R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.
In the Matter of R. S. (Tex.App.- Austin, July 3, 2008)(Opinion by Justice Puryear [ PDF ])(juvenile case, drugs) (Before Chief Justice Law, Justices Puryear and Henson)
03-06-00336-CV
In the Matter of R. S.--Appeal from 98th District Court of Travis County
M E M O R A N D U M O P I N I O N
R.S., a juvenile, was adjudicated delinquent for the offense of possession of a controlled substance. See Tex. Fam. Code Ann. §§ 54.03, .04 (West Supp. 2007); Tex. Health & Safety Code Ann. § 481.117 (West 2003). Following a disposition hearing, the trial court ordered R.S. committed to the custody of the Texas Youth Commission (TYC). R.S. appeals, asserting that in reaching its disposition decision, the trial court refused to consider all possible disposition options and instead relied on admonitions given to R.S. by another judge in an earlier delinquency proceeding. We affirm the trial court’s disposition order.
A trial court may not commit a juvenile to TYC unless it finds that commitment is in the child’s best interest, all reasonable efforts were taken to avoid the need to remove the child from his home, and the child could not get the care, support, and supervision he needs to meet probation conditions in his home. Tex. Fam. Code Ann. § 54.04(i)(1); In re C.C., 13 S.W.3d 854, 858 (Tex. App.—Austin 2000, no pet.). A juvenile court has broad discretion in determining the suitable disposition of a juvenile who has engaged in delinquent conduct. In re A.I., 82 S.W.3d 377, 379 (Tex. App.—Austin 2002, pet. denied). In reviewing the court’s decision on disposition, we ask whether the court acted in an unreasonable or arbitrary manner. Id. at 379-80. A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.). Legal and factual sufficiency may be relevant in assessing the trial court’s exercise of its discretion, and we review evidentiary sufficiency under the standards applied in criminal cases. Id. at 702-04; see In re C.C., 13 S.W.3d at 858-59.
R.S. was sixteen in May 2006, when she committed the offense of possession of hydrocodone within 1000 feet of Westlake High School. As part of a plea agreement, the State abandoned the school-zone allegation, and R.S. pled true to the State’s allegations. After adjudicating R.S. delinquent, the trial court proceeded to disposition. The court took judicial notice of R.S.’s file, which reflects that she had been in trouble with the law since 2003 and had been referred to the probation department several times for theft and violation of court orders. She had been placed on probation twice for assault and criminal trespass, and at the time of this offense, was on probation for assault. The probation department’s report stated that child protective services had received three referrals on R.S.’s parents for neglectful supervision, her mother was arrested for assaulting R.S., and her two brothers have had legal and drug troubles.
According to the department’s report, R.S. had a history of behavior problems at school and skipping classes and she had tested positive for drugs at least once. From December 2005 to January 2006, R.S. “had a total positive turn around,” reporting to her probation officer as required, completing community service hours and required classes, and testing negative for drugs. In late January, however, she again tested positive for drugs and got into a fight with her mother. In late February, R.S.’s mother was arrested for assaulting R.S. Because R.S.’s father was in residential drug treatment at the time, R.S. was sent to live with her grandparents in Lampasas. During her time in Lampasas, R.S. “did exceptionally well.” She decided to return to her parents, however, against the advice of her grandparents and the probation department. She was warned by another trial court in an earlier proceeding that “if her positive progress made a change for the worse, then she would be sent to TYC.” R.S. “stated she would do well at home,” and the trial court allowed her to return to Austin. Things seemed to be going well until she was taken into custody less than one month later, returning to her campus in possession of five hydrocodone pills after having skipped classes without permission. The department concluded that R.S. was not an appropriate candidate for ISP staffing because of her “chaotic home environment,” her history of non-compliance and “continuing to re-offend,” her parent’s lack of cooperation and “minimizing behaviors,” and R.S.’s need for a structured environment.
