News & Insights
Case Updates from the First Court of Appeals – November 2023
HOUSTON BAR ASSOCIATION APPELLATE PRACTICE SECTION
November 15, 2023
Tite Water Energy, LLC v. Wild Willy’s Welding LLC, No. 01-22-00158-CV, 2023 WL 5615816 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, no pet. h.)
Panel consisted of Justices Hightower, Rivas-Molloy, and Farris. Opinion by Justice Rivas-Molloy.
This appeal contains an interesting harm analysis regarding allegedly superfluous jury instructions.
Colby Bigbey was injured in an explosion while working at a saltwater reclamation plant owned by Devon Energy Corporation (“Devon”). At the time of his injury, Tite Water Energy, LLC (“Tite Water”) and Wild Willy’s Welding, LLC (“Willy’s”) were conducting operations to pull oil from the bottom of a storage tanker. Bigbey sued Devon, Tite Water, and Willy’s.
Devon and Tite Water had entered into a Master Service and Supply Agreement (“MSSA”), governed by Oklahoma law, which contained a defense and indemnification clause. As Devon’s contractor, Tite Water had an obligation to defend and indemnify members of the “Company Group” against all claims for injuries to a member of the “Contractor Group.” There was no question that Bigbey was a member of the Contractor Group. So the relevant question was whether Willy’s was a member of the Company Group. The MSSA defined Company Group as, among other things, Devon’s “agents,” “contractors,” and “consultants.”
Initially, Willy’s argued that it was Devon’s agent, contractor, or consultant and thus was a member of the Company Group entitled to defense and indemnification. When Tite Water refused to defend and indemnify, Willy’s brought crossclaims against Tite Water.
The trial court bifurcated the crossclaims from Bigbey’s personal-injury claims. Ultimately, the trial court granted summary judgment on Bigbey’s claims against Willy’s and Bigbey settled his claims with the remaining defendants during trial.
Willy’s then pursued its crossclaims against Tite Water. Willy’s sought reimbursement for the costs it incurred in defending against Bigbey’s claims and pursuing the crossclaims. Those crossclaims were eventually tried to a jury and Willy’s prevailed.
On appeal, among other things, Tite Water argued that the trial court abused its discretion by submitting definitions for the commonly understood words “agent” and “consultant.” (By the time of appeal, Willy’s had conceded that it was not Devon’s contractor because it was actually a subcontractor.)
The jury charge defined an “agent” as “one who is authorized to act for or in place of another, a representative.” It defined a “consultant” as “someone who advises people on a particular subject.” The jury found that Willy’s was Devon’s agent and consultant.
The First Court began with the principle that a trial court’s decision to include or refuse instructions and definitions in the jury charge is reviewed for an abuse of discretion. Even if a trial court abuses its discretion, the appellate court must review the entire record to determine if the error was harmful.
The First Court held that, even assuming that the trial court abused its discretion by defining “agent” and “consultant” in the jury charge, it could not reverse because Tite Water failed to show harm.
Under Oklahoma law, courts typically look first to dictionary definitions and then consider a term’s usage in other statutes, court decisions, and similar authorities. The definitions of “agent” and “consultant” provided in the jury charge were consistent both with dictionary definitions and Oklahoma law. Indeed, Tite Water did not object to the substance of the definitions or offer alternative definitions.
Instead, Tite Water simply argued that it was improper to define these terms at all because the charge instructed the jury to interpret words in the MSSA in their ordinary and popular sense. According to Tite Water, the definitions prevented the jury from applying the ordinary and popular meaning of the words. But Tite Water was unable to show how the definitions prevented the jury from doing so. Thus, Tite Water did not demonstrate harm.
Peters v. Volkswagen Group of America, Inc., No. 01-21-00634-CV, 2023 WL 5436383 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023, no pet. h.)
Panel consisted of Justices Kelly, Goodman, and Guerra. Opinion by Justice Guerra.
This appeal is a useful reminder to obtain a ruling from the trial court or, at the very least, object to the trial court’s refusal to rule.
Folusho K. Peters sued Volkswagen Group of America, Inc. d/b/a Audi of America, Inc. (“Volkswagen”) and Sewell Corporation d/b/a Sewell Audi North Houston (“Sewell”) for personal injuries suffered when a rearview mirror detached from the windshield of her Audi vehicle and struck her in the face.
During the course of the trial court proceedings, Peters sought from Volkswagen documents related to the design, manufacture, and marketing of the Audi. Volkswagen resisted discovery on the basis that it did not have control of these documents. According to Volkswagen, it was simply an importer of Audi vehicles and other foreign corporations had control of the responsive documents.
Peters filed a motion to compel, but failed to get a ruling at the hearing. Instead, the trial court asked Peters to supplement the motion and explain the relationship between Volkswagen and its foreign counterparts. At a subsequent summary judgement hearing, the trial court confirmed that it had not ruled on the motion to compel.
Eventually, the trial court granted summary judgment against Peters. On appeal, Peters complained that the trial court erroneously granted summary judgment. Among other things, Peters argued that had she received the requested documents, she would have been able to file an adequate summary judgment response.
The First Court began with the principle that to preserve error on a discovery dispute, an appellant must obtain a ruling from the trial court on the discovery matter. This principle is consistent with Texas Rule of Appellate Procedure 33.1(a). The First Court held that Peters never secured a ruling on her motion to compel, and thus, had waived error.
The First Court also recited the principle that a failure to obtain a ruling on a motion to compel discovery prior to a ruling on a summary judgment motion waives any error pertaining to the discovery issue. Under this principle as well, Peters had failed to preserve her complaint regarding the discovery dispute for review.