June 2008 Cases Impacting Houston Appellate Lawyers

Presented August 21, 2008 at the HBA Appellate Section Luncheon





Opinions Issued July 11, 2008 – August 18, 2008

Texas Supreme Court

Sacks v. Hayden
, No. 07-0472 (July 11, 2008) (per curiam).

Significance: This case addresses whether a written attorney’s fee agreement that specifies only hourly fee rates with no cap may be modified by evidence of an oral capping agreement.

Holding: The Texas Supreme Court held that parol evidence was not admissible to modify the written agreement absent ambiguity. Moreover, the court held that the absence of a fixed total price for services does not indicate a failure of the parties to reach a meeting of the minds with regard to the essential terms of a contract. Here, a binding agreement unambiguously specified hourly rates, the manner that would be used in determining the price, and the services to be performed, and thus the parol evidence was inadmissible.

Relevant Facts: Charles Haden hired David Sacks as appellate counsel to assist with an appellants’ brief to be filed in the Fifth Circuit Court of Appeals. Sacks prepared a written engagement letter that specified that Sacks would assist with the briefs, charge an hourly fee, and require a $10,000 retainer. Haden and Sacks agreed to a reduction in the retainer to $5,000, which was incorporated into the written agreement. Sacks prepared the briefs pursuant to the agreement and sent Haden a bill for approximately $35,000. Haden paid Sacks an additional $5,000, but contested the remaining fees, “stating that Sacks was only to review the brief already drafted by trial counsel and maintaining that Haden had ‘made it clear’ that $5,000 was all he could afford to spend.” The trial court entered partial summary judgment in favor of Sacks, but the court of appeals reversed, holding that because the agreement did not specify an open account or a flat, maximum fee, a fact question existed as to whether there was a meeting of the minds and Haden’s evidence of an oral agreement to cap fees was admissible under the collateral and consistent exception to the parol evidence rule.

Sells v. Drott
, No. 07-0848 (July 11, 2008) (per curiam).

Significance: This case clarifies that granting a no-answer default judgment is improper if an answer has actually been filed, but is simply defective.

Holding: Under Rule 45 of the Texas Rules of Civil Procedure, the signature to a pleading is a formal requisite. Failure to comply may subject the pleading to be stricken or treated as a nullity, but the rule does not operate to the injury of the opposing party, and therefore its amendment cannot prejudice his rights upon the trial of the cause. A trial court is not justified in treating a motion as a nullity merely because counsel failed to sign it. If a party files an unsigned pleading—or the pleading is signed by the wrong person—that party is entitled to notice of any challenge to that pleading and an opportunity to be heard before the pleading can be stricken or a default judgment granted.

Facts: Earl Drott sued LaVerna Sells seeking specific performance of a contract under which Sells purportedly agreed to sell her ownership interest in four tracts of land. An answer and an amended answer, both ostensibly signed by Sells, were timely filed with the court. At a hearing on a motion to sever another defendant, Sells did not appear, but instead sent her daughter as her “next friend.” At this hearing, it became clear that the daughter may have signed some of her mother’s court filings. Due to these allegedly forged documents, Drott moved to strike Sells’ answers for a no-answer default judgment, which the trial court granted. The court of appeals affirmed. In reversing the default judgment, the supreme court noted that Sells’ answers were facially valid and appeared to be legal responses. Any extrinsic evidence showing defects in the answers were challenges to Sells’ appearance. By appearing in the suit, even with potentially defective answers, Sells had the right to notice of a challenge to the validity of the answers. Sells was never given notice, and the notice of the severance hearing did not equate to notice that Drott was challenging the validity of the answers.

First Court of Appeals

Garrett v. Harris County Hospital District, No. 01-07-00836-CV (August 14, 2008) (Justice Bland).

Significance: This case clarifies that the notice required to overcome the shield of governmental immunity under section 101.101 of the Texas Tort Claims Act, which requires notice of a claim against a governmental unit no later than six months after the day that the incident giving rise to the claim occurred, may not be tolled by the discovery rule and an extended accrual date does not apply.

Holding: The First Court of Appeals held that while a governmental unit may have breached its duty to disclose medical-test results by failing to communicate the results reasonably promptly after obtaining them, the patient’s claim is barred if notice is not timely given to the governmental unit. This failure neither extends the accrual date of the plaintiff’s claim, nor does the discovery rule apply to toll accrual of the claim. Courts that have considered imposing a discovery rule ultimately have determined that the language of section 101.101 precludes it. While it may be unfair to deprive a litigant of her right of recourse against a hospital because she was unable, through no fault of her own, to comply with the notice requirements, courts are bound by the statute. The court thus affirmed the granting of the plea to the jurisdiction.

