The court of appeals modifies the district court's judgment to delete the award of "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89," and instead award $158,185.27 in attorney's fees. As modified, the judgment is affirmed.
Richard Luna, Individually and d/b/a Richard's Machine Services v. Daniel C. Runyon and Auto, Bus & Truck, LP, No. 03-06-00615-CV (Tex.App. - Austin July 3, 2008)(Opinion by Justice Pemberton [ PDF ] )(restricted appeal) (Before Justices Patterson, Appeal from 53rd District Court of Travis County - Affirmed as reformed
M E M O R A N D U M O P I N I O N
This is a restricted appeal from a summary judgment. Appellees Daniel C. Runyon and Auto, Bus & Truck, LP (Runyon) are in the business of providing air-conditioning and automotive service work. Appellant Richard Luna was formerly employed by Runyon. The record reflects a bitter underlying dispute in which Runyon accused Luna, while still its employee, of stealing, embezzling, or misusing Runyon's property and pursuing Runyon's customers to benefit Luna's own business. In addition to pressing criminal charges, (1) Runyon sued Luna for damages, alleging breach of his employment contract, conversion, tortious interference with contractual relations, and breach of fiduciary duty.
Runyon filed a traditional motion for summary judgment on all of its claims, relying on Luna's failure to respond or object to requests for admissions. Runyon attached and incorporated by reference a copy of the requests to its summary-judgment motion, along with a signed certified mail return receipt, or "green card," reflecting delivery of the requests to "Richard Luna, Richard's Machine Shop," at a Cedar Park street address. The address corresponded to Luna's last known mailing address, as expressly found by the district court several months earlier in an order permitting Luna's then-counsel to withdraw. In the same order, the district court had ordered that all further notices in the cause should either be delivered to Luna in person or sent to him at that address via certified mail. The green card attached to Runyon's summary-judgment motion was signed by a "C.G. Murphy."
Luna did not respond to Runyon's summary-judgment motion. The district court granted the motion, specifically confirming that the requests for admissions were deemed admitted; permanently enjoined Luna from performing work for certain Runyon customers; and awarded Runyon $581,852.66 in actual damages, $1 million in punitive damages, and $544,862.89 in attorney's fees. With the exception of the attorney's fee award, the relief awarded was consistent with the admissions made as a result of Luna's failure to respond to the requests for admissions.
Luna brings three issues on appeal. He complains that the district court erred in granting summary judgment because (1) the summary-judgment motion did not adequately specify the grounds on which Runyon was relying, (2) Runyon failed to meet his burden of establishing that Luna had been served with the requests for admissions, and (3) the judgment "was tainted by fraud on the court and otherwise fails to serve the interests of justice." We will modify the attorney's fee award and, as modified, affirm the judgment.
STANDARD OF REVIEW
A party filing a restricted appeal must demonstrate that (1) he filed the appeal within six months of the date the judgment was rendered; (2) he was a party to the suit; (3) he did not "participate" in the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). (2) Only the fourth issue--whether there is error apparent on the face of the record--is in dispute here.
To determine whether there is error on the face of the record, we review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). (3) Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.).
To be entitled to summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. Time Out Grocery v. The Vanguard Group, Inc., 187 S.W.3d 41, 42 (Tex. App.--Dallas 2005, no pet.) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 891 (Tex. App.--Dallas 2005, pet. denied).
ANALYSIS
Failure to timely respond to a request for admission results in its being considered admitted without further action by the court, often referred to as being "deemed admitted." See Tex. R. Civ. P. 198.2(a) (30-day response deadline), (c) ("If a response is not timely served, the request is considered admitted without necessity of court order."). Deemed admissions may support summary judgment. See, e.g., Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.--San Antonio 2004, pet. denied). Unless the party who failed to respond to a request for admissions obtains a court order setting aside the deemed admissions--which Luna did not attempt to do here (4)
--they constitute judicial admissions that bind the party and render inadmissible contrary trial or summary-judgment evidence. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989); Jones v. Citibank, N.A., 235 S.W.3d 333, 337 (Tex. App.--Fort Worth 2007, no pet.).
In his second issue, Luna contends that Runyon failed to establish that it served him with the requests for admissions. Luna acknowledges that Runyon certified its compliance with rule 21a of the Texas Rules of Civil Procedure, giving rise to a presumption that he received the requests. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (observing that this presumption has the force of a rule of law). Luna did not present evidence to controvert this presumption. See Huggins, 724 S.W.2d at 780 (observing that presumption that notice sent in compliance with rule 21a was received by the intended recipient is not evidence and that it "vanishes" when opposing evidence is introduced). Instead, Luna argues on appeal that the certified mail "green card" introduced by Runyon is evidence of non-receipt. Although Luna does not dispute that the signed green card is evidence that the requests were actually received at his last known address, he urges that the fact that he did not personally sign the green card controverts the presumption of receipt and renders service "fatally defective and invalid." We disagree. Luna, again, did not present evidence of non-receipt. The mere fact that the green card indicating receipt at Luna's address was signed by "C.G. Murphy" provides no greater support for the inference that Luna did not receive the requests than for the inference that he did receive them. See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994) (requiring "verified proof" of non-receipt to overcome presumption); cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (presumption of receipt overcome when party's counsel "provided affidavits averring that they never received" documents allegedly served); Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.--Austin 2001, no pet.) (green card signed by another person did not raise fact issue regarding receipt in face of sworn proof of non-receipt). Accordingly, the green card is not evidence of Luna's non-receipt, see City of Keller v. Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005) (explaining equal-inference rule), and we must give effect to rule 21a's presumption that he received the requests. We overrule Luna's second issue.
In his first issue, Luna argues that Runyon's summary-judgment motion failed to state the "grounds" on which it was based to the extent required by Tex. R. Civ. P. 166a(c) and McConnell v. Southside Independent School District, 858 S.W.2d 337, 340-41 (Tex. 1993). Luna's complaint seems to be that Runyon's motion did not enumerate each element of each of its causes of action or tie each element to specific admissions. We disagree that Runyon's motion failed to state its grounds adequately. Summary-judgment "grounds" refer simply to the "reasons entitling the movant to summary judgment." McConnell, 858 S.W.2d at 339 n.2. Here, Runyon stated in its motion that it was entitled to judgment as a matter of law because it had served requests for admission on Luna, Luna had failed to respond, the requests were accordingly deemed admitted, and these admissions "were dispositive of all issues in the case." Further, Runyon attached a copy of the requests and incorporated them into its motion. Deemed admissions constitute binding judicial admissions unless and until the affected party obtains an order setting them aside. See Marshall, 767 S.W.2d at 700. Runyon's motion gave Luna notice of the reason why it claimed entitlement to summary judgment: there were deemed admissions against him that, unless set aside, would entitle Runyon to judgment as a matter of law on all of its claims. Contrary to Luna's arguments, Runyon's motion is distinguishable from a mere statement that it was entitled to judgment as a matter of law on "all causes of action asserted," see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990), or a "general reference to a voluminous record." See Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.--Fort Worth 2004, pet. denied). We overrule Luna's first issue.
In his third issue, Luna complains of various aspects of the underlying dispute that are outside the record. Within our scope of review, however, Luna points out that the district court's summary judgment awarded Runyon "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89." The sole summary-judgment evidence regarding attorney's fees is an admission that "[a] reasonable attorney's fee in this case is $158,185.27" and that Runyon "should be awarded $158,185.27 for their attorney's fees." On this record, we agree that the district court erred in awarding attorney's fees based on a percentage contingency calculation that was neither admitted nor otherwise in evidence. We will sustain Luna's third issue to the extent of holding that the district court's award of attorney's fees should be modified to award the amount supported by the evidence, $158,185.27.
CONCLUSION
We modify the district court's judgment to delete the award of "reasonable and necessary attorney's fees based upon the one-third contingency fee applicable to this case in the amount of $544,863.89," and instead award $158,185.27 in attorney's fees. As modified, we affirm the judgment.
____________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: July 3, 2008
1. Luna acknowledges that he pled no contest to Class A misdemeanor theft charges and received deferred adjudication in connection with this dispute.
2. The first three requirements are jurisdictional and will cut off a party's right to seek relief by way of a restricted appeal if they are not met. Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 184 (Tex. App.--Fort Worth 2004, no pet.).
3. The "face of the record" in a restricted appeal means the entire record in a case, including, as applicable, the clerk's record and reporter's record. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App.--Austin 2004, no pet.) (citing Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam)). Error "apparent" on that record means that proof of the error must actually appear in the record and cannot be inferred from the record. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (mere absence of proof that notice of intent to dismiss suit for want of prosecution was sent to plaintiff was not proof "apparent on the face of the record" that plaintiff, in fact, did not receive such notice); Alexander, 134 S.W.3d at 849-50 (same). If, based on the summary-judgment record, the district court erred in granting summary judgment, such error would be "apparent on the face of the record." In other words, appellate courts apply the same standards when reviewing traditional summary judgments in both ordinary appeals and restricted appeals. See Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex. App.--San Antonio 2004, no pet.); see also Mora v. Southwestern Bell Media, Inc., 763 S.W.2d 527, 528 (Tex. App.--El Paso 1988, no writ) (applying same standard of review to reverse summary judgment in appeal by writ of error as in ordinary appeal); Ridgeline, Inc. v. Crow-Gottesman-Shafer No. 1, 734 S.W.2d 114, 116-17 (Tex. App.--Austin 1987, no writ) (same); Davis v. Hughes Drilling Co., 667 S.W.2d 183, 184 (Tex. App.--Texarkana 1983, no writ) (same); Tex. R. App. P. 30 (statutes pertaining to former writ of error appeals to the courts of appeals apply to restricted appeals).
4. See Tex. R. Civ. P. 198.3; Wheeler v. Green, 157 S.W.3d 439, 442-44 (Tex. 2005) (per curiam).
Showing posts with label 2008-Pemberton. Show all posts
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Sunday, July 6, 2008
Public employment | Deocariza v. Central Texas College District (Tex.App.- Austin 2008)
Conrad G. Deocariza v. Central Texas College District--Appeal from 146th District Court of Bell County, No. 03-06-00653-CV (Tex.App.- Austin, June 19, 2008) Opinion by Justice Pemberton [ PDF ])(public employment, discrimination) (Before Justices Patterson, Pemberton and Waldrop) Appeal from 146th District Court of Bell County
Disposition: Affirmed
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003. We disagree, and will affirm the district court's judgment.
