Tuesday, April 17, 2018

Comment on Cheryl Currid v. Coit Cleaning & Restoration Services: Another non-sequitur from the First COA: Appeal from summary judgment lost because Attorney agreed with CCCL3 Judge Linda Storey at oral hearing on post-judgment motion that she had a point

Cheryl Currid v. Coit Cleaning & Restoration Services, No.  01-17-00630-CV (Tex.App.- Houston [1st Dist.]  April 17, 2018) (right to avoid summary judgment by asserting arbitration/forum selection clause lost based on oral statements later made by appearance attorney at hearing on post-judgment motion.)

Attorney at oral hearing on the post-judgment motion filed after grant of summary judgment wasn't even from the same law firm that was pursuing the appeal, and the notice of appeal had been filed before the post-judgment motion was even filed, not to mention heard by the trial court.

Chief Justice Radack nevertheless finds that the attorney's deferential response to the presiding judge  at the oral hearing on the motion for reconsideration ("I totally understand what you are saying") resulted in waiver of the argument the client's appellate law firm was making on appeal, seeking reversal of the summary judgment granted based on the record before the trial court at that time it was heard.

Say "Yes, ma'mam at your client's peril"
Only a two weeks earlier, Justice Russel Lloyd, a member of the very same court, has this to say in Young v. DWAYNE R. DAY, PC:

Day cannot rely on the Youngs' attorney's statement at the summary judgment hearing because the trial court must decide the summary judgment issues based on the pleadings and evidence on file at the time of the hearing. See TEX. R. CIV. P. 166a(c).

Here, the oral remarks of the losing party's attorney that Chief Sherry Radack found to have resulted in waiver under the invited error doctrine were not even made at the summary judgment hearing; they were made on a post-judgment motion that the trial court judge denied while the case was already on appeal. The denial was not even added to the issues on appeal. Instead, the opposing party requested a supplemental reporter's record to torpedo the appeal with the "incriminating" statements that would not even have been in the appellate record otherwise, arguing that they amounted to "waiver" and  mooted the pending appeal.

Sanctimonious Nonsequitur 

Radack cites a prior First Court case for authority:

“A party may not lead a trial court into error and then complain about it on appeal.” Solomon v. Parkside Med. Servs. Corp., 882 S.W.2d 492, 493 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

So far, so good. Except that the appeal here was from a summary judgment granted by a visiting judge on July 7, 2017; that the notice of appeal was filed on August, 8, 2017; and the hearing on the motion for reconsideration that Radack found to have killed the appeal did not even take place until September 20, 2017, according to the trial court's docket sheet. 

How could the appellant's trial court attorney have led the trial court into temptation to commit reversible legal error in granting the summary judgment with oral statement made more than two months after that happened, i.e. more than two months after the judgment was signed, not to mention signed by different (visiting) judge?  

Not to mention that the appellate court's jurisdiction over the summary judgment had already been invoked? 

It defies logic.

But logic does not seem to matter much. 


Opinion issued April 17, 2018

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00630-CV
———————————
CHERYL CURRID, Appellant
V.
COIT CLEANING AND RESTORATION SERVICES, Appellee
On Appeal from the County Civil Court at Law No. 3

Harris County, Texas
Trial Court Case No. 1087009

MEMORANDUM OPINION

Appellant, Cheryl Currid, appeals from the trial court’s summary judgment in
favor of appellee, Coit Cleaning and Restoration Services (“Coit”), on Coit’s suit on
a sworn account1
and alternative claims for breach of contract, quantum meruit, and

1 See TEX. R. CIV. P. 185. 
2
unjust enrichment. In two issues, Currid contends that the trial court erred in not
compelling the parties to arbitrate their dispute.
We affirm.
Background
In its original petition, Coit alleged that, after Currid’s house suffered flood
damage, Coit provided remediation, restoration, and cleaning goods and services to
Currid, pursuant to a written agreement (the “agreement”). Coit alleged that after it
provided Currid with such goods and services, she failed or refused to pay as agreed.
Coit brought a suit on a sworn account and various alternative claims, including
breach of contract, quantum meruit, and unjust enrichment, against Currid. Currid
answered, generally denying the allegations and asserting a limitations defense.
Coit filed a motion for summary judgment, arguing that it was entitled to
judgment as a matter of law on its suit on a sworn account because, on May 29, 2015,
it provided goods and services to Currid, for which Currid promised to pay the
reasonable, usual, and customary price. After it provided such goods and services,
however, Currid failed or refused, despite demand by Coit, to pay as agreed. Coit
asserted that it kept systematic records of the account and that, after all just and
lawful offsets, credits, and payments, Currid owed the principal sum of $37,807.25.
3
Coit also asserted that it was entitled to judgment as a matter of law on its suit
on a sworn account because Currid had failed to timely file a verified denial.2
Further, the agreement, account, and damages were deemed admitted against Currid
because she had failed to timely “provide any legitimate substantive responses to
discovery.”
Coit asserted that it was entitled to judgment as a matter of law on its
alternative breach-of-contract claim because, pursuant to the parties’ written
agreement, Coit provided goods and services for which Currid agreed to pay; Coit
fully performed its contractual obligations as promised; Currid breached the
agreement by failing or refusing to pay as agreed; and such breach proximately
caused Coit damages in the amount of $37,807.25.
3
 Coit also asserted that it was

2 See id.; see also Panditi v. Apostle, 180 S.W.3d 924, 927 (Tex. App.—Dallas 2006,
no pet.) (holding that, absent timely filed verified denial, defendant “will not be
permitted to dispute the receipt of the services or the correctness of the charges”);
Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.—
Dallas 2003, pet. denied) (“[A] defendant’s noncompliance with rule 185
conclusively establishes that there is no defense to the suit on the sworn account.”).
3 Coit further moved for a no-evidence summary judgment, arguing that it was
entitled to judgment on its claims because Currid had no evidence to support any
defense against its claims, including limitations. “The law is well-established that
a party may never properly move for [a] no-evidence summary judgment to prevail
on its own claim or affirmative defense for which it bears the burden of proof.”
Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 904 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (internal quotations omitted); see also
TEX. R. CIV. P. 166a(i). 
4
entitled to judgment as a matter of law on its alternative claims of quantum meruit
and unjust enrichment.
Coit sought attorney’s fees, pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code,4
in the amount of $7,250.00. Coit attached, as its summaryjudgment
evidence, the business records affidavit of its general manager, Gus
Velasco; a copy of the agreement signed by Currid; an itemized description of the
work performed; Coit’s requests for admissions and Currid’s responses; and an
affidavit in support of Coit’s claim for attorney’s fees.
In her summary-judgment response, Currid asserted that Coit had brought its
claims “in the wrong forum.” She asserted that Coit had “sue[d] on a contract that
contains an arbitration agreement that subjects any dispute related to the
performance of services by COIT to mandatory arbitration,” as follows:
Currid asserted that, to the extent there existed any “ambiguity regarding the
applicability and enforceability of the arbitration agreement for purposes of

4 See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015) (providing
attorney’s fees for certain claims, including services rendered, labor performed,
materials furnished, sworn account, or written contract).
5
defending against [Coit’s] motion,” the trial court should resolve it summarily
because it constituted a question of law and one properly decided by the trial court,
rather than a merits issue reserved for the arbitrator. In her prayer, Currid asked the
trial court to “sustain her objection to [Coit’s] choice of forum in denigration of the
arbitration agreement, enter an order denying [Coit’s] motion for summary
judgment, and dismiss this suit for having been filed in the wrong forum.” Currid
did not attach any evidence.
Coit, in its reply, asserted that Currid had not presented any competent
summary-judgment evidence to raise a genuine issue of material fact and had waived
arbitration by raising it for the first time in her response, just two weeks before trial.
Subsequently, the trial court signed a final summary judgment in favor of Coit
on its claims, awarded it damages in the amount of $37,807.25, and awarded it
attorney’s fees in the amount of $7,250.00 through trial, with conditional attorney’s
fees through appeal and petition for review.
Currid then filed a “Motion to Alter or Set Aside the Final Summary
Judgment,” asserting that the trial court had erred in granting summary judgment for
Coit because the trial court “should have limited the inquiry to the threshold matter
of arbitrability.” Currid requested that the trial court vacate the judgment and
“replace it with a judgment of dismissal with prejudice to [Coit] re-filing its claim
in a court of law and without prejudice to the claim being refiled in the proper arbitral 
6
forum, based . . . on the arbitration provisions in the terms of the document relied
upon by [Coit], of which the Court is requested to take judicial notice.” Currid
asked, in the alternative, that she be granted a new trial, “in the interest of justice.”
After a hearing, at which Currid agreed that she had not, prior to the trial court’s
ruling on the summary judgment, filed a motion to enforce the arbitration provision,
the trial court denied the motion to vacate its judgment.
Arbitration
In her first issue, Currid argues that the trial court “erred when it did not
compel arbitration,” and “[i]nstead, . . . ruled on the merits of the summary judgment
motion,”5 because she established that the parties had a valid arbitration agreement
and that Coit’s claims fell within the scope of the agreement. In her second issue,
Currid asserts that, because the trial court “should have compelled arbitration, it did
not have jurisdiction to award attorney’s fees.”
Standard of Review and Legal Principles
The Texas General Arbitration Act (“TAA”)6 provides, in pertinent part, that:

