Case Updates for October 2011 to January 2012

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

Is the failure to strictly comply with a court’s order under Rule 106(b) regarding substituted service fatal? Yes, in this case, a default judgment was reversed because the party failed to follow the court’s order regarding substituted service on the defendant.

Todd v. Sport Leasing & Financial Services Corp., No. 01-10-00608-CV, 2011 WL 5617872 (Tex. App.—Houston [1 Dist.] Nov. 17, 2011, no pet. h.)

Issue: In this restricted appeal from a default judgment, Marcus Todd argued that he was not properly served with process, and thus lacked notice of the suit against him.

Relevant facts: Relevant facts: Sport Leasing attempted to serve Todd with notice of its suit at Todd's address listed on the lease agreement: 4315 South Kirkwood # 138, Houston, TX 77072 (“apartment 138”). After one unsuccessful attempt, the process server tried six times to serve Todd at his father’s apartment located in the same building (“apartment 104”). When the process server could not serve Todd in person, Sport Leasing moved for substituted service. The trial court granted Sport Leasing’s motion. It approved substituted service by: (1) delivering a copy of the citation and petition to anyone over sixteen years of age at apartment 138; or (2) attaching a copy of the citation and petition to the front door of apartment 138. The trial court did not authorize any other method or location for service. But, when the process server issued service under the order authorizing substituted service of process at apartment 138, the process server posted the citation on apartment 104.

Outcome/holding: Rule 106(b) authorizes a court to order substituted service of process upon a proper showing that the plaintiff has been unable to serve the defendant through any default method listed in Rule 106(b). However, when a court orders substituted service under Rule 106(b), the order itself provides the only authority for the substituted service. As a result, “any deviation from the trial court’s order necessitates a reversal of the default judgment based on service.” Because Sports Leasing posted the citation on apartment 104—not apartment 138—Sports Leasing did not strictly comply and this was fatal to the default judgment.


Recent application of the Timberwalk factors: Did Little Caesar’s owe a duty for the armed robbery? No, in this case the risk of the armed robbery that resulted in the Plaintiffs’ injuries was not sufficiently foreseeable to impose a duty on Little Caesar’s.

Viera v. Little Caesar Enterprises, Inc., NO. 01-10-00863-CV, 2011 WL 6306653 (Tex. App.—Houston [1 Dist.] Dec 15, 2011, no pet. h.).

Issue: In this premises liability case, Veronica Viera and Maria Estrada appeal a summary judgment granted in favor of Little Caesar’s. Viera and Estrada were in a Little Caesar’s restaurant when an armed robbery was committed. One of the robbers shot Viera after she and Estrada exited through the back door of the pizzeria, and Estrada witnessed the shooting. They sued for negligent security. Little Caesar’s moved for and received summary judgment in its favor.

Relevant facts: The sisters, one evening, entered the Little Caesar’s pizzeria in their neighborhood to pick up pizza they had ordered. Two masked men entered the pizzeria through the rear door, brandished guns, threatened the patrons, and told everyone to get on the floor. One of the sisters sustained two gunshot wounds as she fled. The sisters sued Little Ceasar’s for negligent security. Little Caesar’s argued that there was no duty because the armed robbery was not foreseeable. The sisters’ expert testified that Little Caesar’s had been in the leased premises for four years at the time of the June 2008 armed robbery involving the sisters and that a “similar” crime had occurred at that location less than six months earlier. The existence of duty is not for an expert to decide. See Pouncy–Pittman v. Pappadeaux Seafood Kitchen, No. 01–07–00575–CV, 2008 WL 2930183, at *6 (Tex. App.—Houston [1st Dist.] July 31, 2008, no pet.) (mem. op.). There were also five other incidents near Little Caesar’s premises, one being a service call that the court would not consider. Maurer v. 8539, Inc., No. 01–09–00709–CV, 2010 WL 5464160, at *4–5 (Tex. App.—Houston [1st Dist.] Dec. 30, 2010, no pet.) (mem. op.) (holding that service call logs that did not indicate whether incident reports were made or whether any actual crimes similar to aggravated robbery in question occurred were not probative of actual similar crimes). After application of the Timberwalk factors, the Court found that, although there was an armed robbery in December of 2007 that bore several significant similarities to the armed robbery at issue, one incident was not enough.