* * *
CONCLUSION
Because we conclude that the district court properly granted summary judgment as to all of Deocariza's claims on the grounds discussed above, we need not address the limitations ground presented in CTCD's summary judgment motion. We affirm the judgment of the district court.
Disposition: Affirmed
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003. We disagree, and will affirm the district court's judgment.
* * *
CONCLUSION
Because we conclude that the district court properly granted summary judgment as to all of Deocariza's claims on the grounds discussed above, we need not address the limitations ground presented in CTCD's summary judgment motion. We affirm the judgment of the district court.
Car warranty | Cole v. Motor Vehicle Bd (Tex.App.- Austin 2008)
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing.
Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC, No. 03-05-00825-CV (Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ] )(administrative law, appeal) (Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC, No. 03-05-00825-CV (Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ] )(administrative law, appeal) (Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Premises Liability | Fair v. White Memorial Hospital (Tex.App.- Austin 2008)
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc. (Tex.App.- Austin, June 13, 2008)(Opinion by Justice Pemberton [ PDF ] (premises liability) (Before Justices Patterson, Pemberton and Waldrop) 03-06-00211-CVAppeal from 146th District Court of Bell County
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.--Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Gary Fair slipped and fell on ice that had accumulated outside Temple's Scott and White Memorial Hospital during a winter storm. Mr. Fair and his wife, Linda, sued the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation, Scott and White Properties, Inc., and "Scott and White Memorial Hospital" (collectively "appellees") for damages arising from the injuries Mr. Fair sustained as a result of his fall. The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.--Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Gary Fair slipped and fell on ice that had accumulated outside Temple's Scott and White Memorial Hospital during a winter storm. Mr. Fair and his wife, Linda, sued the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation, Scott and White Properties, Inc., and "Scott and White Memorial Hospital" (collectively "appellees") for damages arising from the injuries Mr. Fair sustained as a result of his fall. The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
Friday, June 27, 2008
TTCA | City of Austin v. Leggett (Tex.App.- Austin 2008)
Drowning Death Suit against City dismissed on sovereign immunity grounds
City of Austin, Texas v. Trudy Leggett, Individually and as Heir of Nathan Leggett, Deceased, No. 03-07-00345-CV (Tex.App.- Austin, June 12, 2008)(Opinion by Justice Pemberton [ PDF ] )(flooding death, TTCA) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 261st District Court of Travis County
O P I N I O N
At approximately 6 p.m. on November 15, 2001, seventeen year-old Nathan Leggett tragically drowned after attempting to drive through a flooded street in southwest Austin. That afternoon, it was undisputed that the Austin area had been hit by thunderstorms with intense rainfall, hail, tornados and widespread flooding. Nathan's mother, Trudy Leggett, individually and as Nathan's heir, sued the City of Austin for damages under the survival statute and wrongful death act. She alleged that the City's negligent maintenance or design of a stormwater detention pond, located north of the intersection where Nathan drowned, had caused debris to clog a grate covering the pond's designed drainage outlet, resulting in storm waters backing up and ultimately overflowing the pond, flooding the adjacent residential area and causing Nathan's death. (1)
Leggett's suit implicates the City's governmental immunity, the long-established common-law doctrine that categorically bars suits for money damages against municipalities unless the legislature has consented to suit. See, e.g., City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). (2) Leggett purports to assert claims within the legislative waivers of immunity under the tort claims act for damages claims based on theories of premises defects and "special defects." See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a)-(b) (West Supp. 2007).
Asserting that its immunity against Leggett's claims had not been waived, the City filed a plea to the jurisdiction. The trial court denied the plea, specifically finding "as a matter of law that the condition was a special defect." The City appeals this order. See id. § 51.014(a)(8) (West Supp. 2007). (3)
Concluding that Leggett's suit does not fall within the tort claims act's waivers of immunity, we must reverse and render judgment dismissing the suit for want of subject-matter jurisdiction.
[...]
C O N C U R R I N G O P I N I O N BY JUSTICE PATTERSON
I concur in the judgment and agree with the majority's conclusion that the dispositive issue is whether the City of Austin had actual knowledge of the dangerous condition--flooding in the intersection--at the time of the accident.
The supreme court in City of Corsicana v. Stewart, No. 07-0058, 249 S.W.3d 412, 2008 Tex. LEXIS 218 (Tex. Mar. 28, 2008) (per curiam), decided a similar premise defect case that is dispositive of this appeal.
The supreme court directly addressed the element of a governmental unit's actual knowledge of a dangerous condition to establish waiver under the Texas Tort Claims Act. Id. at *1. In the context of an accident that occurred at a flooded low-water crossing, the claimants presented evidence that the City of Corsicana knew the low-water crossing tended to flood during heavy rainfall and that there had been heavy rainfall at the time of the accident. Id. at *3-4. Despite the City of Corsicana's knowledge of prior flooding at the low-water crossing and heavy rainfall at the time of the accident, the supreme court dismissed the claimants' action for lack of jurisdiction, holding that the claimants failed to raise a fact issue regarding the City of Corsicana's "actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident." Id. at *7-8 ("As the Legislature created an actual, not constructive, knowledge standard for waiver of immunity, we conclude that Plaintiffs failed to raise a fact issue regarding the City's knowledge of a dangerous condition.").
There was no direct evidence that the City of Corsicana knew that the low-water crossing was flooded at or near the time of the accident. Id. at *5.
Similarly, there was no evidence that the City of Austin had actual knowledge that the intersection where the accident occurred was flooded at or near the time of the accident and, more compelling than the facts in City of Corsicana, it was undisputed that the City of Austin did not have knowledge of this intersection having ever flooded on prior occasions--or even of the detention pond flooding or overflowing. Leggett affirmatively asserted this fact in her pleadings: "The location of the drowning of Nathan is not known to have flooded before."
Based on the legal analysis set forth in City of Corsicana that a governmental entity must have "actual knowledge of a dangerous condition" to establish waiver of immunity, see id. at *7-8, I concur in the majority's judgment dismissing Leggett's suit for want of subject-matter jurisdiction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: June 12, 2008
City of Austin, Texas v. Trudy Leggett, Individually and as Heir of Nathan Leggett, Deceased, No. 03-07-00345-CV (Tex.App.- Austin, June 12, 2008)(Opinion by Justice Pemberton [ PDF ] )(flooding death, TTCA) (Before Justices Patterson, Puryear and Pemberton)
Appeal from 261st District Court of Travis County
O P I N I O N
At approximately 6 p.m. on November 15, 2001, seventeen year-old Nathan Leggett tragically drowned after attempting to drive through a flooded street in southwest Austin. That afternoon, it was undisputed that the Austin area had been hit by thunderstorms with intense rainfall, hail, tornados and widespread flooding. Nathan's mother, Trudy Leggett, individually and as Nathan's heir, sued the City of Austin for damages under the survival statute and wrongful death act. She alleged that the City's negligent maintenance or design of a stormwater detention pond, located north of the intersection where Nathan drowned, had caused debris to clog a grate covering the pond's designed drainage outlet, resulting in storm waters backing up and ultimately overflowing the pond, flooding the adjacent residential area and causing Nathan's death. (1)
Leggett's suit implicates the City's governmental immunity, the long-established common-law doctrine that categorically bars suits for money damages against municipalities unless the legislature has consented to suit. See, e.g., City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). (2) Leggett purports to assert claims within the legislative waivers of immunity under the tort claims act for damages claims based on theories of premises defects and "special defects." See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a)-(b) (West Supp. 2007).
Asserting that its immunity against Leggett's claims had not been waived, the City filed a plea to the jurisdiction. The trial court denied the plea, specifically finding "as a matter of law that the condition was a special defect." The City appeals this order. See id. § 51.014(a)(8) (West Supp. 2007). (3)
Concluding that Leggett's suit does not fall within the tort claims act's waivers of immunity, we must reverse and render judgment dismissing the suit for want of subject-matter jurisdiction.
[...]
C O N C U R R I N G O P I N I O N BY JUSTICE PATTERSON
I concur in the judgment and agree with the majority's conclusion that the dispositive issue is whether the City of Austin had actual knowledge of the dangerous condition--flooding in the intersection--at the time of the accident.
The supreme court in City of Corsicana v. Stewart, No. 07-0058, 249 S.W.3d 412, 2008 Tex. LEXIS 218 (Tex. Mar. 28, 2008) (per curiam), decided a similar premise defect case that is dispositive of this appeal.
The supreme court directly addressed the element of a governmental unit's actual knowledge of a dangerous condition to establish waiver under the Texas Tort Claims Act. Id. at *1. In the context of an accident that occurred at a flooded low-water crossing, the claimants presented evidence that the City of Corsicana knew the low-water crossing tended to flood during heavy rainfall and that there had been heavy rainfall at the time of the accident. Id. at *3-4. Despite the City of Corsicana's knowledge of prior flooding at the low-water crossing and heavy rainfall at the time of the accident, the supreme court dismissed the claimants' action for lack of jurisdiction, holding that the claimants failed to raise a fact issue regarding the City of Corsicana's "actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident." Id. at *7-8 ("As the Legislature created an actual, not constructive, knowledge standard for waiver of immunity, we conclude that Plaintiffs failed to raise a fact issue regarding the City's knowledge of a dangerous condition.").
There was no direct evidence that the City of Corsicana knew that the low-water crossing was flooded at or near the time of the accident. Id. at *5.
Similarly, there was no evidence that the City of Austin had actual knowledge that the intersection where the accident occurred was flooded at or near the time of the accident and, more compelling than the facts in City of Corsicana, it was undisputed that the City of Austin did not have knowledge of this intersection having ever flooded on prior occasions--or even of the detention pond flooding or overflowing. Leggett affirmatively asserted this fact in her pleadings: "The location of the drowning of Nathan is not known to have flooded before."
