Saturday, September 5, 2009

Discovery Mandamus Granted in Civil Case Stemming from Office Building Arson

On March 28, 2007, Misty Ann Weaver set fire to the fifth floor office leased by her employer in the atrium-style building located at 9343 North Loop in Houston.1 9343 North Loop, L.P. owns the building and Boxer Property Management Corporation (“Boxer”) manages it. Marvin Wells, Jeanette Hargrove, and Shana Ellis died as a result of the fire, and their family members brought premises-liability claims against 9343 North Loop, L.P. and Boxer.

* * *

Boxer Property Management Corporation and 9343 North Loop, L.P. filed a petition for writ of mandamus asking this court to compel the presiding judge of the 133rd District Court of Harris County to vacate a June 16, 2009 order compelling the deposition of relators' corporate representative. Relators contend the deposition will invade the
attorney work product privilege regarding their response to requests for production propounded by real parties in interest, Lynell Wells, individually, as the legal representative of the estate of her deceased husband, Marvin Wells, and as next friend of her minor child, Adrian D. Wells; Marvin Wells d/b/a M & E Transportation; Marvin G. Wells; and Shameka Wells (the "Wells plaintiffs"). We conditionally grant the writ.

* * *

Relators have established that the trial court abused its discretion by compelling the deposition of relators’ corporate representative, its general counsel, to respond the twelve questions and one request for production set forth in the June 16, 2009 order. Relators have no adequate remedy by appeal. Accordingly, we conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its June 16, 2009 order. The writ will issue only if the trial court fails to act in accordance with this opinion. We lift the stay issued on July 2, 2009.

Click case style below to read the opinion setting forth the analysis and reasoning of the court:
In Re Boxer Property Management Corp. (Tex.App.- Houston [14th Dist.] Sep. 3, 2009)(Boyce)
discovery mandamus granted)
Justice Boyce
Before Justices Anderson, Guzman and Boyce
14-09-00579-CV In Re Boxer Property Management Corporation and 9343 North Loop, L.P.
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel McFarland

Friday, September 4, 2009

Don't File Mandamus Petition Without Appendix


Appeals court's per curiam opinion on denial of relief makes clear that neither pro-se status nor alleged indigency exempts litigants from having to comply with formal requisites.

The record before this court does not contain a sworn copy of the discovery stay order about which relator complains. See Tex. R. App. P. 52.3(k)(1) (requiring the appendix to the petition for writ of mandamus to contain a certified or sworn copy of any order made the basis of the complaint).

A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

This court cannot review relator's complaint in the absence of the challenged order. Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007).

An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). We are to carefully balance jurisprudential considerations to determine when to use original mandamus proceedings to review the actions of lower courts. Id. at 136. Whether an appellate remedy is adequate so as to preclude mandamus review depends heavily on the circumstances presented. Id. at 137. Incidental pre-trial rulings are rarely subject to interlocutory review by an appellate court. See Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985).

Generally, appellate courts have considered the erroneous grant of a stay to be an incidental trial ruling for which there is an adequate remedy by appeal. See, e.g., In re Smart, 103 S.W.3d 515, 521 (Tex. App.-San Antonio 2003, orig. proceeding); see also In re Kastner, No. 01-09-00727-CV (Tex. App.-Houston [1st Dist.] Aug. 27, 2009) (orig. proceeding) (mem. op.)(denying relief from similar stay order).

When the trial court has sustained a contest to an affidavit of indigence filed pursuant to Texas Rule of Civil Procedure 145, the court typically dismisses the case, finding the allegation of poverty is false and/or the case is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. §13.001 (Vernon 2002). The court may make its determination and dismiss the action sua sponte, either before or after service. Id. §13.001(c).

The purpose of section 13.001 is to ensure that limited resources are employed as efficiently as possible to resolve arguable claims and that claims without merit are dismissed at an early stage in the proceedings. Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.-Tyler 2002, no pet.); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).

Thus, the legislature has provided a procedure for appellate review of indigence claims. In this case, relator has not demonstrated that an appeal is inadequate to review the trial court's ruling. We conclude that relator has not established that he is entitled to an extraordinary remedy.Accordingly, we deny relator's petition for writ of mandamus.