Outcome/holding: Considering the five Timberwalk factors together, the Court concluded as follows: “While ‘the difficulty in assessing foreseeability lies in the inability to quantify how many prior crimes make a particular attack predictable,’ we conclude that one significantly similar event in which no shots were fired and no person was injured is not sufficient.” Because duty was a necessary element, summary judgment was proper.


The unanswered question in Romero: If a party objects to the inclusion of invalid bases for liability in the charge, does this objection also preserve error for any impact the wrongful inclusion has on other charge questions? Yes, according to now, the First, Fourteenth, and Eleventh Courts of Appeals. No further objection to any other impacted questions, i.e., the damages question would be necessary under these courts.

McFarland v. Boisseau, No. 01-11-00088-CV, --- S.W.3d ----, 2011 WL 6282356 (Tex. App.—Houston [1 Dist.] Dec. 15, 2011, no pet. h.)

Issue: Appellants argued, among other things, that the trial court erred by denying them a new trial after it had disregarded most of the bases for liability in the charge on which the jury’s award of damages in the charge was based. While the Appellants framed this as error in the denial of their motion for new trial, the thrust of their argument concerned whether there was any harm in the jury’s award of damages when the jury considered bases for liability that were later struck by the trial court, so the standard of review applicable to charge error applied.

Relevant facts: The first question in the jury charge characterized all 10 statements that Boisseau claimed the defendants published as defamation per se. The question listed each of the statements and asked the jury to determine which of the statements, if any, each of the defendants had published. During the jury charge conference, Appellants argued that nine of the 10 statements were not defamation per se and, accordingly, should not be included in the charge. The trial court overruled these objections and kept all 10 statements in the charge. After the trial, Appellants filed a motion to disregard on these statements. The trial court disregarded some of these. Appellants then filed a motion for new trial arguing they were entitled to a new trial because the jury’s determination of damages, which was based on eight statements characterized as defamation per se, no longer reflected the modified jury charge question on liability, which only identifies two statements that are defamatory per se that were published. Appellee argued that this issue was not preserved for appeal because the Appellants did not specifically object to the form of the damages question.

Outcome/holding: A similar argument was raised in Romero. The Romero court, however, held:“We need not consider whether Columbia was required to object not only to the lack of evidence for the malicious credentialing claim but also to the form of the apportionment question that included the claim because it did both.” Two appellate courts have subsequently considered the issue that the Texas Supreme Court left unanswered in Romero: the Fourteenth Court of Appeals in Mo. Pac. R.R. Co. v. Limmer, 180 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2005), rev’d on other grounds, 299 S.W.3d 78 (Tex. 2009) and the Eleventh Court of Appeals in Schrock v. Sisco, 229 S.W.3d 392 (Tex. App.—Eastland 2007, no pet.). Both the Fourteenth and Eleventh Courts of Appeals concluded that, once a party objects to the inclusion of invalid bases for liability in the charge, this objection also preserves error for any impact the wrongful inclusion has on other charge questions. An objection to the form of all other impacted questions is not necessary to preserve the issue for appeal. The First Court of Appeals adopted this holding, and held that, because the Appellants were prevented from complaining on appeal that the jury’s single determination was based on any of the invalid claims of defamation per se, error was presumed and a new trial must be granted.


Does a notice of appeal filed by a corporate representative (that is not a licensed attorney) have any effect? No.

Kaminetzky v. Newman, No. 01-10-01113-CV, 2011 WL 6938536 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet. h.)