Based on the legal analysis set forth in City of Corsicana that a governmental entity must have "actual knowledge of a dangerous condition" to establish waiver of immunity, see id. at *7-8, I concur in the majority's judgment dismissing Leggett's suit for want of subject-matter jurisdiction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Filed: June 12, 2008
CRLP Research Boulevard, LLC v. Williamson County Appraisal District
M E M O R A N D U M O P I N I O N
Appellant, CRLP Research Boulevard, LLC, has filed an unopposed motion to dismiss this appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).d Travis Central Appraisal District
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: June 12, 2008
M E M O R A N D U M O P I N I O N
Appellant, CRLP Research Boulevard, LLC, has filed an unopposed motion to dismiss this appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1).d Travis Central Appraisal District
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: June 12, 2008
Premises Liability | Fair v. White Memorial Hospital (Tex.App.- Austin 2008)
Gary Fair slipped and fell on ice that had accumulated outside Temple's Scott and White Memorial Hospital during a winter storm. Mr. Fair and his wife, Linda, sued the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation, Scott and White Properties, Inc., and "Scott and White Memorial Hospital" (collectively "appellees") for damages arising from the injuries Mr. Fair sustained as a result of his
fall.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART: Opinion by Justice Pemberton [ PDF ] (Before Justices Patterson, Pemberton and Waldrop)
03-06-00211-CV
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.
Appeal from 146th District Court of Bell County
The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
fall.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART: Opinion by Justice Pemberton [ PDF ] (Before Justices Patterson, Pemberton and Waldrop)
03-06-00211-CV
Gary Fair and Linda Fair v. Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation; Scott and White Memorial Hospital; and Scott and White Properties, Inc.
Appeal from 146th District Court of Bell County
The appellees moved for summary judgment on three grounds relevant to this appeal: (1) as a matter of law, the condition of accumulated ice did not pose an unreasonable risk of harm under the principles enunciated in M. O. Dental Lab v. Rape, 139 S.W.3d 671, 672-73 (Tex. 2004) (per curiam), and Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442-45 (Tex. App.--Eastland 2003, pet. denied), because the ice had accumulated due to natural forces and had remained in its natural state; (2) Mrs. Fair's claims are entirely derivative of Mr. Fair's; and (3) the Scott, Sherwood and Brindley Foundation was the sole owner, occupier or manager of the premises at issue and there is no evidence that Scott and White Properties, Inc. and "Scott and White Memorial Hospital" were. (1) The district court granted appellees' motion in its entirety without stating the grounds and rendered final judgment that the Fairs take nothing on their claims. The Fairs appealed.
Although the Fairs appeal the judgment as to all three appellees, they have not challenged the "no evidence" ground that could support summary judgment for Scott and White Properties, Inc., and "Scott and White Memorial Hospital." Consequently, we will affirm the district court's judgment as to those parties. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Bradley v. State ex rel White, 990 S.W.2d 245, 247 (Tex. 1999). However, because we conclude on this record that the Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation ("the Foundation") has not established its entitlement to summary judgment with regard to the Fairs' claims against it, we must reverse that part of the judgment and remand for further proceedings.
We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). In deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Texas Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 276 (Tex. App.--Houston [1st Dist.] 2006, no pet.). We may affirm a summary judgment when the record shows that a movant has conclusively disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 660-61 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). (2)
The Fairs allege that appellees were negligent in failing to exercise ordinary care to discover and make safe or warn of the accumulated ice on which Mr. Fair allegedly slipped and injured himself. This is a theory of premises liability. See In re Tex. Dep't of Transp., 218 S.W.3d 74, 77-78 (Tex. 2007) (distinguishing between premises defect claims and "negligent activity" claims); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992) (same). Under a premises liability theory, the duty owed by the premises owner or occupier--here, the Foundation--depends upon whether the entrant had the status of an invitee, licensee, or trespasser. For purposes of this summary judgment proceeding, the Foundation does not dispute that both Mr. and Mrs. Fair had the status of invitees. An owner or occupier owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty, however, "does not make the possessor an insurer of the invitee's safety." Id. To establish the owner or occupier's liability to an invitee for a condition existing on the premises, the following elements must be proven: (1) the owner or occupier had actual or constructive knowledge of a condition on the premises; (2) the condition posed an "unreasonable risk of harm"; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately caused the invitee's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Appellees' summary-judgment motion targeted the second element: it contended that, as a matter of law, natural accumulations of ice do not pose an unreasonable risk of harm and that the ice accumulation in which Mr. Fair slipped was in its natural state. (3)
In support of this legal principle, appellees relied on the supreme court's holding in M.O. Dental Lab that "[o]rdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm," 139 S.W.3d at 676, and the Eastland Court of Appeals' earlier holding in Surratt, in which it applied the "Massachusetts Rule" that accumulated ice in its natural condition does not present an unreasonable risk of harm. 102 S.W.3d at 442-45. The Fairs contend that both cases are distinguishable--they observe that M.O. Dental Lab involved mud, not ice, and portray the rationale of Surratt as limited solely to falls occurring in parking lot locations more remote than the site of Mr. Fair's fall. (4) In the alternative, the Fairs urge that appellees did not meet their summary-judgment burden of conclusively demonstrating that the ice at the site of Mr. Fair's fall was in its natural condition at the time of the fall. We agree with the Fairs that appellees did not meet their summary-judgment burden as to whether the ice where Mr. Fair fell was in its natural condition.
In support of their summary-judgment motion, appellees submitted the affidavits of Andy Anderson, Chief Meteorologist at Temple's KCEN television station, and Melissa Frei, Grounds Supervisor at Scott and White Hospital at the time of Mr. Fair's fall. Mr. Anderson, who averred to having 25 years' experience as a meteorologist, stated that "[b]eginning on Monday afternoon, February 24, 2005, an Arctic Cold Front arrived in the Temple, Texas area," and that the temperature fell below freezing (32 degrees Fahrenheit) at 5:30 p.m. "[R]ain began to freeze on contact with exposed surfaces," and "[i]ce pellets were also observed in the area helping create a glaze on sidewalks and roads." "By midnight," Anderson added, ".50" of snow was on the ground, and the temperature had fallen to 25 degrees."
"Winter precipitation continued until the early morning of Tuesday, February 25, 2005," according to Anderson, with ".12" to .55" additional precipitation since midnight." Further, "an additional trace of snow was measured," and "periods of ice pellets and ice fog were observed." Anderson noted that secondary roads across most of Bell County were rendered impassible due to accumulations of 1.5 inches of ice. On February 25, Anderson added, "[t]emperatures fell to 22 degrees shortly after dawn and warmed to only 26 by late afternoon." The temperature did not rise above freezing until the afternoon of Wednesday, February 27, Anderson continued, and the roads were not clear until the following day.
In her affidavit, Frei discussed the impact of the ice storm on the Scott and White grounds in particular. She averred that, as Grounds Supervisor, she was personally present at the hospital on February 24 and 25, 2005, and "personally observed" that an ice storm hit the Temple area on the 24th and caused ice accumulations "in the area, including, but not limited to, the parking lot, road, and steps in front of the Special Treatment Center at the hospital." According to Frei, "All exposed surfaces on the parking lot, road, and steps in this location were covered with ice." Regarding the condition of the ice accumulations at the time and location where Mr. Fair fell, Frei stated that "[t]he ice accumulations were caused by forces of nature, and not by any human action" and that "[t]he accumulations of ice in the parking lot and road remained in their natural state until after Gary Fair is reported to have fallen in this location." Other than to state that the facts within her affidavit "are within my personal knowledge" and that she "personally observed" them in her capacity as Grounds Supervisor, Frei did not elaborate on the basis of her knowledge regarding the condition of the ice at the time and location where Mr. Fair fell.
The Fairs attached to their summary-judgment response excerpts from Frei's deposition in which she testified that she had "no idea" or familiarity regarding the particular incident where Mr. Fair fell and was injured, that she had not been at the scene or been called to the scene, and that she had not heard about the incident during the day on which it occurred. (5)
Frei's deposition testimony controverts her assertions of personal knowledge regarding the condition of the ice accumulations at the time and location where Mr. Fair fell that were contained in her affidavit. Accordingly, Frei's affidavit cannot support summary judgment with regard to whether the ice accumulations where and when Mr. Fair fell were in their natural state. See Tex. R. Civ. P. 166a(c), (f).
Appellees also attached excerpts from Mr. Fair's deposition, in which he described the circumstances of his fall. Regarding the condition of the ice at the site of the fall, appellees point to Mr. Fair's testimony that the location where he fell had not been sanded. This testimony alone does not conclusively establish that the ice where Mr. Fair fell was necessarily in its natural condition.
Appellees did not present any other summary-judgment evidence regarding whether the ice accumulation where and when Mr. Fair fell was in its natural condition. On this record, appellees did not conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition. For these reasons, we affirm the district court's summary judgment that the Fairs take nothing on their claims against Scott and White Properties, Inc., and "Scott and White Memorial Hospital," but reverse its judgment that the Fairs take nothing on their claims against the Foundation. We remand for further proceedings consistent with this opinion.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part, Reversed and Remanded in part
Filed: June 13, 2008
1. The Fairs also filed a cross-motion for summary judgment, which the district court denied. The Fairs do not appeal from this ruling, as the grounds they presented in their cross-motion did not overlap with the appellees' three grounds.
2. On appeal, the Fairs filed an appendix to their brief containing what appear to be the entire transcripts from the depositions of Mr. Fair, Scott and White grounds supervisor Melissa Frei, and security department manager Thomas Suhling. Appellees filed a motion to strike any portions of these depositions that had not been included in the summary-judgment record. The Fairs subsequently agreed to this requested relief. We grant the motion and strike all portions of these depositions that were not included in the summary-judgment record.
3. On appeal, appellees assert that, "[e]ven in the absence of Wal-Mart and M.O. Dental Lab, Appellees would have been entitled to summary judgment" because whatever duty they had to warn the Fairs of the risk posed by the ice was obviated by Mr. Fair's admitted awareness of it and "there was nothing to warn him about." However, appellees did not raise this ground in their motion, so we cannot consider it as a basis for affirming the summary judgment. See City of Midland v. O'Bryant, 18 S.W.3d 209, 218 (Tex. 2000).
