June 2008 Cases Impacting Houston Appellate Lawyers

Presented July 17, 2008 at the HBA Appellate Section Luncheon
by Amber Ramon, Fourteenth Court of Appeals




Opinions Issued June 19, 2008 – July 17, 2008

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Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (June 27, 2008) (Justice Medina)

Significance: This case clarifies that the Free Exercise Clause of the First Amendment extends protection from suit not only for negligence, but also for intentional torts when considering the plaintiff’s emotional damages would require a court to delve into the validity of certain religious practices.

Holding: Because the Plaintiff’s intentional tort claims were so closely intertwined with the church’s religious practice and beliefs, assessing emotional damages against the church for engaging in such religious practices would unconstitutionally burden the church’s right to free exercise and embroil the Court in an assessment of the propriety of those religious beliefs.

Relevant facts: Seventeen-year-old Laura Schubert collapsed twice while worshiping at Pleasant Glade Assembly of God church. Several church members then “laid hands” on Schubert and prayed in an attempt to exorcize demons. According to Schubert, she was forcibly held down—despite demands to be freed—resulting in minor physical injuries and emotional trauma. She ultimately sued the church for intentional torts and a host of negligence claims. The jury awarded Schubert a total of $300,000 in damages for assault, battery, and false imprisonment. On appeal, the church argued Plaintiff’s intentional tort damages were barred under the First Amendment. The Fort Worth Court of Appeals disagreed, holding the church was judicially estopped from asserting a First Amendment defense because, in a prior mandamus proceeding, the church only asserted Plaintiff’s negligence-based claims were protected. The supreme court reversed and dismissed for lack of jurisdiction. First, the court held that the church was not judicially estopped from asserting the First Amendment. The court then explained that assessing emotional damages against the church for performing religious practices infused in its belief system would require the court to delve into an assessment of the propriety of the church’s religious beliefs. Plaintiff thus failed to establish a cognizable, secular claim because determining the circumstances of her emotional injuries would draw the court into forbidden religious terrain. Chief Justice Jefferson dissented, joined by Justice Green and Justice Johnson in part. Justice Jefferson opined that it was unnecessary to evaluate the validity of the church’s religious beliefs, or even inquire into the assailants’ motives, to hold the church liable for its intentional torts on these facts.

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JCW Electronics, Inc. v. Garza, No. 05 1042 (June 27, 2008) (Justice Medina)

Significance: This case clarifies that claims for breach of implied warranty under Article 2 of the Texas Uniform Commercial Code qualify as causes of action based on tort subject to Chapter 33 of the Texas Civil Practice and Remedies Code.

Holding: Chapter 33’s proportionate-liability scheme barred damages for breach of implied warranty allegedly resulting in an inmate’s suicide when the jury found the inmate 60% negligent in causing his own death.

Relevant facts: Inmate Rolando Domingo Montez hanged himself with a telephone cord, which JCW Electronics, Inc. had installed in his cell. A jury found JCW liable for breach of implied warranty, among other things, but attributed 60% of the liability to Montez. The trial court rendered judgment for Plaintiff, thus overruling JCW’s argument that the jury’s 60% finding of fault barred Plaintiff’s recovery under Chapter 33. The Corpus Christi Court of Appeals held that Chapter 33 did not apply to a claim for breach of implied warranty, thus allowing Plaintiff to recover. The Texas Supreme Court, however, reversed and rendered that Plaintiff take nothing. The Court noted that “the Legislature intended for Chapter 33 to . . . cover [breaches of implied warranty] under its broad pronouncement that ‘this chapter applies to any cause of action based on tort’” because “‘[i]mplied warranties are created by operation of law and are grounded more in tort than in contract.’”

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Goldberg v. The Commission for Lawyer Discipline & The State Bar of Texas, No. 01-07-01104-CV (MJuly 3, 2008) (Justice Taft)

Significance: This case clarifies that—regardless of how a plaintiff couches a claim—trial courts do not have the authority to usurp the supreme court’s exclusive authority to regulate law licenses and the procedures for licensure, discipline, disbarment and reinstatement.

Holding: The trial court lacked subject-matter jurisdiction over disbarred lawyer’s suit requesting the trial court to restore his law license.

Relevant facts: In 2001, Daniel Goldberg, a licensed lawyer in Texas, pleaded guilty to the felony offense of aggregate theft, was placed on community supervision for three years, and was disbarred. In 2004, he successfully completed his community supervision, so the trial court issued an order withdrawing Goldberg’s guilty plea and dismissing the charge. In 2007, Goldberg filed a declaratory judgment action to immediately restore his law license since the criminal conviction on which disbarment was based was rendered a legal nullity by the trial court’s order. The trial court granted the Commission’s plea to the jurisdiction. On appeal, Plaintiff argued he was automatically entitled to a restoration of his law license rather than having to wait the required five years before seeking reinstatement of his license. The First District Court of Appeals disagreed, holding that when a litigant seeks in a lower court a remedy that would impinge upon the supreme court’s exclusive authority to regulate the practice of law, the case does not present a justiciable controversy.

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University of Houston v. Barth, No. 01 06 00490 CV (July 3, 2008) (Justice Higley)

Significance: This case applies the rule that a claim under the Texas Whistleblower Act is jurisdictionally barred when an employee does not timely initiate the grievance procedures after discovery of the alleged violation through reasonable diligence.

Holding: The trial court did not have subject-matter jurisdiction over a portion of Plaintiff’s claims based on the Whistleblower Act.