Issue: Whether a corporate representative can file a notice of appeal for a corporation.

Relevant facts: Kaminetzky identified himself as the appellant “individually and as assignee of two corporate co-defendants.” There is no evidence in the record establishing that the assignment exists, the extent of the assignment, or the legal authority for the assignment

Outcome/holding: “Generally, a corporation may be represented only by a licensed attorney.” A notice of appeal filed by a corporate representative that is not a licensed attorney has no effect. Rule 7 of the Texas Rules of Civil Procedure allows a person to represent himself pro se. This only applies, however, when the person is litigating his rights on his own behalf, instead of litigating certain rights in a representative capacity. Kaminetzky failed to establish that these rules did not apply to him in whatever capacity he brought the appeal on behalf of the two corporations. Accordingly, the notice of appeal filed by Kamintezky was not effective to file a notice of appeal for the two corporations, and whether there was any error in the judgment as it applied to the two corporations was not preserved for appeal.


Does a DWC non-compensability determination have preclusive effect in a gross negligence suit against employer? Not in this case: the court found that, while the DWC found the deceased’s heart attack was not a compensable injury, the deceased’s fiancée was not barred from bringing a gross negligence suit on behalf of their son against the employer.

Barnes v. United Parcel Service, Inc., No. 01-0900648-CV,--- S.W.3d ----, 2012 WL 112252 (Tex. App.—Houston [1 Dist.] Jan 12, 2012, no pet. h.)

Issue: Nathaniel Cooper suffered a heart attack and died on the job while employed by United Parcel Services, Inc. A workers’ compensation claim was filed by Cooper’s fiancée, Terrica Barnes, on behalf of their son, Kainan. After Cooper’s injury was determined to be not compensable for purposes of workers’ compensation, Barnes filed suit against UPS, alleging gross negligence. UPS argued that this claim was barred by res judicata and collateral estoppel, and the trial court granted summary judgment against Barnes on those grounds.

Relevant facts: UPS filed a motion for summary judgment arguing that collateral estoppel and res judicata precluded litigation of the gross negligence claim. It argued that the issue of whether Cooper’s working conditions caused his heart attack had already been litigated before the Department of Workers’ Compensation and that Barnes’s gross negligence claim was barred because it was based on the same facts that had been determined during the DWC hearing. Barnes argued that her claim was not barred because the Texas Constitution and section 408.001(b) of the Texas Labor Code protect the right of an heir or surviving spouse to recover exemplary damages for the death of an employee whose death is caused by the employer’s gross negligence. She also argued that collateral estoppel did not apply because the DWC decision involved different questions of fact and law from those at issue in this lawsuit.

Outcome/holding: The Court reasoned that, where a plaintiff in a gross negligence lawsuit can prevail if the fact finder concludes, among other elements, that the defendant’s conduct was a cause in fact of the injury (perhaps one among several), a heart attack is compensable under section 408.008 only after the hearing officer weighs the potential contributing factors and concludes that work-related conditions contributed more to the heart attack than any preexisting condition. These questions are not identical. Because the causation burden under section 408.008 involves different questions from those in a gross negligence suit, the Court concluded that, the causation issue was not fully and fairly litigated during the DWC compensability hearing, and that the trial court erred in granting summary judgment.


A case of first impression: what legal standard applies to determine whether a representation may be implied under the DTPA based upon a party’s conduct

Red Roof Inns, Inc. v. Jolly, No. 14-10-00344-CV, 2011 Tex. App. LEXIS 9824 (Tex. App.—Houston [14th Dist.] Dec. 15, 2011, no pet. h.).

