Texas Supreme Court grants more extensive constructive trust than Waco Court of Appeals to incapacitated person cheated out of accident settlement funds by prior guardian. Holds that jury was free to draw negative inferences from guardian's invocation of the fifth amendment privilege against self-incrimination.
Wilz vs. Flournoy, No. 06-0913 (Tex. Jun. 29, 2007)(per curiam)(constructive trust, breach of fiduciary duty, conversion, constructive fraud, adverse inference based on invocation of fifth amendment privilege in civil proceeding)
Full case style: Patricia Wilz, Guardian of Jon Patrick Flournoy, an Incapacitated Person v. Kenneth W. and June Flournoy; from Limestone County;
Appellate court below: Tenth Court of Appeals, Waco (10th district) No. 10-05-00089-CV,
Opinion below: Flournoy v. Wilz, 201 S.W.3d 833, Tex.App.- Waco, July 19, 2006)
Dispostion in the Court of Appeals: Because the court abused its discretion by imposing a constructive trust on the entirety of the Flournoys’ farm, the court of appeals reverse that portion the judgment imposing a constructive trust and render judgment imposing a constructive trust on an undivided 35% interest in the farm. The trial court’s judgment is affirmed in all other respects
Disposition by the Supreme Court: Without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment for the plaintiff.
Also see --> e-Briefs in the Supreme Court in Wilz v. Flourney
PER CURIAM OPINION
On behalf of her son, Jon Flournoy, Patricia Wilz sought to impose a constructive trust on property purchased by her ex-husband and his new wife. The trial court imposed a constructive trust on the entire property, but a divided court of appeals limited the trust to a 35 percent undivided interest. Given the evidence presented at trial and the jury’s findings, the court of appeals erred in limiting the constructive trust, and we reverse.
Patricia Wilz and Kenneth Flournoy divorced in 1973, and Kenneth was awarded custody of their son, Jon. In 1987, Jon suffered incapacitating injuries in an automobile accident. Kenneth, individually and on Jon’s behalf, sued Ford Motor Company. In a 1991 settlement, Kenneth received $379,300 on Jon’s behalf and $95,000 personally. As guardian of Jon’s person and estate, Kenneth purchased stocks and bonds for Jon’s benefit. Subsequently, Kenneth and his new wife, June, purchased a 110-acre farm for $153,049, paying $49,365.50 in cash and executing a note for the balance. The note called for monthly payments of $961. Between 1991 and 1999, the Flournoys withdrew several thousand dollars from Jon’s account, many installments of which were roughly $960. By the end of 2001, the Flournoys had depleted Jon’s account, and they institutionalized him in a state mental health facility.
In 2005, Jon’s biological mother, Patricia Wilz, became his guardian, and she sued the Flournoys on Jon’s behalf for conversion, breach of fiduciary duty, and constructive fraud. Patricia traced several checks drawn on Jon’s account to the Flournoys’ personal account. When questioned about these checks, the handling of Jon’s funds, and the source of the funds used to purchase the farm, the Flournoys each invoked the Fifth Amendment privilege against self-incrimination. The Flournoys’ sole evidence regarding the funds consisted of Kenneth’s pretrial deposition, where he said he used his settlement money for the farm’s down payment and that $50,000 remained outstanding on the note. When questioned about the truth of this testimony, Kenneth again invoked the Fifth Amendment.
The jury found that Kenneth breached his fiduciary duty and committed constructive fraud and that the Flournoys converted Jon’s property with malice. The trial court therefore imposed a constructive trust on the entire farm.
The court of appeals agreed that Wilz had met her burden to impose a constructive trust on the entire farm, and the burden shifted to the Flournoys to show which funds came from their own accounts. 201 S.W.3d 833, 836–37. Nonetheless, it held that the trial court abused its discretion because Kenneth’s deposition testimony proved he paid the down payment from personal settlement funds and that $50,000 was outstanding on the note. The court of appeals estimated Jon’s interest in the farm as the initial purchase price minus the down payment minus the amount outstanding. Thus the court of appeals concluded that Jon was entitled to a constructive trust on an undivided 35 percent of the farm.
A party seeking to impose a constructive trust has the initial burden of tracing funds to the specific property sought to be recovered. Meyers v. Baylor Univ., 6 S.W.2d 393, 394–95 (Tex. Civ. App.—Dallas 1928, writ ref’d); see Eaton v. Husted, 172 S.W.2d 493, 498 (Tex. 1943) (“[T]he beneficiary may follow the trust property, and claim every part of the blended property which the trustee cannot identify as his own.”) (emphasis in original). Once that burden is met, “the entire . . . property will be treated as subject to the trust, except in so far as the trustee may be able to distinguish and separate that which is his own.” Eaton, 172 S.W.2d at 498–99 (emphasis in original). The trial court and court of appeals agreed that Patricia traced Jon’s funds to the farm; thus, the burden shifted to the Flournoys to demonstrate what portion of the farm’s purchase price came from their own funds. See 201 S.W.3d at 839.
The Flournoys bet the farm (as it were) when they failed to obtain a jury finding on their affirmative claim that part of the purchase money came from personal funds. Therefore, this claim is waived on appeal unless they “conclusively established” it. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222–23 (Tex. 1992) (citing Tex. R. Civ. P. 279). The Flournoys’ only evidence on this point was Kenneth’s deposition testimony. Kenneth, however, was an “interested witness,” so his testimony, even if uncontradicted, “presents an issue to be determined by the trier of fact.” Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 467 (Tex. 1969).
The factfinder may treat an interested witness’s testimony as conclusive if it is “clear, direct, and positive and there are no circumstances tending to discredit or impeach the same.” Id. But here, Wilz attempted to contradict Kenneth’s testimony, and the jury in this civil case was free to draw negative inferences from the Flournoys’ repeated invocations of the Fifth Amendment. See TEX. R. EVID. 513(c); Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995) (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). The Flournoys failed to secure a jury finding on their claim, and the jury was free to disregard Kenneth’s deposition testimony as not credible. Therefore, the trial court did not abuse its discretion in imposing a constructive trust on the entire farm.
Accordingly, we grant Patricia Wilz’s petition for review, and without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and render judgment that the entire farm is subject to a constructive trust, see Tex. R. App. P. 60.2(c).
OPINION DELIVERED: June 29, 2007
Saturday, June 30, 2007
Ramos v. Richardson (Tex. Jun. 29, 2007)(per curiam)
Texas Supreme Court Reverses Dismissal of Prisoner's Suit as Untimely
Construes Mailbox Rule In Context Where Appellant Does Not Have Access to U. S. Mailbox
Ramos v. Richardson, No. 06-0336 (Tex. Jun. 29, 2007)(per curiam)(prisoner suit, timeliness of notice of appeal)
Full style: Armando Ramos, Sr., et al. v. Dr. Ian Richardson & Valley Baptist Medical Center, et. al.; from Cameron County;
Appeals Court below: Corpus Christi Court of Appeals (13th appellate district)
No. 13 05 00204 CV-13-05-00205-CV, ___ S.W.3d ___, 02/09/2006)
Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and reinstates the appeal.
PER CURIAM OPINION
Petitioners Armando Ramos, an incarcerated pro se litigant, and members of his family originally brought medical malpractice actions against respondents Dr. Ian Richardson and Valley Baptist Medical Center. The trial court dismissed those suits on February 17, 2005, for noncompliance with the expert report requirements of section 74.351 of the Texas Civil Practice and Remedies Code. The petitioners appealed. The Texas Rules of Appellate Procedure required the notices of appeal to be filed by March 21, 2005. See Tex. R. App. P. 26.1, 4.1(a).[1] The petitioners claim Ramos delivered signed notices of appeal to the prison’s outgoing mailbox on March 9, 2005, for prison authorities to place in the United States mail. But the notices of appeal were not stamped “filed” by the clerk’s office of the court of appeals until March 22, 2005. The court of appeals dismissed the appeals, holding it was without jurisdiction because the petitioners’ notices of appeal were not timely filed within the plenary thirty-day period after entering judgment. ___ S.W.3d ___ (Tex. App.—Corpus Christi 2006, pet. filed); see Tex. R. Civ. P. 329b(d); Tex. R. App. P. 26.1. We reverse the court of appeals’ judgment and reinstate the appeals.
On March 4, 2005, the petitioners timely filed exceptions to the trial court’s order of dismissal. The petitioners argue such exceptions extended the timetable for their notices of appeal to ninety days under Rule 26.1(a)(2) of the Texas Rules of Appellate Procedure. We need not address this argument because the petitioners waived it by failing to advance it in their petition for review. See Tex. R. App. P. 55.2 (stating that a petitioner’s brief on the merits must be confined to issues or points stated in the petition for review).
In the alternative, the petitioners argue their notices of appeal were timely filed under the “mailbox rule,” which states a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline. Tex. R. Civ. P. 5; Tex. R. App. P. 9.2(b)(1). Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled “Proof of Mailing,” adds the following:
Though it may consider other proof, the appellate court will accept the following as conclusive proof of the date of mailing:
(A) a legible postmark affixed by the United States Postal Service;
(B) a receipt for registered or certified mail if the receipt is endorsed by the United States Postal Service; or
(C) a certificate of mailing by the United States Postal Service.
Tex. R. App. P. 9.2(b)(2). Rule 9.2(b)(2) makes it clear that the petitioners have the burden of providing some measure of proof that their notices of appeal were placed in the United States mail on or before March 21, 2005. Such proof is present in the record in the form of the filing letter accompanying the petitioners’ notices of appeal and the certificate of service, which both state the notices of appeal were placed in the “outgoing prison mailbox” on March 9, 2005.
The respondents argue that, for purposes of the “mailbox rule,” placing the notices of appeal into the outgoing prison mailbox is not the equivalent of placing them into the United States mail. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999) (“[W]hen the sender of a document relies on office routine or custom to support an inference that the document was mailed, the sender must provide corroborating evidence that the practice was actually carried out.”).
But we have held on more than one occasion that an inmate who does everything necessary to satisfy timeliness requirements must not be penalized if the document is ultimately filed tardily because of an error on the part of officials over whom the inmate has no control. See, e.g., Williams v. T.D.C.J.-I.D., 142 S.W.3d 308, 309-10 (Tex. 2004); Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).
In Williams, for example, an inmate’s docketing statement was not filed by the filing deadline solely because of an error by the clerk’s office of the court of appeals. 142 S.W.3d at 309. Because the inmate “did everything necessary to comply with the rules,” we held he could not be prejudiced. Id. at 310. And in Warner, we similarly declined to penalize an inmate who timely delivered a document to the prison mailbox. 135 S.W.3d at 684.
In this case, the record indicates Ramos did everything necessary to comply with the rules by placing the notices of appeal in the outgoing prison mailbox on March 9, 2005. It is not clear when prison officials placed the notices of appeal in the United States mail, but because they were received by the clerk on March 22, 2005, it is logical to assume they were placed in the mail, as was required under the rules, on or before March 21, 2005. Though the respondents contend Ramos could just as easily have given the notices of appeal to a family member who filed them in person after the March 21, 2005 deadline, there is nothing in the record to suggest that occurred.
Accordingly, we grant the petition for review and, without hearing oral argument, we reverse the court of appeals’ judgment and reinstate the petitioners’ appeals. See Tex. R. App. P. 59.1.
OPINION DELIVERED: June 29, 2007
[1] The court of appeals acted under the impression that the trial court’s order became final on March 19, 2005. This is incorrect because March 19 fell on a Saturday. Rule 4.1(a) states:
The day of an act, event, or default after which a designated period begins to run is not included when computing a period prescribed or allowed by these rules, by court order, or by statute. The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.
Tex. R. App. P. 4.1(a).
Construes Mailbox Rule In Context Where Appellant Does Not Have Access to U. S. Mailbox
Ramos v. Richardson, No. 06-0336 (Tex. Jun. 29, 2007)(per curiam)(prisoner suit, timeliness of notice of appeal)
Full style: Armando Ramos, Sr., et al. v. Dr. Ian Richardson & Valley Baptist Medical Center, et. al.; from Cameron County;
Appeals Court below: Corpus Christi Court of Appeals (13th appellate district)
No. 13 05 00204 CV-13-05-00205-CV, ___ S.W.3d ___, 02/09/2006)
Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and reinstates the appeal.
PER CURIAM OPINION
Petitioners Armando Ramos, an incarcerated pro se litigant, and members of his family originally brought medical malpractice actions against respondents Dr. Ian Richardson and Valley Baptist Medical Center. The trial court dismissed those suits on February 17, 2005, for noncompliance with the expert report requirements of section 74.351 of the Texas Civil Practice and Remedies Code. The petitioners appealed. The Texas Rules of Appellate Procedure required the notices of appeal to be filed by March 21, 2005. See Tex. R. App. P. 26.1, 4.1(a).[1] The petitioners claim Ramos delivered signed notices of appeal to the prison’s outgoing mailbox on March 9, 2005, for prison authorities to place in the United States mail. But the notices of appeal were not stamped “filed” by the clerk’s office of the court of appeals until March 22, 2005. The court of appeals dismissed the appeals, holding it was without jurisdiction because the petitioners’ notices of appeal were not timely filed within the plenary thirty-day period after entering judgment. ___ S.W.3d ___ (Tex. App.—Corpus Christi 2006, pet. filed); see Tex. R. Civ. P. 329b(d); Tex. R. App. P. 26.1. We reverse the court of appeals’ judgment and reinstate the appeals.