In Re Kastner (Tex.App..- Houston [14th Dist.] Sep. 3, 2009)(per curiam)(mandamus denied re indigency sought to be established with affidavit, discovery stay in the trial court) MOTION OR WRIT DENIED: Per Curiam Opinion Before Justices Brock Yates, Frost and Brown 14-09-00653-CV In Re Kristofer Thomas Kastner Appeal from 189th District Court of Harris CountyTrial Court Judge: Hon. William R. Burke. Jr.

Legal Malpractice: Summary Judgment for Attorney Affirmed

Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)

In this cause, Willard E. Brown III appeals from a grant of summary judgment favoring appellees, attorney George Maynard Green and the law firm of Sheehy, Lovelace & Mayfield, P.C. Brown sued appellees alleging breach of fiduciary duty and professional malpractice. The trial court granted summary judgment on both traditional and no-evidence grounds against each of these causes of action. In four issues on appeal, Brown attacks the trial court's grant of (1) a traditional summary judgment against the breach of fiduciary duty cause of action; (2) a no-evidence summary judgment against that cause of action; (3) a traditional summary judgment against the malpractice cause of action; and (4) a no-evidence summary judgment against that cause of action.[1]

The court affirms in a lengthy opinion written by Chief Justice Hedges, which is worth reading as it covers many procedural and substantive points of law.

Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)(legal malpractice, breach of fiduciary duty) (SJ for defendant affirmed) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00592-CV Willard E. Brown III v. George Maynard Green and Sheehy, Lovelace & Mayfield, P.C. Appeal from 74th District Court of McLennan County (name of judge not shown on docket)

Tuesday, September 1, 2009

BARC Whistleblower Suit by Veterinarian Gil Costas against The City of Houston

Sep. 1, 2009. As reported by THE HOUSTON CHRONICLE today, former BARC vet Gil Costas yesterday filed a lawsuit under the Texas Whistleblower Act against the City of Houston, alleging wrongful discharge in retaliation for reporting unlawful goings-on at the Bureau of Animal Regulation and Care [not Control], which has had a troubled past and has been a magnet of public scrutiny and media attention.



5.1. From May 2006 until the date of his wrongful termination on February 3, 2009, Dr. Costas worked as a veterinarian for the City of Houston - Bureau of Animal Regulation and Care ("BARC"). BARCis "an appropriate law enforcement authority" as defined by Tex. Gov't Code

5.2. In November and December 2008, and January 2009, Dr. Costas reported violations of law to then BARC Chief Veterinarian, Dr. Eunice Ohashiegbula-Iwunze ("Dr. O"), and BARC Interim Bureau Chief, Barbara Sudhoff-McGill. Upon information and belief, some of the complaints have been investigated by the City of Houston Police Department-Office of Inspector General ("OIG").1

5.3. The violations of law include, but are not limited to, Texas Penal Code §42.09 (animal cruelty), Texas Administrative Code, Ch. 13 and Title 21 of the United States Code (state and federal controlled substances acts), and the Veterinary Licensing Act, Ch. 801 and Texas Occupations Code (unauthorized practice of veterinary medicine, misuse of DEA narcotics

5.4. In November and December 2008, Dr. Costas complained that BARC staff veterinarian Dr. David Rundell had insufficient licenses to handle controlled substances and had engaged in animal cruelty. He also complained that Dr. O permitted these violations to occur and otherwise
covering-up and ignoring the violations.

5.5. Within approximately two (2) weeks of making the November 2008 report, Dr. Costas was disciplined by Dr. O. As an animal rights activist, Dr. Costas remained undeterred in his quest to ensure that animals would not suffer at the hands of uncaring, untrained, or unlicenced personnel. Accordingly, in December 2008, he wrote another complaint in which he addressed Rundell's continued illegal acts, the City's refusal to address same, and Dr. O's continued cover-up and blatant retaliation against Dr. Costas for having made reports of violations of law.

