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The Texas Supreme Court appeared to be very active in the month of April. However, the activity was about as exciting as watching a golf tournament on television. We nevertheless have been able to provide you with our review of four opinions of the Supreme Court. The Court was most active in cases involving the Texas Tort Claims Act. In Texas Natural Resource Conservation Commission v. Tammy White, the Court restricted the application of the Tort Claims Act. In Texas Department of Public Safety and Adrian Rivera v. Melinda Petta the Court held that issues litigated in a criminal case can be used as collateral estoppel in a civil case. The Court confirmed that when there is evidence of physical impairment the jury cannot enter an award of zero damages in Estrada and Lear Lines, Inc. v. Dillon and CNA. Finally, the Court found that the activities of a trial judge during trial did not prejudice the plaintiffs case in Dow Chemical Co. v. Francis. GOVERNMENTAL IMMUNITY DOES NOT APPLY TO THE NON-USE OF A STATIONARY ELECTRIC MOTOR-DRIVEN PUMP BUT DOES APPLY IF THE PUMP CAUSES DAMAGE DURING OPERATION OR USE. In Texas Natural Resource Conservation Commission v. Tammy White f/k/a Tammy Hand (decided on April 26, 2001), the Texas Supreme Court dealt with whether a stationary electric motor-drive pump is motor-driven equipment under Section 101.21 of the Texas Torts Claim Act and whether the non-use of the pump that caused property damage came within the meaning of operation or use thereby invoking the statutory waiver of governmental immunity. The Supreme Court held that a stationary electric motor-drive pump was motor-driven equipment under Section 101.021. However, since the assertion by the plaintiff was that the nonuse of the pump caused the property damage, governmental immunity barred the claim. FACTS OF CASE
A STATIONARY MOTOR-DRIVEN PUMP IS MOTOR-DRIVEN EQUIPMENT The TNRCC maintained that the trial court lacked jurisdiction because the pump used on Whites land was not Motor-driven equipment and, therefore, the waiver of sovereign immunity of the Texas Torts Claim Act did not apply. The Texas Supreme Court held that the pump was Motor-driven equipment for two reasons. First, the pump fell within the generally accepted meaning of Motor-driven equipment. Equipment, is not defined by the Texas Torts Claims Act but the general meaning of the term Motor-driven means, quite simply, driven by a motor. The pump in this case was an implement used for the purpose of dissipating fumes. It was driven or made to perform its task by a motor. It, therefore, fit the general definition of Motor-driven equipment. Second, to exclude a stationary motor-driven pump from the general definition of Motor-driven equipment within Section 101.021 of the Texas Torts Claims Act would be too restrictive. If the Legislature had meant Motor-driven equipment to encompass only motor-driven vehicles, it surely would not have written both Motor-driven vehicle and Motor-driven equipment into the Texas Torts Claims Act. THE NONUSE OF THE STATIONARY MOTOR-DRIVEN PUMP DOES NOT COME WITHIN THE MEANING OF OPERATION OR USE AND, THEREFORE, GOVERNMENTAL IMMUNITY APPLIES White claimed that the TNRCCs removal of the pump caused the aggregation of fumes onto her property that ignited and caused a fire that destroyed her store. The TNRCC argued that the failure to use the pump that caused the fire was a nonuse of equipment and, therefore, outside of the meaning of operation or use of Section 101.021. Section 101.021 of the Texas Torts Claims Act provides that a governmental unit is liable for property damage arising from the operation or use of motor-drive equipment. Use means to put or bring into action or service; to employ for or apply to a given purpose. In addition, the court held that the equipment use must have actually caused the injury. Therefore, to invoke the Texas Torts Claims Acts waiver of immunity, Whites injury must have been caused by the TNRCCs actual use of the pump, not the TNRCCs failure to use it. Accordingly, Whites assertion of nonuse did not meet Section 101.021's use requirement and government immunity applied. ANALYSIS OF OPINION The Supreme Court was hesitant in this case to broaden the limited waiver of sovereign immunity granted by the Texas Torts Claims Act. It believed that to broaden the definition of Operation or use to include nonuse of motor-driven equipment would be tantamount to abolishing governmental immunity. ISSUES DECIDED IN A CRIMINAL CASE CAN BE USED AS COLLATERAL ESTOPPEL IN A CIVIL CASE