On March 4, 2005, the petitioners timely filed exceptions to the trial court’s order of dismissal. The petitioners argue such exceptions extended the timetable for their notices of appeal to ninety days under Rule 26.1(a)(2) of the Texas Rules of Appellate Procedure. We need not address this argument because the petitioners waived it by failing to advance it in their petition for review. See Tex. R. App. P. 55.2 (stating that a petitioner’s brief on the merits must be confined to issues or points stated in the petition for review).
In the alternative, the petitioners argue their notices of appeal were timely filed under the “mailbox rule,” which states a document is deemed timely filed if it is sent to the proper clerk by first-class mail in a properly addressed, stamped envelope on or before the last day for filing and is received not more than ten days beyond the filing deadline. Tex. R. Civ. P. 5; Tex. R. App. P. 9.2(b)(1). Rule 9.2(b)(2) of the Texas Rules of Appellate Procedure, entitled “Proof of Mailing,” adds the following:
Though it may consider other proof, the appellate court will accept the following as conclusive proof of the date of mailing:
(A) a legible postmark affixed by the United States Postal Service;
(B) a receipt for registered or certified mail if the receipt is endorsed by the United States Postal Service; or
(C) a certificate of mailing by the United States Postal Service.
Tex. R. App. P. 9.2(b)(2). Rule 9.2(b)(2) makes it clear that the petitioners have the burden of providing some measure of proof that their notices of appeal were placed in the United States mail on or before March 21, 2005. Such proof is present in the record in the form of the filing letter accompanying the petitioners’ notices of appeal and the certificate of service, which both state the notices of appeal were placed in the “outgoing prison mailbox” on March 9, 2005.
The respondents argue that, for purposes of the “mailbox rule,” placing the notices of appeal into the outgoing prison mailbox is not the equivalent of placing them into the United States mail. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999) (“[W]hen the sender of a document relies on office routine or custom to support an inference that the document was mailed, the sender must provide corroborating evidence that the practice was actually carried out.”).
But we have held on more than one occasion that an inmate who does everything necessary to satisfy timeliness requirements must not be penalized if the document is ultimately filed tardily because of an error on the part of officials over whom the inmate has no control. See, e.g., Williams v. T.D.C.J.-I.D., 142 S.W.3d 308, 309-10 (Tex. 2004); Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).
In Williams, for example, an inmate’s docketing statement was not filed by the filing deadline solely because of an error by the clerk’s office of the court of appeals. 142 S.W.3d at 309. Because the inmate “did everything necessary to comply with the rules,” we held he could not be prejudiced. Id. at 310. And in Warner, we similarly declined to penalize an inmate who timely delivered a document to the prison mailbox. 135 S.W.3d at 684.
In this case, the record indicates Ramos did everything necessary to comply with the rules by placing the notices of appeal in the outgoing prison mailbox on March 9, 2005. It is not clear when prison officials placed the notices of appeal in the United States mail, but because they were received by the clerk on March 22, 2005, it is logical to assume they were placed in the mail, as was required under the rules, on or before March 21, 2005. Though the respondents contend Ramos could just as easily have given the notices of appeal to a family member who filed them in person after the March 21, 2005 deadline, there is nothing in the record to suggest that occurred.
Accordingly, we grant the petition for review and, without hearing oral argument, we reverse the court of appeals’ judgment and reinstate the petitioners’ appeals. See Tex. R. App. P. 59.1.
OPINION DELIVERED: June 29, 2007
[1] The court of appeals acted under the impression that the trial court’s order became final on March 19, 2005. This is incorrect because March 19 fell on a Saturday. Rule 4.1(a) states:
The day of an act, event, or default after which a designated period begins to run is not included when computing a period prescribed or allowed by these rules, by court order, or by statute. The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.
Tex. R. App. P. 4.1(a).
Friday, June 29, 2007
June 29, 2007 Texas Supreme Court Opinions
Supreme Court releases opinions addressing intersection of tort law and first amendment (religion), sovereign immunity, mandatory forum selection, constructive trust, liability for workplace injury, and insurance subrogation. In a rare move, the Court, which is generally seen as pro-defendant, rules in favor of a prisoner who could not get to a U.S. mail box to make his notice of appeal timely under the customary application of the mailbox rule. Holding that the prisoner did all he could by placing the notice in the prison's outgoing mai lbox, the Court reverses the dismissal order of the court below, and reinstates the appeal.
Westbrook v. Penley, No. 04-0838 (Tex. Jun. 29, 2007)(O’Neill)(professional negligence tort against paster; ecclesiastical matter not subject to civil court jurisdiction as a matter of constitutional law, first amendment, freedom of religion, privacy, disclosure of affair)
C.L. Westbrook, Jr. V. Peggy Lee Penley; from Tarrant County; 2nd district (02 02 00260 CV, 146 S.W.3d 220, May 2, 2004)
The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction.
Justice O'Neill authored the opinion of the Court
Stephen F. Austin State Univ. v. Flynn, No. 04-0515 (Tex. Jun. 29, 2007)(Texas Tort Claims Act, TCA, recreational use statute, sovereign immunity; suit dismissed as jurisdictionally barred)
Stephen F. Austin State University v. Diane Flynn; from Nacogdoches County; 12th district (12 03 00240 CV, 202 S.W.3d 167, April 30, 2004)
The Court reverses the court of appeals' judgment and renders judgment dismissing the case.
Justice Medina authored the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice Green, and Justice Johnson joined, and in all but Part III of which Justice Hecht, Justice Wainwright, and Justice Willett joined.
Justice Hecht wrote a concurring opinion, in which Justice Wainwright and Justice Willett joined.
In Re Autonation, Inc., No. 05-0311 (Tex. Jun. 29, 2007)(Opinion by Justice Willett)(mandamus)(contractual forum selection clause enforced, mandamus relief granted, covenant not to compete, noncompete)
In re Autonation, Inc. and Auto M. Imports North, Ltd. D/b/a Mercedes-Benz of Houston-North; from Harris County; 14th district (14 05 00362 CV, ___ S.W.3d ___, Apr. 15, 2005)
stay order issued December 5, 2005, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Johnson joined.
Justice O'Neill delivered a concurring opinion.
Fortis Benefits v. Cantu, No. 05-0791 (Tex. Jun. 29, 2007)(Opinion by Justice Willett)(insurance law, subrogation)
Fortis Benefits V. Vanessa Cantu and Ford Motor Company; from Johnson County; 10th district (10 04 00080 CV, 170 S.W.3d 755, Jul. 13, 2005)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court.
Central Ready Mix Concrete Co., Inc. v. Islas, No. 05-0940 (Tex. Jun. 29, 2007)(Opinion by Justice Brister)(liability for work-related injury, independent contractor, degree of control, negligence, duty)
Central Ready Mix Concrete Company, Inc. v. Luciano Islas; from Hidalgo County; 13th district (13 03 00099 CV, ___ S.W.3d ___, Feb. 24, 2005)
motion to order respondent to revise his response dismissed as moot
motion to strike dismissed as moot
The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court.
Ramos v. Richardson, No. 06-0336 (Tex. Jun. 29, 2007)(per curiam)(prisoner suit, timeliness of notice of appeal, construction of mailbox rule)
Armando Ramos, Sr., et al. v. Dr. Ian Richardson & Valley Baptist Medical Center, et. al.; from Cameron County; 13th district (13 05 00204 CV&13 05 00205 CV, ___ S.W.3d ___, Feb. 9, 2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Wilz v. Flournoy, No. 06-0913 (Tex. Jun. 29, 2007)(per curiam)(constructive trust, breach of fiduciary duty, trust, conversion, invocation of fifth amendment privilege in civil proceeding)
Patricia Wilz, Guardian of Jon Patrick Flournoy, an Incapacitated Person V. Kenneth W. and June Flournoy; from Limestone County; 10th district (10 05 00089 CV, 201 S.W.3d 833, July 19, 2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Westbrook v. Penley, No. 04-0838 (Tex. Jun. 29, 2007)(O’Neill)(professional negligence tort against paster; ecclesiastical matter not subject to civil court jurisdiction as a matter of constitutional law, first amendment, freedom of religion, privacy, disclosure of affair)
C.L. Westbrook, Jr. V. Peggy Lee Penley; from Tarrant County; 2nd district (02 02 00260 CV, 146 S.W.3d 220, May 2, 2004)
The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction.
Justice O'Neill authored the opinion of the Court
Stephen F. Austin State Univ. v. Flynn, No. 04-0515 (Tex. Jun. 29, 2007)(Texas Tort Claims Act, TCA, recreational use statute, sovereign immunity; suit dismissed as jurisdictionally barred)
Stephen F. Austin State University v. Diane Flynn; from Nacogdoches County; 12th district (12 03 00240 CV, 202 S.W.3d 167, April 30, 2004)
The Court reverses the court of appeals' judgment and renders judgment dismissing the case.
Justice Medina authored the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice Green, and Justice Johnson joined, and in all but Part III of which Justice Hecht, Justice Wainwright, and Justice Willett joined.
Justice Hecht wrote a concurring opinion, in which Justice Wainwright and Justice Willett joined.
In Re Autonation, Inc., No. 05-0311 (Tex. Jun. 29, 2007)(Opinion by Justice Willett)(mandamus)(contractual forum selection clause enforced, mandamus relief granted, covenant not to compete, noncompete)
In re Autonation, Inc. and Auto M. Imports North, Ltd. D/b/a Mercedes-Benz of Houston-North; from Harris County; 14th district (14 05 00362 CV, ___ S.W.3d ___, Apr. 15, 2005)
stay order issued December 5, 2005, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Johnson joined.
Justice O'Neill delivered a concurring opinion.
Fortis Benefits v. Cantu, No. 05-0791 (Tex. Jun. 29, 2007)(Opinion by Justice Willett)(insurance law, subrogation)
Fortis Benefits V. Vanessa Cantu and Ford Motor Company; from Johnson County; 10th district (10 04 00080 CV, 170 S.W.3d 755, Jul. 13, 2005)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court.
Central Ready Mix Concrete Co., Inc. v. Islas, No. 05-0940 (Tex. Jun. 29, 2007)(Opinion by Justice Brister)(liability for work-related injury, independent contractor, degree of control, negligence, duty)
Central Ready Mix Concrete Company, Inc. v. Luciano Islas; from Hidalgo County; 13th district (13 03 00099 CV, ___ S.W.3d ___, Feb. 24, 2005)
motion to order respondent to revise his response dismissed as moot
motion to strike dismissed as moot
The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court.
Ramos v. Richardson, No. 06-0336 (Tex. Jun. 29, 2007)(per curiam)(prisoner suit, timeliness of notice of appeal, construction of mailbox rule)
Armando Ramos, Sr., et al. v. Dr. Ian Richardson & Valley Baptist Medical Center, et. al.; from Cameron County; 13th district (13 05 00204 CV&13 05 00205 CV, ___ S.W.3d ___, Feb. 9, 2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Wilz v. Flournoy, No. 06-0913 (Tex. Jun. 29, 2007)(per curiam)(constructive trust, breach of fiduciary duty, trust, conversion, invocation of fifth amendment privilege in civil proceeding)
Patricia Wilz, Guardian of Jon Patrick Flournoy, an Incapacitated Person V. Kenneth W. and June Flournoy; from Limestone County; 10th district (10 05 00089 CV, 201 S.W.3d 833, July 19, 2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Sunday, June 24, 2007
Schaub, M.D. v. Sanchez (Tex. June 22, 2007)
Texas Supreme Court Renders Judgment for Defendants in Medical Malpractice Suit
Lowry Schaub, MD v. Sanchez No. 06-0375 (Tex. Jun 22, 2007)(per curiam)(HCLC, patient's informed consent)
Texas Supreme Court Cause No.: 06‑0375
Full style of Case: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Opinion below: Sanchez v. Schaub, 184 S.W.3d 901 (Tex.App. - Amarillo, Feb. 2, 2006)
Appeals Court: Seventh Court of Appeals, Opinion by Chief Justice Brian Quinn
Appellate Court Cause Number and link to docket: No. 07-04-00057-CV
Trial Court: 237th District Court
Trial Court Judge: Honorable Sam Abel Medina
Supreme Court's Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment for the Defendants.
Supreme Court opinion type: Per curiam (Justice Phil Johnson not sitting)
Also see eBriefs in the Texas Supreme Court in Schaub v. Sanchez No. 06-0275 (Tex. Jun 22, 2007)
PER CURIAM OPINION
In this health care liability case, we render a take-nothing judgment because the only theories under which the patient could recover were dismissed by agreed order in the trial court.