4. But see Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.--Waco 2006, no pet.) ("In light of M.O. Dental Lab, we see no basis for differentiating between a natural accumulation of ice in the parking lot and one on a sidewalk near a business entrance. Therefore, we hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.").
5. Q: Do you keep records of - Do you have any familiarity with the particular incident where Mr. Fair slipped and fell and was injured?
A: I have no idea.
Q: You weren't at the scene or called to the scene?
A: No, sir.
Q: You never met Mr. Fair?
A: No, sir.
Q: Did you go to the scene - Or did you hear about the accident during the day?
A: No, sir.
Cole v. Motor Vehicle Board of Tx DOT (Tex.App.- Austin 2008)
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Cole v. Motor Vehicle Board of the Tx DoT 03-05-00825-CV(Tex.App.- Austin, June 18, 2008)(Opinion by Justice Pemberton [ PDF ]) (Before Chief Justice Law, Justices Patterson and Pemberton)Robert Cole and Bonnie Cole v. Motor Vehicle Board of the Texas Department of Transportation and Georgie Boy Manufacturing, Inc. n/k/a Georgie Boy Manufacturing, LLC--Appeal from 345th District Court of Travis County
M E M O R A N D U M O P I N I O N
This is an administrative appeal from an order of the Motor Vehicle Board of the Texas Department of Transportation (Board) denying relief on a vehicle warranty complaint brought by Robert and Bonnie Cole following a contested-case hearing. See Tex. Occ. Code Ann. § 2301.204 (West 2004). (1) The district court affirmed the order. In two issues, the Coles argue that the Board lacked statutory authority to make fact findings adverse to the Coles and that both the Board and district court lacked subject-matter jurisdiction because the Coles were not proper parties and lacked standing. We will affirm the district court's judgment.
This proceeding arises in the context of the "hybrid claims resolution process" discussed by the Texas Supreme Court in Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222-26 (Tex. 2002). The underlying controversy concerns a 1994 Georgie Boy motor home purchased by the Coles in June 1994. The Coles claim to have encountered numerous problems with the motor home relating chiefly to overheating and handling difficulties. In 1995, the Coles filed suit in Hays County against the dealer who sold them the motor home, Interstate R.V. Center. They later amended their complaint to allege claims against the manufacturer of the vehicle, appellee Georgie Boy, Inc.; the manufacturer of the vehicle's chassis, Spartan Motors, Inc.; and the engine manufacturer, Cummins Engine Company. The Coles asserted claims under the DTPA, alleging, among other theories, breach of warranty. The lawsuit was later abated and, in 2004, the Coles sent the Board a letter "to file a complaint for unresolved warranty issues" under section 2301.204 of the occupations code. (2)
The Board responded with a letter assigning them a "case advisor" and transmitting a form for filing a "Lemon Law" complaint See Tex. Occ. Code Ann. §§ 2301.601-.613 (West 2004 & Supp. 2007). The Coles completed the Lemon Law form and filed it with the Board. The matter was docketed with the Coles designated as "complainant" and the three manufacturers as "respondents." Spartan moved to dismiss the complaint as untimely. The ALJ granted Spartan's motion and dismissed the complaint, ruling that the vehicle warranties had long since expired and that the Coles had "failed to present a prima facie case that would entitle them to relief under Section 2301.204" because the passage of time "rendered attribution of cause with any degree of legal certainty unfeasible." The Coles filed a motion for rehearing with the Board.
In their rehearing motion, the Coles urged that the Texas Supreme Court had decided Subaru while their suit was pending and that "[i]n light of Subaru . . . and the broad language of Section 2301.204 of the Occupations Code, it was prudent, if not mandatory, for the Complainant to attempt to invoke the jurisdiction of the Board pursuant to section 204 prior to trying the pending District Court case." The Board unanimously agreed, granting the Coles' rehearing motion and remanding the matter to the ALJ. Subsequently, the Board gave notice of hearing "under the authority of the Texas Occupations Code Annotated, Section 2301.204 . . . for the purpose of receiving testimony and other evidence from the parties, to determine whether the Respondent[s] ha[ve] failed to conform the Complainant's vehicle to the express warranty applicable to said vehicle by failing to repair or correct defects or conditions which are covered by the warranty on the vehicle, as alleged by Complainant, and to determine if Complainant is entitled to relief as provided by . . . Section 2301.204."
Pursuant to the notice, a contested case hearing was held in which the Coles presented evidence (including the testimony of two experts) and argued that they "have satisfied their burden to win this case. They have shown that defects exist, that they told the Respondents about the defects but that the Respondents failed to repair the defects. So, the Coles should prevail." (3) The ALJ concluded that there had been no warranty violations by the respondents. The ALJ specifically found that Georgie Boy's express warranty had expired in 1995, that the company had not failed to uphold its warranty obligations, and that "[t]he requirements of Section 2301.204 were not met because the Complainants have not proven that any manufacturing related defective conditions currently exist." The Coles moved for rehearing, which the Board denied by a 6-2 vote. The Coles then sought judicial review in the district court. This district court affirmed the Board's order. This appeal followed.
The Coles acknowledge that they are appealing the Board's decision "solely to ensure that the Board's arbitrary and capricious actions [do] not prejudice" the pending lawsuit in Hays County under Subaru. At this juncture, they attempt to portray the Board proceeding they initiated as a "public interest" complaint that the Board had authority only to "investigate" in its "administrative" capacity. According to the Coles, the Board had statutory authority or jurisdiction during this investigation merely to call them as witnesses, but could not act in a "judicial capacity" to adjudicate their complaint, treat them as parties to a contested case or "adversarial action," or make findings and rulings "against" them.
On appeal, the Coles question whether their lawsuit presents code-based issues whose determination by the Board would have binding effect under Subaru. As the Coles acknowledged in their first motion for rehearing before the Board, however, their warranty complaints clearly present code-based issues within the Board's exclusive jurisdiction. See Tex. Occ. Code Ann. §§ 2301.204, .601-.613; see Subaru, 84 S.W.3d at 222-26.
As we have previously observed, "[e]xactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru" that the Board would use in the hybrid claims-resolution process "remains somewhat unclear," Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 148 (Tex. App.--Austin 2005, no pet.), but it remains that the Board has exclusive jurisdiction within this scheme to decide code-based issues. See Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 102 (Tex. App.--Austin 2004, pet. denied). Moreover, "the legislature has granted the Board wide discretion to fashion the procedural mechanisms through which it exercises its jurisdiction." Id. For example, in Buddy Gregg, another Subaru case, we held that the Board had discretion under its enforcement powers to permit a motor coach dealer to initiate a contested case proceeding to determine licensing issues involving a rival company and to permit the dealer to participate in those proceedings as a party. Id. at 101-02.
Throughout each step of the agency proceedings, the Coles participated as parties in an adversarial, contested-case process, presenting evidence and arguing that they had "satisfied their burden to win this case." Such a process was contemplated by the Board's rules governing complaints regarding warranty performance obligations. 16 Tex. Admin. Code §§ 107.1-.11 (2004). The Coles did not complain of this procedure until they filed their motion for rehearing before the Board. Under Subaru and Buddy Gregg, we reject the Coles' arguments that the Board lacked statutory authority or jurisdiction to adjudicate their code-based warranty issues through the procedure it utilized. We accordingly overrule the Coles' issues (4) and affirm the district court's judgment.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: June 18, 2008
1. Because most of the underlying proceedings predated the legislature's 2005 abolition of the Board and transfer of its functions to the motor vehicle division of the department of transportation, we will refer to the agency as the Board. See Act of May 30, 2005, 79th Leg., R.S., ch. 281, § 7.01, sec. 2301.002(2), (10), 2005 Tex. Gen. Laws 778, 839.
2. The Coles' letter actually referenced "Section 2.04 of the Motor Vehicle Commission Code." The Coles acknowledge that, as is apparent from their subsequent filings, they intended to invoke section 2301.204 of the occupations code. Tex. Occ. Code Ann. § 2301.204(a) (West 2004).
Section 2310.204 provides:
§ 2301.204. COMPLAINT CONCERNING VEHICLE DEFECT.
(a) The owner of a motor vehicle or the owner's designated agent may make a complaint concerning a defect in a motor vehicle that is covered by a manufacturer's, converter's, or distributor's warranty agreement applicable to the vehicle.
(b) The complaint must be made in writing to the applicable dealer, manufacturer, converter, or distributor and must specify each defect in the vehicle that is covered by the warranty.
(c) The owner may also invoke the board's jurisdiction by sending a copy of the complaint to the board.
(d) A hearing may be scheduled on any complaint made under this section that is not privately resolved between the owner and the dealer, manufacturer, converter, or distributor.
3. Complainants' Closing Argument, at 2.
4. In addition to their two issues, the Coles assert in their statement of facts that "[t]he Manufacturers . . . failed to provide substantial evidence." To the extent the Coles intend this as a challenge to whether substantial evidence supports the Board's order, we agree with the Board that the Coles have waived it by failing to identify any specific findings of fact or conclusions of law they contend are not supported by the evidence. See Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied).
Thursday, June 26, 2008
Employment Discrimination | Deocariza v. Central Texas College District (Tex.App.- Austin 2008)
Deocariza v. Central Texas College District, No. 03-06-00653-CV (Tex.App.- June 19, 2008) (Opinion by Justice Pemberton [ PDF ] )
(public employment law, discrimination claim rejected)
(Before Justices Patterson, Pemberton and Waldrop) Conrad G. Deocariza v. Central Texas College District
Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003.
We disagree, and will affirm the district court's judgment.
(public employment law, discrimination claim rejected)
(Before Justices Patterson, Pemberton and Waldrop) Conrad G. Deocariza v. Central Texas College District
Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District ("CTCD"), alleging that he was denied a promotion and later terminated because he is a Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD sought summary judgment on traditional and "no evidence" grounds challenging various elements of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of reinstatement and front pay and limited any back pay award to the period between February 14, 2004, (the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1) The district court granted summary judgment in favor of CTCD without specifying the grounds on which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his surviving claim for back-pay damages for the period between February 14 and October 12, 2003.