FACTS OF CASE Since this case involved a summary judgment, the Supreme Court accepted the Plaintiffs version of the facts. In 1990 Trooper Rivera stopped Ms. Petta for speeding. Ms. Petta had her two children in the car with her. Her 3 year old child was unrestrained in the front seat. Ms. Petta initially began arguing with Trooper Rivera concerning how much she had been exceeding the speed limit. She then became upset when Trooper Rivera questioned her concerning the age of her unrestrained child. Trooper Rivera then went back to his patrol car. At that point Ms. Petta rolled up the window to her car and locked the doors. When Trooper Rivera returned he knocked on the window and asked her to roll it down. When she refused to do so, Trooper Rivera began beating on the window with his night stick and threatening to break the glass. He stopped beating on the glass, went back to his car, and called for a tow truck. Trooper Rivera moved his vehicle forward in order to block Ms. Pettas vehicle. Ms. Petta pulled around Trooper Rivera and stopped her vehicle again. Trooper Rivera again approached Ms. Pettas vehicle, ordering her to get out. She refused. He then allegedly aimed his handgun at her and threatened to kill her. At that point Ms. Petta fled in her car. Trooper Rivera gave chase and fired shots from his handgun at her tires. He also aimed his shotgun at her while driving but a civilian passenger took the shotgun away. The chase ended at Ms. Pettas home where she was restrained by other officers. Ms. Petta was charged with fleeing or attempting to elude a police officer, and was convicted. During her criminal trial Ms. Petta raised the defense of necessity, arguing that her flight from Trooper Rivera was necessitated by her fear that Trooper Riveras actions caused her to reasonably believe that she faced more imminent harm from Trooper Rivera than the potential harm that the public might face by virtue of her unlawful flight. Once that defense was raised, the prosecution had to disprove the defense beyond a reasonable doubt. One of Trooper Riveras defenses in the civil action was privilege; that he used force to the degree he reasonably believed necessary to make an arrest. RIVERAS COLLATERAL ESTOPPEL DEFENSE Trooper Rivera raised collateral estoppel as a ground for summary judgment in the civil action. He argued that the jury finding that his use of force was not reasonably believed by Petta to endanger her or her children with imminent harm established his defense of privilege which entitled him to summary judgment. The court noted that collateral estoppel applies when an issue decided in the first action is actually litigated, is an essential issue to the prior judgment, and is identical to an issue in the pending action. Collateral estoppel is designed to promote judicial efficiency and to prevent inconsistent judgments by preventing re-litigation of ultimate issues of fact. WHEN COLLATERAL ESTOPPEL APPLIES Collateral estoppel can be applied when the party against whom it is asserted has had a full and fair opportunity to litigate the issue in the prior lawsuit. The Supreme Court found that Petta had a full opportunity to litigate her allegation that she reasonably feared imminent harm at the hands of Trooper Rivera. The fact that a criminal jury found against her on that issue estopped her from raising the identical issue to defeat Trooper Riveras claim of privilege. Because both Pettas criminal defense and Trooper Riveras civil defense turned on the same fact issue, collateral estoppel prevented Petta from re-litigating that issue in the civil litigation. As a result Trooper Rivera was entitled to summary judgment on Pettas tort claims.
The Department of Public Safety moved for summary judgment on the issue of sovereign immunity. Petta brought suit against the Department of Public Safety under the Texas Tort Claims Act. That Act provides for two waivers of sovereign immunity. The first is in instances in which the negligent conduct of an employee causes property damage, personal injury, or death in the operation of a motor-driven vehicle or equipment if the employee would be personally liable to the claimant. The second waiver of sovereign immunity arises from a condition or use of tangible personal property if the governmental unit would, as a private person, be liable to the plaintiff. Section 101.057 specifically excludes assault, battery, false imprisonment or any other intentional torts from the waiver of sovereign immunity. The Supreme Court found that the conduct complained of by Petta B hitting the window, calling a tow truck, aiming a gun B were essentially an assault and battery claim against Rivera. The actions he engaged in were clearly intentional. As a result, they fell squarely within Section 101.057's exclusion. The Court also noted that to invoke the second area of waiver a plaintiff must make a claim arising from the condition or use of tangible personal or real property. Petta argued that the Department negligently failed to furnish the proper training, instruction, training manuals or documents to Rivera. The Supreme Court noted that information is not tangible personal property. In addition, procedure manuals are not considered tangible personal property for purposes of the Texas Tort Claims Act. As a result, the Department of Public Safety was entitled to summary judgment on the issue of sovereign immunity. WHEN IS A PERSON NOT A PERSON? Petta also claimed that the Texas Department of Public Safety and Trooper Rivera, in his official capacity, were liable to her under 42 U. S. C. ' 1983. Petta conceded that a governmental unit does not fall into Section 1983's definition of a person, and is therefore not subject to Section 1983 claims. Nonetheless, Petta continued to argue that Rivera was subject to a Section 1983 claim in his official capacity. The Texas Supreme Court noted that the United States Supreme Court has previously ruled that neither a state nor its officials acting in their official capacity are person's under Section 1983. In