Facts: On October 3, 2003, Autrey Garrett, who was pregnant, had a routine obstetrical visit at Lyndon B. Johnson General Hospital (LBJ). The doctors detected a mass in her left breast and scheduled her for a needle biopsy on November 25, 2003. The results, which confirmed on December 1, 2003 that Ms. Garrett had a malignant tumor, were never reported to her. On July 11, 2005, Garrett arrived at LBJ emergency room with pain in her breast, at which time she learned that the cancer had metastasized and spread to her spine and lymph nodes. On August 3, 2005, Garrett sent notice to LBJ of her pending claim. LBJ filed a plea to the jurisdiction contending that Garrett’s notice was untimely, which the trial court granted.

Barton v. Whataburger, Inc., No. 01-06-01121-CV (July 31, 2008) (Justice Bland).

Significance: This case addresses the type of evidence necessary to support an employee’s negligence claim against a non-subscribing employer for violent criminal acts by another employee.

Holding: The First Court of Appeals held that an employee’s participation in the murder of another employee would not have been foreseeable to Whataburger simply based on the criminal-employee’s prior drug conviction, even if Whataburger had known about that conviction. Courts have recognized a street-level connection between drugs, weapons, and violence, but this connection is stereotypical and is insufficient to raise more than a scintilla of evidence that a person convicted of selling cocaine, without any accompanying evidence of violence, would foreseeably commit aggravated robbery. The court further held that the history of violent crimes at this particular Whataburger location did not show a pattern of similar-enough crimes to support a claim for failure to provide a safe workplace.

Facts: Gregory Love was working as a manager at a Whataburger restaurant in Houston. Shortly after arriving, Love left his shift early and placed Dean, an employee, in charge. When Dean discovered that Love had not counted the money in the registers, he counted it and deposited it in the safe. Early the next morning, three men attempted to rob the Whataburger. When Dean failed to hand over cash or the key to the safe, they shot him in the face, and he died immediately. Police later connected Love to the crime. Dean’s mother sued Whataburger under the Texas Wrongful Death Statute. The trial court granted summary judgment in Whataburger’s favor, and the court of appeals affirmed.

Jackson v. City of Texas City, No. 01-07-00026-CV (July 24, 2008) (Justice Keyes).

Significance: This case specifies both the requisites for cities and labor representatives to modify civil service requirements found in Chapter 143 of the Texas Local Government Code (the Act) and when the Act’s provisions prevail over a collective bargaining agreement.

Holding: The Court held that the Act grants cities and labor representatives the authority to modify civil service requirements by collective bargaining agreements, but that the Act’s provisions prevail over a collective bargaining agreement “unless the collective bargaining agreement contract specifically provides otherwise.” The Act, however, applies only to the types of terminations specifically enumerated in it. Thus, if an employee is terminated for something that is not enumerated, the City is not required to follow the procedural guidelines of the Act.

Facts: Jackson and Nunez began working for the Texas City Fire Department (TCFD) in June 2001. As a condition to their employment, they signed a document entitled “Conditions of Employment,” which was adopted under the terms of a collective bargaining agreement between TCFD and Texas City. One of the conditions of employment required them to become EMT certified at the basic level. Under the agreement, the failure to satisfactorily complete EMT basic training constituted cause for disciplinary action up to and including termination of the employee. Jackson and Nunez attended the required training classes, but did not pass the training class or sit for the certification exam. As a result, the fire chief terminated them. They filed suit requesting that the trial court issue a declaratory judgment that Texas City violated their rights by failing to use the proper procedures for termination and not allowing them to appeal under the Act. Texas City filed a plea to the jurisdiction and the trial court granted its motion. The court of appeals affirmed, holding that the terminations did not fall under the Act. Justice Alcala dissented on the grounds that (1) the terminations were disciplinary actions falling under the Act, (2) the grounds for termination were covered by the Act, and (3) the collective bargaining agreement did not specify that the Act was inapplicable. Thus, she would have held that the firefighters were entitled to appeal their termination.

Fourteenth Court of Appeals

Trull v. Service Casualty Insurance Co., No. 14-07-00314-CV (July 22, 2008) (Justice Brown).

Significance
: This case considers whether a vehicle purchaser who has control and possession of a vehicle pursuant to the parties’ intent to effect a sale—but has not yet finalized the paperwork or paid for the vehicle—is the vehicle’s “owner” for insurance purposes.