5 Currid does not challenge the merits of Coit’s claims.
6 The agreement at issue does not specifically invoke either the TAA or Federal
Arbitration Act (“FAA”). See 9 U.S.C. §§ 1–16. Because both parties apply the
TAA and neither asserts that the FAA preempts the TAA or is materially different
on any issue in this case, we apply decisions addressing both the TAA and FAA.
See G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 519 n.14 (Tex.
2015); S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341, 343 (Tex. App.—
Houston [1st Dist.] 2015, no pet.).
7
(a) A court shall order the parties to arbitrate on [the] application of
a party showing:
(1) an agreement to arbitrate; and
(2) the opposing party’s refusal to arbitrate.
(b) If a party opposing an application made under Subsection (a)
denies the existence of the agreement, the court shall summarily
determine that issue. The court shall order the arbitration if it
finds for the party that made the application. If the court does
not find for that party, the court shall deny the application.
(c) An order compelling arbitration must include a stay of any
proceeding, subject to section 171.025.
TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.021, 171.025 (West 2011).
“If there is a proceeding pending in a court involving an issue referable to
arbitration under an alleged agreement to arbitrate, a party may make an application
under this subchapter only in that court.” Id. § 171.024. Generally, the trial court
“shall stay a proceeding that involves an issue subject to arbitration if an order for
arbitration or an application for that order is made under this subchapter.” Id.
§ 171.025. The party seeking to compel arbitration has the initial burden to establish
that there exists a valid agreement to arbitrate, that the claims asserted fall within the
scope of the agreement, and that the opposing party has refused to arbitrate. See id.
§ 171.021; S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341, 343 (Tex.
App.—Houston [1st Dist.] 2015, no pet.); Mohamed v. Auto Nation USA Corp., 89
S.W.3d 830, 835 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Ellis v.
Schlimmer, 337 S.W.3d 860, 861–62 (Tex. 2011). 
8
“If the party seeking arbitration carries its initial burden, the burden then shifts
to the party resisting arbitration to present evidence on its defenses to the arbitration
agreement.” Mohamed, 89 S.W.3d at 835; see Ellis, 337 S.W.3d at 862. One such
defense is that the party seeking arbitration has waived its right to arbitration.
Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). A party does not waive arbitration merely by
delay; rather, waiver may be found only if the proponent of the defense establishes
that: (1) the party seeking arbitration has substantially invoked the judicial process
and (2) the party opposing arbitration suffers actual prejudice as a result. G.T. Leach
Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511–12, 515 (Tex. 2015);
Williams Indus., Inc., 110 S.W.3d at 135. Waiver may be implied or express, but it
must be intentional. See Williams Indus., Inc., 110 S.W.3d at 135. Because public
policy favors arbitration, there is a strong presumption against finding that a party
has waived its right to arbitration. Id. Whether waiver has occurred depends on the
individual facts and circumstances of each case. Id.
Motion to Compel Arbitration
Here, Currid first argues that the trial court erred in not compelling arbitration
because she included in her summary-judgment response an “assertion that the case
should be compelled to arbitration.” 
9
Coit asserts that the “proper mechanism for invoking arbitration” under
section 171.021 is a motion to compel arbitration and that Currid did not file a
motion to compel arbitration or to abate or to stay the proceedings, did not invoke
arbitration in her summary-judgment response, and affirmatively represented to the
trial court that she did not act to compel arbitration.
“A party to a lawsuit who seeks to enforce an arbitration provision must file
a motion to compel arbitration.” S.C. Maxwell Family P’ship, Ltd., 472 S.W.3d at
343 (“[A]rbitration provisions are not self-executing . . . .”); Ground Force Const.,
LLC v. Coastline Homes, LLC, No. 14-13-00649-CV, 2014 WL 2158160, at *2 (Tex.
App.—Houston [14th Dist.] May 22, 2014, no pet.) (mem. op.) (noting that section
171.021 “requires an ‘application of a party’ for the court to order arbitration”); see
also TEX. CIV. PRAC. & REM. CODE ANN. § 171.021 (“A court shall order the parties
to arbitrate on [the] application of a party . . . .” (emphasis added)); see, e.g.,
Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791, 797 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (holding that interlocutory jurisdiction required
filing of “an application to compel arbitration made under Section 171.021”).
It is undisputed that Currid did not file a motion to compel arbitration in the
instant proceeding in the trial court. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 171.021, 171.024 (“If there is a proceeding pending in a court involving an issue
referable to arbitration under an alleged agreement to arbitrate, a party may make an 
10
application under this subchapter only in that court.” (emphasis added)); S.C.
Maxwell Family P’ship, Ltd., 472 S.W.3d at 343.
The record shows that Currid, in her summary-judgment response, asked the
trial court to “sustain her objection to [Coit’s] choice of forum in denigration of the
arbitration agreement, enter an order denying [Coit’s] motion for summary
judgment, and dismiss this suit.” She does not direct us to any place in her response,
or to any other place in the record, in which she requested an order from the trial
court compelling the parties to arbitrate Coit’s claims or to abate or to stay the
proceedings. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 171.021, 171.025.
In support of her argument that she “sought to compel arbitration” in her
summary-judgment response, Currid relies on Grace Interest, L.L.C. v. Wallis State
Bank, 431 S.W.3d 110, 122–23 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied). In Grace Interest, the appellate court upheld the trial court’s denial of the
appellants’ request for arbitration because the appellants did not meet their burden
to establish the existence of a valid arbitration agreement covering the claims at
issue. Id. at 123. There, however, the appellants included a request for arbitration
in their summary-judgment response. Id.
As a prerequisite to presenting a complaint for appellate review, the record
must show that the complaint was made to the trial court by a timely request, 
11
objection, or motion. TEX. R. APP. P. 33.1. Because the record does not show that
Currid moved to compel arbitration, nothing is presented for our review. See id.
Moreover, we note that “judicial economy generally requires that a trial court
have the opportunity to correct an error before an appeal proceeds,” In re C.O.S.,
988 S.W.2d 760, 765 (Tex. 1999), and a motion to reconsider provides the trial court
with just such an opportunity. In re Christus Santa Rosa Health Sys., 492 S.W.3d
276, 281 (Tex. 2016). Here, however, at the hearing on Currid’s motion to vacate
the judgment, during which the trial court could have corrected the alleged error
Currid now presents on appeal, Currid affirmatively represented to the trial court
that she had not moved to enforce the arbitration agreement and, thus, no error had
occurred.
7
 “A party may not lead a trial court into error and then complain about it
on appeal.” Solomon v. Parkside Med. Servs. Corp., 882 S.W.2d 492, 493 (Tex.

7 The parties dispute whether these statements constitute judicial admissions. “A
judicial admission is a formal waiver of proof that dispenses with the production of
evidence on an issue and bars the admitting party from disputing it.” Lee v. Lee, 43
S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no pet.). Judicial admissions may
include arguments to the trial court or counsel’s statements to the trial court on
behalf of a client. Id.; see also Am. Nat. Petroleum Co. v. Transcon. Gas Pipe Line
Corp., 798 S.W.2d 274, 278 (Tex. 1990); Sanroc Co. Int’l v. Roadrunner Transp.,
Inc., 596 S.W.2d 320, 323 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ)
(“Judicial admissions are not evidence but rather constitute a waiver of evidence.”).
Here, the record shows that these statements took place during the hearing on
Currid’s motion to vacate, after the trial court had ruled on the motion for summary
judgment. Thus, the trial court did not rely on the statements in rendering its
judgment. See Plotkin v. Joekel, 304 S.W.3d 455, 486 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied) (noting that review generally extends to that which was
before the trial court at the time of its ruling); cf. Brown v. Lanier Worldwide, Inc.,
124 S.W.3d 883, 900 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
12
App.—Houston [1st Dist.] 1994, writ denied); see, e.g., Steamboat Capital Mgmt.,
LLC v. Lowry, No. 01-16-00956-CV, 2017 WL 5623414, at *11 (Tex. App.—
Houston [1st Dist.] Nov. 21, 2017, no pet.) (mem. op.) (holding that appellant could
not, on appeal, rely on fiduciary shield doctrine because record showed that he
affirmatively asserted in trial court that he “didn’t seek the application of fiduciary
shield doctrine”).
In sum, Currid does not challenge the merits of the summary judgment on
Coit’s claims. Rather, her complaint on appeal is that the trial court erred in not
compelling arbitration. Because Currid does not direct us to any place in the record,
however, in which she filed a motion to compel or requested that the trial court
compel the parties to arbitration, in accordance with section 171.021, nothing is
presented for review. See TEX.R. APP. P. 33.1. We do not reach whether there exists
a valid agreement to arbitrate, Coit’s claims fall within the scope of the agreement,
or Coit refused to arbitrate. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.021; S.C.
Maxwell Family P’ship, Ltd., 472 S.W.3d at 343. Because Currid did not meet her
initial burden, the burden never shifted to Coit to establish its waiver defense. See
Mohamed, 89 S.W.3d at 835; see Ellis, 337 S.W.3d at 862.
We hold that Currid has waived her first issue.
13
Accordingly, we do not reach Currid’s second issue, in which she argues that,
because the trial court “should have compelled arbitration, it did not have
jurisdiction to award attorney’s fees.”
Conclusion
We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.