Janie Sanchez sued Doctors Lowry Schaub and Kevin Crawford for failing to obtain her informed consent to perform a stellate ganglion block—a spinal injection that anesthetizes a collection of nerves in the patient’s neck. By agreed order, the trial court dismissed with prejudice Sanchez’s other malpractice-related claims, leaving only her claim that the doctors “failed to obtain informed consent with regard to the stellate ganglion block.” The trial court granted summary judgment in favor of the doctors on grounds that Sanchez had signed forms consenting to the procedure.
The court of appeals reversed, holding that the forms, which did not give specific consent to a stellate ganglion block, incorporated recognized common-law duties regarding informed consent. 184 S.W.3d 901, 903-04. It reasoned that performing the procedure to which Sanchez had verbally objected might have deviated from accepted medical practices, thus raising a fact issue regarding Sanchez’s consent. The court of appeals concluded that the trial court should have proceeded to trial to hear testimony on accepted medical practices in these circumstances. We reverse the court of appeals’ judgment because the summary judgment record conclusively negates Sanchez’s informed consent claim.
Doctor Crawford operated on Sanchez’s broken wrist in December 1999. Afterwards, Sanchez experienced pain, numbness, and tingling in the hand. Crawford recommended a stellate ganglion block. Two blocks were performed, but they were ineffective. Sanchez told Crawford that she did not want another block performed. Crawford recommended a wrist manipulation procedure as an alternative to another block. Before the wrist manipulation, Sanchez signed two consent forms, one at Crawford’s office a few days before surgery, and the other on the day of surgery. Doctor Schaub, an anesthesiologist, assisted with the surgery, which was performed under general anesthesia. The doctors testified that during the surgery, they saw signs of an acute flare-up of Sanchez’s reflex sympathetic dystrophy, a condition of stiffness and swelling of the hand that can cause severe post-operative pain, inhibited movement, and reduced benefits from surgery. The doctors determined that another block would mitigate these symptoms, so they performed a third block. Sanchez presented some evidence that performing the block while she was unconscious deviated from the accepted medical standard of care. As a result of this third block, Sanchez developed an infection, resulting in spinal surgery.
Sanchez’s informed consent claim is governed by section 6.02 of former article 4590i, now codified as section 74.101 of the Civil Practice and Remedies Code. Former section 6.02 provides:
In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.[1]
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (as amended) (current version at Tex. Civ. Prac. & Rem. Code § 74.101). Under this statute, Sanchez can prevail on her informed consent claim only if she shows that the doctors negligently failed to disclose the procedure’s risks or hazards.
Sanchez argues that because she opted for wrist manipulation rather than another block, and had earlier informed Dr. Crawford that she did not want any more block injections, she refused consent to the block. Thus, she argues, her lack of consent supports a claim for lack of informed consent. But under section 6.02, lack of informed consent is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure. See Barclay v. Campbell, 704 S.W.2d 8, 9–10 (Tex. 1986) (reversing directed verdict in favor of physician where the plaintiff presented evidence of a lack of informed consent by showing that the complained-of condition was a risk inherent to the procedure performed and that the risk could influence a reasonable person’s decision to consent to the procedure).
Sanchez, however, does not complain that she was unaware of the risks or hazards of the block. To the contrary, she was fully aware of the risks, having twice undergone the procedure. As she stated in her summary judgment affidavit, “I was informed of the danger of the treatment.” Sanchez verbally objected to a third block, but an action for total lack of consent sounds in battery or negligence—claims that Sanchez agreed to dismiss—not informed consent under section 6.02. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (stating that failure to obtain a patient’s consent to treatment can give rise to a cause of action for battery); Binur v. Jacobo, 135 S.W.3d 646, 655–56 (Tex. 2004) (explaining that misdiagnosis and mistreatment might constitute negligence, but do not give rise to a claim for lack of informed consent); Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (“[T]he general rule in Texas is that a physician who provides treatment without consent commits a battery.”). Moreover, the court of appeals’ suggestion that a doctor’s deviation from accepted medical standards falls outside the scope of the patient’s consent would mean that every negligence claim is likewise an informed consent claim. See 184 S.W.3d 901, 904. This result is inconsistent with the statutory definition of informed consent.
Finally, there is the fact that Sanchez, subsequent to her earlier verbal objections to a third block, consented in writing to “different procedures than those planned” and “any anesthesia deemed advisable” by Dr. Schaub, and acknowledged that “the anesthesia may have to be changed possibly without explanation to me[.]” Even if we agree with Sanchez that her earlier objection was not superseded by these two later-signed consent forms, performing a procedure without her consent—again, a claim Sanchez agreed to drop—is not the same as performing it without her informed consent, defined narrowly as “failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.” Given the statute’s plain language, the summary judgment evidence cannot support a claim that the doctors failed to obtain Sanchez’s informed consent.
Accordingly, we reverse the court of appeals’ judgment and, without hearing oral argument, render a judgment that Sanchez take nothing. See Tex. R. App. P. 59.1; 60.2(c).
OPINION RELEASED: June 22, 2007
[1] Section 74.101 of the Civil Practice and Remedies Code is identical.
Search terms: HCLC Texas cases, Texas medical malpractice cases
Questions: What is informed consent; what constitutes patient's informed consent?
Lowry Schaub, MD v. Sanchez No. 06-0375 (Tex. Jun 22, 2007)(per curiam)(HCLC, patient's informed consent)
Texas Supreme Court Cause No.: 06‑0375
Full style of Case: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Opinion below: Sanchez v. Schaub, 184 S.W.3d 901 (Tex.App. - Amarillo, Feb. 2, 2006)
Appeals Court: Seventh Court of Appeals, Opinion by Chief Justice Brian Quinn
Appellate Court Cause Number and link to docket: No. 07-04-00057-CV
Trial Court: 237th District Court
Trial Court Judge: Honorable Sam Abel Medina
Supreme Court's Disposition: Without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment for the Defendants.
Supreme Court opinion type: Per curiam (Justice Phil Johnson not sitting)
Also see eBriefs in the Texas Supreme Court in Schaub v. Sanchez No. 06-0275 (Tex. Jun 22, 2007)
PER CURIAM OPINION
In this health care liability case, we render a take-nothing judgment because the only theories under which the patient could recover were dismissed by agreed order in the trial court.
Janie Sanchez sued Doctors Lowry Schaub and Kevin Crawford for failing to obtain her informed consent to perform a stellate ganglion block—a spinal injection that anesthetizes a collection of nerves in the patient’s neck. By agreed order, the trial court dismissed with prejudice Sanchez’s other malpractice-related claims, leaving only her claim that the doctors “failed to obtain informed consent with regard to the stellate ganglion block.” The trial court granted summary judgment in favor of the doctors on grounds that Sanchez had signed forms consenting to the procedure.
The court of appeals reversed, holding that the forms, which did not give specific consent to a stellate ganglion block, incorporated recognized common-law duties regarding informed consent. 184 S.W.3d 901, 903-04. It reasoned that performing the procedure to which Sanchez had verbally objected might have deviated from accepted medical practices, thus raising a fact issue regarding Sanchez’s consent. The court of appeals concluded that the trial court should have proceeded to trial to hear testimony on accepted medical practices in these circumstances. We reverse the court of appeals’ judgment because the summary judgment record conclusively negates Sanchez’s informed consent claim.
Doctor Crawford operated on Sanchez’s broken wrist in December 1999. Afterwards, Sanchez experienced pain, numbness, and tingling in the hand. Crawford recommended a stellate ganglion block. Two blocks were performed, but they were ineffective. Sanchez told Crawford that she did not want another block performed. Crawford recommended a wrist manipulation procedure as an alternative to another block. Before the wrist manipulation, Sanchez signed two consent forms, one at Crawford’s office a few days before surgery, and the other on the day of surgery. Doctor Schaub, an anesthesiologist, assisted with the surgery, which was performed under general anesthesia. The doctors testified that during the surgery, they saw signs of an acute flare-up of Sanchez’s reflex sympathetic dystrophy, a condition of stiffness and swelling of the hand that can cause severe post-operative pain, inhibited movement, and reduced benefits from surgery. The doctors determined that another block would mitigate these symptoms, so they performed a third block. Sanchez presented some evidence that performing the block while she was unconscious deviated from the accepted medical standard of care. As a result of this third block, Sanchez developed an infection, resulting in spinal surgery.
Sanchez’s informed consent claim is governed by section 6.02 of former article 4590i, now codified as section 74.101 of the Civil Practice and Remedies Code. Former section 6.02 provides:
In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.[1]
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (as amended) (current version at Tex. Civ. Prac. & Rem. Code § 74.101). Under this statute, Sanchez can prevail on her informed consent claim only if she shows that the doctors negligently failed to disclose the procedure’s risks or hazards.
Sanchez argues that because she opted for wrist manipulation rather than another block, and had earlier informed Dr. Crawford that she did not want any more block injections, she refused consent to the block. Thus, she argues, her lack of consent supports a claim for lack of informed consent. But under section 6.02, lack of informed consent is a particular subspecies of negligence based on a failure to disclose the risks or hazards of a procedure. See Barclay v. Campbell, 704 S.W.2d 8, 9–10 (Tex. 1986) (reversing directed verdict in favor of physician where the plaintiff presented evidence of a lack of informed consent by showing that the complained-of condition was a risk inherent to the procedure performed and that the risk could influence a reasonable person’s decision to consent to the procedure).
Sanchez, however, does not complain that she was unaware of the risks or hazards of the block. To the contrary, she was fully aware of the risks, having twice undergone the procedure. As she stated in her summary judgment affidavit, “I was informed of the danger of the treatment.” Sanchez verbally objected to a third block, but an action for total lack of consent sounds in battery or negligence—claims that Sanchez agreed to dismiss—not informed consent under section 6.02. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (stating that failure to obtain a patient’s consent to treatment can give rise to a cause of action for battery); Binur v. Jacobo, 135 S.W.3d 646, 655–56 (Tex. 2004) (explaining that misdiagnosis and mistreatment might constitute negligence, but do not give rise to a claim for lack of informed consent); Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (“[T]he general rule in Texas is that a physician who provides treatment without consent commits a battery.”). Moreover, the court of appeals’ suggestion that a doctor’s deviation from accepted medical standards falls outside the scope of the patient’s consent would mean that every negligence claim is likewise an informed consent claim. See 184 S.W.3d 901, 904. This result is inconsistent with the statutory definition of informed consent.
Finally, there is the fact that Sanchez, subsequent to her earlier verbal objections to a third block, consented in writing to “different procedures than those planned” and “any anesthesia deemed advisable” by Dr. Schaub, and acknowledged that “the anesthesia may have to be changed possibly without explanation to me[.]” Even if we agree with Sanchez that her earlier objection was not superseded by these two later-signed consent forms, performing a procedure without her consent—again, a claim Sanchez agreed to drop—is not the same as performing it without her informed consent, defined narrowly as “failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.” Given the statute’s plain language, the summary judgment evidence cannot support a claim that the doctors failed to obtain Sanchez’s informed consent.
Accordingly, we reverse the court of appeals’ judgment and, without hearing oral argument, render a judgment that Sanchez take nothing. See Tex. R. App. P. 59.1; 60.2(c).
OPINION RELEASED: June 22, 2007
[1] Section 74.101 of the Civil Practice and Remedies Code is identical.
Search terms: HCLC Texas cases, Texas medical malpractice cases
Questions: What is informed consent; what constitutes patient's informed consent?
Friday, June 22, 2007
June 22, 2007 - Texas Supreme Court Hands Down One Per Curiam Opinion
The Supreme Court of Texas released a single opinion today, in which it ruled for the defendant doctors in a health care liability suit
Schaub, M.D. et al v. Sanchez, No. 06‑0375 (Tex. Jun. 22, 2007)(per curiam)(medical malpractice)
Full style: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Appellate court below: Seventh Court of Appeals (Amarillo, Texas)
Appellate Cause No. 7‑04‑00057‑CV, ___ S.W.3d ___, Feb. 2, 2006
Disposition: Without hearing oral argument, the Supreme Court reverses the Seventh Court of Appeals' judgment and renders judgment for the defendant doctor.
Per Curiam Opinion (without Justice Johnson's participation)
Find terms: Texas health care liability cases, decisions, opinions, HCLC, medical malpractice cases in Texas, informed consent of patient, failure to obtain informed consent, validity of consent, written consent, oral objection
Schaub, M.D. et al v. Sanchez, No. 06‑0375 (Tex. Jun. 22, 2007)(per curiam)(medical malpractice)
Full style: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Appellate court below: Seventh Court of Appeals (Amarillo, Texas)
Appellate Cause No. 7‑04‑00057‑CV, ___ S.W.3d ___, Feb. 2, 2006
Disposition: Without hearing oral argument, the Supreme Court reverses the Seventh Court of Appeals' judgment and renders judgment for the defendant doctor.