In this DTPA case, the jury awarded damages under the DTPA and negligence, and the Court issued a majority, dissenting, and concurring opinion, reversing the judgment and rendering that the plaintiffs take nothing on legal sufficiency grounds. The plaintiffs were Guests who stayed at the defendant’s Motel and brought the suit alleging negligence and DTPA violations after their room was burglarized and jewelry valued at $50,000 was taken from their room and never recovered. The Guests alleged that the Motel engaged in false, misleading, or deceptive act or practice in leasing the room because they represented that its premises was a safe, secure, and monitored property, when in fact the Motel was actually a crime-afflicted property that was not operated or monitored in a secure manner. They alleged that the evidence was legally sufficient that the Motel made an implied representation based on the evidence that: (1) the front-desk clerk told the Guests that safes were not available for their use and the safe at the front desk was only for the Motel’s property, (2) there was a security guard in the lobby when they checked in, and (3) the clerk gave them a card key to gain entry to their room. All three justices agreed that an actionable representation under the DTPA may be implied solely based upon conduct.

At issue was whether an implied representation could be implied from this conduct. The court determined that the legal standard to be used to determine whether and when a representation should be implied under the DTPA based upon a party’s conduct is a matter of first impression. It explained that the court should not imply a representation based upon a party’s conduct unless that representation was clearly contemplated by the party charged with making it. “A representation should be implied from conduct only when, under the circumstances at the time the party engaged in that conduct, the only reasonable interpretation of that conduct is that the party meant to convey the representation in question.” (emphasis added).

The majority concluded that it would not be reasonable to conclude that the presence of a security guard in the lobby when the Guests checked in between 2:30 a.m. and 3:00 a.m. was an assertion that the Motel was secure. Instead, the majority explains that the presence of a security guard could be interpreted to mean any number of things, and because the only reasonable interpretation was not that the Motel was secure, this was not legally sufficient evidence to support the jury’s finding. The majority explained that this evidence showed at most that the Guests made assumptions about the security of the hotel, not that the Motel made any representations. The court reiterated that “to qualify as an implied representation, the representation must be so obvious that it did not need to be stated. More importantly, there must be one and only one thing that the implied representation reasonably could mean.”

The court concluded the same with respect to the front desk clerk giving the Guests a card key: a representation that the Motel was a secure property was not the only reasonable interpretation of this conduct.

In arriving at its conclusions, the court considered the circumstances under which a covenant may be implied in a contract. It also considered Supreme Court precedent of implying safety or security of a premises under Timberwalk. The court concluded “If a misrepresentation under the DTPA could be implied from the presence of a security guard in the lobby or from giving Motel guests a card key, a landowner who neither knew nor should have known of an unreasonable and foreseeable risk of criminal conduct on the premises still could be held liable for actual damages and attorney’s fees regarding losses from criminal conduct on that premises.” The court concluded that such a holding would expand a landowners’ potential liability for damages from third-party crime significantly beyond that recognized in Timberwalk.

Thus, the majority held that the evidence at trial would not enable reasonable and fair-minded people to find that the Motel represented that its goods or services would be of a particular standard, quality, or grade, when they were or another; and thus, the evidence was legally insufficient to support the jury’s finding of DTPA liability.

The court likewise held that the evidence was legally insufficient to support the jury’s finding that the Motel failed to disclose information, known or otherwise, with the intention of inducing the Guests to lease a room with respect to the number of crime incidents involving the Motel.

The dissenting justice would have affirmed the jury’s verdict and held that the evidence was legally and factually sufficient to support its findings that the Motel made an implied misrepresentation to the Guests that the Motel was secure. The dissent also indicated that the majority inappropriately applied the equal inference rule to direct evidence of the existence of a security guard and the provision of a secure key. The dissent cautioned that the majority abandoned the proper legal sufficiency standard of review by permitting the equal inference rule to supersede the required deference to the factfinder simply because both conclusions would be supported equally in the evidence.

The concurring justice disagreed with the part of the opinion that created a new test based on contract law to recognize implied representations under the DTPA or the invoke the Timberwalk factors for a landowner’s duty under premises-liability negligence principles to protect another from the foreseeable criminal acts of third parties.