Saturday, August 29, 2009

Justices Terry Jennings and Elsa Alcala Spar over Propriety of En Banc Review


As the end of the fiscal year approaches, it appears that justices on the First Court of Appeal have let their disagreements fester, and only now - under deadline pressure - endeavor to air them publicly to dispose of the cases over which they have found themselves at loggerheads. Not only has there been an unusual concentration of cases decided with separate opinion(s) lately; the disagreements are also becoming rather rancorous, as exemplified by the duel over the propriety of en banc rehearing in an appeal from an employment dispute discided eaqrlier this year. Veteran dissenter Terry Jennings thought the panel's opinion and disposition of the contract construction issue was flatly wrong, thus warranting review & reversal by the court as a whole, and also took issue with the designation of the panel opinion. Alcala was none too pleased and offered a vigorous defense, not to mention a lesson on the rules governing the appellate courts, chiding her honorable colleague for flouting them.

First, Terry Jennings:

I would hold that the trial court erred in granting summary judgment in favor of Waste Management. The panel's insertion of non-existent language into the employment contract and conclusion that Macy and Waste Management intended that Waste Management "alone" would have the power to make a final and binding legal determination as to whether it had terminated Macy's employment with "cause" are in serious error. See Fortis Benefits, 234 S.W.3d at 649 n.41.Thus, I would grant Macy's motion for en banc consideration of the case. Tex. R. App. P. 41.2. I would further sustain his first issue, reverse the judgment of the trial court, and remand the case for a trial on the merits.

Now the retort by Elsa Acala, author of the opinion of the panel, of which Jennings was not a member (Her opinion is classified as a concurrence because she agreed that the court should not hear the case en banc):

To support its accusation of "judicial fiat," the dissenting opinion fails to accurately apply the authority on which it relies. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 n.41 (Tex. 2007). Excluding the legal citation, note 41 in its entirety states,

As a rule, a court should not by judicial fiat insert non-existent language into statutes or into parties' agreed-to contracts, or delete existent language from them either. Our confined duty is to construe the contract as is, and holding that equitable considerations trump contrary contract terms would render contractual subrogation a nullity. Id.

The dissenting opinion violates Fortis by requiring the insertion of the magic words "final and binding"; by inserting non-existing language in the Agreement in allowing another entity other than the Company to determine Cause; by deleting existing language from the Agreement that gives the Company, alone, the power to decide Cause; and by failing to construe the Agreement "as is." See id.

If there was any evidence that showed that Waste Management had failed to comply with the terms set forth in the Agreement, then Macy would be entitled to have a jury decide whether Waste Management breached the Agreement.

Because no evidence shows that Waste Management failed to comply with each of the terms set forth in the Agreement, I concur in the en banc court's decision to deny en banc consideration of this case.

And, for good measure, a lecture on when en banc rehearing is appropriate, and when not:

The Texas Rules of Appellate Procedure plainly state that en banc consideration is "disfavored" and "should not be ordered" unless one of two circumstances exist:

•En banc consideration is appropriate if it is "necessary to secure or maintain uniformity of the court's decisions."

•En banc consideration is appropriate if "extraordinary circumstances require en banc consideration."

See Tex. R. App. P. 41.2(c).

Unless one of these two circumstances exists, the rules of appellate procedure require cases be decided in panels composed of three justices. See id.

Justice Jennings was not assigned as a member of the three justice panel assigned to hear this case, nor did he participate in the panel conference, nor did he hear the oral argument heard by the panel.

In a footnote, Justice Jennings suggests that this case is worthy of en banc consideration because Macy claims that the panel's opinion "reads an arbitration provision into an agreement" and creates "a new standard pursuant to which parties must expressly state that they are not forfeiting their right to sue."

The panel opinion does not hold that this is an arbitration case; it is plainly evident that this is not an arbitration case as it was resolved based on the merits by summary judgment in the trial court. The panel opinion does not hold that Macy forfeited his right to sue; it is plainly evident this case does not concern the forfeiture of the right to sue, in that this case was resolved based on the merits by summary judgment in the trial court.

The panel opinion does not create a new standard, but instead applies well-established breach of contract law. The panel opinion states,

"Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered." David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)). . . . Our primary concern in interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). The intent of the parties must be taken from the agreement itself, not from the parties' present interpretations, and the agreement must be enforced as it is written. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731-32 (Tex. 1981).

Macy, 2009 WL 1493012, at *4.

This is a breach of contract dispute between sophisticated parties who entered into an arms-length contract with terms specific to their particular desires. Because the panel opinion applies well established law set by the Texas Supreme Court and our Court, nothing about this case lacks uniformity with established precedent or is legally extraordinary. Justice Jennings, therefore, disregards the rules of appellate procedure criteria for en banc consideration.

