Case Updates for December 2010 and January 2011

by Lucy Forbes, The Forbes Firm, PLLC, and Jessica Zavadil, Wright & Close, LLP


Is the pearl in the oyster a lucky find? Not always.

Jones v. Landry’s Seafood Inn & Oyster Bar-Galveston, Inc., No. 14-09-00767-CV, 2010 Tex. App. LEXIS 9927 (Tex. App.—Houston [14th Dist.] Dec. 16, 2010, no pet. h.).

In this summary judgment case, Jones ordered an Oyster Mimmo, which is a processed, ground oyster meat dish, at Grotto Restaurant (which is owned by Landry’s). She alleged that she cracked a molar on a hard object while eating this dish. According to the Landry’s manager, the object was a pearl; but the summary judgment evidence was inconclusive as to what it was. Jones alleged that the manager promised that Landry’s would pay to have her tooth repaired; and she sought reimbursement for the ensuing dental care. When Landry’s refused to pay, she sued for strict products liability, negligence, breach of implied warranty, and promissory estoppel, seeking the amount of her dental expenses, pain and suffering, and mental anguish. Landry’s successfully obtained both a traditional and no-evidence summary judgment.

The trial court granted Landry’s traditional summary judgment under section 82.004 of the Texas Civil Practice and Remedies Code, which provides that in a products liability action, a manufacturer or seller shall not be liable if the product is a common consumer product intended for personal consumption such as an oyster. The appellate court reversed the summary judgment, agreeing with Jones that section 82.004 does not apply to her claim because her claim was based on a manufacturing defect. The court agreed that Jones’ complaint was of a manufacturing defect because Landry’s allowed an inedible object to be incorporated into the ground oyster meat dish, whether the object was present when Landry’s received the meat or the personnel failed to detect and remove the object while preparing the dish. Thus, the dish was a finished product that differed in terms of construction and quality from the restaurant’s planned output in a manner that rendered it unreasonably dangerous.

The trial court also granted Landry’s no-evidence summary judgment on her promissory-estoppel claim on the grounds that Jones would have obtained the repair of her tooth regardless of whether Landry’s promised to pay. The appellate court disagreed, finding instead that Jones’ affidavit presented a genuine issue of material fact regarding reliance on Landry’s promise to pay her dental bills by averring she would have curtailed the treatment she received by considering less expensive care or postponing treatment, if not for the promise.

So, a pearl in an oyster is not always a lucky find. A complaint about an object present in a prepared oyster dish is a manufacturing defect claim that is not subject to section 82.004, which otherwise provides that a manufacturer or seller shall not be liable for products liability for a product that is an oyster.


Is it error to grant summary judgment for a party that is a non-movant? Yes.

Donald Willy, Independent Executor of the Estate of Joan Susan Willy, Deceased v. Rosetta Lee Winkler v. Stanley Winkler, No. 01-10-00115-CV, 2010 Tex. App. LEXIS 10118 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

In this summary judgment case, the deceased, Joan Willy created a joint account with AG Edwards while she was alive. She held this account with her mother, Rosetta Winkler. The Willys paid all of the taxes on the account. When Joan died with a will, the account became “property of the estate” under the will. Donald Willy filed a motion for partial summary judgment, seeking a declaration that Joan’s estate owned the accounts and that the accounts were not held in “joint tenancy with a right of survivorship.” He further asserted that he had not signed any agreement consenting to Joan’s maintenance of a joint account with rights of survivorship with Rosetta, and under Texas law, the establishment of a “joint account by a parent with a child” evidenced Rosetta’s intent to make a gift of the account to Joan.

The Winklers filed a response to this partial motion for summary judgment asserting that the account agreement established a right of survivorship and Donald failed to present summary judgment evidence establishing a community interest in this account. In the final paragraph of their response, the Winklers asserted that “summary judgment [was] inappropriate” and “unresolved fact issues preclude[d]” the granting of summary judgment in Donald’s favor. The Winklers did not separately move for summary judgment in their favor.

Despite the fact that the Winklers did not move for summary judgment, the trial court entered a judgment in their favor declaring that the account was held by Joan and Rosetta “in joint tenancy with rights of survivorship.” The trial court also declared that, upon Joan’s death, the accounts became Rosetta’s exclusive property.

On appeal, the court reversed this judgment and held that the trial court erred in granting summary judgment in favor of the Winklers, who never even moved for the judgment entered by the trial court. So, the holding to take away from this case is to make sure you specifically move for any judgment you wish for the trial court to enter or it will be reversed on appeal.


Is a claim for alleged sexual assault a health care liability claim which requires a timely expert report under Section 74.351? Yes.

Sedeno v. Mijares, No. 01-10-00374-CV, 2010 Tex. App. LEXIS 10132 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

Appellant Heriberto Sedeno, P.A. was sued for allegedly sexually assaulting Mijares when she visited his office to address some problems with her high blood pressure. He allegedly told her to bend over and remove her pants so that he could give her a B-12 shot but instead raped her and ejaculated all over her and her clothing. Mijares pled causes of actions for sexual assault and intentional infliction of emotional distress against Dr. Sedeno and Sedeno, P.A. She alleged that Sedeno, P.A. “allowed [Dr. Sedeno] to be unsupervised with female patients despite its knowledge of [Dr. Sedeno’s] sexual proclivities” and that such negligence and gross negligence was the proximate cause of her injuries.

