Case Update for September to December 2015

By James C. Marrow, Hogan & Hogan and Andrew C. Nelson, Wright & Close LLP

FIRST COURT OF APPEALS

Holland v. Memorial Hermann Health Sys., No. 01-14-00283-CV, 2015 WL 7455328 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet. h.)

If a summary-judgment movant does not meet its burden of establishing each element of its claim or defense, the non-movant need not respond or present any evidence, and may raise a legal sufficiency challenge for the first time on appeal.


Holland allegedly tripped and fell in the parking lot of Memorial Hermann Katy Hospital. Holland sued Memorial Hermann Health System (“Memorial”) for her alleged injuries. Memorial moved for summary judgment, claiming it did not control the premises in question. The trial court granted Memorial’s motion.

On appeal, Holland argued that the trial court erred in granting summary judgment, because Memorial attached evidence that it did not own or possess a parking lot adjacent to Memorial Hermann Memorial City Hospital, but not the parking lot where she allegedly fell in Katy. In response, Memorial argued that Holland waived the issue by failing to raise it in the trial court, and, in any event, the evidence established that she fell at the Memorial City location rather than the Katy location.

The First Court reversed the trial court’s granting of summary judgment. The court noted that a summary-judgment movant bears the burden of establishing each element of its claim or defense. Only after the movant meets that burden does the burden shift to the non-movant to produce evidence to disprove one of those elements. Because one of the elements of a premises-liability claim is ownership of the premises, and because Holland alleged that the incident occurred at the Katy location, Memorial did not offer any evidence to disprove that element by attaching evidence that it did not own a parking lot adjacent to the Memorial City location.

Further, the court held that Holland did not waive her challenge to the issue by not raising the issue in the trial court. Because a summary judgment must stand or fall on its own merits, a court may evaluate the legal sufficiency of the grounds presented by the movant for the first time on appeal.

Finally, the court noted that Memorial attached evidence that the incident occurred at the Memorial City location to its appellate brief, but that evidence was not in the summary-judgment record. Accordingly, the court refused to consider that additional evidence.

Accurate Precision Plating, LLC v. Guerrero, No. 01-14-00706-CV, 2015 WL 7455826 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet. h.)

The “Property Owner Rule” applies only to cases involving real or personal property, not to claims for lost profits in a business.


Accurate Precision Plating, LLC (“APP”) sued Guerrero for several causes of action related to his violation of a non-compete agreement after leaving the company. At trial, APP’s president, Alberto Mani, testified that APP lost several customers as a result of APP’s actions. However, the trial court excluded Mani from testifying regarding APP’s alleged lost profits. Mani did not have any formal training or education in accounting, economics or business forecasting.

On appeal, APP challenged the exclusion of Mani’s lost profits testimony. APP argued that Mani should have been permitted to offer testimony regarding lost profits based on the Property Owner Rule. Essentially, Mani argued that APP’s business was his property and that, based on his familiarity with it, he should be allowed to offer valuation opinions.

The First Court rejected this argument. The Property Owner Rule has only been applied to cases involving real or personal property, not to cases involving lost profits. The court noted that the rationale behind the Property Owner Rule is the presumption that a property owner is familiar with its property and its value. However, given the much different considerations involved in a lost profits analysis, the court refused to extend the Property Owner Rule beyond the realm of real or personal property.

Richard v. Ayala, No. 01-14-00354-CV, 2015 WL 6931497 (Tex. App.—Houston [1st Dist.] Nov. 10, 2015, no pet. h.)

Offensive collateral estoppel did not apply to subsequent suit against parents of teenage driver because the parents were not in privity with their son in his trial.


The Ayalas’ son Edwin was involved in a car accident when he was 16 years old. The other driver sued Edwin, who by the time of trial was 18. During the trial, Edwin testified that, at the time of the accident, he only had a learner’s permit and that his parents had allowed him to drive alone several times in violation of the permit’s restrictions. The plaintiff then filed a subsequent suit against the Ayalas based on negligent entrustment.

The trial court found the Ayalas liable to the plaintiff. However, the only evidence that the plaintiff introduced of his damages was the judgment entered against Edwin in the prior suit. The plaintiff sought to bind the Ayalas to that damage amount by offensive collateral estoppel. The trial court found that collateral estoppel did not apply and awarded no damages to the plaintiff. The plaintiff appealed.