5.6. Then, on February 3, 2009, within 90-days of having made a report of a violation of law to Dr. O and Interim Bureau Chief Sudhoff-McGill, Dr. Costas was terminated. The alleged basis for termination was that Dr. Costas lacked "a current DPS registration...." This statement is blatantly false and was known as such to BARC well before February 2009. The City was simply trying to hurriedly squelch Dr. Costas and discredit him. Its motive is further evidenced by the misquoting of the Texas Administrative Code section it relied upon.

5.7. Following the termination, and after receiving unequivocal evidence that the basis for termination was false, the City continued its campaign against Dr. Costas by repeatedly expressing the falsities to the press.

5.8. In March 2009, Dr. Costas asked City of Houston Mayor Bill White to investigate the facts surrounding his termination, and to ask City employees to cease maligning and disparaging him. In that memorandum, Dr. Costas provided a significant amount of supporting data, including evidence of his proper licensure. He also asked Mayor White to initiate any appeal process available to him, and to reinstate him since the alleged basis for termination was demonstrably false. The City did not reply to these requests.

5.9. In April 2009, in apparent retaliation for having elevated his complaints, Dr. O filed a baseless complaint with the Texas State Board of Veterinary Medical Examiners ("Board") against Dr. Costas. During this time, the Board was also investigating allegations brought in December 2008 and January 2009 by a citizen against Dr. O and Dr. Rundell.

5.10. In June 2009, the Board issued its findings which exonerated Dr. Costas,2 and, not surprisingly, found that Dr. O and Dr. Rundell violated the Veterinary Licensing Act, Ch. 801, the Texas Occupations Code, and various Board rules and regulations.3

5.11. Perhaps most tellingly, Dr. 0 filed the Board complaint against Dr. Costas on the same date she signed-off on the Board's findings against her. The retaliatory motive against Dr. Costas, from November 2008 through the date of his termination, and continuing thereafter, is plain
to see. The City's thinly veiled attempt to support the separation under false guises must be remedied.

[footnotes omitted]

The suit was randomly assigned to the 190th District Court, presided over by the Hon. Patricia Kerrigan. An answer will not be due for several weeks.

To read the original petition in its entirety, click on the hotlink below:

Fired BARC veterinarian files whistleblower suit against City: Gil Costas, DVM v. The City of Houston

Animal Law Litigation and Appellate Caselaw
Whistleblower Act Appeals
Recent Texas Supreme Court Decisions in Whistleblower Cases

TRAP 45 Sanctions for frivolous appeal not warranted, court of appeals says

While affirming sanctions order imposed on pro se litigant by the trial court, the 14th Court of Appeals, in an opinion by Justice Charles Seymore, declines to also impose sanctions for frivolous appeal. The opinion acknowledges a split among the courts of appeals as to the proper test for sanctions on appeal, and the factors to consider in evaluating wether a motion requesting sanctions under Tex. R. App. P. 45 should be granted.

Motions On Appeal

The following motions were taken with the case: (1) Appellees' Motion for Frivolous and Groundless Appeal; (2) Appellant's Motion to Expedite Mandate; and (3) Appellees' Motion To Dismiss and Motion for Sanctions. Appellant's Motion to Expedite Mandate is denied as moot.

For reasons outlined below, we overrule Appellees' Motion for Frivolous and Groundless Appeal and Motion To Dismiss, Motion for Sanctions and Repeated Notice. If we determine that an appeal is frivolous, we may award damages to the prevailing party. See Tex. R. App. P. 45.

Although imposition of sanctions is within our discretion, we may do so only in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.-Houston [14th Dist.] 2000, no pet.). The objective factors to be weighed include the following: (1) failure to present a complete record; (2) raising issues for the first time on appeal, even though preservation of error was required in the trial court; (3) failure to file a response to a request for appellate sanctions; and (4) filing an inadequate brief. Tate v. E.I. Dupont de Nemours & Co., 954 S.W.2d 872, 875 (Tex. App.-Houston [14th Dist.] 1997, no pet.).

There is a split of authority within the appellate courts regarding factors to be considered in determining the merits of a motion under Rule 45. Currently, this court requires the appeal to be both objectively frivolous and subjectively brought in bad faith or for the purpose of delay. See Azubuike v. Fiesta Mart, Inc., 970 S.W. 2d 60, 66 (Tex. App.-Houston [14th Dist.] 1998, no pet.). In determining the propriety of sanctions, this court views the record from the appellant's point of view at the time the appeal was filed, and we may not consider any matter that is not in the record, briefs, or other papers filed in this court. Id.