Sedeno, P.A. filed a motion to dismiss, arguing that Mijares’s claims were health care liability claims covered by Chapter 74 of the Civil Practice and Remedies Code, that Mijares had failed to file an expert report as required by section 74.351, and that Sedeno P.A., accordingly, was entitled to mandatory dismissal of Mijares’s claims against it. Mijares responded, arguing in part, that her claims were not health care liability claims and that the motion to dismiss was untimely according to the scheduling order. The trial court signed an order denying Sedeno P.A.’s motion to dismiss. The order contained a hand-written notation that the motion was denied “because the motion was not set for hearing in a timely manner under the agreed DCO.” Sedeno, P.A. filed a motion for reconsideration which was denied by the trial court.

In two issues, Sedeno, P.A. challenged the trial court’s order claiming that Mijares’s claims were health care liability claims requiring an expert report and such expert report was not timely filed under section 74.351. After an extensive analysis, the court of appeals sustained Sedeno, P.A.’s issues and concluded that Mijares’s negligence claims for alleged sexual assault were health care liability claims because the “gravamen” of her claims was that it breached the standards of care and safety owed to Mijares by failing to protect her from the alleged sexual assault of Dr. Sedeno. The court also concluded that Sedeno, P.A. was a “health care provider” under the chapter as well. In sum, the court held that the provisions of section 74.351 applied and the trial court erred in denying Sedeno, P.A.’s motion to dismiss the negligence and gross negligence claims.


Does a party waive summary judgment relief on grounds not specifically addressed in the motion even when the motion generally seeks summary judgment on all claims asserted? Yes.

Home Loan Corp. v. SKH, L.L.P., No. 01-09-01088-CV, 2011 Tex. App. LEXIS 121 (Tex. App.—Houston [1st Dist.] Jan. 6, 2011, no pet. h.)

In this summary judgment case, Home Loan Corporation appealed a judgment in favor of SKH, L.L.P. and Lagean Medearis. Home Loan argued that the trial court erred in granting summary judgment on claims not addressed in SKH’s and Medearis’s motion for summary judgment. Home Loan filed suit against Medearis and SKH for breach of fiduciary duty, negligence, and negligent misrepresentation, alleging that Medearis did not properly distribute funds at a closing for a piece of real property.

SKH and Medearis filed a motion for summary judgment on the following grounds: (1) the evidence conclusively established that there was no breach of fiduciary duty on the part of Medearis and (2) the evidence conclusively established that, even if Medearis breached a fiduciary duty, any injuries that Home Loan is alleging were caused by negligent and/or fraudulent acts of plaintiff and fraud defendants. They further stated that “Defendants are entitled to summary judgment as a matter of law on plaintiff’s claims.” The motion did not specifically mention Home Loan’s negligence or negligent misrepresentation claims. Home Loan did not file a response and the trial court granted the summary judgment and dismissed all claims against SKH and Medearis with prejudice.

In one issue on appeal, Home Loan argued that the trial court erroneously granted summary judgment on its negligence and negligent misrepresentation claims because SKH and Medearis did not expressly present grounds for summary judgment on those claims. In response, SKH and Medearis argued that summary judgment on all claims was proper, including the negligence and negligent misrepresentation claims, because their motion provided fair notice that they sought relief on all claims. SKH and Medearis pointed to the fact that in the motion they asked for summary judgment on “plaintiff’s claims” in the plural. They also maintained that the motion presented grounds for summary judgment on negligence and negligent misrepresentation because the motion asserted that SKH and Medearis did not cause Home Loan’s injuries, and causation is an element of breach of fiduciary duty, negligence, and negligent misrepresentation. The court of appeals disagreed, and concluded that the trial court erred in granting summary judgment on the negligence and negligent misrepresentation claims. The court affirmed the summary judgment as to the breach of fiduciary claim, but reversed and remanded the claims for negligence and negligent misrepresentation.


Does a party waive a complaint regarding the trial court’s refusal to grant extra time for voir dire by failing to object to the seating of the jury? Yes, in a criminal case.

Harrison v. State, No. 01-09-00611-CR, 2010 Tex. App. LEXIS 10159 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet. h.)

In this case, appellant challenged the trial court’s refusal of his request for additional time to conduct voir dire. When the trial court informed appellant that his time for questioning had expired, appellant stated that he wanted to file a formal pre-typed motion requesting additional time to ask questions included in the motion. The trial court informed appellant that he had already been given 44 minutes, 14 minutes more than originally allotted. Appellant then offered the motion for additional time, which listed the questions he was unable to ask and began to recite additional questions beyond those listed in the pre-typed motion. The trial court instructed him to “write those down and then just have it offered.” Appellant replied, “As long as I can make a bill later with the rest of the questions, that’s fine.”

After the peremptory strikes were exhausted, the trial court asked whether either side had any objection to the seating of the jury. Both sides said “none” and the jury was sworn and seated by the court.

Outside the presence of the jury, the trial court asked appellant if there was anything he would like to put on the record. Appellant recited the questions he asserted he would have asked had he been given more time. The trial court reiterated that appellant had already been given 14 additional minutes and that it did not believe he had used his time effectively. Before the indictment was presented, the trial court asked a second time if there was any objection to the seating of the jury. The defense responded, “None from the defense.”

The State argued that appellant waived any error relating to the voir dire process when appellant twice affirmatively stated that he had no objection to the seating of the jury. The court of appeals agreed holding that appellant had affirmatively stated twice that he had no objections to the seating of the jury. The court held: “appellant waived any error to the amount of time he was given to question the jury by affirmatively stating that he had no objection to the seating of the jury.” While this holding was in a criminal case, it could easily be extended to civil cases. Thus, a lesson learned from this case is if you wish to complain about time constraints regarding voir dire on appeal, make sure you object to the seating of the jury.