Saturday, April 7, 2018

Houston Court of Appeals backs Dolcefino in conversion suit brought against him over documents he had requested under the Public Information Act (PIA)

CYPRESS CREEK EMS v. DOLCEFINO, No. 01-16-00929-CV
(Tex.App. - [Houston [1st Dist.] April 3, 2018) 

Wayne Dolcefino, formerly an investigative reporter for a local TV station, prevails in appeal of lawsuit based on wacky legal theory that he was guilty of having "converted" (stolen, sort of, in the tort sense of the term) photocopies of documents he had requested under the Public Information Act that were (allegedly) mailed to him inadvertently without prior redaction of sensitive information. The failure to blacken out sensitive information obviously wasn’t Dolcefino's fault, and he had stated that he had not even received the  documents, apparently because they had been mailed to an old address. But he was forced to hire an attorney to defend himself and his consulting LLC against the entity whose attorney had committed the error and had then sued him and forced him to endure questioning under oath in a deposition.   
    
Conversion is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (citing Waisath v. Lack's Stores, Inc.,474 S.W.2d 444, 446 (Tex. 1971)). The elements of a conversion claim are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.-Dallas 2008, no pet.)).
The summary judgment evidence indicated that CCEMS sent the documents in question to Dolcefino by regular mail. There is no evidence that Dolcefino actually received the package, and there is no evidence that Dolcefino ever had possession of the documents. CCEMS has presented no evidence that Dolcefino has asserted some right over the documents. See Robinson, 117 S.W.3d at 40. CCEMS has presented no evidence that Dolcefino engaged in any action that interfered with CCEMS's right to the property or control over the property as to deprive CCEMS of its free use and enjoyment. See Pierson, 829 S.W.2d at 314. Thus, CCEMS cannot establish that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the documents to the exclusion of, or inconsistent with, CCEMS's rights. See Freezia, 474 S.W.3d at 386.
[...] 
CCEMS is essentially arguing that its own erroneous conduct—the inadvertent mailing of confidential documents—can be imputed as tortious conduct on Dolcefino's part. Neither the law supporting a presumption of receipt nor the law of conversion justifies such a conclusion.

CYPRESS CREEK EMS, Appellant/Cross-Appellee,
v.
WAYNE DOLCEFINO & WAYNE DOLCEFINO CONSULTING, Appellees/Cross-Appellants.

No. 01-16-00929-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued April 3, 2018.
Christin L. Grant, George William Vie, III, Cristen David Feldman, for Wayne Dolcefino & Wayne Dolcefino Consulting, Appellee.
Jennifer Chang, Andrew Todd McKinney, IV, Kim A. Cooper, for Cypress Creek EMS, Appellant.

On Appeal from the 165th District Court, Harris County, Texas, Trial Court Case No. 2015-23275.
Panel consists of Justices Jennings, Keyes, and Higley.

OPINION

EVELYN V. KEYES, Justice.

Appellant and cross-appellee, Cypress Creek EMS (CCEMS), filed suit against appellees and cross-appellants, Wayne Dolcefino and Wayne Dolcefino Consulting (collectively, Dolcefino), alleging that counsel for CCEMS had accidentally mailed certain confidential documents to Dolcefino and asserting a cause of action for conversion against Dolcefino. CCEMS also sought an injunction preventing Dolcefino from disclosing any confidential information that he received in the accidentally-disclosed documents and requiring him to return the documents. Dolcefino denied ever receiving the documents and subsequently moved for dismissal of CCEMS's claims pursuant to Texas Rule of Civil Procedure 91a and for summary judgment on both the conversion claim and the request for a permanent injunction. Dolcefino also sought sanctions against CCEMS pursuant to Texas Rule of Civil Procedure 13 and Civil Practice and Remedies Code Chapter 10.

The trial court initially granted Dolcefino's Rule 91a motion to dismiss but later vacated that order and granted summary judgment in favor of Dolcefino on CCEMS's conversion claim and request for a permanent injunction. The trial court denied Dolcefino's request for sanctions.
In three issues, CCEMS argues that: (1) the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's conversion claim, in denying CCEMS a continuance for further discovery, and in denying its motion to compel Dolcefino's response to certain deposition questions; (2) the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's permanent injunction request; and (3) as a prevailing party on a Rule 91a motion to dismiss, CCEMS was entitled to reasonable and necessary attorney's fees, and the trial court's refusal to award it the full amount it had requested was erroneous.
Dolcefino asserts in his cross-appeal that the trial court abused its discretion in overruling his motion for sanctions pursuant to Rule 13 and Civil Practice and Remedies Code Chapter 10 and in denying his motion for reconsideration of the sanctions ruling by operation of law.
We affirm.

Background

CCEMS is a Texas nonprofit corporation doing business as a non-emergency ambulance service in Harris County. CCEMS also has a "tactical medical team" that is comprised of commissioned peace officers who also have training as emergency medical technicians and who provide emergency medical care in situations that would be unsafe for traditional EMTs. Dolcefino was hired by an unidentified third party to investigate CCEMS, and, specifically relevant here, he requested documents from the organization related to the tactical medical team. On March 30, 2015, Dolcefino sent a written request pursuant to the Texas Public Information Act (PIA)[1]seeking "documents detailing the use of any CCEMS credit card since June 1, 2015,[2] including the statement and all receipts"; "documents detailing expense reports, or any reimbursements from Brad England [a CCEMS employee] since June 1, 2015"; "documents detailing all expenses of the [CCEMS] tactical medical team since January 1, 2013, including . . . offense reports, documentation of involvement in any law enforcement operations, including, but not limited to any dispatch records request[ing] CCEMS tactical assistance"; and "documents detailing the payroll of the tactical team members." The letter also stated, following the specific request for expense reports for England, "You may redact information made confidential under state law."

In response to this request, CCEMS sought guidance from the Texas Attorney General regarding whether an exemption from its duty to respond to PIA requests applied to certain documents requested by Dolcefino, as provided for in the PIA.[3]CCEMS's counsel sent a letter setting out its argument for why the exemption applied to it under the circumstances, and it attached un-redacted copies of some of the information relevant to Dolcefino's request so that the Attorney General could review them. The statute also required that CCEMS notify Dolcefino. On April 20, 2015, CCEMS notified Dolcefino by mailing him a copy of the letter it had sent to the Attorney General. However, CCEMS's counsel soon came to believe that it had accidentally sent copies of the un-redacted sample documents it had provided to the Attorney General's office along with the copy of the letter it had sent.

After realizing what had occurred, CCEMS sought a temporary restraining order (TRO) on April 23, 2015, which the trial court granted. The trial court directed that Dolcefino return any documents he had received from CCEMS's attorney, not open any mail from CCEMS's attorney, and not discuss anything that he had received. On April 27, 2015, acting through his attorney, Dolcefino returned unopened a package he had received from CCEMS's counsel; however, CCEMS determined that this was not the package containing the confidential information it believed it had inadvertently sent him.

CCEMS filed the underlying suit on May 14, 2015, alleging a cause of action against Dolcefino for conversion of the documents and seeking a TRO, a temporary injunction, and a permanent injunction prohibiting Dolcefino from using or keeping the documents. Subsequently, on May 18, 2015, the trial court held a temporary injunction hearing. Kimberly Jessett, an attorney for CCEMS, testified that she prepared the letter to the Attorney General's office and attached sample documents containing "information with respect to when certain investigations were going to take place, persons of interest, people who were potentially going to be charged, their photos, their addresses," and other similar information. Jessett further testified that she sent a copy of that letter to Dolcefino at his business address in Katy, Texas—an address to which her firm had directed numerous previous communications. Jessett testified that, a few days later, she came to understand that un-redacted documents had been sent to Dolcefino along with the letter. She stated that she was preparing the confidential documents by redacting them so that they could be send to Dolcefino, but when she asked her assistant to send them to Dolcefino, the assistant informed her "that she had already sent a package out to Mr. Dolcefino." They both realized that they must have sent Dolcefino copies of the un-redacted documents.

Jessett further testified that she had a phone conversation with Dolcefino on April 23 after the underlying suit had been filed and the TRO entered, and after he received emailed notice of the TRO. According to Jessett, Dolcefino "said that he didn't know what I was talking about. He didn't know what the package was. He had not received it yet." Dolcefino told Jessett that he did not check the mail at the Katy address very often. He also represented that he would return the package to the law firm if he received it. Jessett also testified that Dolcefino initially seemed cooperative, but, over the course of the conversation, "his tone changed" and he ended the conversation by informing Jessett that he was going to contact his attorney.

Jessett testified that she had no firsthand knowledge regarding whether Dolcefino had the package in his possession, that she was not aware of any occasion on which Dolcefino had published or otherwise disseminated the information contained in the package, and that she had no knowledge of Dolcefino's publishing information that could have been considered confidential or privileged in the past. Jessett's administrative assistant also testified that she addressed the envelope containing the letter and confidential documents, put the correct postage on the envelope, and left the envelope in the mail bin so that it would be sent to Dolcefino. However, the assistant also testified that she had no personal knowledge regarding whether Dolcefino had actually obtained the package.

Dolcefino also testified at the hearing. He denied receiving the package, and he stated that he did not have it or any of the relevant documents in his possession. Dolcefino testified that, in addition to the post office box in Katy to which CCEMS's counsel mailed the package, he had moved into an office in Houston where he received mail. In February 2015, he began forwarding mail from the Katy address to his office in Houston. Dolcefino stated that he never received the package at his Houston office either.
Following the temporary injunction hearing, the trial court signed an "Agreed Confidentiality Order," in which the parties agreed to certain findings, signed by the trial court,[4] including findings that counsel for CCEMS had "inadvertently" sent the package containing the confidential documents to Dolcefino on April 20, 2015, by regular mail properly addressed to Dolcefino; that Dolcefino had not received the package and was not responsible for the mailing of the package; and that Dolcefino had "not contributed in any manner to any threatened harm complained of by CCEMS," even though there was still an "imminent harm caused by the inadvertent disclosure of alleged ongoing law enforcement activities contained in the letter package and the potential to cause irreparable injury to CCEMS." Dolcefino agreed not to open the package if he received it in the future and to return it to CCEMS's attorney.