Collateral estoppel prevents the re-litigation of a fact issue that was resolved in an earlier suit. Collateral estoppel can be applied offensively or defensively. A party seeking to use collateral estoppel must establish that “(1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action.” However, mutuality of parties is not required. The party against whom collateral estoppel is asserted need only to have been in privity with one of the parties in the prior action.

The First Court noted that privity is an issue of law that it reviews de novo. The Ayalas were not parties in the first suit, and, as their son was an adult, their legal rights were not at stake in the first suit. They had no more than a parental interest in whether their son was found liable for damages—they did not have legal or pecuniary interests represented in the suit against Edwin. Accordingly, the Ayalas did not have a “full and fair opportunity to litigate the issue” of the extent of the plaintiff’s damages, and were not in privity with their son.

The court also concluded that the application of collateral estoppel would be unfair. The court noted that a trial court has broad discretion to determine whether offensive collateral estoppel without mutuality of parties would be fair to apply under the facts of the case presented. In the Ayalas’ case, because they would not have been financially liable under any theory in the case against Edwin, they had no motivation to defend against any of the claims. Because they had no interest in that suit, it would have been unfair to apply findings from that case against them later on. The court concluded that offensive collateral estoppel did not apply in that case.

FOURTEENTH COURT OF APPEALS

In re Walker, No. 14-15-00434-CV, 2015 WL 5137228 (Tex. App.—Houston [14th Dist.] Sept. 1, 2015, orig. proceeding) (mem. op.).

An order that states that it “finally disposes of all parties and all claims” is a final judgment even if the order does not actually dispose of all parties and all claims.

The doctrine of laches does not bar mandamus relief that is premised on the entry of a void order.

The real party in interest, Joe Price, sued relator, Robert Walker, for fraud and breach of contract. Instead, the jury found for Walker on his counterclaims against Price. Walker moved for judgment on the verdict and asked the trial court to award him attorneys’ fees. Before judgment was entered, Walker’s previous law firm intervened, seeking reimbursement of its attorneys’ fees out of any award to Walker.

On January 22, 2014, the trial court signed a document entitled “Final Judgment” that granted Walker’s motion to enter judgment on the verdict. But the court crossed-out the proposed judgment language granting attorneys’ fees, and the order does not mention the law firm or its pending plea in intervention. The order concluded, “This judgment finally disposes of all parties and all claims.” No appeal was taken from that order.

Instead, on December 23, 2014—11 months later—both Price and the law firm moved to vacate the January 2014 judgment, claiming it was not final. The firm specifically argued that the judgment was not final because it did not name the firm, mention its intervention, or deny the firm’s request for attorneys’ fees.

On January 16, 2015, the trial court vacated the judgment and later set the case for trial to begin on December 7, 2015. Walker filed a mandamus petition with the Fourteenth Court of Appeals.

The Court held that the January 2014 order was a final judgment, even though it did not expressly dispose of the firm’s intervention and request for attorneys’ fees, because the order stated, “This judgment finally disposes of all parties and all claims.” Accordingly, the Court concluded that the trial court lacked plenary power to vacate the judgment a year later, and that such order was void.

The Court also rejected the law firm’s argument that mandamus relief should be denied, on the basis of laches, because Walker waited until May 14, 2015 to request mandamus relief. The Court held that “laches is not a bar to mandamus relief where, as here, the mandamus relief is premised on the entry of a void order.” Accordingly, the Court conditionally granted mandamus relief.

Pressil v. Gibson, ___ S.W.3d ___, No. 14-14-00731-CV, 2015 WL 5297689 (Tex. App.—Houston [14th Dist.] Sept. 10, 2015, no pet. h.).

Acknowledging a split in lower-court authority, the Fourteenth Court of Appeals sided with the Texarkana Court of Appeals in holding that the measure of damages available in a “wrongful pregnancy” case are limited to medical expenses associated with the failed procedure that produced the healthy but unwanted child.

This legal-malpractice case arose from the dismissal of a health care liability claim by Pressil against a fertility center. Unbeknownst to Pressil, his girlfriend had surreptitiously taken samples of his sperm to the clinic and was artificially inseminated there, a process that resulted in the birth of healthy twin boys. Pressil sued the clinic for negligence and conversion, seeking damages for mental anguish, loss of opportunity, loss of enjoyment of life, child support, the cost of raising two children, lost earnings, and lost earning capacity. The trial court ruled that Pressil’s claims against the fertility center were health care liability claims and dismissed his lawsuit for failure to file an expert report under CPRC chapter 74. Pressil’s lawyers did not appeal the dismissal.

