sufficiency arguments, we affirm the trial court’s judgment.

I.       Standard of Review

         “In an appeal from a judgment rendered after a bench trial, the trial court’s findings of fact

have the same weight as a jury’s verdict, and we review the factual sufficiency of the evidence to

support them as we would review a jury’s findings.” MJAH Holdings, LLC v. Henson, No. 03-18-

00012-CV, 2019 WL 1413282, at *4 (Tex. App.—Austin Mar. 29, 2019, no pet.) (mem. op.)

(citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)); see Murray v. Grayum, No. 03-10-

00165-CV, 2011 WL 2533796, at *2 (Tex. App.—Austin June 24, 2011, pet. denied) (mem. op.)

(citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam)).

         “In a bench trial where no findings of fact or conclusions of law are requested by the parties

or filed by the trial court, the judgment implies all findings of fact necessary to support it.” Johnson

v. Oliver, 250 S.W.3d 182, 186 (Tex. App.—Dallas 2008, no pet.); see Moncrief Oil Int’l, Inc. v.

OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.


1
 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the
Third Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

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1990) (per curiam). “If a reporter’s record is filed, an appellant may challenge the legal and factual

sufficiency of the trial court’s implied findings.” Hampden Corp., 2014 WL 2921655, at *6; see

Grayum, 2011 WL 2533796, at *2. The trial court, as the finder of fact, “is the sole judge of the

credibility of the witnesses and the weight to be given their testimony, and we will not disturb the

court’s resolution of evidentiary conflicts that turn on credibility determinations or the weight of

the evidence.” Grayum, 2011 WL 2533796, at *2 (citing McGalliard v. Kuhlmann, 722 S.W.2d

694, 696 (Tex. 1986)).

       As the Austin Court of Appeals explained in Grayum,

       We will sustain a challenge to legal sufficiency if there is a complete absence of
       evidence of an essential fact, the trial court was barred by rules of law or evidence
       from giving weight to the only evidence proving an essential fact, no more than a
       scintilla of evidence was offered to prove an essential fact, or the evidence
       conclusively establishes the opposite of the essential fact.

Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). “We view the evidence in

the light most favorable to the trial court’s determination, crediting favorable evidence if a

reasonable fact[-]finder could have done so and disregarding contrary evidence unless a reasonable

fact[-]finder could not.” Id. (citing Wilson, 168 S.W.3d at 807).

       “In reviewing a factual-sufficiency challenge, we examine the entire record and consider

and weigh all the evidence, both in support of and contrary to the challenged finding.” Henson,

2019 WL 1413282, at *4. “When, as here, a party attacks the factual sufficiency of the evidence

supporting an adverse finding on an issue on which it has the burden of proof, it must demonstrate

on appeal that the adverse finding is against the great weight and preponderance of the evidence.”

Id. “[W]e review all the evidence and set aside the judgment only if it is so contrary to the

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overwhelming weight of the evidence that it is clearly wrong and unjust.” Grayum, 2011 WL

2533796, at *2 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)); see Mattingly

v. Swisher Int’l, Inc., No. 03-17-00510-CV, 2018 WL 454787, at *3 (Tex. App.—Austin Jan. 11,

2018, pet. denied).

II.    The Evidence at Trial

       At trial, GEICO introduced a copy of the police report, which listed both Nguyen and

Bogale at fault. The report stated Nguyen and Bogale were driving in opposite directions in a

parking lot and “attempted to turn into the same parking [a]isle” when they collided with each

other. The field diagram in the report is replicated below.




       According to Bogale, who was the only witness to testify, Nguyen admitted she also caused

the accident and that there “was gonna be a mutual agreement that we were both at fault.” As a

result, Bogale pleaded the defense of contributory negligence. She testified, “[Nguyen] was

speeding. And whenever I was trying to turn then she came and just hit me . . . . [B]oth our cars

was [sic] totaled.” Bogale added that Nguyen admitted “she was speeding when she got out of the

car” and that her “car got out of control.” During its questioning of Bogale, the trial court clarified
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that Bogale was “already in the driveway” when the accident occurred and that Nguyen “came up

after [her].”

         On hearing the evidence, the trial court rendered a take-nothing judgment against GEICO.

III.     Legally and Factually Sufficient Evidence Supports the Trial Court’s Judgment

         “[A] claimant may not recover damages if his percentage of responsibility is greater than

50 percent.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.001. GEICO challenges the trial court’s

implied finding that Nguyen’s responsibility in the accident was greater than fifty percent.

         In an argument never made below, GEICO argues that Bogale was at greater fault because

she was turning left in order to park. 2 It also believes that the trial court should have attributed

more responsibility to Bogale because she hit the back of Nguyen’s car. Yet, GEICO fails to

address the evidence related to the fact that Nguyen was speeding.

         GEICO bore the burden to establish its negligence claim. As the trier of fact, the trial court

was free to believe Bogale’s testimony that Nguyen (1) admitted she was speeding, (2) “came up

after [Bogale]” when Bogale was already turning left, and (3) could not stop in time to avoid the

collision because she lost control of her vehicle. “The determination of negligent parties’

proportionate responsibility is a matter within the [fact-finder’s] sound discretion.” Bechtel Corp.

v. CITGO Prod. Pipeline Co., 271 S.W.3d 898, 920 (Tex. App.—Austin 2008, no pet.) (citing

Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex. App.—Dallas 2002, pet.


2
 GEICO relies on Section 545.152 of the Texas Transportation Code, which states, “To turn left at an intersection or
into an alley or private road or driveway, an operator shall yield the right-of-way to a vehicle that is approaching from
the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate
hazard.” TEX. TRANSP. CODE ANN. § 545.152. That said, this section does not mention parking lots, an intersection
does not include a parking lot, and had the Legislature chosen to include parking lots in Section 545.152, it easily
could have done so. See TEX. TRANSP. CODE ANN. §§ 541.303, 550.001.
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denied)). This evidence supported the trial court’s determination that Nguyen was more than fifty

percent responsible for the accident, which operated to bar GEICO’s recovery on its claim. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001, 33.011(1); Smith v. East, 411 S.W.3d 519, 525,

528 (Tex. App.—Austin 2013, pet. denied) (citing JCW Elec., Inc. v. Garza, 257 S.W.3d 701, 707

(Tex. 2008)). Because we find this evidence both legally and factually sufficient to support the

trial court’s judgment, we overrule GEICO’s points of error.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Scott E. Stevens
                                               Justice
Date Submitted:       June 21, 2019
Date Decided:         July 3, 2019




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