Per Curiam Opinion (without Justice Johnson's participation)
Find terms: Texas health care liability cases, decisions, opinions, HCLC, medical malpractice cases in Texas, informed consent of patient, failure to obtain informed consent, validity of consent, written consent, oral objection
Sunday, June 17, 2007
Goodyear Tire and Rubber Co. v. Mayes (Tex. Jun 15, 2007)
Texas Supreme Court Sides With Employer in Suit for Negligent Entrustment Following Wreck Caused by Fatigued Employee
Goodyear Tire and Rubber Co. v. Mayes, No. 04-0993 (Tex. Jun 15, 2007)(per curiam) (PI-auto, negligent entrustment, employer liability, respondeat superior)
Full case style: Goodyear Tire and Rubber Company v. Patrick Mayes; from Harris County;
Appellate Court and Opinion below: First Court of Appeals, No. 01-03-00157-CV, 144 S.W.3d 50 (Tex.App.-Houston [1st Dist.] June 10, 2004)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the First Court of Appeals' judgment and renders judgment for the Defendant.
Find terms: personal injury suit, PI-auto, negligence, negligence per se, negligent entrustment, respondeat superior, course and scope of employment, workers compensation, standard of review for summary judgment, fact issue
PER CURIAM OPINION
An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005). Here, the court of appeals, reversing the trial court’s judgment, failed to apply the proper standard of review. We reverse and render judgment that the plaintiff take nothing.
Corte Adams worked as a tire alignment technician for Goodyear at its Bryan, Texas, shop. Adams regularly commuted approximately two hours from his home in Houston to Bryan, worked an eight- to ten-hour shift at the Bryan store, and then commuted approximately two hours home. He used Goodyear vehicles to travel between Bryan and Houston. Occasionally, on his trips to and from Houston, Adams shuttled tires between Goodyear’s Bryan store and its Homestead store in Houston. If Adams was able to deliver the tires before the Homestead store closed, he was paid for the trip from Bryan to Houston. If he arrived after the store had closed, Adams would deliver the tires to the Homestead store the next morning before setting out for Bryan, and his workday would begin with the delivery.
On February 26, 1999, Adams left Bryan headed to the Homestead store with a tire delivery. By the time he arrived, the store was closed. Adams then drove to his father’s nearby home, with the tires still on the back of the truck. There he ate dinner, drank a few beers, and slept for approximately five hours. A little before 3:00 a.m., Adams left the apartment to purchase cigarettes for his father. On his way to the convenience store, Adams fell asleep at the wheel, crossed the center line into oncoming traffic, and struck head-on a truck driven by Patrick Mayes. Both Mayes and Adams were injured in the collision.
Mayes sued Adams for negligence, negligence per se, and gross negligence, and Goodyear for negligent entrustment and vicarious liability under a respondeat superior theory.[1] The trial court granted Goodyear’s motion for summary judgment, severed Mayes’s suit against Goodyear from his suit against Adams, and rendered a final take-nothing judgment in favor of Goodyear.
On appeal, a divided court of appeals reversed the trial court’s judgment and remanded the case. 144 S.W.3d 50, 58. Assuming all evidence favorable to the nonmovant (Mayes) was true, and indulging every reasonable inference and resolving any doubts in his favor, the court held there existed sufficient evidence to raise a genuine issue of material fact on whether Adams was acting in the course and scope of his employment at the time of the accident. Id. at 55-56. The court also held that Mayes presented sufficient evidence to survive summary judgment on his negligent entrustment claim. Id. at 57-58. The dissent concluded that the undisputed facts in the case precluded Mayes’s claims as a matter of law. 144 S.W.3d at 60 (Jennings, J., dissenting).
An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Spates, 186 S.W.3d at 568.
Goodyear argues the court of appeals erred in finding a genuine issue of material fact as to whether Adams’s actions were within the course and scope of his employment when the accident occurred. Generally, a person has no duty to control the conduct of another. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983).
Under the theory of respondeat superior, however, an employer may be vicariously liable for the negligent acts of its employee if the employee’s actions are within the course and scope of his employment. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). “[A]n employer is liable for its employee’s tort only when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (citing Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971)).
The employee’s acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment. Minyard Food Stores, 80 S.W.3d at 577 (citing Smith v. M Sys. Food Stores, Inc., 297 S.W.2d 112, 114 (Tex. 1957)). Accordingly, “if an employee deviates from the performance of his duties for his own purposes, the employer is not responsible for what occurs during that deviation.” Minyard Food Stores, 80 S.W.3d at 577.
The summary judgment record contains uncontraverted evidence that Adams awoke at his father’s home close to 3:00 a.m., drove the Goodyear truck to a nearby convenience store to purchase his father’s cigarettes, and planned to return. It was during this personal errand that Adams fell asleep at the wheel and hit Mayes’s truck head-on. Adams’s personal errand was not an act in furtherance of his employer’s business or for the accomplishment of the object for which he was hired. Evidence that Adams had possession of the Goodyear truck with Goodyear tires on board, had a morning delivery to make, was available via pager twenty-four hours a day, and was not restricted from using the truck for personal business fail to support the requirements of respondeat superior.
There is no conflicting evidence or conflicting set of inferences to raise a genuine issue of material fact over whether, at the time of the accident, Adams was acting in furtherance of Goodyear’s business or for the accomplishment of the object for which Goodyear hired him. The court of appeals erred in considering only the evidence favorable to Mayes, ignoring undisputed evidence in the record that cannot be disregarded. 144 S.W.3d at 55 (“We, however, must view only the evidence and inferences favorable to Mayes, the non-movant.”).
As a second independent basis for its judgment, the court of appeals considered “Goodyear’s authorization of workers’ compensation payments to Adams for the injuries he sustained in the accident” sufficient to raise a genuine issue of material fact as to whether Adams was acting in the course and scope of his employment. 144 S.W.3d at 57. The record does not contain evidence that Goodyear authorized workers’ compensation payments for Adams, but only disputed evidence that Adams received workers’ compensation checks and that he completed a workers’ compensation form. This constitutes evidence that Adams may have received workers’ compensation benefits; it is not competent evidence that Adams was acting within the course and scope of his employment at Goodyear at the time of the accident. No reasonable juror could conclude that Goodyear admitted Adams was acting within the course and scope of his employment based on all of the evidence in this record.
Goodyear also argues the court of appeals erred by finding a genuine issue of material fact for Mayes’s liability claim under a negligent entrustment theory. To establish liability under this theory, Mayes must show that: (1) Goodyear entrusted the vehicle to Adams; (2) Adams was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, Goodyear knew or should have known that Adams was an unlicensed, incompetent, or reckless driver; (4) Adams was negligent on the occasion in question; and (5) Adams’s negligence proximately caused the accident. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).
It is undisputed that Goodyear entrusted its truck to Adams, that Adams was negligent by falling asleep behind the wheel, and that his negligence proximately caused the accident. However, the record contains no evidence that, at the time Goodyear entrusted the vehicle to Adams, Adams was an unlicensed, incompetent, or reckless driver or that Goodyear knew or should have known Adams was an unlicensed, incompetent, or reckless driver. First, there is no dispute that Adams was a licensed driver. Second, the evidence upon which Mayes relies to raise a fact issue regarding Adams’s alleged incompetence or recklessness as a driver is insufficient.
Mayes claims that the three-year driving record obtained as part of Goodyear’s hiring process in 1998 is some evidence that Goodyear knew or should have known that Adams was an incompetent or reckless driver when Goodyear entrusted the vehicle to Adams. The 1998 record includes two citations: one for driving without liability insurance in July 1995 and another for a June 1996 collision in which Adams rear-ended a vehicle at a stoplight. Mayes adds that the only ticket Adams received while driving a Goodyear truck—for exceeding the speed limit by about five miles per hour—also constitutes some evidence that Goodyear knew that Adams was an incompetent or reckless driver. It is undisputed that Adams’s only accident in a Goodyear truck was his collision with Mayes. This evidence does not raise a genuine issue of material fact as to whether Adams was, or Goodyear knew or should have known that Adams was, an incompetent or reckless driver at the time Goodyear entrusted him with the truck.
The court of appeals suggests that Adams’s long work week, lengthy commute, and work schedule raised a fact issue regarding Adams’s competence as a driver. The court of appeals explained that Mayes’s negligent entrustment claim should survive Goodyear’s motion for summary judgment “[b]ecause Adams may have been incompetent to drive because of insufficient sleep, and Goodyear was aware of this possibility.” Goodyear’s knowledge of Adams’s work schedule and his commute, without more, does not raise a fact issue that he was, or that Goodyear knew or should have known that he was, an incompetent driver due to insufficient sleep. The court of appeals erred in reversing summary judgment on the issue of negligent entrustment.
Therefore, we grant Goodyear’s petition without hearing oral argument, reverse the court of appeals’ judgment, and render that Mayes take nothing against Goodyear. See Tex. R. App. P. 59.1.
OPINION DELIVERED: June 15, 2007
[1] Mayes’s pleadings do not specifically include a claim for negligent entrustment, but he did not object to Goodyear’s characterization of his claims. Further, Mayes argued before the court of appeals that fact issues exist with regard to negligent entrustment. The court of appeals treated his unpleaded claim as having been tried by consent. We treat his unpleaded claim similarly and address the issue of negligent entrustment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (parties may try an issue by consent in summary judgment proceedings).
Brinson Ford, Inc. v. Alger (Tex. Jun. 15, 2007)(per curiam)
Texas Supreme Court Rules in Defedant's Favor in Premises Liability Lawsuit
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(PI, premises liability)
Full case style: Brinson Ford, Inc. Indidvidually and d/b/a/ Brinson Ford Lincoln Mercury v. Connie W. Alger
Appellate court and opinion below: Tenth Court of Appeals, No. 10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment for the Defendant.
Find terms: premises liability, unreasonable risk, known to property owner
PER CURIAM OPINION
Connie Alger fell from a pedestrian ramp while visiting a car dealership and brought this premises liability action for the injuries she sustained. The trial court granted summary judgment in the premises owner’s favor without specifying the ground. A divided court of appeals reversed, holding that fact issues existed as to the premises owner’s actual or constructive knowledge of the condition, whether the condition posed an unreasonable risk of harm, and whether the premises owner failed to exercise reasonable care to reduce or eliminate the risk of harm. 169 S.W.3d 340.
We hold that Alger presented no evidence of a premises condition that posed an unreasonable risk of harm, and reverse and render judgment in Brinson Ford’s favor.
Connie Alger went to Brinson Ford, Inc. to pick up friends who were having work done on their car. Alger entered the dealership through a side entrance, but exited through the front door where a pedestrian ramp leads to the parking lot. Although there were handrails along most of the ramp as it sloped down to ground level, a small portion of the ramp extended beyond the handrails to the sidewalk. The highest point of this unrailed section was four inches above the sidewalk, and it was marked by yellow paint along the ramp’s edges and around the parking space next to the ramp. The ramp is the dealership’s main entrance, and Brinson Ford had no record that anyone had ever fallen from it in the nearly ten years between the business’s opening and Alger’s fall. Alger testified that when she reached the point where the handrails ended, she thought the ramp had ended too. When she turned to walk toward her car, Alger stepped off the unrailed portion of the ramp and fell.
Alger sued Brinson Ford alleging that the ramp’s configuration was a premises condition posing an unreasonable risk of harm, Brinson Ford knew or should have known of the danger, and Brinson Ford failed to exercise ordinary care to protect her from it.
The dealership filed a motion for summary judgment under sections (c) and (i) of Rule 166a of the Texas Rules of Civil Procedure. The motion asserted a number of grounds, including that there was no evidence of a premises condition that presented an unreasonable risk of harm; alternatively, Brinson Ford contended the evidence established as a matter of law that the condition of the premises did not pose an unreasonable risk of harm.
In response to the dealership’s motion, Alger submitted the affidavit of its safety engineering expert, Jack T. Madeley. Madeley’s affidavit identifies the safety requirements of the Texas Accessibility Standards established by the Texas Department of Licensing and Regulation [1] and the Standard Practice for Safe Walking Surfaces[2], and acknowledges that the ramp meets both sets of requirements. But Madeley opines that:
[t]he ramp in question is deceiving in appearance. The upper level of the ramp has railing down the sides. The lower part does not. This can give a visual cue indicating the ramp does not extend. The sides of the lower portion of the ramp where Ms. Alger fell was a varying slope along the side of the parking area. If the yellow stripping as seen in the photos was present at the time of the incident . . . [i]t would likely lead one to believe that it was to mark the edge of parking spaces.
Madeley’s affidavit further concludes that the ramp was “unreasonably dangerous.” The court of appeals held that this statement was conclusory and thus no evidence of a premises defect. 169 S.W.3d at 344. Alger does not challenge that holding here, and we give no weight to Madeley’s legal conclusion.
The plaintiff in a premises liability case must establish that the premises owner knew or should have known of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused the plaintiff’s injuries. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). The duty a premises owner owes to its invitees is not that of an insurer. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). That is to say, a condition is not unreasonably dangerous simply because it is not foolproof. Brookshire Grocery Co. v. Taylor, ___ S.W. 3d ___, ___ (Tex. 2006). A condition is unreasonably dangerous if it presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.