Dolcefino then answered CCEMS's suit by filing a general denial. He also filed a motion to dismiss pursuant to Rule of 91a, and he filed a counterclaim for sanctions arguing that CCEMS's suit was "groundless" and "brought in bad faith or with a dishonest and/or malicious purpose."

The trial court originally granted the Rule 91a motion to dismiss and awarded Dolcefino $500 in attorney's fees. However, CCEMS moved to vacate the Rule 91a dismissal arguing, among other things, that the trial court's granting of the motion had been untimely. On October 26, 2015, Dolcefino opposed the motion to vacate and, in the alternative, moved for traditional and no-evidence summary judgment on CCEMS's conversion claim. Dolcefino argued that, as a matter of law, the purportedly confidential documents were not the type of personal property that could be the subject of a conversion claim. He also argued that CCEMS had no evidence to support the elements of a conversion claim, including that it had no evidence that he had "wrongfully exercised dominion or control over the property."

CCEMS moved for a continuance of the submission and hearing on Dolcefino's motion for summary judgment, arguing that it needed additional time to depose Dolcefino and to depose a postal service employee. Subject to this motion for continuance, CCEMS also responded to Dolcefino's summary judgment motion. The following day, CCEMS moved for attorney's fees pursuant to Rule 91a, in anticipation "that the Court will correctly vacate its previous dismissal order." CCEMS asserted that, following the trial court's decision to vacate its prior ruling, it would then be a prevailing party under the rule and was thus entitled to attorney's fees. It later supplemented its request, seeking a total of $23,897.50 in attorney's fees pursuant to Rule 91a, and it supported its request with affidavits and billing records.

On December 9, 2015, the trial court vacated its previous Rule 91a dismissal and, in the same order, denied Dolcefino's 91a motion to dismiss and continued the consideration of CCEMS's motion for attorney's fees to allow Dolcefino an opportunity to controvert CCEMS's attorney's fees evidence. Dolcefino responded by opposing CCEMS's request for attorney's fees, asserting various arguments that CCEMS was not entitled to any fees, that the fee request was "unconscionable," and that the amount requested was unreasonable and unnecessary.

The trial court also granted CCEMS's motion to continue consideration of Dolcefino's motion for summary judgment, specifically stating that it was granting a continuance to allow CCEMS an opportunity to depose Dolcefino and a postal worker.

CCEMS deposed Dolcefino. Among other topics, Dolcefino answered questions regarding whether he had received the package in question, the places where he was able to receive mail and his forwarding arrangement for mail sent to his old address in Katy, people who had access to the mailbox where CCEMS sent the package in question, and his intention to return the package if it were ever received. However, on the advice of counsel, he refused to answer other questions regarding issues such as the name of the person who hired him to investigate CCEMS and other mail that he had received in the past at the address where CCEMS had sent the documents.

After Dolcefino's deposition, CCEMS moved a second time for a continuance of submission of Dolcefino's motion for summary judgment on the conversion claim, and it also moved to compel deposition testimony from Dolcefino. In its motion for continuance, CCEMS argued that "Dolcefino refused to answer most of the questions posed by counsel for CCEMS, necessitating early suspension of the deposition and the filing of this motion." CCEMS asserted that Dolcefino's counsel had announced near the beginning of the deposition that it would be "limited to the terms of the Public Information Act." CCEMS complained that Dolcefino's counsel then instructed him not to answer multiple questions, identifying questions such as: "[W]hen you're retained to investigate for a client, do you typically charge by the hour?"; "[I]n the investigation that you're doing of [CCEMS], were you retained by someone—I'm not asking who—retained by someone to investigate [CCEMS]?"; and "Were you [sending PIA requests] on behalf of a third person and for compensation?" CCEMS complained that Dolcefino refused to answer questions regarding other mail that CCEMS had sent to Dolcefino at the Katy address and that Dolcefino had apparently received, questions regarding Dolcefino's system for following up on PIA requests, and questions related to CCEMS's efforts to discover circumstantial evidence that could establish that Dolcefino had received and improperly retained the disputed package.

The trial court denied this second motion for continuance, and it granted summary judgment in favor of Dolcefino on CCEMS's conversion claim. The trial court also awarded CCEMS $850 in attorney's fees in connection with the Rule 91a motion.

Dolcefino then moved for summary judgment on CCEMS's request for a permanent injunction. He argued, among other grounds, that because the trial court had granted summary judgment in favor of Dolcefino on the conversion claim, CCEMS could not establish the existence of a wrongful act—an essential element of CCEMS's request for a permanent injunction. The trial court granted summary judgment in favor of Dolcefino on this ground.

The trial court held a bench trial on Dolcefino's request for sanctions. Dolcefino offered evidence consisting of the parties' pleadings and other relevant documents. Counsel for CCEMS, Andrew McKinney, testified regarding the circumstances surrounding CCEMS's decision to file the underlying lawsuit, stating that he had a good faith basis for filing the suit and that CCEMS had a good faith argument for the extension or modification of existing law on its claims. The trial court ultimately denied Dolcefino's request for sanctions.

CCEMS's Appeal

Summary Judgment

In its first issue, CCEMS argues that the trial court erred in granting summary judgment in favor of Dolcefino on CCEMS's conversion claim and that the trial court erred in denying CCEMS's motion for continuance of the summary judgment hearing. In its second issue, CCEMS argues that the trial court erred in denying its request for a permanent injunction based on Dolcefino's motion for summary judgment.

A. Standard of Review

[..]

B. Summary Judgment on Conversion

Conversion is the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights. Freezia v. IS Storage Venture, LLC, 474 S.W.3d 379, 386 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (citing Waisath v. Lack's Stores, Inc.,474 S.W.2d 444, 446 (Tex. 1971)). The elements of a conversion claim are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Id. at 386-87; Stroud Prod., L.L.C. v. Hosford, 405 S.W.3d 794, 811 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing Khorshid, Inc. v. Christian, 257 S.W.3d 748, 759 (Tex. App.-Dallas 2008, no pet.)).
To be held liable, a conversion defendant must intend to assert some right in the property. Robinson v. Nat'l Autotech, Inc., 117 S.W.3d 37, 40 (Tex. App.-Dallas 2003, pet. denied)see also Dolenz v. Nat'l Bank of Tex. at Fort Worth, 649 S.W.2d 368, 370 (Tex. App.-Fort Worth 1983, writ ref'd n.r.e.) ("To constitute a conversion of property, there must be some repudiation of the owner's right or an exercise of dominion over the property, wrongfully and in denial of or inconsistent with that right; or there must be an illegal assumption of ownership."). "However, that intent need not be an intent to assert a right of ownership or title; it can be an intent to assert the right of possession." Robinson, 117 S.W.3d at 40. Stated another way, an act of conversion does not have to be an actual manual taking but merely an act that is such an active interference with the owner's right of property or control as to deprive him of its free use and enjoyment. Pierson v. GFH Fin. Servs. Corp., 829 S.W.2d 311, 314 (Tex. App.-Austin 1992, no writ) (citing Waisath, 474 S.W.2d at 447).
To recover for conversion, a plaintiff must also prove damages that are the proximate result of the defendant's conversion. MJS & Assocs., L.L.C. v. Master, 501 S.W.3d 751, 757 (Tex. App.-Tyler 2016, pet. denied) (citing United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997) (per curiam)). "Generally, the measure of damages for conversion is the fair market value of the property at the time and place of the conversion." Deaton, 939 S.W.2d 146, 147-48.
Here, CCEMS asserts that Dolcefino converted personal property—in the form of copies of confidential documents that CCEMS's attorneys inadvertently mailed to Dolcefino—when it requested that he return the documents and he refused and wrongfully retained them. Dolcefino moved for summary judgment, arguing in part that CCEMS had no evidence of any element of its conversion claim. He argued that CCEMS had no evidence that he had "wrongfully exercised dominion or control over the property."
The summary judgment evidence indicated that CCEMS sent the documents in question to Dolcefino by regular mail. There is no evidence that Dolcefino actually received the package, and there is no evidence that Dolcefino ever had possession of the documents. CCEMS has presented no evidence that Dolcefino has asserted some right over the documents. See Robinson, 117 S.W.3d at 40. CCEMS has presented no evidence that Dolcefino engaged in any action that interfered with CCEMS's right to the property or control over the property as to deprive CCEMS of its free use and enjoyment. See Pierson, 829 S.W.2d at 314. Thus, CCEMS cannot establish that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the documents to the exclusion of, or inconsistent with, CCEMS's rights. See Freezia, 474 S.W.3d at 386.
CCEMS argues that it has raised a fact issue on this element. It argues that summary judgment evidence established that the "documents were properly addressed, sealed, and mailed to Dolcefino's business address via the U.S. Postal Service" and that this "raised a presumption that he received them." CCEMS further asserts that the presumption of receipt at least raises a fact question regarding whether Dolcefino actually received the documents and whether he has retained them improperly.
CCEMS cites Texaco, Inc v. Phan, 137 S.W.3d 763 (Tex. App.-Houston [1st Dist.] 2004, no pet.), to support its claim that the presumption of receipt raises a fact question here. In that case, Texaco challenged the trial court's default judgment against it and its finding regarding when deadlines for appealing from the default judgment began to run, arguing in part that "the evidence was legally and factually insufficient to support the trial court's finding under [Rule of Civil Procedure] 306a that it received actual knowledge of the default judgment on" a particular date. Id. at 766. In discussing the evidence regarding when Texaco received notice of the default judgment, this Court held that "[d]irect testimony that a letter was properly addressed, stamped, and mailed to the addressee raised a presumption that the letter was received by the addressee in due course." Id. at 767. We further held, "The mere denial of receipt is sufficient to rebut the presumption," but "the denial is not conclusive and merely presents a fact issue for the factfinder." Id. We stated, "The presumption of receipt is overcome conclusively only when `the evidence tending to support the contrary inference is conclusive, or so clear, positive, and disinterested that it would be unreasonable not to give effect to it as conclusive.'" Id. at 767-68 (quoting Employers' Nat. Life Ins. Co. of Dallas, Tex. v. Willits, 436 S.W.2d 918, 921 (Tex. App.-Amarillo 1968, writ ref'd n.r.e.)). This Court then concluded that the trial court properly considered the evidence—both the evidence giving rise to the presumption and Texaco's evidence rebutting it—in making a fact-finding regarding when Texaco received notice of the default judgment for purposes of its appellate deadlines. Id. at 768.
The present case is materially different from Texaco and similar cases cited by CCEMS. Here, the issue is not whether or when Dolcefino received some notice required by law to be sent to him—as was the case in Texaco—but rather whether there is any evidence that Dolcefino engaged in the unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another to the exclusion of or inconsistent with the owner's rights. See Freezia, 474 S.W.3d at 386 (describing tort of conversion and setting out elements). CCEMS has not identified any case in which the presumption of receipt was considered as evidence establishing intentional, tortious conduct such as conversion, nor have we found any. CCEMS is essentially arguing that its own erroneous conduct—the inadvertent mailing of confidential documents—can be imputed as tortious conduct on Dolcefino's part. Neither the law supporting a presumption of receipt nor the law of conversion justifies such a conclusion.
At most, the evidence that CCEMS mailed the documents to Dolcefino raises a fact question regarding whether he received the documents in the mail. However, his mere receipt of the documents is no evidence that Dolcefino himself engaged in an act of conversion, and CCEMS has presented no evidence that Dolcefino improperly retained the documents or that he has used the documents in a way that was inconsistent with CCEMS's rights. See id. CCEMS asserts that Dolcefino is untrustworthy and could be lying about never having received the package, but such assertions are insufficient to raise a genuine issue of material fact regarding whether Dolcefino "wrongfully exercised dominion or control over the property" after CCEMS mailed the package to him. See Ridgway, 135 S.W.3d at 601 ("To raise a genuine issue of material fact . . . the evidence must transcend mere suspicion. Evidence that is so slight as to make any inference a guess is in legal effect no evidence."); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) ("When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence."); Fabian v. Cantwell, No. 03-16-00712-CV, 2017 WL 1833496, at *2 (Tex. App.-Austin May 3, 2017, no pet.) (mem. op.) ("The circumstantial evidence supporting the allegation that Cantwell exercised dominion and control over Fabian's property—that the mobile home was located on his property, that he and Fabian were involved in a dispute about unpaid rent, and that the property was taken by someone—simply does not exceed a scintilla and could lead to only a guess about who took the property.").
CCEMS failed to raise a genuine issue of material fact on an essential element of its conversion claim in response to Dolcefino's no-evidence motion for summary judgment, and, thus, the trial court could properly have granted summary judgment on this ground. See TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426. Accordingly, we overrule CCEMS's challenge to the trial court's summary judgment ruling on its conversion claim. See Lightning Oil, 520 S.W.3d at 45 (holding that courts will affirm summary judgment ruling if any ground asserted in motion is meritorious).