* * *

Because Justice Jennings disregards the rules of appellate procedure criteria for evaluating the case, we are compelled to designate the case as an "Opinion," even though the panel that decided the case unanimously voted to issue the decision as a "Memorandum Opinion" and none of the criteria in the rules of appellate procedure for designating the case as an "Opinion" apply in this case.


I respectfully concur with the en banc decision to deny en banc consideration in this case because the panel opinion is legally correct and this case does not meet the criteria for en banc consideration.

Furthermore, I oppose changing the designation of the case to "Opinion" because the case does not meet the criteria for that designation.

Alcala Concurrence on Denial of En Banc Review in Griffin Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by Justice Alcala) (proper designation of opinions issued by the court). Before Chief Justice Radack, Justices Alcala and Hanks; No. 01-07-00276-CV; Appeal from the 157th District Court of Harris County; Trial Court Judge: The Honorable Randall Wilson

Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)

Justice Alcala Dissents in Child's Drowning Death Case


in Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Majority opinion by Jennings holding that siblings can't recover as bystanders for wrongful death of brother who was swept into and drowned in uncovered culvert, storm sewer; affirming summary judgment for the defendant city)

This case concerns the bystander claims filed by the siblings of a 13-year-old child, Logan Jones, who died as a result of drowning in a City of Houston culvert that did not have a protection grate to block the culvert.

For two reasons, I respectfully dissent from the majority opinion's rejection of the claims.

First, contrary to the applicable law for review of summary judgments, the majority opinion fails to view the evidence in a light most favorable to the non-movant plaintiffs, the appellants, Landon and Loren Jones.

Second, the majority opinion misapplies the precedent of the Texas Supreme Court and Texas intermediate courts. Because the record includes some evidence that the event was ongoing when the Jones siblings were present at the culvert, I would reverse the summary judgment and remand for trial.

The Evidence

Loren learned from a telephone call that her brother Logan "was sucked into a drainage ditch and they could not find him." Lauren called Landon, the brother of Loren and Logan, who quickly returned to the house. Landon, Loren, and their mother then went to the nearby culvert. There, Loren learned that rescue workers "were looking for him" and that Logan "might be stuck in an air pocket" holding on. Landon watched a diver search for Logan for 30 minutes, going into several manholes, until Logan floated into the bayou. Although Logan had been in the culvert for about one hour when he appeared, rescue workers performed Cardio Pulmonary Resuscitation (CPR) on Logan "trying to resuscitate him," and Landon believed that those efforts might allow Logan to survive.

Houston Police Department dive team officer Mark Janson received the call for assistance. Janson believed "there was a possibility of a rescue." Janson explained that when he arrived at the culvert, he hoped Logan "could be in an air pocket up in the streets." As he searched for Logan, Janson was "very, very focused on trying to locate [Logan's] body, locate him hopefully alive." When Logan was found, Janson believed it was a "possible live recovery" and he was "hopeful that [Logan] was going to make it." In hindsight, Janson changed his opinion to a belief that Logan "was expired before [Janson] ever arrived at that scene."

The majority opinion erroneously sees the evidence in a light favorable to the movant, the City, by contending there is no dispute Logan died before the siblings arrived. But there is a dispute. Although the diver said that in hindsight he believed Logan was deceased before the diver arrived, the diver acknowledged that his state of mind was different during the events. The diver testified that at the time of the events, he conducted a rescue search for a live person under the belief that Logan could have survived by finding an air pocket under the street and that CPR was conducted on Logan to try to resuscitate him. If the evidence was "undisputed" that Logan was deceased when his siblings arrived, as the majority contends, then the evidence would conclusively show that the diver was conducting a recovery mission to seize the body of Logan and no CPR would have been conducted on the deceased body.

The evidence shows a dispute whether Logan was alive at the time the siblings arrived at the culvert, and, therefore, a dispute exists whether the siblings observed the drowning or merely its aftermath. That is the type of dispute that must be resolved by a jury. See Lehmann v. Wieghat, 917 S.W.2d 379, 383 (Tex. App.--Houston [14th Dist.] 1996, writ denied) (holding proper to submit to jury question of fact concerning whether plaintiff perceived accident or learned "of the accident from others after its occurrence").