The court also heard testimony from Jarrett Boykin, R.S.’s probation officer. He testified that in April 2006, just one month earlier, R.S. “was doing great” and had been living with her grandparents in Lampasas since February. She returned to Austin to be with her parents on April 5, and about one month later, was taken into custody for the subject offense. Boykin testified that R.S. was passing all her classes and was trying to get a job. R.S.’s parents were in the process of getting a divorce, and her father was attending Alcoholics Anonymous meetings every day. Boykin was asked what programs the probation department would recommend for R.S. as an alternative to TYC commitment. He answered, “Currently I staffed her for ISP, which she was turned down for. So the only thing the Department is recommending right now currently is TYC.” Asked if there were any other alternatives, Boykin testified,
If the Judge so ordered it, I guess she would go to ISP. But right now, we haven’t looked at any other—all the other programs are unavailable. We may look into some kind of drug treatment. We could possibly go back and look at residential or IOP. She’s ineligible right now for Leadership or any kind of Visions program. So it doesn’t leave too many other options other than probably drug treatment.
Boykin said R.S. did “very well” in Lampasas and that the trial court was reluctant to allow her to return to Austin and cautioned her that if she returned to Austin and “messed up,” she would be sent to TYC. In closing, R.S.’s attorney asked for another chance, noting that R.S. was getting good grades, looking for work, and obeying curfew. The State asked the court to commit R.S. to TYC, arguing that she had already been given several chances and had left a good situation in Lampasas, having been warned that she would be sent to TYC if she got in more trouble, only to be caught with a controlled substance one month later. The court committed R.S. to TYC, saying, “Why in the world didn’t you stay in Lampasas—and that’s not a question to you—because what young woman wouldn’t want to return home, even though you were just blowing the doors off the place with how well you were doing there in that environment?”
When viewed in the light most favorable to the court’s findings, the evidence is sufficient to show that TYC commitment is in R.S.’s best interest, that the department made all reasonable efforts to avoid removing her from her home, and that she cannot receive in her home the support, care, and supervision she needs. See In re C.C., 13 S.W.3d at 858. The same is true when all the evidence is viewed in a neutral light. See id. at 859. Although R.S. improved her behavior markedly, less than one month after returning from Lampasas, she again skipped classes and was caught in possession of a controlled substance. She was cautioned about the track she was on, and her grandparents, another trial court, and the probation department all recommended that she stay in Lampasas, but she decided to return to Austin, promising to stay out of trouble. Very shortly after returning to Austin and her parents’ care, while on probation for an earlier offense, she was again taken into custody, this time for possession of hydrocodone. The probation department recommended TYC commitment, and her probation officer testified that due to R.S.’s history of criminal offenses and her family’s tumultuous circumstances, the department believed she needed the structure that TYC could provide and that the department did not have many options to offer her other than TYC commitment or drug treatment. There is no evidence that the trial court based its decision on the other court’s admonishments rather than considering the entire record before it, which included the department’s report and recommendations.
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We cannot hold that the trial court abused its discretion in determining that R.S. would be best served by being committed to TYC custody. See In re A.I., 82 S.W.3d at 379-80. We affirm the trial court’s order of disposition.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: July 3, 2008
Sunday, July 6, 2008
Cedars Entertainment, L.P. v. Wynona J. Winters as Trustee of Barnett 2005 Family Trust--Appeal from 35th District Court of Mills CountyDISMISSED ON APPELLANT'S MOTION: Opinion by Justice Waldrop [ PDF ] (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00378-CV
Cedars Entertainment, L.P. v. Wynona J. Winters as Trustee of Barnett 2005 Family Trust--Appeal from 35th District Court of Mills County
M E M O R A N D U M O P I N I O N
Cedars Entertainment, L.P. has filed its Unopposed Motion to Dismiss Appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 2008
03-07-00378-CV
Cedars Entertainment, L.P. v. Wynona J. Winters as Trustee of Barnett 2005 Family Trust--Appeal from 35th District Court of Mills County
M E M O R A N D U M O P I N I O N
Cedars Entertainment, L.P. has filed its Unopposed Motion to Dismiss Appeal. We grant the motion and dismiss this appeal.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed on Appellant's Motion
Filed: June 19, 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.
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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.
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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
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