C. Denial of Motion for Continuance


Friday, April 6, 2018

Justice Jennings calls on Texas Supreme Court to Overrule Precedent regarding Denial of Jury Trial in Civil Commitment Case

In re: Michael Dale Hood (Tex.App.- Houston [1st Dist.] April 6, 2018)
Unpleasant case, as are many criminal cases, but the concurrence is a good sign that at least one Justice on the First Court of Appeals is willing to concede that erroneous rulings may have been handed down in the past, and that such rulings should be corrected. Nor does it hurt to see judicial support for trial by jury, what with so many cases being diverted into arbitration (on the civil side).  


NO. 01-16-00866-CV
———————————
IN RE COMMITMENT OF MICHAEL DALE HOOD

I respectfully request that the Texas Supreme Court overrule this Court’s decision in In re Commitment of Talley and in this current case. See Benge v. Williams, 472 S.W.3d 684, 738 (Tex. App.—Houston [1st Dist.] 2014, pet. granted) (Jennings, J., dissenting from denial of en banc reconsideration) (although “we are not free to disregard binding precedent,” as appellate court justices, “we . . . are certainly free to point out any flaws in the reasoning of the [binding] opinions”); Jones v. State, 962 S.W.2d 96, 99 (Tex. App.—Houston [1st Dist.] 1997) (Taft, J., concurring) (although “we are bound by precedent . . . , we are not gagged” by it), aff’d, 984 S.W.2d 254 (Tex. Crim. App. 1998).  
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00866-CV
———————————
IN RE COMMITMENT OF MICHAEL DALE HOOD

On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 9412131-0101Z

CONCURRING OPINION

The guarantees of jury trial in the Federal and State Constitutions reflect
a profound judgment about the way in which law should be enforced
and justice administered. A right to jury trial is granted to criminal
defendants in order to prevent oppression by the Government. . . . The
framers of the constitutions strove to create an independent judiciary
but insisted upon further protection against arbitrary action. Providing
an accused with the right to be tried by a jury of his peers gave him an
inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge. If the defendant
preferred the common-sense judgment of a jury to the more tutored but 
perhaps less sympathetic reaction of the single judge, he was to have it.
Beyond this, the jury trial provisions in the Federal and State
Constitutions reflect a fundamental decision about the exercise of
official power—a reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge or to a group of judges. . . . The deep
commitment of the Nation to the right of jury trial . . . must . . . be
respected by the States.
A jury found appellant, Michael Dale Hood, to be a sexually violent predator as defined in the Sexually Violent Predator Act (the “SVP” Act),2 and the trial court, in accord with the jury’s finding, rendered a final judgment and an order of civil commitment. In his sole issue, appellant contends that the trial court erred in granting the State a directed verdict on the issue of whether he is a “repeat sexually violent offender.”3 I concur in the judgment of the Court and write separately to explain why, although the trial court erred in granting the State a directed verdict, we, under this Court’s precedent, must, at this time, overrule appellant’s complaint. See In re Commitment of Talley, 522 S.W.3d 742, 749–51 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Right to Trial by Jury 

In his sole issue, appellant argues that the trial court erred in granting the State a directed verdict on the issue of whether he is a “repeat sexually violent offender” because “[t]he granting of a . . . directed verdict finding that [appellant] is a [repeat] sexually violent offender invades the province of the jury and . . . overrides the legislature’s grant of an important safeguard for the liberty interests of [an] accused.” See TEX. HEALTH & SAFETY CODE ANN. §§ 841.003(a) (“A person is a sexually violent predator . . . if the person: (1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality . . . .”), 841.061(b) (entitled to jury trial on demand), § 841.062(a)–(b) (Vernon 2017) (“[J]ury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator” and “[a] jury determination that the person is a sexually violent predator must be by unanimous verdict.”). Appellant correctly notes that the SVP Act expressly provides that either the State or a person accused of being a sexually violent predator is “entitled to a jury trial on demand.” Id. § 841.061(b). The SVP Act also specifically states that the jury “shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” Id. § 841.062(a) (emphasis added). And it further provides that “[a] jury determination that the person is a sexually violent predator must be by unanimous verdict.” Id. § 841.062(b).

Regardless, the majority, relying on the Texas Rules of Civil Procedure and the erroneous precedent of this Court and the Beaumont Court of Appeals,4 holds that the trial court did not err in directing a verdict in favor of the State because “a person’s status as a sexually violent offender is a legal determination appropriate for . . . directed verdict.”5 See In re Commitment of Talley, 522 S.W.3d at 750–51. However, the erroneous precedent of this Court and the Beaumont Court of Appeals ignores the well-established meaning of the plain language of the SVP Act, which controls over our rules of civil procedure. See TEX. HEALTH & SAFETY CODE ANN. § 841.146(b) (Vernon 2017); In re Commitment of Talley, 522 S.W.3d at 751–53 (Jennings, J., dissenting).

The SVP Act provides, in no uncertain terms, that a person accused of being a sexually violent predator has a statutory right to a jury trial. Appellant was “entitled to a jury trial” upon his timely “demand,” and he had the right to have the jury determine, “beyond a reasonable doubt” that he is a sexually violent predator. TEX. HEALTH & SAFETY CODE ANN. §§ 841.061(b), 841.062(a) (emphasis added). A person is considered to be a “sexually violent predator” only if it is determined that he: (1) is a repeat sexually violent offender and (2) suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a). Such a determination “must be by unanimous verdict.” Id. § 841.062(b).

Although the SVP Act concerns “civil” commitments, the Texas Legislature, in crafting the statute, invoked well-established and understood constitutional and criminal-law principles. Given the grave consequences at stake in a SVP Act civil-commitment proceeding, it is readily apparent that the legislature chose its words carefully, and no court is free to ignore the plain meaning of these words. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (“We must enforce the statute ‘as written’ and ‘refrain from rewriting text that lawmakers chose.’” (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009))). 