We hold that, as a matter of law, the ramp at issue in this case did not pose an unreasonable risk of harm. The area of the ramp without handrails met applicable safety standards and was further outlined in yellow stripping that the dealership added, which is a common method used to indicate a change in elevation. The highest point of the downward-sloping unrailed portion of the ramp was four inches, less than the height of an average step. No other customer visiting the property over a ten-year period had ever been injured by the ramp, nor has the dealership received complaints about the ramp’s safety. Thus, the trial court properly granted summary judgment in the dealership’s favor, and the court of appeals erred in reversing the trial court’s judgment. Accordingly, we grant the petition for review and without hearing oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we reverse the court of appeals’ judgment and render judgment for Brinson Ford.
OPINION DELIVERED: June 15, 2007
[1] Available at http://www.license.state.tx.us/ab/tas/tassection04_02 to 04_09.pdf.
[2] American Society for Testing and Materials, Standard Practice for Safe Walking Surfaces, in the Annual Book of ASTM Standards 2 (1996).
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(PI, premises liability)
Full case style: Brinson Ford, Inc. Indidvidually and d/b/a/ Brinson Ford Lincoln Mercury v. Connie W. Alger
Appellate court and opinion below: Tenth Court of Appeals, No. 10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment for the Defendant.
Find terms: premises liability, unreasonable risk, known to property owner
PER CURIAM OPINION
Connie Alger fell from a pedestrian ramp while visiting a car dealership and brought this premises liability action for the injuries she sustained. The trial court granted summary judgment in the premises owner’s favor without specifying the ground. A divided court of appeals reversed, holding that fact issues existed as to the premises owner’s actual or constructive knowledge of the condition, whether the condition posed an unreasonable risk of harm, and whether the premises owner failed to exercise reasonable care to reduce or eliminate the risk of harm. 169 S.W.3d 340.
We hold that Alger presented no evidence of a premises condition that posed an unreasonable risk of harm, and reverse and render judgment in Brinson Ford’s favor.
Connie Alger went to Brinson Ford, Inc. to pick up friends who were having work done on their car. Alger entered the dealership through a side entrance, but exited through the front door where a pedestrian ramp leads to the parking lot. Although there were handrails along most of the ramp as it sloped down to ground level, a small portion of the ramp extended beyond the handrails to the sidewalk. The highest point of this unrailed section was four inches above the sidewalk, and it was marked by yellow paint along the ramp’s edges and around the parking space next to the ramp. The ramp is the dealership’s main entrance, and Brinson Ford had no record that anyone had ever fallen from it in the nearly ten years between the business’s opening and Alger’s fall. Alger testified that when she reached the point where the handrails ended, she thought the ramp had ended too. When she turned to walk toward her car, Alger stepped off the unrailed portion of the ramp and fell.
Alger sued Brinson Ford alleging that the ramp’s configuration was a premises condition posing an unreasonable risk of harm, Brinson Ford knew or should have known of the danger, and Brinson Ford failed to exercise ordinary care to protect her from it.
The dealership filed a motion for summary judgment under sections (c) and (i) of Rule 166a of the Texas Rules of Civil Procedure. The motion asserted a number of grounds, including that there was no evidence of a premises condition that presented an unreasonable risk of harm; alternatively, Brinson Ford contended the evidence established as a matter of law that the condition of the premises did not pose an unreasonable risk of harm.
In response to the dealership’s motion, Alger submitted the affidavit of its safety engineering expert, Jack T. Madeley. Madeley’s affidavit identifies the safety requirements of the Texas Accessibility Standards established by the Texas Department of Licensing and Regulation [1] and the Standard Practice for Safe Walking Surfaces[2], and acknowledges that the ramp meets both sets of requirements. But Madeley opines that:
[t]he ramp in question is deceiving in appearance. The upper level of the ramp has railing down the sides. The lower part does not. This can give a visual cue indicating the ramp does not extend. The sides of the lower portion of the ramp where Ms. Alger fell was a varying slope along the side of the parking area. If the yellow stripping as seen in the photos was present at the time of the incident . . . [i]t would likely lead one to believe that it was to mark the edge of parking spaces.
Madeley’s affidavit further concludes that the ramp was “unreasonably dangerous.” The court of appeals held that this statement was conclusory and thus no evidence of a premises defect. 169 S.W.3d at 344. Alger does not challenge that holding here, and we give no weight to Madeley’s legal conclusion.
The plaintiff in a premises liability case must establish that the premises owner knew or should have known of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused the plaintiff’s injuries. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). The duty a premises owner owes to its invitees is not that of an insurer. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). That is to say, a condition is not unreasonably dangerous simply because it is not foolproof. Brookshire Grocery Co. v. Taylor, ___ S.W. 3d ___, ___ (Tex. 2006). A condition is unreasonably dangerous if it presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.
We hold that, as a matter of law, the ramp at issue in this case did not pose an unreasonable risk of harm. The area of the ramp without handrails met applicable safety standards and was further outlined in yellow stripping that the dealership added, which is a common method used to indicate a change in elevation. The highest point of the downward-sloping unrailed portion of the ramp was four inches, less than the height of an average step. No other customer visiting the property over a ten-year period had ever been injured by the ramp, nor has the dealership received complaints about the ramp’s safety. Thus, the trial court properly granted summary judgment in the dealership’s favor, and the court of appeals erred in reversing the trial court’s judgment. Accordingly, we grant the petition for review and without hearing oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we reverse the court of appeals’ judgment and render judgment for Brinson Ford.
OPINION DELIVERED: June 15, 2007
[1] Available at http://www.license.state.tx.us/ab/tas/tassection04_02 to 04_09.pdf.
[2] American Society for Testing and Materials, Standard Practice for Safe Walking Surfaces, in the Annual Book of ASTM Standards 2 (1996).
Kallam v. Boyd (Tex. Jun. 15, 2007)(per curiam)
Texas Supreme Court Decides Not to Hear Medical Malpractice Appeal - Un-grants Petition for Review Following Plaintiff's Death
Kallam, M.D. v. Boyd, No. 05-0027 (Tex. Jun. 15, 2007)(per curiam)(medical malpractice, plaintiff died pending appeal)
Full case style: G. Byron Kallam, M.D.; Mary Angeline Finke, M.D.; The Medical Clinic of North Texas, P.A.; Obstetrical and Gynecological Associates v. Sharon Boyd
Appeals court below: Second Court of Appeals, No. 02-03-00362-CV, ___ S.W.3d ___, (Tex.App.- Fort Worth, Nov. 24, 2004) 2 petitions, e-Briefs in the Supreme Court
Disposition: Motion to substitute party granted; The Supreme Court withdraws its order of September 1, 2006, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
Find terms: medical malpractice, health care liability claims, HCLC, wrongful death, survival action, estate, affirmative defense of limitations, open courts challenge, constitutionality, effect of death of party on pending appeal
Also see: Comment on Kallam et al v. Boyd by Mary Alice Robbins, Texas Lawyer Blog
PER CURIAM OPINION
Sharon Boyd sued five health care providers for failing to diagnose her colorectal cancer. The trial court granted partial summary judgment dismissing Boyd’s claims of negligence that occurred more than two years before she filed suit as being barred by limitations.[1] That judgment became final by severance, and Boyd appealed. The court of appeals reversed in part, concluding that the Open Courts provision of the Texas Constitution[2] precluded application of the statute of limitations to bar claims before Boyd reasonably could have discovered them, and remanded the case to the trial court.[3] We granted the defendants’ petition for review to decide this issue, but shortly before oral argument, Boyd died.
Boyd’s death does not affect the court of appeals’ judgment or the continuation of this appeal.[4] But because of the change in the posture of the case, we decline to address the important constitutional issue that is presented. On remand, Boyd’s heirs or estate representative may, of course, continue the litigation.[5] Although we have held generally that “wrongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either,’”[6] respondent’s counsel and amicus curiae contend that the rule should be different in this case because Boyd’s death while on appeal resulted directly from the negligent misdiagnoses, and denying Open Courts protection to her family’s statutory claims on these facts would subvert public policy goals. We believe prudence dictates awaiting a case in which this important issue has been fully litigated below “so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question.”[7]
Accordingly, the order granting the petitions for review is withdrawn as improvidently granted, and the petitions for review are denied.
Opinion delivered: June 15, 2007
[1] Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, formerly Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (“Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.”) (current version at Tex. Civ. Prac. & Rem. Code § 74.251). The prior law continues in effect for cases like this one, filed before the new Act’s September 1, 2003 effective date.
[2] Tex. Const. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”).
[3] 152 S.W.3d 670, 687.
[4] Tex. R. App. P. 7.1(a)(1) (“Civil Cases. If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party’s name may be used on all papers.”).
[5] Tex. R. Civ. P. 151 (“If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.”).
[6] Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000) (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)).
[7] Yee v. City of Escondido, 503 U.S. 519, 538 (1992) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 552 n.3 (1990)).
Kallam, M.D. v. Boyd, No. 05-0027 (Tex. Jun. 15, 2007)(per curiam)(medical malpractice, plaintiff died pending appeal)
Full case style: G. Byron Kallam, M.D.; Mary Angeline Finke, M.D.; The Medical Clinic of North Texas, P.A.; Obstetrical and Gynecological Associates v. Sharon Boyd
Appeals court below: Second Court of Appeals, No. 02-03-00362-CV, ___ S.W.3d ___, (Tex.App.- Fort Worth, Nov. 24, 2004) 2 petitions, e-Briefs in the Supreme Court
Disposition: Motion to substitute party granted; The Supreme Court withdraws its order of September 1, 2006, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
Find terms: medical malpractice, health care liability claims, HCLC, wrongful death, survival action, estate, affirmative defense of limitations, open courts challenge, constitutionality, effect of death of party on pending appeal
Also see: Comment on Kallam et al v. Boyd by Mary Alice Robbins, Texas Lawyer Blog
PER CURIAM OPINION
Sharon Boyd sued five health care providers for failing to diagnose her colorectal cancer. The trial court granted partial summary judgment dismissing Boyd’s claims of negligence that occurred more than two years before she filed suit as being barred by limitations.[1] That judgment became final by severance, and Boyd appealed. The court of appeals reversed in part, concluding that the Open Courts provision of the Texas Constitution[2] precluded application of the statute of limitations to bar claims before Boyd reasonably could have discovered them, and remanded the case to the trial court.[3] We granted the defendants’ petition for review to decide this issue, but shortly before oral argument, Boyd died.
Boyd’s death does not affect the court of appeals’ judgment or the continuation of this appeal.[4] But because of the change in the posture of the case, we decline to address the important constitutional issue that is presented. On remand, Boyd’s heirs or estate representative may, of course, continue the litigation.[5] Although we have held generally that “wrongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either,’”[6] respondent’s counsel and amicus curiae contend that the rule should be different in this case because Boyd’s death while on appeal resulted directly from the negligent misdiagnoses, and denying Open Courts protection to her family’s statutory claims on these facts would subvert public policy goals. We believe prudence dictates awaiting a case in which this important issue has been fully litigated below “so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question.”[7]
Accordingly, the order granting the petitions for review is withdrawn as improvidently granted, and the petitions for review are denied.
Opinion delivered: June 15, 2007
[1] Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, formerly Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (“Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.”) (current version at Tex. Civ. Prac. & Rem. Code § 74.251). The prior law continues in effect for cases like this one, filed before the new Act’s September 1, 2003 effective date.
[2] Tex. Const. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”).
[3] 152 S.W.3d 670, 687.
[4] Tex. R. App. P. 7.1(a)(1) (“Civil Cases. If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party’s name may be used on all papers.”).
[5] Tex. R. Civ. P. 151 (“If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.”).
[6] Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000) (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)).
[7] Yee v. City of Escondido, 503 U.S. 519, 538 (1992) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 552 n.3 (1990)).
In Re Allstate County Mutual Ins. Co. (Tex. Jun. 14, 2007)(per curiam)
Texas Supreme Court Grants Mandamus Relief to Rein In Discovery
In Re Allstate County Mutual Ins. Co., No. 06-0878 (Tex. Jun. 15, 2007)(per curiam)(mandamus limiting discovery granted)
Full case style: In Re Allstate County Mutual Insurance Company and David Gonzalez
Appellate court and opinion below: Thirteenth Court of Appeals, No. 13-06-00458-CV, ___ S.W.3d ___, (Tex.App.-Corpus Christi, Sep. 28, 2006)
Disposition: Stay order issued October 30, 2006, lifted; Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Find terms: Discovery limitations, scope of discovery, reasonable requests, objection to discovery requests, relevance, irrelevant, overbroad, narrowly tailored, fishing expedition
Related case: In re Graco Children’s Products, No. 05-0479, (Tex. Oct 27, 2006)(per curiam)
PER CURIAM OPINION
Discovery is a tool to make the trial process more focused, not a weapon to make it more expensive. Thus trial courts “must make an effort to impose reasonable discovery limits.” In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (per curiam) (quotations omitted). In this suit alleging an insurer reneged on a $13,500 settlement offer, the trial court refused to impose any limit on the plaintiffs’ 213 discovery requests. As much of this discovery has no relation or relevance to the scope of the parties’ dispute, we grant mandamus relief. See In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (per curiam) (“[An] order that compels overly broad discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy.”) (quotations omitted).