Viewing the evidence and all reasonable inferences from the evidence in a light most favorable to the non-movant, as required, there is a genuine issue of material fact that the event was ongoing while Landon and Loren were present at the culvert. See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

The Law

The majority opinion acknowledges that three intermediate courts and one federal district court have issued decisions contrary to its holding. See Lehmann, 917 S.W.2d at 383 (holding proper to submit bystander claim as question of fact to jury when evidence showed bystander did not see shooting, bystander was about one-half mile to mile away when victim was shot, shooter told bystander about having shot victim, and bystander then saw victim lying unconscious in bed of truck); City of Austin v. Davis, 693 S.W.2d 31, 32-33 (Tex. App.--Austin 1985, writ denied) (upholding bystander claim even though father did not see son's actual fall when evidence showed father arrived at hospital to visit son, found son's room empty, searched hospital, and found son's body at base of air shaft); Landreth v. Reed, 570 S.W.2d 486, 490 (Tex. App.--Texarkana 1978, no writ) (upholding bystander claim even though bystander did not see victim's entry into pool because "jury could have inferred from other evidence that only a few minutes elapsed between [victim's] entry into the pool and her discovery and the resulting resuscitative efforts"); Thornton v. Home Depot U.S.A., Inc., No. A-04-CA-1039 AWA, 2006 WL 2022920 (W.D. Tex. July 17, 2006) (unpublished order) (upholding bystander claim when bystander did not see fire actually harm her sister but saw fire and heard from others her sister was trapped inside burning house). The majority opinion, however, attempts to distinguish these decisions by claiming Logan was undisputedly deceased when the siblings got to the culvert, which I have addressed in the preceding section, and by asserting (A) the siblings did not "unwittingly" come upon the event and (B) the Keith decision compels the result. (1)

A. The Plaintiff Need Not Be "Unwitting"

To support its position that the plaintiff must "unwittingly" come upon the accident scene, the majority opinion cites to Freeman v. City of Pasadena, 744 S.W.2d 923, 924 (Tex. 1988), which states, "In our case it is undisputed that Freeman did not contemporaneously perceive the accident or otherwise experience the shock of unwittingly coming upon the accident scene." By its phrasing, the supreme court in Freeman articulated two alternatives. In one alternative, the bystander can recover if he contemporaneously perceives the accident. In the second alternative, the bystander can recover if he experiences the shock of "unwittingly" coming upon the accident scene. It is the first alternative that applies here. The siblings contemporaneously perceived the events in that they were present at the culvert while a diver conducted a search for a live person and when CPR was performed to resuscitate Logan after he surfaced.

The majority opinion creates a new rule disallowing a bystander claim in every instance in which the plaintiff knows about the existence of an event before seeing the event. This means that when family members learn of a loved one in danger, they automatically forego any right to recover as a bystander if they opt to assist their loved one while their loved one is facing danger. That, of course, was not the intention of Freeman, which recognizes that even if a bystander knowingly encounters the event, the bystander may pursue his claim if he contemporaneously perceives the occurrence. See id.

B. The Keith Decision Does Not Compel the Result

It appears the primary reason the majority opinion holds in favor of the City is a faulty reliance on a distinguishable decision by the Texas Supreme Court. See United Servs. Auto Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam). In Keith, Keith arrived at the scene of her daughter's auto collision, where she saw the wreckage and heard her daughter making "scary noises and crying out." Id. at 541. The court determined Keith could not recover as a bystander because she did not have a "sensory and contemporaneous observance of the accident." Id. at 542. The court explained that Keith "is in the same position as any other close relative who sees and experiences the immediate aftermath of a serious injury to a loved one." Id. The court stated that the "fact that Dianna Keith arrived on the scene while rescue operations were underway and witnessed her daughter's pain and suffering at the site of the accident rather than at the hospital or some other location does not affect the analysis." Id. The court explained that "Texas law still requires the bystander's presence when the injury occurred and the contemporaneous perception of the accident." Id.

Unlike Keith,

• the Jones siblings watched the ongoing event as the divers searched for Logan, who the diver and the siblings believed could be alive in an air pocket as he was trapped in the culvert; and

• the Jones siblings were not watching the immediate aftermath of a serious injury to a loved one but were instead watching to see whether the loved one would escape injury in the ongoing event of the occurrence.

Courts have uniformly held that a loved one need not actually see the deceased take his last breath if there is an "experiential perception" of it. See Davis, 693 S.W.2d at 32-33; Landreth, 570 S.W.2d at 490; Thornton, 2006 WL 2022920 at *3. Like Landreth, the siblings were "brought so close to the reality of the accident as to render [their] experience an integral part of it." Landreth, 570 S.W.2d at 490.

The majority opinion takes too narrow a view of "contemporaneous observance of accident" by confining it to events that occur in a split second, like car collisions. Instead, when the event does not occur in a split second, courts have applied a broader view of "contemporaneous observance of accident" to include the beginning of the event, as well as the ongoing event, such as the search for a lost child, a fire, or a drowning.