By directing the jury to find in favor of the State, the trial court usurped the fact-finding authority that the legislature has clearly assigned solely to the jury in a SVP Act civil-commitment proceeding. It, thus, violated appellant’s statutory right to a trial by jury. 

As noted by Justice Scalia, the right to a jury trial “embodies ‘a profound judgment about the way in which law should be enforced and justice administered.’” Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 2422 (1989) (Scalia, J., concurring) (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451 (1968)). He explained:

It is a structural guarantee that “reflect[s] a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State

Id. at 268, 109 S. Ct. at 2422 (alteration in original) (emphasis added) (citation omitted) (quoting Duncan, 391 U.S. at 156, 88 S. Ct. at 1451). And because “with a directed verdict, ‘the error . . . is that the wrong entity judged’” the facts, the error cannot be harmless. Id. at 269, 109 S. Ct. at 2422–23 (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986)).

Based on the foregoing, I would hold that the trial court erred in granting the State a directed verdict on the issue of whether he is a “repeat sexually violent offender.”6 However, I recognize that this Court has already rejected the arguments made by appellant. See In re Commitment of Talley, 522 S.W.3d at 749–51.7 Accordingly, I respectfully request that the Texas Supreme Court overrule this Court’s decision in In re Commitment of Talley and in this current case. See Benge v. Williams, 472 S.W.3d 684, 738 (Tex. App.—Houston [1st Dist.] 2014, pet. granted) (Jennings, J., dissenting from denial of en banc  reconsideration) (although “we are not free to disregard binding precedent,” as appellate court justices, “we . . . are certainly free to point out any flaws in the reasoning of the [binding] opinions”); Jones v. State, 962 S.W.2d 96, 99 (Tex. App.—Houston [1st Dist.] 1997) (Taft, J., concurring) (although “we are bound by precedent . . . , we are not gagged” by it), aff’d, 984 S.W.2d 254 (Tex. Crim. App. 1998).



 Jenning's Dissent from en banc Rehearing in Benge v. Williams, 
No. 01-12-00578-CV.
(Tex. App. - Houston [1st Dist]. Sep. 22, 2015)

OPINION DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION

TERRY JENNINGS, Justice.

I respectfully dissent from the Court's order denying en banc reconsideration in this case.
For many years now, the civil bench and bar in Texas have been lamenting the "vanishing jury trial." In a recent Texas Bar Journal dedicated to addressing this grave concern, Texas State Bar President Trey Apffel explains that "lawyers should be committed to promoting and protecting the rule of law, standing firm for equal access to justice for all people, and educating the public that the right to a trial by jury is the very foundation of our liberties and freedoms."[1] This call to action is very appropriate, especially for members of the judiciary, in the year 2015, as we celebrate the 800th anniversary of Magna Carta, which first provided for public justice in a "certain place,"[2]trial by jury based on the evidence of "credible witnesses to the truth,"[3] equal protection of the law,[4] justices who "know the law of the land and will keep it well,"[5] and the rule of law according to "the lawful judgment of [one's] peers and by the law of the land."[6]

However, in the very same Texas Bar Journal, the authors of another article boldly proclaim that the "days of the trial lawyer are essentially gone."[7] In addressing the fact that civil lawsuit filings are down seventeen percent in Texas in the last ten years, Texas Supreme Court Chief Justice Nathan Hecht notes, "Anytime there's that kind of a shift, then you've got to wonder what is happening. But I think right now, I'm not sure what the answer is."[8]

This case provides some illumination.

Background

Although this Court has long struggled with the correct disposition of this appeal, the issues in this simple medical-negligence case are not hard. Seven years ago, in August 2008, appellee, Lauren Williams, who was thirty-nine years old, was admitted to Methodist Willowbrook Hospital ("Methodist") to undergo a laparoscopic assisted vaginal hysterectomy ("LAVH") by the surgeon with whom she contracted, appellant, Jim P. Benge, M.D. Benge worked for appellant, Kelsey-Seybold Medical Group, PLLC ("Kelsey-Seybold").

Something went terribly wrong during the surgery. After the LAVH, Williams showed signs of a serious infection and internal bleeding for almost three days. A subsequent surgery revealed that during the LAVH, she had suffered a rectal perforation and urethral injury. After undergoing a colostomy and urethral repair, doctors admitted Williams to the Intensive Care Unit ("ICU") in septic shock. They placed her in a medically induced coma for three weeks, and she required a mechanical ventilator to breath. Doctors also had to perform a tracheotomy on Williams because of her compromised pulmonary system. And she received antibiotic therapy and intravenous nutrition. In October 2008, Williams was released to a long-term acute care facility, where she spent a month recovering. She had to endure several subsequent surgeries, and she continues to suffer from the wounds inflicted upon her and complications resulting from her permanent colostomy.

What went wrong during the LAVH?

At trial, Williams presented evidence that, unbeknownst to her, Dr. Benge had a Methodist resident, Dr. Lauren Giacobbe, perform forty to fifty percent of the surgery, even though Giacobbe had no previous experience performing the procedure. Williams also presented the shocking evidence that Benge did not tell her prior to the LAVH that a resident would be performing forty to fifty percent of her surgery, and he did not tell Giacobbe prior to the LAVH that she would be performing any part of Williams's surgery. This is especially surprising considering that Benge knew that Giacobbe had not previously performed an LAVH. Williams's evidence further reveals that during her long and painful recovery after the LAVH, Benge never informed her or her family of Giacobbe's part in the surgery. Indeed, according to Williams, she did not learn of Giacobbe's role in the LAVH until after she had filed this lawsuit.
Thus, in addition to presenting evidence of Dr. Benge's negligence, as a surgeon and supervisor of Dr. Giacobbe, Williams also presented compelling evidence that Benge did not properly prepare Giacobbe for her role during the LAVH and evidence calling into question Benge's credibility—evidence which is completely at odds with Benge's testimony that Williams "gave [him] consent to have Dr. Giacobbe participate in the surgery."

And because evidence was introduced that Dr. Benge believed that the injuries inflicted upon Williams during the surgery were caused by "an electrical arc from [a] Bovie," an electrical cauterizing instrument, and not his own negligence as a surgeon and supervisor, Benge's credibility was an issue that was front and center throughout the trial. Flatly rejecting Benge's testimony regarding causation, Dr. Bruce Patsner, Williams's medical expert, testified that the perforation of Williams's intestine was inflicted as the result of a surgical cut made during the vaginal portion of the procedure. Patsner opined that, based on reasonable medical probability, the perforation was caused by Dr. Giacobbe, who had no experience performing the procedure. Patsner further opined that Benge, while Williams suffered immediately after the LAVH, should have suspected a bowel injury and failed to timely and properly address Williams's post-operative complications, resulting in a "septic shock catastrophe."

In her Second Amended Petition, Williams sued Dr. Benge and Kelsey-Seybold only for negligence. And the only theory of liability that the trial court submitted to the jury was for negligence. In its charge, after supplying the jury with the standard definitions on "Ordinary Care," "Negligence," and "Proximate Cause," the trial court asked:
Did the negligence, if any, of any of those named below proximately cause Lauren Williams' injuries in question?
Answer "Yes" or "No" for each of the following:
Jim Benge, M.D. ____
Carmen Thorton, M.D. ____
Lauren Williams ____
The jury answered "No" as to Dr. Thorton and Williams and "Yes" as to Benge.

Instruction Error and Harm

Let there be no mistake: Williams did not plead, present any evidence, or ask the jury to find that Dr. Benge was in any way negligent in failing to inform her of "the risks and hazards involved" in the LAVH. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.101 (Vernon 2011). And the trial court did not submit any such issue to the jury to co-mingle with Williams's simple medical-negligence claim.
In a suit against a physician involving a health care liability claim that is "based on the failure of the physician . . . to disclose or adequately disclose the risks and hazards involved in [a] . . . surgical procedure rendered by the physician," "the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent." Id. (emphasis added). Thus, in regard to section 74.101, Dr. Benge only had a duty to inform Williams of "the risk and hazards involved" in the procedure as determined by the Texas Medical Disclosure Panel. Id. §§ 74.101-.103 (Vernon 2011). Not only did Williams not allege or present any evidence that Benge had violated this duty, she also did not dispute his evidence that he in fact did inform her of "the risks and hazards involved" in the LAVH, as required by section 74.101. Thus, section 74.101 simply does not apply in the instant case.[9]

Regardless, the panel majority concludes that the trial court's "single question [to the jury] . . . `effectively submitted' two different negligence questions." (Emphasis added.) In support of this conclusion, the panel majority creates a straw man, asserting:
Under her unpleaded informed consent theory, Dr. Benge knew an inexperienced resident was going to perform a substantial portion of the surgery under his supervision and he negligently failed to provide that information to Williams before the operation.[10]
(Emphasis added.) It further asserts that Williams's evidence and what it characterizes as her "trial theme" "created the possibility of a liability finding based on either of the two negligence theories: negligence during and after the surgery and negligence before the surgery in failing to disclose Dr. Giacobbe's participation or level of experience." (Emphasis added.)

Again, let there be no mistake: Williams did not assert that Dr. Benge had "negligently failed" to inform her that Dr. Giacobbe "was going to perform a substantial portion of the surgery." She expressly, and in no uncertain terms, stated that his testimony that she had actually "g[iven him] consent to have Dr. Giacobbe participate in the surgery" was false. If Williams's presentation of the case had an underlying "theme," it was that Benge, prior to the LAVH, intentionally deceived her into believing that he would be her surgeon, and, after the LAVH, intentionally withheld information from her and her family regarding Giacobbe's role in causing her injuries.