Following a car accident, two plaintiffs (Jorge Karim and Teresita Manllo) brought a single suit against the other driver (Sang Cho), her carrier (Allstate County Mutual Insurance Company), and the latter’s adjuster (David Gonzalez). The plaintiffs sent the insurer and its adjuster a total of 89 requests for production, 59 interrogatories, and 65 requests for admission, including requests for:
$ transcripts of all testimony ever given by any Allstate agent on the topic of insurance;
$ every court order finding Allstate wrongfully adjusted the value of a damaged vehicle;
$ personnel files of every Allstate employee a Texas court has determined wrongfully assessed the value of a damaged vehicle; and
$ legal instruments documenting Allstate’s status as a corporation and its net worth.
Allstate and Gonzalez objected to the discovery and moved for summary judgment on the ground that the plaintiffs had no direct action against a third party’s insurer. See Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 149 (Tex. 1994) (prohibiting unfair settlement claims by third parties); State Farm County Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per curiam) (prohibiting direct actions against a third party’s insurer “until it has been established, by judgment or agreement, that the insured has a legal obligation to pay damages to the injured party”). The trial court denied the summary judgment, rejected the objections, and ordered the defendants to respond to all the requests. The Thirteenth Court of Appeals denied mandamus relief without explanation. In re Allstate County Mut. Ins. Co., __ S.W.3d __ (Tex. App.–Corpus Christi 2006).
The plaintiffs make no effort to justify their hundreds of requests. Nor can they, given what this Court has said repeatedly in similar cases. In In re CSX Corp., we held that “discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad.” 124 S.W.3d at 149. In K Mart Corp. v. Sanderson, we held overbroad a request for every criminal act that occurred on the defendant’s premises for the last seven years. 937 S.W.2d 429, 431 (Tex. 1996) (per curiam). In Dillard Department Stores, Inc. v. Hall, we held overbroad a request for every false imprisonment case in the last five years throughout twenty states. 909 S.W.2d 491, 491-92 (Tex. 1995) (per curiam). And in Texaco, Inc. v. Sanderson, we held overbroad a request for all documents ever written by the defendant’s safety director about safety. 898 S.W.2d 813, 815 (Tex. 1995) (per curiam). Like all those requests, the plaintiffs’ requests here are overbroad as to time, location, and scope, and could easily have been more narrowly tailored to the dispute at hand. See CSX, 124 S.W.3d at 153 (“A central consideration in determining overbreadth is whether the request could have been more narrowly tailored to avoid including tenuous information . . . .”).
More important, the plaintiffs’ requests and the trial court’s order reflect a misunderstanding about relevance. American jurisprudence goes to some length to avoid the spurious inference that defendants are either guilty or liable if they have been found guilty or liable of anything before. See, e.g., Tex. R. Evid. 404 (barring proof of other crimes, wrongs, or acts “in order to show action in conformity therewith”). While such evidence might be discoverable in some cases (e.g., to prove motive or intent, see id.), it is hard to see why reneging on some other settlement offer makes it more or less probable that the insurer reneged on this one. Tex. R. Civ. P. 192.3; Tex. R. Evid. 401.
The plaintiffs argue the defendants failed to preserve their objections by failing to provide details regarding why the discovery here was burdensome. But Allstate objected to the plaintiffs’ requests as irrelevant (and thus by necessity overbroad). Overbroad requests for irrelevant information are improper whether they are burdensome or not, so the defendants were not required to detail what they might encompass. See In re CSX Corp., 124 S.W.3d at 153; In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999).
The plaintiffs also argue the defendants waived their objections by obscuring them amidst numerous unfounded objections. See Tex. R. Civ. P. 193.2(e). Allstate objected to every one of the plaintiffs’ requests on the ground that it owed no discovery to a party with no standing to bring a direct action against it. Even if this objection was unfounded (an issue we do not reach), it did not obscure Allstate’s objections regarding relevance and overbreadth.
“Reasonable” discovery necessarily requires some sense of proportion. With today’s technology, it is the work of a moment to reissue every discovery request one has ever sent to an insurer before. But by definition such a request is not “reasonably tailored.” See In re Graco Children’s Prods., 210 S.W.3d 598, 601 (Tex. 2006) (per curiam); CSX, 124 S.W.3d at 152. Given the limited scope of the plaintiffs’ claims and the amount at issue, the trial court erred by compelling discovery of everything the plaintiffs could imagine asking in any unfair insurance practice case.
Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and direct the trial court to vacate its discovery order and reconsider the scope of permissible discovery in light of this opinion. See Tex. R. App. P. 52.8(c). The writ will issue only if the trial court fails to comply.
OPINION DELIVERED: June 15, 2007
In Re Allstate County Mutual Ins. Co., No. 06-0878 (Tex. Jun. 15, 2007)(per curiam)(mandamus limiting discovery granted)
Full case style: In Re Allstate County Mutual Insurance Company and David Gonzalez
Appellate court and opinion below: Thirteenth Court of Appeals, No. 13-06-00458-CV, ___ S.W.3d ___, (Tex.App.-Corpus Christi, Sep. 28, 2006)
Disposition: Stay order issued October 30, 2006, lifted; Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Find terms: Discovery limitations, scope of discovery, reasonable requests, objection to discovery requests, relevance, irrelevant, overbroad, narrowly tailored, fishing expedition
Related case: In re Graco Children’s Products, No. 05-0479, (Tex. Oct 27, 2006)(per curiam)
PER CURIAM OPINION
Discovery is a tool to make the trial process more focused, not a weapon to make it more expensive. Thus trial courts “must make an effort to impose reasonable discovery limits.” In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (per curiam) (quotations omitted). In this suit alleging an insurer reneged on a $13,500 settlement offer, the trial court refused to impose any limit on the plaintiffs’ 213 discovery requests. As much of this discovery has no relation or relevance to the scope of the parties’ dispute, we grant mandamus relief. See In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex. 2006) (per curiam) (“[An] order that compels overly broad discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy.”) (quotations omitted).
Following a car accident, two plaintiffs (Jorge Karim and Teresita Manllo) brought a single suit against the other driver (Sang Cho), her carrier (Allstate County Mutual Insurance Company), and the latter’s adjuster (David Gonzalez). The plaintiffs sent the insurer and its adjuster a total of 89 requests for production, 59 interrogatories, and 65 requests for admission, including requests for:
$ transcripts of all testimony ever given by any Allstate agent on the topic of insurance;
$ every court order finding Allstate wrongfully adjusted the value of a damaged vehicle;
$ personnel files of every Allstate employee a Texas court has determined wrongfully assessed the value of a damaged vehicle; and
$ legal instruments documenting Allstate’s status as a corporation and its net worth.
Allstate and Gonzalez objected to the discovery and moved for summary judgment on the ground that the plaintiffs had no direct action against a third party’s insurer. See Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 149 (Tex. 1994) (prohibiting unfair settlement claims by third parties); State Farm County Mut. Ins. Co. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per curiam) (prohibiting direct actions against a third party’s insurer “until it has been established, by judgment or agreement, that the insured has a legal obligation to pay damages to the injured party”). The trial court denied the summary judgment, rejected the objections, and ordered the defendants to respond to all the requests. The Thirteenth Court of Appeals denied mandamus relief without explanation. In re Allstate County Mut. Ins. Co., __ S.W.3d __ (Tex. App.–Corpus Christi 2006).
The plaintiffs make no effort to justify their hundreds of requests. Nor can they, given what this Court has said repeatedly in similar cases. In In re CSX Corp., we held that “discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad.” 124 S.W.3d at 149. In K Mart Corp. v. Sanderson, we held overbroad a request for every criminal act that occurred on the defendant’s premises for the last seven years. 937 S.W.2d 429, 431 (Tex. 1996) (per curiam). In Dillard Department Stores, Inc. v. Hall, we held overbroad a request for every false imprisonment case in the last five years throughout twenty states. 909 S.W.2d 491, 491-92 (Tex. 1995) (per curiam). And in Texaco, Inc. v. Sanderson, we held overbroad a request for all documents ever written by the defendant’s safety director about safety. 898 S.W.2d 813, 815 (Tex. 1995) (per curiam). Like all those requests, the plaintiffs’ requests here are overbroad as to time, location, and scope, and could easily have been more narrowly tailored to the dispute at hand. See CSX, 124 S.W.3d at 153 (“A central consideration in determining overbreadth is whether the request could have been more narrowly tailored to avoid including tenuous information . . . .”).
More important, the plaintiffs’ requests and the trial court’s order reflect a misunderstanding about relevance. American jurisprudence goes to some length to avoid the spurious inference that defendants are either guilty or liable if they have been found guilty or liable of anything before. See, e.g., Tex. R. Evid. 404 (barring proof of other crimes, wrongs, or acts “in order to show action in conformity therewith”). While such evidence might be discoverable in some cases (e.g., to prove motive or intent, see id.), it is hard to see why reneging on some other settlement offer makes it more or less probable that the insurer reneged on this one. Tex. R. Civ. P. 192.3; Tex. R. Evid. 401.
The plaintiffs argue the defendants failed to preserve their objections by failing to provide details regarding why the discovery here was burdensome. But Allstate objected to the plaintiffs’ requests as irrelevant (and thus by necessity overbroad). Overbroad requests for irrelevant information are improper whether they are burdensome or not, so the defendants were not required to detail what they might encompass. See In re CSX Corp., 124 S.W.3d at 153; In re Union Pac. Res. Co., 22 S.W.3d 338, 341 (Tex. 1999).
The plaintiffs also argue the defendants waived their objections by obscuring them amidst numerous unfounded objections. See Tex. R. Civ. P. 193.2(e). Allstate objected to every one of the plaintiffs’ requests on the ground that it owed no discovery to a party with no standing to bring a direct action against it. Even if this objection was unfounded (an issue we do not reach), it did not obscure Allstate’s objections regarding relevance and overbreadth.
“Reasonable” discovery necessarily requires some sense of proportion. With today’s technology, it is the work of a moment to reissue every discovery request one has ever sent to an insurer before. But by definition such a request is not “reasonably tailored.” See In re Graco Children’s Prods., 210 S.W.3d 598, 601 (Tex. 2006) (per curiam); CSX, 124 S.W.3d at 152. Given the limited scope of the plaintiffs’ claims and the amount at issue, the trial court erred by compelling discovery of everything the plaintiffs could imagine asking in any unfair insurance practice case.
Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and direct the trial court to vacate its discovery order and reconsider the scope of permissible discovery in light of this opinion. See Tex. R. App. P. 52.8(c). The writ will issue only if the trial court fails to comply.
OPINION DELIVERED: June 15, 2007
June 15, 2007 Texas Supreme Court Opinions
Supreme Court Decides Premises and Employer Liability Cases, Declines to Decide Malpractice Case in Which Plaintiff Had Died While Appeal Was Pending, and Provides Guidance on What Is (un)Reasonable in the Discovery Process
There was a four-way split on a petition for mandamus relief resolved by the Texas Supreme Court this past week. The Court granted mandamus in another case in a per curiam opinion, and issued three short per curiam opinions. In this week's orders, the Court also denied nine petitions for review and two mandamus petitions. The Supremes changed their mind on deciding the issues presented in a previously granted petition on the merits, but issued an opinion to explain why.
Supreme Court Grants Mandamus, But Three Justices Write Separate Opinions
In Re Allied Chemical Corp. No. 04-1023 Tex. Jun. 15, 2007)(Brister)(mandamus)(procedural law)
IN RE ALLIED CHEMICAL CORPORATION, ET AL.; from Hidalgo County; 13th district (13-04-00491-CV, ___ S.W.3d ___, Nov. 4, 2004)stay order issued March 28, 2005, liftedmotion to lift stay, dismissed as mootsecond supplemental motion to lift stay, dismissed as mootmotion to dismiss mandamus proceeding as moot, denied
The Court conditionally grants the petition for writ of mandamus in an opinion by Justice Scott Brister, joined by Justice Nathan Hecht, Justice David Medina, Justice Paul Green, and Justice Don Willett
Justice Hecht wrote a concurring opinion. Chief Justice Jefferson delivered a dissenting opinion, which was joined by Justice Harriet O'Neill, Justice Dale Wainwright, and Justice Phil Johnson. Justice Wainwright also dissented, but wrote separately
This week's per curiam opinions from the Texas Supreme Court
In Re Allstate County Mutual Ins. Co., No. 06-0878 (Tex. Jun. 15, 2007)(per curiam)(discovery limitations)
IN RE ALLSTATE COUNTY MUTUAL INSURANCE COMPANY AND DAVID GONZALEZ; from Hidalgo County; 13th district (13-06-00458-CV, ___ S.W.3d ___, Sep. 28, 2006)
stay order issued October 30, 2006, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Goodyear Tire and Rubber Co. v. Mayes, No. 04-0993 (Tex. Jun 15, 2007)(per curiam)(employer liability for truck accident caused by tired employee, respondeat superior)
GOODYEAR TIRE AND RUBBER COMPANY v. PATRICK MAYES; from Harris County; 1st district (01-03-00157-CV, 144 S.W.3d 50, June 6, 2004)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(premises liability)
BRINSON FORD, INC., INDIVIDUALLY AND D/B/A BRINSON FORD LINCOLN MERCURY v. CONNIE W. ALGER; from Navarro County; 10th district (10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment.