essence, Pettas Section 1983 claim against Rivera in his official capacity was a claim against the Department, which is not included in Section 1983's definition of a person. As a result, Rivera was entitled to summary judgment on Pettas Section 1983 claim. ANALYSIS OF OPINION This case reiterates the standard for collateral estoppel. It may be used against a party who has had a full opportunity to litigate an issue and had that issue decided against him. That is true even if the prior litigation is in a criminal case. The case also makes an important distinction between the waiver of sovereign immunity for negligent acts versus no waiver of sovereign immunity for the intentional acts of government employees. In addition, the case points out the fact that an employee of a governmental unit is not a person under 42 U. S. C. ' 1983 when sued in his or her official capacity. CASES APPEALING A JURY'S AWARD ON UNLIQUIDATED DAMAGES CANNOT BE REMANDED ON THE ISSUE OF DAMAGES SOLELY WHERE LIABILITY WAS CONTESTED AT THE TRIAL LEVEL
FACTS OF THE CASE This case stems from an automobile accident which occurred when Dennis Dillon collided with a Lear Lines, Inc. tractor/trailer rig driven by Manuel Estrada. Dillon sustained injuries to his knees, ribs, pelvis, teeth, sternum, and arms. He was hospitalized for 23 days, underwent numerous surgeries and required physical therapy. Dillon sued Estrada and Lear Lines. CNA, his employers workers compensation insurance carrier, intervened in the lawsuit to recover for medical and indemnity payments made to or on behalf of Dillon in the amount of $129,905.07. A jury trial ensued in which the jury found both Estrada and Dillon 50% at fault for the accident. The jury awarded Dillon $1,000.00 for past physical pain and mental anguish, $1,500.00 for past lost earnings, and $47,000.00 for past medical expenses. Dillon and CNA moved the trial court to disregard the jury's findings on past and future medical care expenses and past loss of earnings. They asked the trial court to substitute the amount of $149,295.03 for past medical care expenses, $81,000.00 for future medical care expenses and $22,000.00 for past loss of earnings. The evidence of past medical care in the amount of $149,295.03 was uncontroverted. The trial court disregarded the jurys finding on the past medical care element of damages, and substituted the amount of $149,295.03. The trial court denied Dillon and CNAs motion on the other grounds. The trial court then rendered judgment awarding Dillon and CNA $75,897.52 in damages. On appeal Estrada and Lear Lines contended that the trial court erred in granting the motion to disregard the jurys finding on past medical expenses. Dillon and CNA also appealed, contesting the jurys failure to award damages for physical impairment and future medical expenses. The court of appeals reversed the trial courts judgment and remanded the case for trial solely on the damages questions, holding that the jurys award of zero damages for past physical impairment was against the great weight and degree of the credible evidence. THE COURT OF APPEALS PROPERLY EVALUATED THE FACTUAL SUFFICIENCY OF THE EVIDENCE CONCERNING PHYSICAL IMPAIRMENT On appeal Estrada and Lear Lines argued that the court of appeals improperly evaluated the factual-sufficiency of the evidence on physical impairment. They argued, in part, that to do so could result in a double recovery with Dillons recovery for past pain and suffering. The Supreme Court found that the court of appeals properly considered Dillons objective injury in determining that he was physically impaired. It also noted the fact that his physical activities were reduced because he spent 23 days in the hospital, had numerous surgeries, needed physical therapy, and spent time on crutches. A CASE CANNOT BE REMANDED SOLELY ON THE ISSUE OF DAMAGES WHERE LIABILITY WAS CONTESTED AT THE TRIAL LEVEL
ANALYSIS OF DECISION This decision resolves two issues. First, courts of appeals have reversed jury verdicts of no damages for pain and suffering in cases involving objective injury. This case does the same thing on the issue of physical impairment where there is clear and objective evidence of some impairment. Although the court noted the existence of objective injuries to Dillon in support of its finding of impairment, it did not stop there. It also pointed to objective evidence that Dillon was impaired for periods of time after the accident. More importantly, the Supreme Court decided that in cases that are appealed on the award of damages, it is not necessary to appeal a liability decision by the trial court in order to have a second shot at the liability issue when the case is remanded. CONDUCT OF TRIAL COURT JUDGE IN TRYING TO EXPEDITE TRIAL DID NOT RISE TO LEVEL OF BIAS OR PREJUDICE AND THEREFORE REVERSAL OF TRIAL COURT JUDGMENT BY APPELLATE COURT WAS IMPROPER In Dow Chemical Co vs. Francis, 2001 WL 423137, decided April 26,2001, the Texas Supreme Court, without hearing oral argument, in a per curiam decision, found that the First Court of Appeals (from Houston) erred in reversing the judgment of the trial court. FACTS OF CASE Renee Francis, a former employee of The Dow Chemical Company, sued Dow and its employee, Joseph Hegyesi, alleging discrimination, fraud, constructive discharge, and retaliation. The trial