We disagree, and will affirm the district court's judgment.
Sunday, June 8, 2008
White v. Hamlett (Tex.App.- Austin 2008)
Spouses Dennis White and Karen Hamlett appeal a judgment awarding Larry Baugh, Hamlett's ex-husband, title to and possession of real property located in Travis County. Baugh had sued to enforce the property division in the 1991 divorce decree that had ended his marriage with Hamlett, which had included a residuary clause that awarded all undisclosed property to the party not in possession of it. Baugh's central theory at trial was that the decree had awarded him the real property because the property had been purchased with community funds while they were still married. In six points of error, White and Hamlett challenge the legal and factual sufficiency of the evidence supporting two of the jury findings; assert that the district court erred in denying their motion for new trial, motion to disregard jury findings, and motion for judgment notwithstanding the verdict; and contend that the district court abused its discretion in awarding Baugh $55,000 in attorney's fees. In a cross-appeal point of error, Baugh asserts that the district court abused its discretion by assessing the attorney's fees award against Hamlett but not White. We will affirm the judgment.
AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Pemberton and Waldrop)
03-05-00704-CV (Tex.App. - Austin, May 28, 2008)(Pemberton) (family law, domestic relations, divorce, community property, separate property, jury trial)
Appellants, Dennis White and Karen Hamlett f/k/a Karen Baugh// Cross-Appellant, Larry Baugh v. Appellee, Larry Baugh// Cross-Appellees, Dennis White and Karen Hamlett f/k/a Karen Baugh--Appeal from 167th District Court of Travis County
BACKGROUND
The jury heard evidence that, in 1981, Baugh and Hamlett married. During their marriage, they acquired substantial community property, including a home valued at over $500,000 located in Austin's West Lake Hills area, a ranch in Manor where they bred race horses, and a vacation home in New Mexico. The couple had two daughters.
Baugh's and Hamlett's lives changed dramatically beginning in February 1988, when Baugh was arrested and later pleaded guilty to income tax evasion and possession of marihuana with intent to deliver, resulting in his incarceration from 1988 until 1994. Following Baugh's arrest, Hamlett took control of the family's financial affairs. While some of the couple's assets were seized or forfeited during the criminal proceedings, Hamlett retained control over, and liquidated, most of their other assets, including at least one bank account that had "[p]robably a few thousand dollars" in it, at least 50 race horses valued at approximately $5,000 each, and all of the ranch equipment, vehicles and accounts receivable from the family's business. (1) Hamlett's parents, Gladys V. Hamlett and Martin Leon Hamlett, moved from El Paso to Austin to assist their daughter during this time. Gladys moved in with Hamlett and Hamlett's daughters. Also in 1988, Hamlett began dating Dennis White, a former employee at the horse ranch. (2)
By October 1988, Hamlett had filed for bankruptcy and could no longer afford payments on the house. (3) The lender instituted foreclosure proceedings. Hamlett testified that she contacted a realtor to help her find a new place to live. One day, while Hamlett and her mother were driving around the area looking for a place to rent, they came across a townhouse for sale at 6405 Weatherwood Cove. Hamlett contacted the realtor for information about the property.
In February 1989, Hamlett's parents signed an earnest money contract to purchase the townhouse for $74,000.00, to be paid, in part, from the proceeds of a $52,000 loan. In April 1989, the parents, under their names, executed a promissory note and mortgage with Homestead Savings for $52,000, with monthly payments of $437.50 per month for thirty years. In the loan application, the parents specified that their income at the time was $1,177 per month. They also claimed additional income of $365 per month from Hamlett's leasing of their El Paso property. However, Hamlett admitted that she never actually rented her parents' El Paso house--to the contrary, she moved directly from the house in Westlake to the house on Weatherwood Cove. Hamlett provided the following testimony about the purported lease agreement:
Q: In 1989 you signed a lease that was fictitious about moving to El Paso in order to make sure that you could get the Weatherwood Cove home; is that correct?
A: I signed it in order for my parents to be able to buy that home.
. . . .
Q: And you were willing to lie to have that happen?
A: I don't recall the rationale behind it, but it was a necessary thing in order for my parents to get the loan.
Appellants also acknowledge in their brief that the lease of the El Paso property was "phony."
In 1990, while Baugh remained incarcerated, White moved in with Hamlett and her daughters at their Weatherwood Cove residence. In February 1991, Baugh and Hamlett divorced. In June of that same year, Hamlett's parents signed a contract to sell the Weatherwood Cove property to White. The sales contract provided that the purchase price was $57,000, with financing by the sellers, on a note with principal and interest payments of $437.25 per month for 28 years. These terms corresponded with the amount and term of payments remaining on the parents' mortgage. The contract also provided that closing and title transfer would occur upon full payment of the note.
In 1993, approximately one year after White and Hamlett purported to be married under common law, the parents transferred title to White. According to the 1993 closing statement, the sales price was $74,000, with a portion of the price financed through a mortgage in White's name. The mortgage loan application specified that title would be held in the name of "Dennis Dale White," a "single male." The warranty deed conveyed title to "Dennis Dale White, a single person." At trial, White was unable to explain why these documents referred to him as single when, in fact, he was married to Hamlett at the time the documents were executed.
Hamlett's parents received $21,401.41 in cash at closing. However, there was evidence presented at trial that, three weeks after closing, this same amount was deposited back into White and Hamlett's joint bank account. When confronted with a deposit slip for the exact amount of the sellers' proceeds, showing that the funds were deposited into this bank account, White testified that he was "a little confused." However, when asked if the matching amounts were "just a coincidence," White responded, "No." White also claimed that he and Hamlett did not own a joint bank account at the time of the closing. However, after he was shown an account statement for the month in which the closing occurred and the deposit was made, he acknowledged that both his and Hamlett's names appeared on the statement. Hamlett testified that the money deposited into the account belonged to both her and White, and she agreed with Baugh's characterization of her "as sort of a silent partner" in White's purchase of the home.
In January 2001, Baugh learned for the first time about the Weatherwood Cove property. Baugh testified that Gladys, Hamlett's mother, told him that "the truth about that home purchase in Austin" was that "it was Karen's purchase all along." According to Baugh, Gladys added, "We were nothing more than her trustee."
In March 2001, Baugh filed suit against Hamlett to enforce the property division in the divorce decree. Baugh alleged in his petition that the decree failed to specifically award the property located at 6405 Weatherwood Cove and that, under the terms of the decree's residuary clause, the property belonged to him. (4)
In 2002, Baugh amended his petition to add White as a defendant. Baugh alleged that White conspired with Hamlett's parents to convey title in the subject property to White.
During discovery, Hamlett's mother executed a sworn statement describing the circumstances surrounding the purchase:
TO WHOM IT MAY CONCERN:
Narrative of events relating to purchase of home at 6405 Weatherwood Cove, Austin, Texas 78746, by Gladys Hamlett, covering the time period from 1988 to 1992.
In the summer of 1988, my daughter, Karen Baugh (nee Hamlett), was separated and intending to divorce her husband Larry Baugh. She asked if I and Mr. Hamlett (her parents) would purchase a home for her, in our name. She found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER. We had no funds or interest in the home at all. Karen was always responsible for and made the mortgage payments, taxes, etc.
A fire occurred in Nov. 1990, for which an insurance check for about $30 thousand was issued, and I signed over to Karen. She used it for repairs. Not me.
In the summer of 1991, Karen asked me to leave the home where I had been residing with she and her two children. I moved away since it was her home, and had always been in her control.
Later that summer or fall, she asked me and Mr. Hamlett to sign the house into her name. We agreed and did sign and transfer title to Karen (Hamlett), since she was now divorced.
This statement is from memory, and is substantially accurate.
Given this 23rd day of Feb. 2001
//s// Gladys Hamlett
(Emphasis added). This affidavit was admitted into evidence, along with Gladys's deposition testimony from 2001. In the deposition, Gladys provided additional details about the purchase. Among other details, Gladys testified that she and Leon did not have the financial ability to purchase the house. Gladys also testified that she did not remember how much money Hamlett gave her to purchase the house, but she thought it could have been $10,000 in cash that Hamlett had previously set aside "in her closet in a boot." Gladys further testified in her deposition that every statement in her affidavit was true and correct. Later at trial, however, Gladys recanted her prior statements, testifying that her statements in the affidavit were not true and that she had lied during her deposition.
At the conclusion of trial, the district court submitted jury issues regarding the extent to which the townhouse had been purchased with Baugh and Hamlett's community funds, whether Baugh was estopped from asserting or had waived his claim to the property, whether White was a bona fide purchaser for value when he bought the property, and the amount of each parties' attorney's fees. The jury found that the property had been purchased entirely with community funds, that Baugh was not estopped from and had not waived his claim to the property, that White was not a bona fide purchaser for value, and that Baugh had incurred $55,000 in trial-level attorney's fees, plus $5,000 for an appeal to this Court, and another $5,000 each if a petition for review was filed in or granted by the supreme court. The district court rendered judgment on the jury's verdict, awarding Baugh title to and possession of the property, and that he recover from Hamlett the amount of attorney's fees found by the jury. This appeal followed.
DISCUSSION
Community funds
Appellants' first five points of error concern the jury's findings related to community funds. Question 1 of the charge asked, "Was all or a portion of the property located at 6504 Weatherwood Cove Austin, Texas purchased with the community funds of Larry Baugh and Karen Baugh in 1989?" Conditioned on an affirmative answer to Question 1, Question 2 inquired as to the amount of community funds that were used for the purchase. The jury was instructed not to answer Question 2, however, if it found that all of the funds used to purchase the property were community funds. The charge defined "community property" as "the property, other than separate property, acquired by either spouse during marriage" and "separate property" as "property owned or claimed by a spouse prior to marriage, or acquired by gift, devise, or descent." The jury found in the affirmative on Question 1, but did not answer Question 2. By this, the parties agree that the jury necessarily found that the Weatherwood Cove property had been purchased entirely with community funds. In appellants' first and second points of error, they contend there is either legally or factually insufficient evidence to support the jury's findings that the property was purchased entirely with community funds. In their third point of error, appellants assert that there is factually insufficient evidence to support the jury's finding in Question 1 that a portion of the property was purchased with community funds. (5) In their fourth and fifth points of error, appellants argue that the district court abused its discretion in overruling their motion for new trial and erred by denying their motion to disregard jury findings and motion for judgment notwithstanding the verdict. In these points, they assert the same arguments they raise in their sufficiency points.
