East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Morales v. Dougherty and Mabe, dba Top Gun Trucking (Published Memo): Here's one for the personal injury practitioners.  Truck wreck case upholding the submission of a sudden emergency instruction and the admission of testimony about the plaintiff's insurance coverage.

Here's the crash scenario, with letters representing vehicles.

A    B    C    Hill    D

The plaintiff, A, was waiting to make a left turn on a rural highway.  B, and then C came up behind her.  D then topped the hill.  D couldn't stop in time, so he went off road on the right around C.  But D then lost control and veered back onto the road, into A.  C, another trucker, testified that, in his opinion, D did all that could be done and that A was dawdling.

That fact pattern supports a sudden emergency instruction for D.  Even without D having plead for such an instruction.  Sudden emergency is not an affirmative defense, so D could simply request the instruction during the charge conference.

The Tyler court holds that the plaintiff opened the door to testimony about her insurance coverage.  She asked for thousands of dollars for medical procedures.  She said that she had not gotten the procedures because she couldn't pay for them.  But she had insurance.  The trial court and the Tyler court say that the plaintiff's plea of poverty opened the door to her insurance coverage.

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City of Athens v. MacAvoy (Published): An Athens PD officer was sleeping on the job -- with a married woman.  The husband finds out, and files a complaint with the Chief of Police  This sets off a jurisdictional "Who's on First?" of police officer discipline.

The Chief placed the officer on indefinite suspension.  Texas Local Government Code Chapter 143 gives officers a right to appeal discipline actions to an independent examiner.  The officer appeals.  He says the suspension was improper because, under Texas Government Code Chapter 614, he should have been given a copy of the husband's complaint before he was suspended.  The 143 examiner agrees with the officer, and reverses the suspension.

The City of Athens appeals the examiner's decision by suing.  The City contends that the 143 examiner didn't have jurisdiction to apply 614.  The trial court held that it (the trial court) did not have jurisdiction because Chapter 143 makes the examiner's decision final, unless the examiner lacked jurisdiction.

The Tyler court says: 

1. Look into the City's allegations.  Maybe 614 is beyond a 143 examiner's authority to apply, maybe it isn't.  Either way, the City's pleadings raise the question.  The trial court jumped the gun by dismissing the case.  For now, the trial court has jurisdiction to consider the question.  After considering the matter, it may turn out that the The City is wrong, in which case the trial court will not have jurisdiction.  But the City may be right, in which case the trial court will have jurisdiction.  Case remanded so the trial court can figure it out.

2. Don't get sucked into another jurisidctional merry-go-round.  Let's say that the 143 examiner does have authority to apply 164. There are occasions when an examiner's application of a statute is so hare-brained that the application is outside of the examiner's authority.  "Don't go there", says the Tyler court (not in so many words, of course).  The City complains that, even if 614 applies, the Chief himself qualifies as a "complainant" and thus the officer was given the required pre-suspension complaint.  The examiner figured that the complaint that 614 is about is the husband's.  That's not exactly a hare-brained conclusion.  It may still be wrong, of course.  If the Tyler court were deciding the issue itself, it might side with the City.  But the point is that Chapter 143 gives examiners a wide degree of latitude in interpreting statutes within their jurisidiction to apply.  This interpretation is within that latitude.

So it come back to: Is the application of a provision in Chapter 614 within the jurisdiction of a Chapter 143 examiner?  On this front, as if getting into the middle of a marriage isn't bad enough, the officer has stepped into the middle of a feud between the Texas Legislature and the Supreme Court of Texas.

The City argues that the old version of 614 is limited to certain kinds of officers, and doesn't apply to this officer.  The officer counters, "So what?"  There's a new version of the statute and a slight change in the wording makes it look like he's now protected by 614.  The City responds: Yes, but when the Texas Legislature passed the new statute, they did not intend for the new statute to change the law spelled out by the old one.

And that, dear readers, is the fued discussed in the post entitled Texas Legislature/Supreme Court of Texas Showdown!

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In the Interest of JM, JJ, JJ & JJ (Published Memo): Parent's appeal of termination of parental rights as to four children is denied because, though the terminated parent filed a motion for new trial, the terminated parent did not file a required Tex. Fam. Code Ann. § 263.405(b) statement of issues for appeal.  It's an odd case to be published.  I guess publication is warranted as a word to the wise on two fronts. First, the Tyler court will enforce the statute. Second, the Tyler court will entertain arguments about the constitutionality of the statute, but only if you're prepared.  Constitutional challenges are big legal fish, so don't show up late with a Zebco.