Holding: The Fourteenth Court of Appeals held that the transfer of possession and control of a vehicle, pursuant to the parties’ intent to effect a sale, determines ownership for insurance purposes. The fact that financing is not yet in place and that the dealership could rescind the agreement of sale if the buyer failed to obtain financing does not alter the result because it is the transfer of possession and control pursuant to the intent to effect a sale that controls.

Facts: On May 7, 2001, Alfredo Villanueva took possession of a 2001 Nissan Altima from Baker-Jackson Nissan Oldsmobile subject to a partially completed Motor Vehicle Purchase Order and a Temporary Delivery Bailment Agreement. The next day, Villanueva—while driving the vehicle—struck Robert D. Trull, a pedestrian. On May 12, 2001, Villanueva and his wife returned to the dealership and jointly completed the remaining paperwork for the sale. The Trulls obtained a default judgment against Villanueva, and then sought payment under Baker-Jackson’s insurance policy, which provided coverage for non-insured drivers of vehicles owned by Baker-Jackson. The trial court granted summary judgment on behalf of Baker-Jackson’s insurer, and the court of appeals affirmed based on the conclusion that Villanueva was not covered under Baker-Jackson’s policy because Baker-Jackson did not own the vehicle at the time of the accident.

The Kroger Co. v. Brown, No. 14-06-00510-CV (July 24, 2008) (Justice Seymore).

Significance: This case addresses whether an award of damages for disfigurement requires a physical blemish and whether the same injury may cause both disfigurement and physical impairment. In particular, this case involves a claimant who must point his “good ear” toward a speaker when engaging in conversation.

Holding: After considering both the legal and lay definitions of “disfigurement,” the Court concluded that there was no per se requirement that the claimant be physically blemished. However, not every physical characteristic affecting one’s appearance, even if necessitated by injury, constitutes disfigurement. In particular, the Court held that plaintiff Dan Brown’s physical movement necessary to compensate for his hearing impairment was not a change in appearance sufficient to constitute disfigurement, but was merely physical impairment (although, in some cases, the same injury may cause disfigurement). The Court explicitly disagreed with a San Antonio Court of Appeals opinion to the extent that it held that a plaintiff’s need to turn his body to look left or right constituted disfigurement.

Facts: Brown was diagnosed with a viral infection in his left inner-ear. His doctor prescribed several medications, including Prednisone, which Brown filled at a Kroger pharmacy. The pharmacist dispensed a lower dosage of Prednisone than prescribed, which allegedly allowed the infection to linger and caused damage to Brown’s inner-ear. A jury awarded Brown $13,000 for disfigurement, among other damages awarded. On appeal, Kroger argued that, under Texas law, disfigurement requires a physical blemish.

Chapa v. Traciers & Associates, Inc., No. 14-07-00056-CV (July 31, 2008) (Justice Guzman).

Significance: This case considers whether a parent may assert a bystander claim for mental anguish because a repossession agent towed her vehicle out of sight while her children were inside the vehicle, although she did not witness the vehicle being towed from the street.

Holding: The Fourteenth Court of Appeals concluded that Maria Chapa’s bystander claim for mental anguish failed as a matter of law. A parent’s bystander mental anguish must result from a direct emotional impact from the sensory and contemporaneous observance of the accident. This requirement necessarily excludes circumstances in which the parent saw nothing, heard nothing, does not know what happened to the child, and does not know if the child is injured. In this case, Ms. Chapa did not witness the vehicle being towed from the street. The Court reasoned, therefore, that she was traumatized because the sight of the empty street caused her to think that her children had been kidnapped or murdered, but that fear was not realized. Because her distress did not arise from witnessing the children’s serious injury or death, but instead, resulted from her lack of information as to their location or condition, her bystander claim for mental anguish failed as a matter of law.

Facts: Ford Motor Credit Corporation hired Traciers & Associates to repossess a white 2002 Ford Expedition owned by Marissa Chapa. Traciers’ field manager, Paul Chambers, instead repossessed a white 2003 Ford Expedition owned by Maria Chapa while Ms. Chapa’s two young children sat in the vehicle. Unbeknownst to Mr. Chambers, Ms. Chapa had earlier backed her mother-in-law’s vehicle into the street, then backed her Expedition out of the driveway—with her children inside—and parked on the street. She then left the keys to her truck in the ignition with the motor running while she parked her mother-in-law’s car back in the driveway and reentered the house to return her mother-in-law’s keys. According to Ms. Chapa, she was absent for only thirty seconds. During that time, Chambers repossessed the vehicle, but, upon discovering his mistake, returned the vehicle—and the children—within minutes.