We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We review the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827.
When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We should set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. The jury remains the sole judge of witnesses' credibility and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
With both legal and factual sufficiency challenges, the starting point of our analysis--barring a preserved and valid complaint of charge error, and there is none here--is the charge actually submitted to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003) (factual sufficiency); Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 93 (Tex. App.--Austin 2005, no pet.).
In their challenges to the findings that all of the funds used to purchase the property were community funds, appellants rely entirely on the fact Hamlett's parents took out a $52,000 loan under their names in connection with the purchase of the property. Appellants urge that this fact conclusively establishes that Hamlett's parents, not Hamlett, acquired the property and paid at least this portion of the purchase price. We disagree.
Under the broad form questions submitted to the jury, the jury was asked simply to determine whether all or a portion of the property was purchased in 1989 with the community funds of Hamlett and Baugh. The form of these questions enabled the jury to find that the property was purchased using only community funds under any legal theory supported by the evidence. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) ("When feasible, jury questions should be in broad form, accompanied by appropriate instructions and definitions. A single question may relate to multiple legal theories.") (citing Tex. R. Civ. P. 277). Further, under the definitions provided by the district court, the jury was to presume that property acquired during marriage by either spouse was community property unless it was shown to be separate property. Appellants have preserved no complaint of error in these questions, definitions or instructions, nor regarding the omission of any questions, definitions or instructions.
The evidence enabled the jury to find that the property had been purchased exclusively with community funds based on legal theories that included resulting trust, (6) agency, and that Hamlett and her parents engaged in a scheme to conceal her ownership and defraud Baugh of his community property rights. (7) Among other evidence, the jury considered Gladys's statements that Hamlett "found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER," and that she and her husband "had no funds or interest in the home at all." Gladys also stated that Hamlett "was always responsible for and made the mortgage payments, taxes, etc.," (8) and appellants point to no evidence, other than Gladys's subsequent recantations, that anyone else ever made such payments. When asked during her deposition who was going to pay for the purchase price of the house, Gladys answered, "Not us."
The jury also heard evidence indicating that the parents did not have the financial resources to assume the note obligations and purchase the property. In addition to Gladys's statements, the parents' 1988 and 1989 tax returns were admitted into evidence, which reported total income of $14,591.23 in 1988 and $20,946.60 in 1989. Moreover, the parents' residential loan application stated that their income at the time of the loan application was $1,177 per month, while their existing mortgage and utilities payments on their house in El Paso totaled $446.00 per month. The mortgage on the Weatherwood Cove property was $437.25 per month. Adding other costs, such as property taxes, to that amount results in total housing costs of $551.83 per month for the Weatherwood Cove property. Thus, when the two house payments are added together, the parents would have owed over $997 per month on housing costs alone. Subtracting this amount from the parents' monthly income of $1,177 would have left them less than $200 per month for other living expenses, such as food, clothing, and transportation.
The jury also considered other evidence that Hamlett acted as the owner of the property, including the application for utility service submitted to the Municipal Utility District in 1989, which was made on behalf of "Karen Baugh by Gladys Hamlett" and directed that billing be sent to Karen Hamlett. There was also evidence that even though Hamlett's parents supposedly owned the property, Leon never lived there and Gladys did so only so long as Hamlett permitted. Similarly, a 1993 statement from the Valley of Lost Creek Homeowners Association predating the title transfer to White identifies Hamlett as an owner and states that "Dennis White and Karen Hamlett are members in good standing of the Valley of Lost Creek Homeowners Association and owe no fees or dues." Finally, the circumstances of the eventual sale of the property to White, the jury could have concluded, were consistent with both an ongoing strategy to conceal Hamlett's interest in the property (e.g., the false description of White as single) and a recognition by the participants that Hamlett had been the beneficial owner all along. These circumstances include evidence that three weeks after the parents transferred title to White, $21,401.41 was deposited into a joint bank account belonging to White and Hamlett. This amount precisely matched the amount of cash that the parents had received at closing. The jury could have inferred from this evidence that Hamlett's parents were returning the proceeds they had received in the sale, including the value of what would have been any accumulated equity in the property. We conclude that when viewed in the light favorable to the verdict, the above evidence is legally sufficient to support the jury's findings. We overrule appellants' first issue.
Regarding their factual sufficiency challenge, appellants argue that the only evidence supporting the jury findings is Gladys's statement in her affidavit, which she later disclaimed at trial, that she and her husband "had no funds or interest in the home at all." This statement, according to White and Hamlett, "is absolutely overwhelmed by the single but altogether sufficient fact that the Hamletts, and the Hamletts alone, obtained $52,000.00 dedicated to the purchase of the property from the proceeds of a loan for [which] they, and they alone, were liable."
We have already discussed the evidence relating to the $52,000 loan, and it is not limited to the single statement that appellants emphasize. It is true that Gladys later recanted both her affidavit and her deposition testimony at trial. However, it was within the jury's province to credit Gladys's prior statements and disbelieve her trial testimony. The jury heard evidence that Gladys and her daughter Hamlett had a strained relationship. Hamlett testified that, in 1994, she asked Gladys to move out of their house. Gladys testified that this made her angry, hurt, and scared. Furthermore, Gladys testified that when her husband died in 1999, Gladys had a legal dispute with her daughters over the disposition of her husband's estate. There was also acrimony involving Hamlett's daughter and Gladys's granddaughter, Tara. Tara testified that she had a good relationship with her grandmother, and that they talked "everyday, several times a day." By contrast, Tara did not have "much of a relationship" with her mother. Tara, who was 25 at the time of trial, testified that she moved out of her mother's house when she was 15 and moved in with Gladys. However, Tara also testified that, "a few years ago," she and her mother "started talking again and trying to work through some of the things that we didn't like about each other." In fact, there was evidence presented that Hamlett came to Tara's aid during the weeks immediately prior to trial and provided Tara with money to prevent Tara's house from being foreclosed. Appellants assert that these issues between Gladys and her daughter prompted Gladys to lie in 2001 about the circumstances surrounding the purchase of the property. However, the jury was entitled to believe the contrary proposition--that the mother-daughter acrimony during the '90s prompted Gladys in 2001 to come forward with the truth about her daughter's deception, and that Hamlett's assistance to Tara prior to trial had prompted Gladys--whom the jury could have concluded had periodically engaged in other deceptive acts to help Hamlett--to resume that pattern at trial.
Hamlett denied that any community funds had been used in the purchase of the property, and she claimed that the money deposited into the joint bank account was a gift from her parents, not a repayment of money that she had originally contributed toward the purchase of the house. However, the jury was entitled to disbelieve this testimony, especially in light of the other evidence tending to bring Hamlett's credibility into question. Appellants also emphasized evidence concerning Baugh's criminal problems. This evidence, at most, goes to the credibility of Baugh as a witness.
Appellants also presented evidence that White spent between $150,000 and $200,000 in improving the property after he purchased it. Thus, according to White and Hamlett, it is "unfair" for Baugh to benefit from these improvements. To the extent appellants are claiming an entitlement to reimbursement, or offset, for these improvements, they have waived it. "The right to an offset is an affirmative defense. The burden of pleading and proving facts necessary to support an affirmative defense of offset rests on the party making the assertion." Mays v. Bank One, N.A., 150 S.W.3d 897, 899 (Tex. App.--Dallas 2004, no pet.) (citing Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980)). Appellants did not plead any affirmative defenses at trial, nor did they request any jury instructions on this issue. They cannot raise it for the first time on appeal. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862 (Tex. App.--Fort Worth 2003, pet. denied) ("Regardless of the merits of Appellants' argument that they are entitled to an offset, because they did not plead an affirmative defense of offset, this issue is waived.").
After considering all of the evidence in the record, we conclude that the evidence supporting the jury's findings that the property was purchased entirely with community funds is not so weak as to be clearly wrong and manifestly unjust. We overrule appellants' second point of error. Further, as our disposition of appellants' first two points of error are dispositive of their third, fourth, and fifth ones, we overrule them as well.
Attorney's fees
In their sixth point of error, appellants urge that if we reverse the judgment, we should remand the issue of attorney's fees to the district court for redetermination. Because we have overruled appellants' points challenging the merits of the judgment, we overrule their attorney's fees point as well.
In his cross-point of error, Baugh asserts that it was an abuse of discretion for the district court to assess his attorney's fees solely against Hamlett and not against White. He contends that because the jury found that White was not a bona fide purchaser for value, the jury also necessarily found that White was not acting in good faith. Thus, according to Baugh, White should necessarily be liable for attorney's fees. On this record, we find no abuse of discretion in the district court's decision to order Hamlett, but not White, to pay the attorney's fees. We overrule Baugh's cross-point.
CONCLUSION
Having overruled White and Hamlett's points of error and Baugh's cross-appeal point of error, we affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 28, 2008
1. Hamlett testified that she used some of the funds from the sale of the assets to attend nursing school in 1989.
2. White testified that he worked as a carpenter at the ranch for approximately six months in 1984, also performing various duties like feeding the horses.
3. According to Hamlett, the bankruptcy was never completed.
4. The residuary clause provides the following:
Division of Assets and Liabilities Not Provided for In Decree.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community property or its value not otherwise awarded by this decree is awarded to the party not in possession or control of the property. IT IS FURTHER ORDERED AND DECREED that the party in possession and control of such property is designated a constructive trustee of the property for the benefit of the other party.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community liability not expressly assumed by a party under this decree is to be paid by the party incurring the liability.
5. Appellants concede that there is legally sufficient evidence to support the jury's finding that at least a portion of the property was purchased with community funds.