Although the parties and this Court have used the words "informed consent" and "disclosure" in a somewhat confusing manner, the record, when read in context, reveals that Williams's use of these terms in the trial court directly related to Dr. Benge's credibility, his breaking of his "bond" with her to perform the surgery himself, his lack of respect for her as a patient, and his complete lack of candor after the botched LAVH. For example, in her opening statement, Williams, without objection, asserted:
It is not Dr. Benge's choice to treat this patient as a human guinea pig. He doesn't have that choice. It's the patient's choice. He made the choice for her, and he didn't tell her that Resident Lauren Giacobbe was going to do the procedure. He didn't tell her that the resident had never done the procedure before. To this day, he didn't tell her that.
You see, after it was over, when the family was there at her bedside, he came and talked to them; he didn't tell them the full story. He didn't tell her, the family first, that a resident did a significant amount of this procedure. When she woke up, he didn't tell her that a resident did a significant amount of this procedure.
(Emphasis added.) In her closing argument, Williams, again without objection, emphasized:
[W]ho did Lauren Williams hire to be her surgeon? Kelsey-Seybold, Dr. Jim Benge. He — she hired his hands, his experience; but under anesthesia, she got another set of hands working on her, some — a set of hands she did not know, who had never done the job before, had no experience. You can't do this in our community. And we didn't even find out about any of this until after this lawsuit was filed.
. . . .
Doctors who don't use ordinary care have to be held accountable, and they agree with that. As caretakers of our community, you also enforce the values that we have, and I believe in this city, in this state, your word is your bond.
Dr. Benge's word that he was going to perform the surgery is his bond.They may say "I want you to just look at the word `resident' in that disclosure." I do want you to look at it, not just the word "resident," the whole sentence.
Was a resident necessary to do this procedure? No, because a nurse could've assisted in this procedure. Was the resident required? No, because Dr. Benge testified "I could do a hundred percent of this procedure."
So read the words, all of the words, not just the pieces that they want you to look at.
A contract — she hired Dr. Benge to do the surgery. He agreed to do the surgery. He didn't do all of the surgery. No matter how you parse it. . . .
. . . .
As caretaker of our community, hold them to their word. Make them do what they promise to do from here on out. "If you promise to do the surgery and you're in a private hospital, do the surgery." The fact that people at Ben Taub get more information than you do should be appalling to each and every one of you. When your family members, when you, your friends go into the hospital, you will now know "I need to ask some questions."
(Emphasis added.)

Moreover, Williams, in her closing, again without objection, made specific reference to the fact, which she established through her medical expert, that the American Medical Association ("AMA") Code of Medical Ethics Opinion 8.16 states that "[a] surgeon who allows a substitute to operate on his or her patient without the patient's knowledge and consent is deceitful."[11] Williams argued:
Then we talk about what the national standards are. I didn't say he was deceitful. That's what the AMA says. The AMA says a surgeon who allows a substitute to operate on his or her patient without the patient's consent is deceitful.
That's not me arguing. That's the AMA. These people are members of the AMA. That's their guidelines. That's what the AMA says.
(Emphasis added.) If the jury believed Williams's evidence that Dr. Benge did not tell her about Dr. Giacobbe's role in the LAVH, then it, considering the AMA's Code of Medical Ethics, could have reasonably believed that, in his dealings with Williams, he acted unethically and deceptively.[12]
Just because Williams referred to the facts that she had a contract with Dr. Benge to perform the LAVH and he had broken his "bond" with her, does not mean that she was asking the jury to find him liable for breach of contract. Likewise, just because Williams referred to the facts that Benge did not tell her that he was going to have a resident perform forty to fifty percent of the surgery and, thus, acted "deceitful[ly]" and unethically as per the AMA, does not mean that she was, as claimed by the panel majority, asking the jury to find that "he negligently failed to provide that information to Williams before the operation." (Emphasis added.) Simply put, the fact that Williams presented evidence and argued that Benge violated the standards of the AMA's Code of Medical Ethics did not transform her medical-negligence case into an "informed-consent" case.

Nevertheless, the panel majority, based entirely upon its own characterization of Williams's case, and not the case that she actually tried, proceeds to knock down its straw man, holding that the trial court's "broad form negligence question effectively included an informed consent issue and therefore violated" Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). In support of this holding, the panel majority relies on Casteel, Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009), and Texas Commission on Human Rights v. Morrison, 381 S.W.3d 533 (Tex. 2012). However, neither Casteel nor Hawley nor Morrison supports the panel majority's holding.
In Casteel, the Texas Supreme Court held,
[W]hen a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory. See TEX. R. APP. P. 61.1 ("No judgment may be reversed on appeal . . . unless the Supreme Court concludes that the error complained of . . . probably prevented the petitioner from properly presenting the case to the appellate courts."); see also TEX. R. APP. P. 44.1(a).[13]
22 S.W.3d at 388 (emphasis added). In reaching its holding, the court noted that the trial court's jury charge contained "a single broad-form liability question" containing instructions "on thirteen independent grounds for liability," four of which were invalid because they "required . . . consumer status," which the plaintiff did not have. Id. at 387-88.

In Hawley, the supreme court, in an issue that it labeled as "Failure to Give the Instruction," held that the trial court erred in not instructing the jury, as requested by the defendant-hospital, that it could not consider the acts or omissions of a defendant-doctor, who was not an agent of the hospital, when determining the hospital's negligence. 284 S.W.3d at 862-65. The trial court's liability question asked, "Was the negligence, if any, of [the defendant-hospital], a proximate cause of injuries to [the plaintiff]?" Id. at 863. The court noted that the trial court had instructed the jury that the defendant-hospital "acts or fails to act only through its employees, agents, nurses, and servants" and certain evidence showed that the defendant-doctor worked in an office in the hospital and had "input" in the hospital's policy that its pathologists were to verbally notify doctors when a patient, like the plaintiff, was diagnosed with cancer. Id. The court explained that because the trial court had not defined the word "agent," the jury could have erroneously considered the defendant-doctor to be an agent of the defendant-hospital. Id.
After concluding that the trial court had erred in denying the defendant-hospital's requested instruction, the supreme court, under the sub-heading of "Harm," concluded that the harm analysis of rule 61.1(b) "applies . . . because the jury could have found [the defendant-hospital] liable based on [the defendant-doctor's] acts or omissions under the charge as given, and there is no way for [the defendant-hospital] or an appellate court to tell if it did so." Id. at 865.
In the instant case, the panel majority cites Hawley for the following proposition:
If one of the plaintiff's legal theories does not support liability as a matter of law and the plaintiff presented evidence to the jury on that theory that may have led the jury to answer affirmatively the broad-form liability question incorporating the invalid theory, there is a Casteel-type charge error. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 863-65 (Tex. 2009) (broad-form negligence question included instruction that hospital acts through its employees, agents, nurses, and servants but did not inform jury that hospital is not legally liable for acts of independent contractor-physician and, as result, appellate court could not tell if jury impermissibly found hospital liable for acts of doctor where evidence raised that possibility).
(Emphasis added.) The panel majority's characterization, in its published opinion on the merits, of Hawley is flat wrong.

In fact, the supreme court in Hawley expressly agreed with the plaintiff that "the harm question presented in Casteel is different from that presented here because here the charge did not submit an invalid theory to the jury.284 S.W.3d at 865 (emphasis added). It noted that submission of an invalid theory involves a trial court's error in instructing a jury to consider erroneous matters and the defendant-hospital "d[id] not contend that the jury was allowed to consider an improper theory of liability by the charge that allowed the hospital to be held liable for actions of its agents." Id. The court explained, thus,
[T]he presumed harm analysis of Rule 61.1(b) was applied in Casteel and Harris County to a different jury charge problem than is presented here. See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex. 2006)("We specifically limited our holdings in Casteel and Harris County to submission of a broad-form question incorporating multiple theories of liability or multiple damage elements.").
Id. Even though the court considered Casteel inapplicable, it did apply the harm analysis of rule 61.1(b) in Hawley "because the jury could have found [the defendant-hospital] liable based on [the defendant-doctor's] acts or omissions under the charge as given, and there is no way for [the defendant-hospital] or an appellate court to tell if it did so." Id. In doing so, the court made sure to note that "in most cases where a trial court errs by refusing to give a proposed instruction the harm analysis will be based on whether the refusal probably caused the rendition of an improper judgment."[14] Id.; see alsoTEX. R. APP. P. 61.1(a).

In Morrison, the supreme court, following its precedent in Casteel, held that because the broad-form liability question submitted to the jury by the trial court "allowed liability for `adverse personnel actions,' the jury could have improperly found liability based upon [a] denied promotion," which constituted an invalid theory of liability. 381 S.W.3d at 537(emphasis added). Prior to filing her suit against the defendant-employer for retaliation, the plaintiff-employee, in Morrison, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which is a prerequisite to suit against a government entity like the defendant-employer. Id. at 535-37 (citing TEX. GOV'T CODE ANN. § 311.034 (Vernon 2013)). The plaintiff's EEOC complaint "included several bases for discrimination," but not the denied promotion. Id. at 535.

The trial court did not define "adverse personnel actions" in the jury charge, and the defendant specifically objected, arguing that the trial court's use of the term "adverse personnel actions" would "allow the jury to find liability without unanimity because there were multiple occurrences the jury could view as adverse personnel actions." Id. The defendant then "tendered a liability question that focused solely on the termination," but the trial court denied the request. Id. In reaching its holding, the supreme court explained that because the trial court submitted the liability question in a way that "prevent[ed] [the] parties [and] the Court from knowing for certain what theory the jurors relied upon," the defendant was "prohibited from demonstrating on appeal that the jury's verdict was based upon the invalid legal theory." Id. at 537. In other words, the supreme court "presumed" harm as it did in Casteel. Id. at 534, 536, 538.