Pressil then sued his lawyers for legal malpractice. The lawyers moved for summary judgment arguing, among other things, that Pressil could not prevail against them because, in his suit-within-a-suit, Texas law would not have allowed Pressil to recover damages related to the birth of healthy children. Thus, the lawyers argued, Pressil could not have won his case-within-a-case and therefore could not prove the causation element of his legal-malpractice claims. The trial court granted summary judgment, and Pressil appealed.

The Fourteenth Court of Appeals first discussed the background of so-called “wrongful pregnancy” lawsuits, that is, claims brought by the parent(s) of a healthy, but unexpected, unplanned, or unwanted child against a medical provider for negligence leading to conception or pregnancy. The Court noted that a plaintiff cannot recover damages related to the support and maintenance of a healthy child born as a result of medical negligence, because the intangible benefits of parenthood far outweigh the monetary burdens involved. But Texas law is unsettled as to what damages a plaintiff can recover in a wrongful-pregnancy case.

The Waco Court of Appeals has proposed a “limited-damages” rule that potentially would allow a plaintiff to recover damages for (1) medical expenses for the failed procedure and any corrective procedures, (2) prenatal and postnatal expenses, (3) pain and suffering during pregnancy and delivery, (4) pain and suffering associated with the corrective procedure, (5) permanent impairment suffered because of the pregnancy, delivery, or corrective procedure, (6) emotional distress, (7) lost wages, and (8) loss of consortium. The Texarkana Court of Appeals, by contrast, has further limited a wrongful-pregnancy plaintiff’s recovery to the actual medical expenses incurred as a result of the failed sterilization procedure.

The Fourteenth agreed with the Texarkana court, and rejected the Waco court’s expansion of available damages, holding that “the measure of damages available to plaintiffs in wrongful pregnancy cases is limited to the medical expenses associated with the failed procedure that produced the healthy but unwanted child.” Because Pressil did not undergo any medical procedure, he could not recover any damages. Therefore, because Pressil could not prove damages in his underlying fertility lawsuit, he could not prove causation in his legal-malpractice suit.

The Court rejected Pressil’s contention that expert testimony was necessary to prove proximate cause in this case. The causation question—the availability of damages—was a question of law, and expert testimony would not have been admissible as to whether Texas law afforded Pressil a recovery in the fertility lawsuit. Accordingly, the Court affirmed the lawyers’ motion for summary judgment.

Russell v. Russell, ___ S.W.3d ___, No. 14-13-01100-CV, 2015 WL 5723109 (Tex. App.—Houston [14th Dist.] Sept. 29, 2015, no pet. h.).

In interpreting an appellate court’s mandate, a trial court should look not only to the mandate itself but also to the appellate court’s opinion. However, trial courts are given a reasonable amount of discretion to comply with the mandate.


This was the second appeal involving these parties; the issue on appeal was the trial court’s compliance with the Court’s mandate issued in Russell I. The Russells (Janna and Chris) divorced in 2008. In 2009, Janna moved for contempt and enforcement, contending Chris had violated their divorce decree and property-division agreement. The trial court did not find Chris in contempt but still awarded Janna judgment for unreimbursed medical expenses and for funds that were ordered to be paid into a savings account. However, the trial court did not award Janna additional child-support arrearages she sought or attorneys’ fees.

In Russell I, Janna appealed the denial of attorneys’ fees. The Court held that, because the trial court found that Chris failed to make child support payments, Family Code section 157.167 obligated the trial court either to award Janna her reasonable attorney’s fees or to state good cause for refusing to award attorney’s fees. The Court concluded that the trial court “abused its discretion by failing to award attorney’s fees [under 157.167] without stating good cause.” The Court reversed that portion of the judgment and remanded the case to the trial court “for further proceedings consistent with [the court’s opinion.”

Following remand, the trial court again refused to award attorneys’ fees to Janna for the stated reason that Chris had not been found in contempt. The Court reviewed its earlier mandate and opinion, and it concluded that, following Russell I, the trial court had only two options on remand: (1) award fees to Janna under section 157.167, or (2) maintain its refusal to award fees if it found good cause not to award fees and stated its reason for that decision. The Court would not imply good cause from the record because the trial court had rejected Chris’s proposed findings that good cause existed, and likewise declined to enter additional or amended findings.