6. See Sahagun v. Ibarra, 90 S.W.2d 860, 863-64 (Tex. App.--San Antonio 2002, no pet.).
7. Appellants argue that it was Baugh who had the burden to obtain jury findings on each of these theories. As these theories were subsumed within the unobjected-to broad-form questions actually submitted to the jury, we reject that contention. See Tex. R. Civ. P. 278, 279.
8. See Dalton v. George B. Hatley Co., 634 S.W.2d 374, 379 (Tex. App.--Austin 1982, no writ) ("[P]ayment or satisfaction [of an instrument] may be made with the consent of the holder by any person including a stranger to the instrument.").
AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Pemberton and Waldrop)
03-05-00704-CV (Tex.App. - Austin, May 28, 2008)(Pemberton) (family law, domestic relations, divorce, community property, separate property, jury trial)
Appellants, Dennis White and Karen Hamlett f/k/a Karen Baugh// Cross-Appellant, Larry Baugh v. Appellee, Larry Baugh// Cross-Appellees, Dennis White and Karen Hamlett f/k/a Karen Baugh--Appeal from 167th District Court of Travis County
BACKGROUND
The jury heard evidence that, in 1981, Baugh and Hamlett married. During their marriage, they acquired substantial community property, including a home valued at over $500,000 located in Austin's West Lake Hills area, a ranch in Manor where they bred race horses, and a vacation home in New Mexico. The couple had two daughters.
Baugh's and Hamlett's lives changed dramatically beginning in February 1988, when Baugh was arrested and later pleaded guilty to income tax evasion and possession of marihuana with intent to deliver, resulting in his incarceration from 1988 until 1994. Following Baugh's arrest, Hamlett took control of the family's financial affairs. While some of the couple's assets were seized or forfeited during the criminal proceedings, Hamlett retained control over, and liquidated, most of their other assets, including at least one bank account that had "[p]robably a few thousand dollars" in it, at least 50 race horses valued at approximately $5,000 each, and all of the ranch equipment, vehicles and accounts receivable from the family's business. (1) Hamlett's parents, Gladys V. Hamlett and Martin Leon Hamlett, moved from El Paso to Austin to assist their daughter during this time. Gladys moved in with Hamlett and Hamlett's daughters. Also in 1988, Hamlett began dating Dennis White, a former employee at the horse ranch. (2)
By October 1988, Hamlett had filed for bankruptcy and could no longer afford payments on the house. (3) The lender instituted foreclosure proceedings. Hamlett testified that she contacted a realtor to help her find a new place to live. One day, while Hamlett and her mother were driving around the area looking for a place to rent, they came across a townhouse for sale at 6405 Weatherwood Cove. Hamlett contacted the realtor for information about the property.
In February 1989, Hamlett's parents signed an earnest money contract to purchase the townhouse for $74,000.00, to be paid, in part, from the proceeds of a $52,000 loan. In April 1989, the parents, under their names, executed a promissory note and mortgage with Homestead Savings for $52,000, with monthly payments of $437.50 per month for thirty years. In the loan application, the parents specified that their income at the time was $1,177 per month. They also claimed additional income of $365 per month from Hamlett's leasing of their El Paso property. However, Hamlett admitted that she never actually rented her parents' El Paso house--to the contrary, she moved directly from the house in Westlake to the house on Weatherwood Cove. Hamlett provided the following testimony about the purported lease agreement:
Q: In 1989 you signed a lease that was fictitious about moving to El Paso in order to make sure that you could get the Weatherwood Cove home; is that correct?
A: I signed it in order for my parents to be able to buy that home.
. . . .
Q: And you were willing to lie to have that happen?
A: I don't recall the rationale behind it, but it was a necessary thing in order for my parents to get the loan.
Appellants also acknowledge in their brief that the lease of the El Paso property was "phony."
In 1990, while Baugh remained incarcerated, White moved in with Hamlett and her daughters at their Weatherwood Cove residence. In February 1991, Baugh and Hamlett divorced. In June of that same year, Hamlett's parents signed a contract to sell the Weatherwood Cove property to White. The sales contract provided that the purchase price was $57,000, with financing by the sellers, on a note with principal and interest payments of $437.25 per month for 28 years. These terms corresponded with the amount and term of payments remaining on the parents' mortgage. The contract also provided that closing and title transfer would occur upon full payment of the note.
In 1993, approximately one year after White and Hamlett purported to be married under common law, the parents transferred title to White. According to the 1993 closing statement, the sales price was $74,000, with a portion of the price financed through a mortgage in White's name. The mortgage loan application specified that title would be held in the name of "Dennis Dale White," a "single male." The warranty deed conveyed title to "Dennis Dale White, a single person." At trial, White was unable to explain why these documents referred to him as single when, in fact, he was married to Hamlett at the time the documents were executed.
Hamlett's parents received $21,401.41 in cash at closing. However, there was evidence presented at trial that, three weeks after closing, this same amount was deposited back into White and Hamlett's joint bank account. When confronted with a deposit slip for the exact amount of the sellers' proceeds, showing that the funds were deposited into this bank account, White testified that he was "a little confused." However, when asked if the matching amounts were "just a coincidence," White responded, "No." White also claimed that he and Hamlett did not own a joint bank account at the time of the closing. However, after he was shown an account statement for the month in which the closing occurred and the deposit was made, he acknowledged that both his and Hamlett's names appeared on the statement. Hamlett testified that the money deposited into the account belonged to both her and White, and she agreed with Baugh's characterization of her "as sort of a silent partner" in White's purchase of the home.
In January 2001, Baugh learned for the first time about the Weatherwood Cove property. Baugh testified that Gladys, Hamlett's mother, told him that "the truth about that home purchase in Austin" was that "it was Karen's purchase all along." According to Baugh, Gladys added, "We were nothing more than her trustee."
In March 2001, Baugh filed suit against Hamlett to enforce the property division in the divorce decree. Baugh alleged in his petition that the decree failed to specifically award the property located at 6405 Weatherwood Cove and that, under the terms of the decree's residuary clause, the property belonged to him. (4)
In 2002, Baugh amended his petition to add White as a defendant. Baugh alleged that White conspired with Hamlett's parents to convey title in the subject property to White.
During discovery, Hamlett's mother executed a sworn statement describing the circumstances surrounding the purchase:
TO WHOM IT MAY CONCERN:
Narrative of events relating to purchase of home at 6405 Weatherwood Cove, Austin, Texas 78746, by Gladys Hamlett, covering the time period from 1988 to 1992.
In the summer of 1988, my daughter, Karen Baugh (nee Hamlett), was separated and intending to divorce her husband Larry Baugh. She asked if I and Mr. Hamlett (her parents) would purchase a home for her, in our name. She found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER. We had no funds or interest in the home at all. Karen was always responsible for and made the mortgage payments, taxes, etc.
A fire occurred in Nov. 1990, for which an insurance check for about $30 thousand was issued, and I signed over to Karen. She used it for repairs. Not me.
In the summer of 1991, Karen asked me to leave the home where I had been residing with she and her two children. I moved away since it was her home, and had always been in her control.
Later that summer or fall, she asked me and Mr. Hamlett to sign the house into her name. We agreed and did sign and transfer title to Karen (Hamlett), since she was now divorced.
This statement is from memory, and is substantially accurate.
Given this 23rd day of Feb. 2001
//s// Gladys Hamlett
(Emphasis added). This affidavit was admitted into evidence, along with Gladys's deposition testimony from 2001. In the deposition, Gladys provided additional details about the purchase. Among other details, Gladys testified that she and Leon did not have the financial ability to purchase the house. Gladys also testified that she did not remember how much money Hamlett gave her to purchase the house, but she thought it could have been $10,000 in cash that Hamlett had previously set aside "in her closet in a boot." Gladys further testified in her deposition that every statement in her affidavit was true and correct. Later at trial, however, Gladys recanted her prior statements, testifying that her statements in the affidavit were not true and that she had lied during her deposition.
At the conclusion of trial, the district court submitted jury issues regarding the extent to which the townhouse had been purchased with Baugh and Hamlett's community funds, whether Baugh was estopped from asserting or had waived his claim to the property, whether White was a bona fide purchaser for value when he bought the property, and the amount of each parties' attorney's fees. The jury found that the property had been purchased entirely with community funds, that Baugh was not estopped from and had not waived his claim to the property, that White was not a bona fide purchaser for value, and that Baugh had incurred $55,000 in trial-level attorney's fees, plus $5,000 for an appeal to this Court, and another $5,000 each if a petition for review was filed in or granted by the supreme court. The district court rendered judgment on the jury's verdict, awarding Baugh title to and possession of the property, and that he recover from Hamlett the amount of attorney's fees found by the jury. This appeal followed.
DISCUSSION
Community funds
Appellants' first five points of error concern the jury's findings related to community funds. Question 1 of the charge asked, "Was all or a portion of the property located at 6504 Weatherwood Cove Austin, Texas purchased with the community funds of Larry Baugh and Karen Baugh in 1989?" Conditioned on an affirmative answer to Question 1, Question 2 inquired as to the amount of community funds that were used for the purchase. The jury was instructed not to answer Question 2, however, if it found that all of the funds used to purchase the property were community funds. The charge defined "community property" as "the property, other than separate property, acquired by either spouse during marriage" and "separate property" as "property owned or claimed by a spouse prior to marriage, or acquired by gift, devise, or descent." The jury found in the affirmative on Question 1, but did not answer Question 2. By this, the parties agree that the jury necessarily found that the Weatherwood Cove property had been purchased entirely with community funds. In appellants' first and second points of error, they contend there is either legally or factually insufficient evidence to support the jury's findings that the property was purchased entirely with community funds. In their third point of error, appellants assert that there is factually insufficient evidence to support the jury's finding in Question 1 that a portion of the property was purchased with community funds. (5) In their fourth and fifth points of error, appellants argue that the district court abused its discretion in overruling their motion for new trial and erred by denying their motion to disregard jury findings and motion for judgment notwithstanding the verdict. In these points, they assert the same arguments they raise in their sufficiency points.
We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We review the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827.