It is clear from this record that the parties are engaged in an emotionally charged dispute. The written communications, motions, and arguments presented by Cantu and Maher are vitriolic and pugilistic. However, after reviewing all relevant evidence in the appellate record, and considering Cantu's subjective point of view when this pro se appeal was filed, we conclude Cantu did not initiate these proceedings in bad faith or for the purpose of delay. Accordingly, Maher's Motion for Frivolous and Groundless Appeal and Motion To Dismiss and Motion for Sanctions are overruled.

Cantu v. Maher (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)(Seymore) (finding of discovery abuse, case groundless and brought in bad faith and for the purpose of harassment) (motion for Frivolous and Groundless Appeal and Motion To Dismiss and Motion for Sanctions are overruled) AFFIRMED: Opinion by Justice Charles Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-07-00584-CV Tony Cantu v. John E. Maher, Thomas Tollett, and Tommy's Seafood Steakhouse Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle

Errors to avoid when seeking mandamus relief in the court of appeals

Fourteenth Court of Appeals panel finds pro se petition for writ of mandamus defective and denies it. To its credit, the panel identifies the deficiencies in its per curiam opinion, thus reminding other would-be applicants ("relators") and their counsel - if any - of the formal requirements for mandamus relief.


Mandamus relief is rarely granted in any event, but appellate panels routinely dispose of such petitions without any explanation, by merely issuing one-line orders stating that the petition is denied.


On August 12, 2009, relator, David Smotherman, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In his petition, relator requests that we compel the Honorable James H. Shoemake, presiding judge of the 434th District Court of Fort Bend County, to rule on his pending motion for appointment of counsel and motion for photocopying.

Relator's petition does not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 20.1 (requiring affidavit of indigence to proceed in court of appeals without advance payment of costs); Tex. R. App. P. 52.3(a) (requiring complete list of all parties, and names and addresses of all counsel); Tex. R. App. P. 52.3(j) (requiring certification that every factual statement in petition is supported by competent evidence in appendix or record); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of every document that is material to his claim for relief).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.


In Re Smotherman (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(per curiam mandamus denial) (mandamus petition was defective, errors to avoid when filing a petition for writ of mandamus) MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00692-CV In Re David Smotherman Appeal from 434th Judicial District Court of Fort Bend County

Monday, August 31, 2009

Expert's confirmation that patient's fall caused injury deemed adequate to satisfy med-mal law

Expert doc was needed to certify blunt-force trauma and further validate coronor's ruling for civil liability purposes.

After med-mal reform, and a series of Supreme Court decision toughening the standards for pursuing health-care liability claims, including the threat of sanctions if deadlines are missed, or an inadequate or no expert report is served, immediate interlocutory appeals by healthcare providers/defendants have proliferated. This is one of them. Nothing can be taken for granted, and many PI attorneys are now reluctant to even bring such suits. Here, the reviewing court affirms the trial court's determination that the expert report was adequate. The defendant had contended otherwise and sought dismissal and attorney's fees. The facts alone, and the obvious injuries of the nursing home patient who was not properly handled and restrained, fell, and died, would not have sufficed to keep the case alive on the docket. An expert was needed to satisfy the statute.


This is an accelerated appeal by Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center (hereinafter “HHC") from the denial of a motion to dismiss in a healthcare liability suit. HHC raises three issues concerning the denial of the motion and the failure to award attorney's fees and costs.

We affirm.

This appeal arises from a suit for damages, based on allegations of negligence against two nursing facilities.[1] Jeanette Blanc was a non-ambulatory patient at a nursing home, when an employee allegedly dropped her while giving her a bath. This fall caused a fracture of Blanc's hip. After surgery for the broken hip, Blanc was moved to HHC's facility. Soon thereafter, an employee at HHC's facility loaded Blanc into a van for transport to a doctor's appointment. Because Blanc was not properly secured in the vehicle, she was thrown out of her wheelchair and hit the floor of the van, resulting in facial contusions, swelling, nose lacerations and abrasions, as well as swelling to both knees and shins. After treatment for these injuries, Blanc returned to HHC's facility. A short time later, Blanc died. According to the coroner, Blanc died from “[c]omplications of blunt force injury with left hip fracture".