Kallam, M.D. v. Boyd, No. 05-0027 (Tex. Jun. 15, 2007)(per curiam)(medical malpractice, plaintiff died pending appeal)
G. BYRON KALLAM, M.D.; MARY ANGELINE FINKE, M.D.; THE MEDICAL CLINIC OF NORTH TEXAS, P.A.; OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES OF ARLINGTON; GERALD THOMPSON, M.D.; AND FAMILY HEALTHCARE ASSOCIATES v. SHARON BOYD; from Tarrant County; 2nd district (02-03-00362-CV, ___ S.W.3d ___, Nov. 24, 2004) 2 petitions, motion to substitute party granted
The Supreme Court withdraws its order of September 1, 2006, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
There was a four-way split on a petition for mandamus relief resolved by the Texas Supreme Court this past week. The Court granted mandamus in another case in a per curiam opinion, and issued three short per curiam opinions. In this week's orders, the Court also denied nine petitions for review and two mandamus petitions. The Supremes changed their mind on deciding the issues presented in a previously granted petition on the merits, but issued an opinion to explain why.
Supreme Court Grants Mandamus, But Three Justices Write Separate Opinions
In Re Allied Chemical Corp. No. 04-1023 Tex. Jun. 15, 2007)(Brister)(mandamus)(procedural law)
IN RE ALLIED CHEMICAL CORPORATION, ET AL.; from Hidalgo County; 13th district (13-04-00491-CV, ___ S.W.3d ___, Nov. 4, 2004)stay order issued March 28, 2005, liftedmotion to lift stay, dismissed as mootsecond supplemental motion to lift stay, dismissed as mootmotion to dismiss mandamus proceeding as moot, denied
The Court conditionally grants the petition for writ of mandamus in an opinion by Justice Scott Brister, joined by Justice Nathan Hecht, Justice David Medina, Justice Paul Green, and Justice Don Willett
Justice Hecht wrote a concurring opinion. Chief Justice Jefferson delivered a dissenting opinion, which was joined by Justice Harriet O'Neill, Justice Dale Wainwright, and Justice Phil Johnson. Justice Wainwright also dissented, but wrote separately
This week's per curiam opinions from the Texas Supreme Court
In Re Allstate County Mutual Ins. Co., No. 06-0878 (Tex. Jun. 15, 2007)(per curiam)(discovery limitations)
IN RE ALLSTATE COUNTY MUTUAL INSURANCE COMPANY AND DAVID GONZALEZ; from Hidalgo County; 13th district (13-06-00458-CV, ___ S.W.3d ___, Sep. 28, 2006)
stay order issued October 30, 2006, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Goodyear Tire and Rubber Co. v. Mayes, No. 04-0993 (Tex. Jun 15, 2007)(per curiam)(employer liability for truck accident caused by tired employee, respondeat superior)
GOODYEAR TIRE AND RUBBER COMPANY v. PATRICK MAYES; from Harris County; 1st district (01-03-00157-CV, 144 S.W.3d 50, June 6, 2004)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(premises liability)
BRINSON FORD, INC., INDIVIDUALLY AND D/B/A BRINSON FORD LINCOLN MERCURY v. CONNIE W. ALGER; from Navarro County; 10th district (10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment.
Kallam, M.D. v. Boyd, No. 05-0027 (Tex. Jun. 15, 2007)(per curiam)(medical malpractice, plaintiff died pending appeal)
G. BYRON KALLAM, M.D.; MARY ANGELINE FINKE, M.D.; THE MEDICAL CLINIC OF NORTH TEXAS, P.A.; OBSTETRICAL AND GYNECOLOGICAL ASSOCIATES OF ARLINGTON; GERALD THOMPSON, M.D.; AND FAMILY HEALTHCARE ASSOCIATES v. SHARON BOYD; from Tarrant County; 2nd district (02-03-00362-CV, ___ S.W.3d ___, Nov. 24, 2004) 2 petitions, motion to substitute party granted
The Supreme Court withdraws its order of September 1, 2006, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
Sunday, June 10, 2007
June 8, 2007 - Texas Supreme Court Opinions
Supreme Court releases four signed opinions and one per curiam opinion. Justice Brister wrote separately in one, concurring and dissenting in part.
Borg-Warner Corp. v. Flores, No. 05-0189 (Tex. Jun. 8, 2007)(Jefferson)(plaintiff loses asbestosis suit, failure to prove causation)
State of Texas v. Oakley, No. 06-0050 (Tex. Jun. 8, 2007)(Brister)(wrongful imprisonment compensation claim)
Reliance National Indemnity Co. v. Advanced Temporaries, Inc., No. 05-0558 (Tex. Jun. 8, 2007)(Medina)(subcontractor's mechanics lien)
Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services without written contract). Justice Brister delivered an opinion concurring in part and dissenting in part, joined by Justice Hecht and Justice Willett (Justice Green not sitting)
Bay Area Healthcare Group, Ltd. v. McShane, No. 05-1069 (Tex. Jun. 8, 2007)(per curiam)(medical malpractice, injury during birth)
Borg-Warner Corp. v. Flores, No. 05-0189 (Tex. Jun. 8, 2007)(Jefferson)(plaintiff loses asbestosis suit, failure to prove causation)
State of Texas v. Oakley, No. 06-0050 (Tex. Jun. 8, 2007)(Brister)(wrongful imprisonment compensation claim)
Reliance National Indemnity Co. v. Advanced Temporaries, Inc., No. 05-0558 (Tex. Jun. 8, 2007)(Medina)(subcontractor's mechanics lien)
Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services without written contract). Justice Brister delivered an opinion concurring in part and dissenting in part, joined by Justice Hecht and Justice Willett (Justice Green not sitting)
Bay Area Healthcare Group, Ltd. v. McShane, No. 05-1069 (Tex. Jun. 8, 2007)(per curiam)(medical malpractice, injury during birth)
Supreme Court Issues Asbestos Opinion with Hotlink to Cancer Institute Web Site
Asbestos Suits Suffer Setback
Borg-Warner Corp. v. Flores, No. 05-0189 (Tex. Jun. 8, 2007)(Jefferson)(asbestos suit)
BORG-WARNER CORPORATION, NOW KNOWN AS BURNS INTERNATIONAL SERVICES CORPORATION v. ARTURO FLORES;
Trial Court: Nueces County
Appeals Court below: 13th district (13‑03‑00058‑CV, 153 SW3d 209, 12‑16‑04)
Disposition: The Court reverses the Thirteenth Court of Appeals' judgment and renders judgment.
Opinion by Chief Justice Wallace Jefferson (Justice O'Neill not sitting)
State of Texas v. Oakley, No. 06-0050 (Tex. Jun. 8, 2007)(Brister)(wrongful imprisonment compensation claim)
THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER;
Trial court: Travis County;
Appeals court below: 3rd district 03‑05‑00007‑CV, 181 SW3d 855, 12‑16‑05
consolidated with -
State of Texas v. Oakley, No. 06-0172 (Tex. Jun. 8, 2007)(Brister)(cause of action for wrongful imprisonment)
THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER; from Travis County; 3rd district (03‑05‑00271‑CV, ___ SW3d ___, 01‑20‑06)
Disposition: The Supreme Court reverses in part and affirms in part the Third Court of Appeals' judgment and remands the case to the trial court.
Opinion by Justice Scott Brister
Reliance National Indemnity Co v. Advanced Temporaries, Inc., No. 05-0558 (Tex. Jun. 8, 2007)(Medina)(subcontractor's mechanics lien)
RELIANCE NATIONAL INDEMNITY COMPANY, L&T, J.V., AND LAMAR CONSTRUCTION, INC. v. ADVANCE'D TEMPORARIES, INC.;
Trial court: Nueces County
Court of Appeals below: 13th district (13‑01‑00821‑CV, 165 SW3d 1, 07‑22‑04)
The Court affirms the Thirteenth Court of Court of Appeals' judgment.
Opinion by Justice David Medina
Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services, no written contract, royalty interest in minerals)
T. MICHAEL QUIGLEY v. ROBERT BENNETT; from Starr County; 4th district (04‑04‑00312‑CV, ___ SW3d ___, 04‑06‑05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice O'Neill, Justice Wainwright, and Justice Medina.
Justice Brister delivered an opinion concurring in part and dissenting in part, joined by Justice Hecht and Justice Willett (Justice Green not sitting)
Bay Area Healthcare Group, Ltd. v. McShane, No. 05-1069 (Tex. Jun. 8, 2007)(per curiam)(medical malpractice)
BAY AREA HEALTHCARE GROUP, LTD., INDIVIDUALLY, AND D/B/A THE CORPUS CHRISTI MEDICAL CENTER-BAY AREA, ET AL. v. DEBORAH SUE MCSHANE AND JAMES PATRICK MCSHANE, INDIVIDUALLY, AND AS NEXT FRIENDS OF MAGGIE YVONNE MCSHANE, A MINOR
Trial Court: Nueces County
Court of Appeals below: 13th district (13‑04‑00174‑CV, 174 SW3d 908, 10‑06‑05)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the Thirteenth Court of Appeals' judgment and renders judgment.
Borg-Warner Corp. v. Flores, No. 05-0189 (Tex. Jun. 8, 2007)(Jefferson)(asbestos suit)
BORG-WARNER CORPORATION, NOW KNOWN AS BURNS INTERNATIONAL SERVICES CORPORATION v. ARTURO FLORES;
Trial Court: Nueces County
Appeals Court below: 13th district (13‑03‑00058‑CV, 153 SW3d 209, 12‑16‑04)
Disposition: The Court reverses the Thirteenth Court of Appeals' judgment and renders judgment.
Opinion by Chief Justice Wallace Jefferson (Justice O'Neill not sitting)
State of Texas v. Oakley, No. 06-0050 (Tex. Jun. 8, 2007)(Brister)(wrongful imprisonment compensation claim)
THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER;
Trial court: Travis County;
Appeals court below: 3rd district 03‑05‑00007‑CV, 181 SW3d 855, 12‑16‑05
consolidated with -
State of Texas v. Oakley, No. 06-0172 (Tex. Jun. 8, 2007)(Brister)(cause of action for wrongful imprisonment)
THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER; from Travis County; 3rd district (03‑05‑00271‑CV, ___ SW3d ___, 01‑20‑06)
Disposition: The Supreme Court reverses in part and affirms in part the Third Court of Appeals' judgment and remands the case to the trial court.
Opinion by Justice Scott Brister
Reliance National Indemnity Co v. Advanced Temporaries, Inc., No. 05-0558 (Tex. Jun. 8, 2007)(Medina)(subcontractor's mechanics lien)
RELIANCE NATIONAL INDEMNITY COMPANY, L&T, J.V., AND LAMAR CONSTRUCTION, INC. v. ADVANCE'D TEMPORARIES, INC.;
Trial court: Nueces County
Court of Appeals below: 13th district (13‑01‑00821‑CV, 165 SW3d 1, 07‑22‑04)
The Court affirms the Thirteenth Court of Court of Appeals' judgment.
Opinion by Justice David Medina
Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services, no written contract, royalty interest in minerals)
T. MICHAEL QUIGLEY v. ROBERT BENNETT; from Starr County; 4th district (04‑04‑00312‑CV, ___ SW3d ___, 04‑06‑05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice O'Neill, Justice Wainwright, and Justice Medina.
Justice Brister delivered an opinion concurring in part and dissenting in part, joined by Justice Hecht and Justice Willett (Justice Green not sitting)
Bay Area Healthcare Group, Ltd. v. McShane, No. 05-1069 (Tex. Jun. 8, 2007)(per curiam)(medical malpractice)
BAY AREA HEALTHCARE GROUP, LTD., INDIVIDUALLY, AND D/B/A THE CORPUS CHRISTI MEDICAL CENTER-BAY AREA, ET AL. v. DEBORAH SUE MCSHANE AND JAMES PATRICK MCSHANE, INDIVIDUALLY, AND AS NEXT FRIENDS OF MAGGIE YVONNE MCSHANE, A MINOR
Trial Court: Nueces County
Court of Appeals below: 13th district (13‑04‑00174‑CV, 174 SW3d 908, 10‑06‑05)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the Thirteenth Court of Appeals' judgment and renders judgment.