Because the reasonable inference of the evidence in a light favorable to the non-movant shows that the siblings were present when Logan drowned, I respectfully dissent to the majority's affirmance of the trial court's summary judgment, which precluded a jury trial in this case.


I would reverse the summary judgment and remand for trial.

Elsa Alcala

1. United Servs. Auto Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam).

Jones v. City of Houston
(Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Majority opinion by Terry Jennings) (TTCA, drowning death of child, uncovered culvert, siblings' bystander claim for wrongful death of brother rejected, drowning deaths)
Dissenting Opinion by Justice Alcala in Jones v. City of Houston (would permit children's bystander claim to go to the jury)

Siblings' Bystander Claim in Brother's Drowning Death Rejected

Does it make a difference if you actually saw your little brother die, or "just" saw his dead body when it flushed out of a drainage pipe? Apparently it does, but justices on panel reviewing summary judgment in favor of city in suit complaining of uncovered culverts are not of one mind.

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)

In the plaintiffs' second amended petition, the Jones siblings alleged that on June 25, 2004, Logan Jones, their thirteen-year-old brother, drowned when he was sucked into and trapped underwater in a culvert owned and maintained by the City. After spending over an hour waiting by the culvert for rescue teams to find their brother, the Jones siblings saw Logan's body float out of a culvert several blocks north of the culvert. After seeing Logan's injuries and that he had died, the Jones siblings "began to experience extreme nervousness, anxiety, depression, mental anguish, distractibility, and difficulty sleeping," and they sought recovery for these damages as bystanders. The Jones siblings based their bystander claims for wrongful death on the City's gross negligence in creating and maintaining the culvert.

The City, in its motion for summary judgment, contended that the Jones siblings were not entitled to recover for their emotional trauma and mental anguish as bystanders.

* * *

[W]e hold that the City's summary judgment evidence established as a matter of law that the Jones siblings could not recover as bystanders for any mental anguish and emotional trauma caused by their brother's drowning.

Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings) (TTCA, drowning death of child, uncovered culvert, siblings' bystander claim rejected, drowning deaths)

Disposition: Trial Court Judgment Affirmed
Appellate Opinion by Justice Jennings
Panel composition: Before Justices Jennings, Alcala and Higley
Appellate cause no: 01-08-00905-CV
Full style of case in the court of appeals: Landon Jones and Loren Jones v. City of Houston
Court below: Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Levi J. Benton

Dissenting Opinion by Justice Elsa Alcala in Jones v. City of Houston

Tuesday, August 25, 2009

Appellate Panel Splits on Enforceability of Noncompete Agreement

Majority of two on three-member appellate panel reverses the trial court’s order on summary judgment, enters judgment that the non-compete covenant is enforceable, and remands the cause to the district court for further proceedings. Dissenting justice would hold that the summary judgment evidence does not establish that employer's "confidential information" is worthy of protection and that the non-compete agreement between the former employee and the company is necessary to protect a legitimate business interest of the company.

Gallagher Healthcare Ins. Service, Inc. v. Vogelsang (Tex.App.- Houston [1st Dist.] Aug. 21, 2009)(Keyes) (enforceability of covenant-not-to-compete provision in employment agreement; noncompete held enforceable)
Disposition on appeal: Reverse trial court judgment and render judgment
Author of Majority Opinion: Justice Evelyn Keyes
Panel composition: Before Justices Terry Jennings, Evelyn Keyes and Laura Carter Higley
Appellate cause number: 01-07-00478-CV
Full case style: Gallagher Healthcare Insurance Services, Inc. v. Page M. Vogelsang, Michelle Friede, Patti Philippone, Trisha Birdsong, and Lockton Companies, Inc.
Court appealed from: Appeal from 133rd District Court of Harris County
Trial Court Judge: Hon. Lamar McCorkle

Dissenting Opinion by Justice Jennings in Gallagher Healthcare Insurance Services, Inc. v. Vogelsang (would hold that former employer has not established that the agreement not to compete is reasonable and therefore enforceable. Tex. Bus. & Comm. Code Ann. § 15.50.)


Covenant Not To Compete

Whether a covenant not to compete is enforceable is a question of law for the court. Light v. Centel Cellular Co., 883 S.W.2d 642, 644 (Tex. 1994); TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A covenant not to compete is enforceable if it is (1) “ancillary to or part of an otherwise enforceable agreement at the time the agreement is made” and (2) reasonable, not imposing a greater restraint than is necessary to protect the goodwill or other business interest of the employer. TEX. BUS. & COM. CODE ANN. § 15.50(a) (Vernon 2002).