Relevant facts: Professor Stephen Barth filed two grievances with the University of Houston’s grievance committee for retaliation and later sued the University. A jury found that the University violated the Whistleblower Act. On appeal, the University alleged that the trial court lacked subject-matter jurisdiction because Barth failed to initiate timely the internal grievance procedures. The First Court of Appeals determined that Plaintiff failed to initiate timely the internal grievance procedures for one grievance, but not the other. The court thus remanded for a new trial on Plaintiff’s claims that were not jurisdictionally barred. The majority also reviewed for legal sufficiency, determining that the University failed to challenge one of Plaintiffs’ grounds for recovery, and that legally sufficient evidence to support the jury’s causation finding. Justice Alcala dissented, arguing the evidence was legally insufficient.

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Texas Department of Public Safety v. Varme, No. 01-06-00874-CV (June 19, 2008) (Chief Justice Radack)

Significance: This case clarifies that the administrative suspension of a driver’s license for refusing to submit to a breathalyzer test during a traffic stop is not impacted by the later dismissal of a DWI charge.

Holding: Dismissal of driving while intoxicated charge does not require civil reinstatement of driving privileges suspended under chapter 724 of the Transportation Code.

Relevant facts: A Houston police officer arrested Byron Varme for driving while intoxicated. Varme refused to submit to a breath test at the scene, which triggered a suspension of his driver’s license for 180 days. After receiving a dismissal on the DWI charge, Varme moved to dismiss the administrative proceeding arguing the dismissal of his underlying criminal cause barred any determination of probable cause by the administrative law judge. The county court vacated the ALJ’s order and reinstated Varme’s license. The First Court of Appeals reversed the county court’s decision holding, according to chapter 724 of the Transportation Code, Varme failed to establish he was “acquitted” in a proceeding in which jeopardy attached.

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Trousdale v. Henry, No. 14 06 00848 CV, 2008 WL 2520799 (Tex. App.—Houston [14th Dist.] June 24, 2008) (Justice Fowler)

Significance: This case clarifies that the non-fracturing rule (providing that legal malpractice plaintiffs may not opportunistically transform a malpractice claim into other claims) does not apply when a plaintiff alleges facts that go beyond the mere negligence allegations in a malpractice action to support another cause of action, here, breach of fiduciary duty.

Holding: Plaintiff’s allegations supported a cause of action for breach of fiduciary duty separate and independent from a claim for legal malpractice.

Relevant facts: Lenieta Trousdale hired Bell & Henry L.P. to represent her in two lawsuits that were later dismissed for want of prosecution. In December 2005, she sued for legal malpractice and breach of fiduciary duty. The trial court granted the law firm’s motion for summary judgment, holding that these claims were time-barred by the two-year limitations period for legal malpractice. The Fourteenth Court of Appeals held that although Plaintiff’s malpractice claim was time-barred, she had alleged facts sufficient to establish a breach of fiduciary duty claim separate and independent from her malpractice claim and the four-year statute of limitations for breach of fiduciary duty applied to this claim, rendering it timely. Specifically, Trousdale alleged facts beyond the mere negligence allegations in a malpractice action: that her attorneys (1) knew and failed to disclose that her cases had been dismissed, (2) continued to bill and collect fees from her, and (3) refused to return her file for the purpose of concealing that the cases had been dismissed. Justice Guzman dissented, arguing that the facts pleaded in support of Plaintiff’s breach of fiduciary duty claim were the same as those asserted in her legal malpractice claim and the same as those relied on in Plaintiff’s attempt to toll limitations on her malpractice claim.

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Green v. Alford, No. 14-05-00407-CV (July 15, 2008) (Justice Guzman) (en banc)

Significance: This case holds, as an issue of first impression, that—for purposes of determining whether the damages caps for public servants covered by at least $100,000 in insurance apply—a defendant is not considered “covered” by $100,000 in insurance if the relevant insurance policy requires the defendant to individually pay the first $100,000 in damages.

Holding: Defendant failed to conclusively establish he acted in good faith. The evidence was legally and factually sufficient to support the challenged findings regarding recklessness. And Defendant failed to establish his liability was capped at $100,000 under section 108.002 of the Texas Civil Practice and Remedies Code.

Relevant facts: Christopher Green, a volunteer firefighter, collided his fire truck with the Alfords’ truck. Following a nonjury trial, the trial court entered judgment against Green. On appeal to the Fourteenth Court of Appeals, Defendant argued he was entitled to official immunity and that there was legally and factually insufficient evidence of recklessness and causation. The majority held since official immunity was an affirmative defense, Defendant bore the burden at trial to prove this element. The majority concluded the evidence was sufficient that no reasonable fire truck operator could have believed the need justified the risks Defendant chose to take; therefore, he failed to conclusively establish his good faith. In addition, the majority held the evidence was legally and factually sufficient to support the trial court’s four specific factual findings that Green acted recklessly. In the alternative, Green argued because he was an assured under an insurance policy issued to the City of Pasadena, section 108.002 of the Texas Civil Practice and Remedies Code capped his liability at $100,000 as a matter of law. However, under the City’s insurance policy the assured was required to pay the self-insured retention before the policy indemnified the assured. Ultimately, the court determined Green failed to established he was “covered” as those terms are used in section 108.002. Senior Justice Hudson, sitting by assignment, dissented arguing Green was entitled to official immunity as a matter of law unless Plaintiffs offered some evidence that no reasonable person in Defendant’s position could have thought the facts justified Defendant’s conduct. According to Senior Justice Hudson, under the circumstances presented here, the Alfords did not offer any evidence to rebut Green’s prima facie official immunity defense.