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No high court opinions on Tyler cases.  In the order list is a denial of a motion to amended a petition for review as moot.  The case is Willich, a pro se will contest where a disinherited son challenges the Tyler court's affirmation of his mother's ability to leave everything to a grandson.  Apparently, the son is fighting this case from jail.  A search for "Willich" cases in the Tyler court turned up a man by the same name whose 18 year sentence for a DWI (there were prior DWIs and a felony burglary of a habitation) was affirmed in 2005.  Willich has been fighting that one pro se on direct appeal and via habeas, with the Court of Criminal Appeals rejecting his latest effort in April of 2008.  Docket sheet here.

OK, no groundbreaking legal stuff here.  Just another example of what goes on in our courts of appeal.

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Parrish v. ETMC Athens (Published Memo): The trial court was within its discretion to deny an eve-of-trial motion to reopen discovery by a med-mal plaintiff.  The plaintiff did not want any more discovery from the defendant, but instead was asking for more time to conduct discovery on surgeries that she contends were related to her injuries.  But that was information under her control that, pursuant to her duty to supplement discovery responses, she should have provided to the defendant.  From the opinion, this sounds more like a back-door continuance motion than a discovery case.  The trial resulted in a defense verdict.

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Nixon v. State (Unpublished Memo): Stepmother beat a toddler. Did not appeal on grounds that she didn’t do it. Instead appealed on grounds that the beating didn’t inflict serious bodily injury. Not much sympathy for that argument.

Thankfully, the child had no disfigurement or permanent loss of organ or limb function.  Of course, such injuries would have qualified as serious.

So, in this case, the remaining way for the State to prove a "serious" injury was to show that the beating resulted in “a substantial risk of death.” Tex. Penal Code § 1.07(a)(46).  That risk is judged based on the injury as inflicted, i.e., on what would have happened if the victim didn’t get medical care. A doctor testified that the child’s breathing was suppressed by bleeding on the brain.  The doctor also testified that the child could have died but for five days of hospital treatment.

Just a guess: In the guilt/innocence phase, the stepmother tried to introduce a journal she had kept concerning the child, in hopes of showing that she was really a diligent and loving parent. The State objected on hearsay grounds. The trial judge sustained. The stepmother did not make an offer of proof. Consequently the issue was waived on appeal. I suspect Stepmother’s appellate counsel raised the point anyway, in the vain hope the journal would his client some sympathy.

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Green v. State (Unpublished Memo): In aggravated sexual assault of a child case, the defendant put on evidence that he was a virtuous family man and would never do and had never done anything of the sort. That opened the door for his step-grandchildren to testify that he did something of the sort to them. The defendant was an official of the Athens LDS stake. He was convicted of repeatedly molesting a child in his congregation when the child was 7 to 10 years old.

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Spitzer v. Berry (Published): The doctor complained to the trial court that, though a report was filed on time, it didn’t give him fair notice of the malpractice case against him. The trial court denied the doctor’s motion to dismiss. The court of appeals affirmed that denial.  The report complied with the statute.

Here’s the gist of the expert report of a board certified general and thoracic surgeon: Tommy Berry had a colonostomy reversal and hernia repair at ETMC Athens. Because of his pre-existing respiratory problems (chronic obstructive pulmonary disease) Berry needed steroids. But steroids can impair the body’s immune system. Berry needed his immune system to be going full-blast to ward off any post-operative infections. Not surprisingly, infections are a particular concern following colon surgery.  Berry was put on an antibiotic regimen, but his doctor then allowed him to go off of antibiotics for four days. That’s all it took for an infection to set in. By the time antibiotics were resumed, it was too late. The infection overwhelmed Mr. Berry -- he gave it his all until, like John Henry, his heart gave out.

Now for a direct quote from the report: "[the] hiatus in antibiotic therapy allowed development and progression of the infections that led to irreversible sepsis and death. Had his antibiotic therapy been maintained . . . , the lethal infections would not have developed and his death secondary to overwhelming sepsis not occurred."

Having read that, can you figure out the alleged malpractice?

So could the Tyler court.

Update: Dr. Spitzer filed a petition for review in the Texas Supreme Court on April 7, 2008.

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In re Bane Investments (Published):   Mandamus motion denied as untimely.  The trial court disqualified Bane's attorney more than a month before an MSJ hearing.   Bane wanted the Tyler court to reinstate that attorney so that he could represent Bane at the MSJ hearing.  Relief was denied because Bane didn't file the mandamus petition until nine days after the MSJ hearing.

The disqualified attorney was Judge Parsons, who had presided over the case for four years.

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