Here, unlike in Casteel and Morrison, the trial court simply did not in its charge to the jury submit a single broad-form liability question that erroneously commingled valid and invalid theories of liability. As previously explained by the supreme court, submission of an invalid theory of liability necessarily involves a trial court's error in affirmatively instructing a jury to consider erroneous matters. Hawley, 284 S.W.3d at 865. And the supreme court has "specifically limited [its] holdings in Casteel and Harris County to submission of a broad-form question incorporating multiple theories of liability or multiple damage elements." Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex. 2006)(emphasis added).

As in Hawley, the trial court here did in fact deny Dr. Benge's request for an instruction.[15] He requested that the trial court instruct the jury:
You are instructed that in deciding whether any defendant was negligent, you cannot consider what the defendant told, or did not tell, the plaintiff about the resident physician being involved with the surgery.
Thus, under the supreme court's holding and reasoning in Hawley, the panel majority was required, before presuming harm under rule 66.1(b), to determine first whether the trial court had erred in denying Benge his requested instruction. And if, and only if, the trial court erred in denying this instruction, then, and only then, should the panel have considered whether, from the trial court's error, harm should be presumed under rule 66.1(b). Hawley, 284 S.W.3d at 865.

First, it should be noted that Dr. Benge, prior to asking for the above instruction for the first time in the charge conference, had already waived any error in regard to Williams's statements, evidence, and arguments about "informed consent" or "disclosure." Although the trial court had initially granted Benge's motion in limine on the topic, and even sustained one of his objections, the record reveals that Benge repeatedly failed to object when he was required to do so. In fact, the record reveals that he made only two objections during the presentation of the evidence and none during Williams's opening statement and closing argument. And he, himself, extensively testified that he had warned Williams of the risks and hazards involved in the LAVH and Williams had "g[iven him] consent to have Dr. Giacobbe participate in the surgery."[16] At one point, while Williams had her medical expert on direct examination and Benge objected to a question about her lack of consent, the following exchange occurred:
[Williams]: One other thing, Judge. They spent a fair amount of time going through the informed consent page with Dr. Benge, and he — they asked him a question, "Did you get proper informed consent?" "Yes, I did." They've waived that already.
[Dr. Benge]: Don't believe we have waived it because we had a running objection at the beginning of the case.
[Williams]: Can't have a running objection to your own questions.
[Dr. Benge]: Yeah.
Second, even if Dr. Benge had not waived the issue, the trial court did not err in denying the instruction that he requested. Again, he requested that the trial court instruct the jury that "in deciding whether any defendant was negligent, you cannot consider what the defendant told, or did not tell, the plaintiff about the resident physician being involved with the surgery." He did not request that the trial court instruct the jury to consider such evidence only in determining his credibility and for no other purpose; thus, his proposed instruction was overbroad. Because the complained-of evidence directly concerned the issue of Benge's credibility and the evidence showed that he believed that an "electrical arc from [a] Bovie" had caused Williams's injuries, the jury was entitled to consider any evidence of his "deceitful[ness]" in deciding whether to reject his explanation of causation. And, again, Williams certainly had the right to refute Benge's testimony that she had in fact "g[iven him] consent to have Dr. Giacobbe participate in the surgery," which also served to impeach his credibility. Thus, Benge's requested instruction, as written, would have misled the jury into thinking that it could not consider the complained-of evidence to assess his credibility for determining the ultimate issue in the case.

Third, even if the trial court had erred in denying Dr. Benge his requested instruction, this is not a case where harm should be presumed under rule 66.1(b), as it was in Hawley.Again, as explained by the Texas Supreme Court, "in most cases where a trial court errs by refusing to give a proposed instruction the harm analysis will be based on whether the refusal probably caused the rendition of an improper judgment." Hawley, 284 S.W.3d at 865see also TEX. R. APP. P. 61.1(a). Rule 61.1(b) does not apply here because the jury could not, as asserted by the panel majority in its characterization of Williams's case, have found Benge liable based on a theory that he "negligently failed to provide that information to Williams before the operation." (Emphasis added.)

Again, Williams simply did not assert that Dr. Benge had "negligently failed" to inform her that Dr. Giacobbe "was going to perform a substantial portion of the surgery." Rather, she pulled no punches and directly accused Benge of being intentionally "deceitful" and unethical, citing his violation of the AMA's Code of Medical Ethics. And she expressly, and in no uncertain terms, stated that his testimony that she had actually "g[iven him] consent to have Dr. Giacobbe participate in the surgery" was false. Thus, to the extent that the panel majority, in characterizing the "theme" of Williams's case, relies on Dr. Patsner's testimony that Dr. Benge's "betrayal" in not "explain[ing] who was doing the surgery on Ms. Williams" was "outside the standard," it errs.

Finally, it should be noted that because Dr. Benge has conflated Casteel-type submission error, where harm is presumed, with error regarding the denial of a requested instruction, where error is most often not presumed, Benge, in his appellant's brief, did not present this Court with a harm analysis as required. See TEX. R. APP. P. 38.1(i).

In sum, the panel majority, in characterizing Williams's case for her, sets up the straw man that she "effectively" presented to the jury an "unpleaded informed consent theory" and asked it to find that Dr. Benge "negligently failed" to inform her that he intended to use "an inexperienced resident" "to perform a substantial portion of the surgery." It then knocks down the straw man, holding that the trial court's "broad form negligence question effectively included an informed consent issue and therefore violated Casteel." In reaching this holding, the panel majority not only misinterprets Casteel and Morrison,but conflates "Casteel-type charge error," i.e., error involving a trial court's submission of multiple theories of liability, with error involving the denial of a requested instruction.

More important, in doing so, the panel majority, in its published opinion on the merits, disregards the Texas Supreme Court's actual holding in Hawley, mischaracterizes the court's opinion as relying upon Casteel in presuming harm, despite the fact that it expressly states that Casteel is "different," and then cites Hawley in support of its holding. See Hawley, 284 S.W.3d at 865. In doing so, the panel extends the holding of Casteel regarding presumption of harm in cases involving the erroneous submission of multiple liability theories to cases involving the denial of a requested instruction. And the panel majority does this in spite of the fact that the supreme court in Hawley expressly stated, "in most cases where a trial court errs by refusing to give a proposed instruction the harm analysis will be based on whether the refusal probably caused the rendition of an improper judgment."[17] Id.; see also TEX. R. APP. P. 61.1(a).

Here, the panel majority reverses the trial court's lawful judgment entered in favor of Williams, not on a legitimate legal point of error, but upon a wholly manufactured appellate issue. In doing so, the panel majority not only wrongfully deprives Williams of her lawfully rendered verdict and judgment, it also unnecessarily places upon her the burden of yet more expense and delay in securing justice. And because the panel majority misapplies the holdings and reasoning of the Texas Supreme Court in Casteel, Hawley, and Morrison, the panel majority's error is of such magnitude that it should be corrected by this court sitting en banc or by our high court. See TEX. R. APP. P. 41.2(c) ("[E]xtraordinary circumstances require en banc consideration."); TEX. GOV'T CODE ANN. § 22.001(a)(6) (Vernon 2004) ("The supreme court has jurisdiction [when] . . . it appears that an error of law has been committed by the court of appeals.").

Conclusion

This case serves as a cautionary tale and illustrates the dangers encountered when courts engage in deciding cases ad hoc and not in accord with established precedent. Such decision making, not only unnecessarily adds time and expense to the disposition of a case, doing a disservice to the litigants, but also undermines the rule of law. If the rule of law means anything, it means that judges are bound to follow well-established and sound legal precedent. Although we, as intermediate appellate court justices, are certainly free to point out any flaws in the reasoning of the opinions of our high courts, we are not free to disregard binding precedent.

Why in Texas are the rights to public justice and civil trial by jury vanishing? Some might reasonably argue that these rights are, to a large extent, vanishing because of the acts and omissions of our courts—the very same entities that were created to serve and maintain them. The problem is not new. In making the case for reform of the Court of Chancery in nineteenth century England, Charles Dickens, in Bleak House, wrote:
This is the Court of Chanery; . . . which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practioners who would not give—who does not often give—the warning, "Suffer any wrong that can be done to you, rather than come here!"[18]
As illustrated by Dickens's tale, if we, as lawyers and judges in the year 2015, want to preserve and protect the 800-year-old legacy of Magna Carta, we must be ever vigilant in the performance of our duties as stewards and "guardians of the law."[19] If we fail in fulfilling these critical duties, not only will we ultimately render ourselves irrelevant, but the rule of law, guaranteed by Magna Carta, will become a mere memory. Thus, our profession should address Chief Justice Hecht's concern about the vanishing jury trial and answer State Bar President Apffel's call to action to "stand[] firm for equal access to justice" and educate the public that "the right to trial by jury is the very foundation of our liberties and freedoms."[20] We should, in the words of President Lincoln, re-dedicate and "take increased devotion to"[21] our solemn duties to protect the rule of law.

And if we, on the bench and in the bar, really want to provide real access to civil justice for all, preserve the civil right to trial by jury, and maintain the rule of law, we should, first and foremost, not deprive a party of justice by taking from her a lawfully-obtained judgment. Like good doctors, we should first do no harm.