Thursday, June 7, 2007
Default Judgment Reversed - Defendant not properly served with citation
The Texas Supreme Court has sets aside another default judgment for insufficient service. Holds in appeal from a default judgment for more than $6 million that alternative method of service authorized by the trial court (first class and certified mail to a post office box in Mexico) did not give the defendant proper notice of the suit and opportunity to defend against it. The court of appeals had affirmed the judgment.
Hubicki v. Festina, a Liechtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, inadequate service of process)
Opinion of the Court of Appeals: Hubicki v. Festina, 156 S.W.3d 897 (Tex. App. - Dallas 2005).
It is not the first time the Texas Supreme Court has employed its sparingly used power of discretionary review to accept an appeal for the purpose of vacating a default judgment, and to enforce strict compliance with the statutorye requiements governing service of citation to support a default judgment.
Wachovia Bank of Del. v. Gilliam, 215 S.W.3d 848 (Tex. 2007)
Wachovia Bank v. Gilliam, No. 05-0903 (Tex. Feb. 9, 2007)(per curiam)(restricted appeal, default judgment, insufficient service of corporate citation)(no presumption of valid service in restricted appeal from default judgment)
In Re Discount Rental, Inc., No. 05-0249 (Tex. Mar. 2, 2007)(per curiam)(void judgment, defective service, lack of authority to order sale, enforcement of judgment)
Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006)
Fidelity and Guaranty Ins. Co. v. Drewery Construction Co., No. 05-0295 (Tex. Feb. 24, 2006)(per curiam opinion)(default judgment, service of process)
Hubicki v. Festina, a Liechtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, inadequate service of process)
Opinion of the Court of Appeals: Hubicki v. Festina, 156 S.W.3d 897 (Tex. App. - Dallas 2005).
It is not the first time the Texas Supreme Court has employed its sparingly used power of discretionary review to accept an appeal for the purpose of vacating a default judgment, and to enforce strict compliance with the statutorye requiements governing service of citation to support a default judgment.
Wachovia Bank of Del. v. Gilliam, 215 S.W.3d 848 (Tex. 2007)
Wachovia Bank v. Gilliam, No. 05-0903 (Tex. Feb. 9, 2007)(per curiam)(restricted appeal, default judgment, insufficient service of corporate citation)(no presumption of valid service in restricted appeal from default judgment)
In Re Discount Rental, Inc., No. 05-0249 (Tex. Mar. 2, 2007)(per curiam)(void judgment, defective service, lack of authority to order sale, enforcement of judgment)
Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006)
Fidelity and Guaranty Ins. Co. v. Drewery Construction Co., No. 05-0295 (Tex. Feb. 24, 2006)(per curiam opinion)(default judgment, service of process)
Monday, June 4, 2007
Daughters of Charity's Hospital Lien Neither Charitable Nor Legal
Hospital may not impose lien on patient after having been paid by worker's compensation carrier. Texas Labor Code's reimbursement cap applies, and bars additional recovery.
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation)
In a case stemming from a work-related automobile accident the Supreme Court addressed the question whether a hospital may file a lien against a patient's tort recovery based on the difference between the payment from the workers' compensation carrier and the full amount it billed for treatment of the injured worker. The hospital had been paid all it was due in worker's compensation under the Labor Code guidelines. The Court holds that the hospital cannot sue the patient for the discount, and may not place a lien on his tort damages either. Workers’ compensation fee guidelines in the Labor Code are intended to provide both fair and reasonable reimbursement and effective cost control. Anything beyond would amount to a windfall. If a hospital felt it was entitled to more money, it has the option to lodge an administrative contest. In holding that the hospital’s lien violated the Labor Code’s prohibition of private claims against workers compensation patients, the Texas Supreme Court affirmed the judgments of the courts below.
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation)
In a case stemming from a work-related automobile accident the Supreme Court addressed the question whether a hospital may file a lien against a patient's tort recovery based on the difference between the payment from the workers' compensation carrier and the full amount it billed for treatment of the injured worker. The hospital had been paid all it was due in worker's compensation under the Labor Code guidelines. The Court holds that the hospital cannot sue the patient for the discount, and may not place a lien on his tort damages either. Workers’ compensation fee guidelines in the Labor Code are intended to provide both fair and reasonable reimbursement and effective cost control. Anything beyond would amount to a windfall. If a hospital felt it was entitled to more money, it has the option to lodge an administrative contest. In holding that the hospital’s lien violated the Labor Code’s prohibition of private claims against workers compensation patients, the Texas Supreme Court affirmed the judgments of the courts below.
Agency Authority: In Re SWBT (Tex. 2007)
Texas Supreme Court Gives Effect to Primary Jurisdiction Doctrine in Suit Involving Public Utility Commission (PUC)
In Re Southwestern Bell Telephone Co., L.P., No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)
In an opinion written by Justice Phil Johnson, Texas Supreme Court grants mandamus relief to enforce the primary jurisdiction doctrine, holding that the trial court had erred when it did not stay proceeding to allow the Public Utility Commission (PUC) to address the questions regarding the validity and enforceability of interconnection agreements. The Court rejects the argument the application of the primary jurisdiction doctrine had been waived.
In Re Southwestern Bell Telephone Co., L.P., No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)
In an opinion written by Justice Phil Johnson, Texas Supreme Court grants mandamus relief to enforce the primary jurisdiction doctrine, holding that the trial court had erred when it did not stay proceeding to allow the Public Utility Commission (PUC) to address the questions regarding the validity and enforceability of interconnection agreements. The Court rejects the argument the application of the primary jurisdiction doctrine had been waived.
Expunction: State of Texas v. Beam (Tex. 2007)
State Prevails in Blocking Expunction - Limitations Had Not Run
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction, misdemeanor)
In this expunction case, the trial court granted the petition and the court of appeals affirmed. On review sought by the State, the Supreme Court sides with the State in holding that expunction of both felonies and misdemeanors is improper if granted before the statute of limitations has expired. The Texas Legislature had amended that expunction statue in 2001 to require that the applicable limitations period have run its course prior to the filing of an expunction petition. The lower courts of appeals had been divided on whether the toughened requirement applied to misdemeanor offenses. The Supreme Court decided the question just in time in the case at hand, as the two-year limitations period for the offenses which Beam was arrested for will expire within three weeks of the opinion release date.
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction, misdemeanor)
In this expunction case, the trial court granted the petition and the court of appeals affirmed. On review sought by the State, the Supreme Court sides with the State in holding that expunction of both felonies and misdemeanors is improper if granted before the statute of limitations has expired. The Texas Legislature had amended that expunction statue in 2001 to require that the applicable limitations period have run its course prior to the filing of an expunction petition. The lower courts of appeals had been divided on whether the toughened requirement applied to misdemeanor offenses. The Supreme Court decided the question just in time in the case at hand, as the two-year limitations period for the offenses which Beam was arrested for will expire within three weeks of the opinion release date.
Sunday, June 3, 2007
June 1, 2007 - Texas Cities Have Their Day In Court
Following its precedent-setting decisions in Tooke and Reata a year earlier, Supreme Court of Texas decides numerous sovereign immunity appeals involving cities.
June 1, 2007 - Texas Supreme Court hands down eleven opinions, including six cases with cities as parties; grants three petitions for review. None of the justices concurred or dissented.
High Court denies 36 petitions for review and 11 petitions for mandamus relief.
This week's opinion authors are Chief Justice Jefferson, Justice Brister, Justice Johnson, and Justice Medina. Seven opinion were issued per curiam, including one granting mandamus relief.
June 1, 2007 Signed and Per Curiam Opinions Issued by the Texas Supreme Court
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation, hospital lien)
First Commerce Bank v. Palmer, No. 05-0686 (Tex. Jun. 1, 2007)(Medina)(guarantee agreement, lack or failure of consideration defense)
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction)
In Re Southwestern Bell Telephone Co., L.P. , No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)(agency primary jurisdiction)
Hubicki v. Festina, a Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, defective service)
City of Arlington v. Matthews, No. 06-0251 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Pasadena v. Kinsel Industries, No. 06-0353 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Elsa v. M.A.L., No. 06-0516 (Tex. Jun. 1, 2007)(per curiam)
Tellez v. City of Socorro, No. 05-0629 (Tex. Jun. 1, 2007)(per curiam)(zoning)
Dallas Fire Fighters Association v. City of Dallas,No. 04-0821 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Abilene Housing Authority v. Gene Duke Builders, No. 05-0631 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Petions Denied (Cases involving cities and other local governments only)
No. 03‑0954 CITY OF DALLAS v. FIRST TRADE UNION SAVINGS BANK, FSB; from Dallas County; 5th district (05‑02‑00953‑CV, 133 SW3d 680, 07‑25‑03)
No. 04‑0797 CITY OF TEXARKANA v. CITIES OF NEW BOSTON, HOOKS, DEKALB, WAKE VILLAGE, MAUD, AVERY, AND ANNONA; from Bowie County; 6th district (06‑04‑00023‑CV, 141 SW3d 778, 07‑23‑04) 2 petitions
No. 04‑1115 SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. CITY OF SAN ANTONIO, ACTING BY AND THROUGH SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑03‑00835‑CV, ___ SW3d ___, 11‑03‑04)motion to strike dismissed as moot
No. 06‑0161 HARRIS COUNTY v. OCTAVISH FREEMAN; from Harris County; 1st district (01‑04‑00148‑CV, 183 SW3d 885, 01‑12‑06)
No. 06‑0481 THE CITY OF SAN ANTONIO v. EL DORADO AMUSEMENT COMPANY, INC.; from Bexar County; 4th district (04‑04‑00638‑CV, 195 SW3d 238, 02‑15‑06)2 petitions
No. 07‑0029 AUSTIN INDEPENDENT SCHOOL DISTRICT v. CHRISTINA BELL LOWERY; from Travis County; 3rd district (03‑06‑00169‑CV, 212 SW3d 827, 11‑30‑06)
No. 07‑0182 CITY OF MCALLEN v. MANUEL TRIGO, JR., ET AL.; from Hidalgo County; 13th district (13‑04‑00344‑CV, ___ SW3d ___, 06‑02‑04)
June 1, 2007 - Texas Supreme Court hands down eleven opinions, including six cases with cities as parties; grants three petitions for review. None of the justices concurred or dissented.
High Court denies 36 petitions for review and 11 petitions for mandamus relief.
This week's opinion authors are Chief Justice Jefferson, Justice Brister, Justice Johnson, and Justice Medina. Seven opinion were issued per curiam, including one granting mandamus relief.
June 1, 2007 Signed and Per Curiam Opinions Issued by the Texas Supreme Court
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation, hospital lien)
First Commerce Bank v. Palmer, No. 05-0686 (Tex. Jun. 1, 2007)(Medina)(guarantee agreement, lack or failure of consideration defense)
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction)
In Re Southwestern Bell Telephone Co., L.P. , No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)(agency primary jurisdiction)
Hubicki v. Festina, a Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, defective service)
City of Arlington v. Matthews, No. 06-0251 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Pasadena v. Kinsel Industries, No. 06-0353 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Elsa v. M.A.L., No. 06-0516 (Tex. Jun. 1, 2007)(per curiam)
Tellez v. City of Socorro, No. 05-0629 (Tex. Jun. 1, 2007)(per curiam)(zoning)
Dallas Fire Fighters Association v. City of Dallas,No. 04-0821 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Abilene Housing Authority v. Gene Duke Builders, No. 05-0631 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Petions Denied (Cases involving cities and other local governments only)
No. 03‑0954 CITY OF DALLAS v. FIRST TRADE UNION SAVINGS BANK, FSB; from Dallas County; 5th district (05‑02‑00953‑CV, 133 SW3d 680, 07‑25‑03)
No. 04‑0797 CITY OF TEXARKANA v. CITIES OF NEW BOSTON, HOOKS, DEKALB, WAKE VILLAGE, MAUD, AVERY, AND ANNONA; from Bowie County; 6th district (06‑04‑00023‑CV, 141 SW3d 778, 07‑23‑04) 2 petitions
No. 04‑1115 SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. CITY OF SAN ANTONIO, ACTING BY AND THROUGH SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑03‑00835‑CV, ___ SW3d ___, 11‑03‑04)motion to strike dismissed as moot
No. 06‑0161 HARRIS COUNTY v. OCTAVISH FREEMAN; from Harris County; 1st district (01‑04‑00148‑CV, 183 SW3d 885, 01‑12‑06)
No. 06‑0481 THE CITY OF SAN ANTONIO v. EL DORADO AMUSEMENT COMPANY, INC.; from Bexar County; 4th district (04‑04‑00638‑CV, 195 SW3d 238, 02‑15‑06)2 petitions
No. 07‑0029 AUSTIN INDEPENDENT SCHOOL DISTRICT v. CHRISTINA BELL LOWERY; from Travis County; 3rd district (03‑06‑00169‑CV, 212 SW3d 827, 11‑30‑06)
No. 07‑0182 CITY OF MCALLEN v. MANUEL TRIGO, JR., ET AL.; from Hidalgo County; 13th district (13‑04‑00344‑CV, ___ SW3d ___, 06‑02‑04)
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