Because this is a healthcare liability claim, it is governed by Chapter 74 of the Texas Civil Practice and Remedies Code, which requires the claimant to furnish an expert report within 120 days after suit is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Appellees attached an expert report to their original petition. This report was prepared by David P. Wright, M.D. The two healthcare defendants objected to the expert report on a number of grounds. The defendants moved to dismiss for failure to comply with Chapter 74. The parties reached a Rule 11 agreement that plaintiff would provide an amended report. After the amended expert report was filed, the defendants filed a second motion to dismiss for failure to comply with Chapter 74. The trial court denied this motion and HHC filed this appeal.

* * *

In Wright, the supreme court held that an expert report must express the causal relationship in terms of reasonable medical probability and must summarize the causal relationship between the facility's failure to meet the applicable standard of care and Blanc's injury. Id. at 53. In Wright, the court found the expert report lacked information linking the expert's conclusion to the alleged breach. Id. See also Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 410 (Tex. App.-Houston [14th Dist.] 2005, no pet.)(found no causal link between conclusory statements in expert report that failure to follow doctor orders regarding tube feeding, weighing of patient, and check of gastric tube position robbed plaintiff of quality of life and hastened loss of her legs).

Here, Dr. Wright did link the alleged breach (the failure to properly supervise and restrain Blanc in the vehicle) to the injury (the lacerations, contusions, neurological and cognitive insult contributing to her overall ill health and demise). Thus, the trial court could have determined the report did establish a causal relationship between the alleged breach of the applicable standard of care and the injury. As Dr. Wright's opinion explains, the fall from the wheelchair caused lacerations and contusions, but may have also causes cognitive and neurological complications that hastened her death. This is sufficient to establish a causal link between the breach of the standard of care and the injury.

Nexion Health at Humble Inc v. Whitley (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
HCLC denial of motion to dismiss affirmed, expert report adequate)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00052-CV Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center v. Carolyn Whitley;
Clifton Kelly; Diddie Blanc; Billie Ray Kelly; and Judy Williams, Representative of the Estate of Jeanette Blanc, Deceased
Appeal from 11th District Court of Harris County
Trial Court Judge:
Mark Davidson

Siblings can't sue under Wrongful Death Act


Court of Appeals declines to expand the scope of the wrongful death statute to include additional classes of beneficiaries and reiterates that the cause of action does not exist at common law. Therefore the statute controls. Alternative theories of recovery, including a bystander claim, are also rejected.

Godfrey v. BP Products North America (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(refinery explosion, siblings cannot recover under
wrongful death act, no recovery as bystanders either as they did not witness the calamity, negligent infliction of emotional distress generally not actionable, IIED cause of action)


Appellants Cannot Recover for Wrongful Death

Within their first issue, appellants contend the trial court erred when it granted appellee's motion for summary judgment on appellants' wrongful death claims. At the same time, appellants admit that, as siblings of Taylor, they are not covered by the Wrongful Death Act and argue for a good-faith extension of the law. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a) (Vernon 2008) (“An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.").

There was no common law cause of action for wrongful death in Texas. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990). Therefore, wrongful death causes of action owe their existence to statutes changing the common law rule. Id. Increasing the number of persons eligible to recover under the Wrongful Death Act is not the function of an intermediate court of appeals. Instead, the Wrongful Death Act reflects the public policy of Texas as determined by the Texas legislature and courts must read the legislature's words as enacted, not revise them as desired. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex. 2009) (Willet, J., concurring). “The wisdom or expediency of the law is the Legislature's prerogative, not ours." Id. (quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)). We overrule appellants' first issue to the extent appellants ask this court to extend the scope of the Wrongful Death Act to include siblings as beneficiaries.

AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Frost and Guzman
14-08-00857-CV Leah Godfrey and Cheri Merritt v. BP Products North America
Appeal from 212th District Court of Galveston County
Trial Court Judge:
Susan Elizabeth Criss