court granted summary judgment for Dow and Hegyesi on Francis fraud claims and dismissed Hegyesi from the case. The remaining claims against Dow were tried to a jury. The jury found against Ms. Francis on all her claims except for the retaliation claim, but found no damages for retaliation. The trial court accordingly entered a take nothing judgment against Ms. Francis. Ms. Francis appealed and the Court of Appeals reversed both the take-nothing judgment for Dow and the summary judgment for Dow and Hegyesi. In doing so, the Court of Appeals concluded, among other things, that the cumulative effect of the trial courts abuse of discretion with regard to its evidentiary rulings and its bias against Francis resulted in the rendition of an improper judgment. Dow appealed the findings of the Appellate Court and argued that the Court of Appeals erred in: (1) holding that the trial judges bias resulted in an improper judgment; (2) sustaining Francis evidentiary complaints; (3) applying incorrect legal and factual-sufficiency standards in reviewing the jurys zero damages verdict on Francis retaliation claim; and (4) reversing the summary judgment on Francis fraud claim. CONDUCT OF TRIAL COURT IN TRYING TO MOVE CASE ALONG DID NOT AMOUNT TO BIAS OR PREJUDICE AS TRIAL COURT HAS BROAD DISCRETION IN HOW COURT MANAGES ITS DOCKET
The Supreme Court agreed with Dow and noted that the trial court has broad discretion in the management of its docket. The Supreme Court concluded that any comments made by the trial court were geared towards expediting the trial process In making this determination, the Supreme Court cited Liteky v. United States, 510 U.S. 540, 555 (1994): Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion, and opinions the judge forms during a trial do not necessitate recusal unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. The court also concluded that Ms. Francis failed to preserve any error regarding the trial courts conduct by failing to object and request a limiting instruction. Therefore, the court concluded that the Court of Appeals erred in reversing the trial courts judgment on the basis of bias. THE APPELLATE COURT FAILED TO DO PROPER EVIDENTIARY ANALYSIS AND THEREFORE ERRED IN REVERSING TRIAL COURTS JUDGMENT BASED UPON EVIDENTIARY ISSUES In its second and third issues on appeal, Dow argued that the Court of Appeals failed to properly analyze the evidentiary issues. First, Dow argued that the appellate court failed to determine how any alleged evidentiary errors caused the trial court to render an improper judgment. The Supreme Court agreed with Dow and concluded that the Court of Appeals erred in not conducting a harm analysis for the evidentiary rulings upon which it reversed. Further, Dow contended that the Court of Appeals erred by applying incorrect legal and factual-sufficiency standards in reviewing the jurys zero-damages verdict on Francis retaliation claim. Again, the Supreme Court agreed with Dow, finding that the appellate court failed to do the proper analysis of the evidence. Therefore, the Court of Appeals erred in reversing the trial courts judgment based upon evidentiary issues. THE COURT OF APPEALS ERRED IN REVERSING SUMMARY JUDGMENT AS SUMMARY JUDGMENT PROPER WHEN THE PLAINTIFF FAILED TO PRESENT ANY EVIDENCE OF DAMAGES Dow had filed a no-evidence motion for summary judgment arguing that Ms. Francis had no evidence to support her claim of fraudulent-inducement and misrepresentation. The trial court granted the motion for summary judgment without specifying the grounds or basis of the judgment. Ms. Francis appealed, arguing that she had raised a fact issue regarding misrepresentation. The Court of Appeals reversed the summary judgment. The Supreme Court, however, noted that when a trial court grants a summary judgment, without specifying the grounds upon which the judgment is granted, the summary judgment will be upheld on any grounds found within the motion. Dow had argued that its motion for summary judgment was based upon no evidence. Damages was one of the elements of Ms. Francis claim. As Ms. Francis presented no evidence of damages, Dow was entitled to summary judgment. The Supreme Court again agreed with Dow and reversed the ruling of the Court of Appeals.
The trial courts impatience with counsel and actions directed towards counsel showing such impatience do not rise to the level of bias to warrant reversal of a case. Further, in an appeal based upon evidentiary issues, the Court of Appeals must perform a thorough analysis of the evidence. Failure of the appellate court to do so may result in reversal of the appellate courts decision. As the result of this opinion, the appellate courts will likely discuss evidentiary issues in much greater detail in the future. Please feel free to call any of our partners or associates with any questions that you may have at 361-881-9217 or fax us at 361-882-9437. |
- Insurance Defense and Litigation
- Commercial Trucking Accidents Defense and Litigation
- Professional Malpractice
- Healthcare Malpractice
- Employment Law
- Constitutional Torts and Civil Rights
- Environment and Toxic Torts - Medical Devices
- Construction Defects
- Oilfield and Offshore Platform Accidents
- Business and Commercial Litigation
Volume II, No. 5
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