When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We should set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. The jury remains the sole judge of witnesses' credibility and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
With both legal and factual sufficiency challenges, the starting point of our analysis--barring a preserved and valid complaint of charge error, and there is none here--is the charge actually submitted to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003) (factual sufficiency); Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 93 (Tex. App.--Austin 2005, no pet.).
In their challenges to the findings that all of the funds used to purchase the property were community funds, appellants rely entirely on the fact Hamlett's parents took out a $52,000 loan under their names in connection with the purchase of the property. Appellants urge that this fact conclusively establishes that Hamlett's parents, not Hamlett, acquired the property and paid at least this portion of the purchase price. We disagree.
Under the broad form questions submitted to the jury, the jury was asked simply to determine whether all or a portion of the property was purchased in 1989 with the community funds of Hamlett and Baugh. The form of these questions enabled the jury to find that the property was purchased using only community funds under any legal theory supported by the evidence. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) ("When feasible, jury questions should be in broad form, accompanied by appropriate instructions and definitions. A single question may relate to multiple legal theories.") (citing Tex. R. Civ. P. 277). Further, under the definitions provided by the district court, the jury was to presume that property acquired during marriage by either spouse was community property unless it was shown to be separate property. Appellants have preserved no complaint of error in these questions, definitions or instructions, nor regarding the omission of any questions, definitions or instructions.
The evidence enabled the jury to find that the property had been purchased exclusively with community funds based on legal theories that included resulting trust, (6) agency, and that Hamlett and her parents engaged in a scheme to conceal her ownership and defraud Baugh of his community property rights. (7) Among other evidence, the jury considered Gladys's statements that Hamlett "found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER," and that she and her husband "had no funds or interest in the home at all." Gladys also stated that Hamlett "was always responsible for and made the mortgage payments, taxes, etc.," (8) and appellants point to no evidence, other than Gladys's subsequent recantations, that anyone else ever made such payments. When asked during her deposition who was going to pay for the purchase price of the house, Gladys answered, "Not us."
The jury also heard evidence indicating that the parents did not have the financial resources to assume the note obligations and purchase the property. In addition to Gladys's statements, the parents' 1988 and 1989 tax returns were admitted into evidence, which reported total income of $14,591.23 in 1988 and $20,946.60 in 1989. Moreover, the parents' residential loan application stated that their income at the time of the loan application was $1,177 per month, while their existing mortgage and utilities payments on their house in El Paso totaled $446.00 per month. The mortgage on the Weatherwood Cove property was $437.25 per month. Adding other costs, such as property taxes, to that amount results in total housing costs of $551.83 per month for the Weatherwood Cove property. Thus, when the two house payments are added together, the parents would have owed over $997 per month on housing costs alone. Subtracting this amount from the parents' monthly income of $1,177 would have left them less than $200 per month for other living expenses, such as food, clothing, and transportation.
The jury also considered other evidence that Hamlett acted as the owner of the property, including the application for utility service submitted to the Municipal Utility District in 1989, which was made on behalf of "Karen Baugh by Gladys Hamlett" and directed that billing be sent to Karen Hamlett. There was also evidence that even though Hamlett's parents supposedly owned the property, Leon never lived there and Gladys did so only so long as Hamlett permitted. Similarly, a 1993 statement from the Valley of Lost Creek Homeowners Association predating the title transfer to White identifies Hamlett as an owner and states that "Dennis White and Karen Hamlett are members in good standing of the Valley of Lost Creek Homeowners Association and owe no fees or dues." Finally, the circumstances of the eventual sale of the property to White, the jury could have concluded, were consistent with both an ongoing strategy to conceal Hamlett's interest in the property (e.g., the false description of White as single) and a recognition by the participants that Hamlett had been the beneficial owner all along. These circumstances include evidence that three weeks after the parents transferred title to White, $21,401.41 was deposited into a joint bank account belonging to White and Hamlett. This amount precisely matched the amount of cash that the parents had received at closing. The jury could have inferred from this evidence that Hamlett's parents were returning the proceeds they had received in the sale, including the value of what would have been any accumulated equity in the property. We conclude that when viewed in the light favorable to the verdict, the above evidence is legally sufficient to support the jury's findings. We overrule appellants' first issue.
Regarding their factual sufficiency challenge, appellants argue that the only evidence supporting the jury findings is Gladys's statement in her affidavit, which she later disclaimed at trial, that she and her husband "had no funds or interest in the home at all." This statement, according to White and Hamlett, "is absolutely overwhelmed by the single but altogether sufficient fact that the Hamletts, and the Hamletts alone, obtained $52,000.00 dedicated to the purchase of the property from the proceeds of a loan for [which] they, and they alone, were liable."
We have already discussed the evidence relating to the $52,000 loan, and it is not limited to the single statement that appellants emphasize. It is true that Gladys later recanted both her affidavit and her deposition testimony at trial. However, it was within the jury's province to credit Gladys's prior statements and disbelieve her trial testimony. The jury heard evidence that Gladys and her daughter Hamlett had a strained relationship. Hamlett testified that, in 1994, she asked Gladys to move out of their house. Gladys testified that this made her angry, hurt, and scared. Furthermore, Gladys testified that when her husband died in 1999, Gladys had a legal dispute with her daughters over the disposition of her husband's estate. There was also acrimony involving Hamlett's daughter and Gladys's granddaughter, Tara. Tara testified that she had a good relationship with her grandmother, and that they talked "everyday, several times a day." By contrast, Tara did not have "much of a relationship" with her mother. Tara, who was 25 at the time of trial, testified that she moved out of her mother's house when she was 15 and moved in with Gladys. However, Tara also testified that, "a few years ago," she and her mother "started talking again and trying to work through some of the things that we didn't like about each other." In fact, there was evidence presented that Hamlett came to Tara's aid during the weeks immediately prior to trial and provided Tara with money to prevent Tara's house from being foreclosed. Appellants assert that these issues between Gladys and her daughter prompted Gladys to lie in 2001 about the circumstances surrounding the purchase of the property. However, the jury was entitled to believe the contrary proposition--that the mother-daughter acrimony during the '90s prompted Gladys in 2001 to come forward with the truth about her daughter's deception, and that Hamlett's assistance to Tara prior to trial had prompted Gladys--whom the jury could have concluded had periodically engaged in other deceptive acts to help Hamlett--to resume that pattern at trial.
Hamlett denied that any community funds had been used in the purchase of the property, and she claimed that the money deposited into the joint bank account was a gift from her parents, not a repayment of money that she had originally contributed toward the purchase of the house. However, the jury was entitled to disbelieve this testimony, especially in light of the other evidence tending to bring Hamlett's credibility into question. Appellants also emphasized evidence concerning Baugh's criminal problems. This evidence, at most, goes to the credibility of Baugh as a witness.
Appellants also presented evidence that White spent between $150,000 and $200,000 in improving the property after he purchased it. Thus, according to White and Hamlett, it is "unfair" for Baugh to benefit from these improvements. To the extent appellants are claiming an entitlement to reimbursement, or offset, for these improvements, they have waived it. "The right to an offset is an affirmative defense. The burden of pleading and proving facts necessary to support an affirmative defense of offset rests on the party making the assertion." Mays v. Bank One, N.A., 150 S.W.3d 897, 899 (Tex. App.--Dallas 2004, no pet.) (citing Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980)). Appellants did not plead any affirmative defenses at trial, nor did they request any jury instructions on this issue. They cannot raise it for the first time on appeal. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862 (Tex. App.--Fort Worth 2003, pet. denied) ("Regardless of the merits of Appellants' argument that they are entitled to an offset, because they did not plead an affirmative defense of offset, this issue is waived.").
After considering all of the evidence in the record, we conclude that the evidence supporting the jury's findings that the property was purchased entirely with community funds is not so weak as to be clearly wrong and manifestly unjust. We overrule appellants' second point of error. Further, as our disposition of appellants' first two points of error are dispositive of their third, fourth, and fifth ones, we overrule them as well.
Attorney's fees
In their sixth point of error, appellants urge that if we reverse the judgment, we should remand the issue of attorney's fees to the district court for redetermination. Because we have overruled appellants' points challenging the merits of the judgment, we overrule their attorney's fees point as well.
In his cross-point of error, Baugh asserts that it was an abuse of discretion for the district court to assess his attorney's fees solely against Hamlett and not against White. He contends that because the jury found that White was not a bona fide purchaser for value, the jury also necessarily found that White was not acting in good faith. Thus, according to Baugh, White should necessarily be liable for attorney's fees. On this record, we find no abuse of discretion in the district court's decision to order Hamlett, but not White, to pay the attorney's fees. We overrule Baugh's cross-point.
CONCLUSION
Having overruled White and Hamlett's points of error and Baugh's cross-appeal point of error, we affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 28, 2008
1. Hamlett testified that she used some of the funds from the sale of the assets to attend nursing school in 1989.
2. White testified that he worked as a carpenter at the ranch for approximately six months in 1984, also performing various duties like feeding the horses.
3. According to Hamlett, the bankruptcy was never completed.
4. The residuary clause provides the following:
Division of Assets and Liabilities Not Provided for In Decree.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community property or its value not otherwise awarded by this decree is awarded to the party not in possession or control of the property. IT IS FURTHER ORDERED AND DECREED that the party in possession and control of such property is designated a constructive trustee of the property for the benefit of the other party.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community liability not expressly assumed by a party under this decree is to be paid by the party incurring the liability.
5. Appellants concede that there is legally sufficient evidence to support the jury's finding that at least a portion of the property was purchased with community funds.
6. See Sahagun v. Ibarra, 90 S.W.2d 860, 863-64 (Tex. App.--San Antonio 2002, no pet.).
7. Appellants argue that it was Baugh who had the burden to obtain jury findings on each of these theories. As these theories were subsumed within the unobjected-to broad-form questions actually submitted to the jury, we reject that contention. See Tex. R. Civ. P. 278, 279.
8. See Dalton v. George B. Hatley Co., 634 S.W.2d 374, 379 (Tex. App.--Austin 1982, no writ) ("[P]ayment or satisfaction [of an instrument] may be made with the consent of the holder by any person including a stranger to the instrument.").
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