The Court again reversed, holding that “[b]ecause the trial court failed to award Janna reasonable attorney’s fees under section 157.167 without stating any reasons supporting a finding of good cause to deny fees,” the trial court erred by failing to follow the Russell I opinion and mandate. The Court then expressly stated the trial court’s specific duties on remand, in apparent hopes of avoiding Russell III.

Fleming & Assocs., L.L.P. v. Kirklin, ___ S.W.3d ___, Nos. 14-15-00238-CV & 14-15-00369-CV, 2015 WL 6560520 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet. h.).

CPRC section 51.014 does not provide for interlocutory appeal from an order granting a motion to dismiss a SLAPP action.


The plaintiff law firm (“F&A”) previously represented more than 8,000 clients in diet drug litigation. After that litigation settled, the defendants (which consisted of other lawyers and law firms) allegedly solicited F&A’s former clients to pursue civil litigation against F&A concerning settlement expenses. F&A sued the defendants for malicious prosecution and conspiracy. All of the defendants moved to dismiss F&A’s suit pursuant to the Texas Citizens’ Participation Act (also known as an “anti-SLAPP” motion to dismiss). The trial court granted some defendants’ motions, but denied others.

F&A attempted to appeal the order granting some of the dismissal motions but denying others. No party attempted to appeal from the portion of the order that denied some of the defendants’ motions to dismiss.

The Court held that it lacked jurisdiction over F&A’s interlocutory appeal. Although CPRC section 51.014(a)(12) provides for interlocutory appeal of an order that “denies a motion to dismiss under Section 27.003,” no statute explicitly provides for interlocutory review of an order that grants such a motion.

The Court acknowledged that it had previously written in Jardin v. Marklund, 431 S.W.3d 765, 769 (Tex. App.—Houston [14th Dist.] 2014, no pet.) that “we have jurisdiction to review the trial court’s grant or denial of a motion to dismiss under the TCPA” (emphasis added). However, Jardin actually involved the denial of a motion to dismiss, so the Court refused to follow the quoted language as dicta.

The defendant whose anti-SLAPP motion was denied later moved for summary judgment, which the court granted. However, because the trial court still had not resolved another defendant’s request for attorney’s fees, the Court held that the summary-judgment order was interlocutory and non-appealable. The Court dismissed the appeal for lack of jurisdiction.

Crotts v. Cole, ___ S.W.3d ___, No. 14-14-00094-CV, 2015 WL 7306395 (Tex. App.—Houston [14th Dist.] Nov. 19, 2015, no pet. h.).

Notwithstanding its title as a “motion to reinstate” under TRCP 165a, a motion that sought a substantive change in a TRCP 91a dismissal order was sufficient to extend the trial court’s plenary power.


Alan Crotts, acting pro se, sued Jessalyn Cole, claiming that Cole was Crotts’s wife and asserting various claims for money damages against Cole. Cole moved to dismiss all claims under TRCP 91a. Crotts did not appear for the hearing. The trial court granted Cole’s motion on October 14, 2013 and dismissed all claims under Rule 91a.

Later that day, Crotts filed a “Motion to Reinstate,” that nominally cited Rule 165a, which applies to reinstatements following dismissals for want of prosecution. On November 12, 2013, Crotts filed a “First Amended Motion to Reinstate and Motion to Quash,” which included an argument that the trial court should have denied Cole’s Rule 91a motion, and which requested that the court “quash” its dismissal order under Rule 91a.

On December 6, 2013, the trial court reinstated Crotts’s claims for defamation and breach of contract. Cole then moved to dismiss the action for lack of jurisdiction, arguing that the reinstatement order was void, as having been signed outside of the trial court’s plenary power. The trial court agreed with Cole, declared that the reinstatement order was void, and dismissed the action. Crotts timely appealed.

The Court examined the relief requested in Crotts’s amended reinstatement motion, which asked that the trial court order the Rule 91a motion and dismissal order “quashed.” The Court concluded that, even if part of Crotts’s motion was an unverified motion to reinstate under Rule 165a—which would not extend the trial court’s plenary power—the motion also requested a substantive change to the dismissal order. Because that motion was filed within 30 days from the trial court’s rendition of the final dismissal order, the Court held that Crotts’s “reinstatement” motion properly extended the trial court’s plenary power over its final order. Therefore, the trial court had plenary power when it reinstated the case on December 6, 2013. Accordingly, the Court held that the trial court erred by dismissing the case for want of jurisdiction. The Court reversed the trial court’s final order and remanded for further proceedings.