tammy-dewolf-individually-and-as-personal-representative-of-the-estate-of ( 2014 )

Affirmed and Opinion filed November 18, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00778-CV
TAMMY DEWOLF, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF TERRY SEAN DEWOLF AND
AS NEXT FRIEND OF CHRISTINA DEWOLF, AMANDA DEWOLF, AND
KAITLYN DEWOLF, Appellant
V.
RICHIE KOHLER, OCEANIC VENTURES, INC., M/V JOHN JACK, A&E
TELEVISION NETWORKS, ITI HOLDINGS, INC., AND LAMARTEK,
INC. D/B/A DIVE RITE, Appellees
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2010-46416
OPINION
After the jury failed to find that anyone caused her husband’s death, plaintiff
Tammy DeWolf brought this appeal, alleging a variety of errors in the trial court’s
interlocutory rulings and its conduct of the trial. On this record, we conclude that
the trial court did not reversibly err in
 dismissing the claims against a vessel for lack of subject-matter jurisdiction;
 dismissing a nonresident television network for lack of personal jurisdiction;
 granting a dive-training company summary judgment on grounds that were
not challenged on appeal;
 granting a scuba-equipment manufacturer summary judgment on limitations
grounds where the manufacturer established, as a matter of law, that the
plaintiff was not diligent in investigating and pursuing her potential claim;
 refusing to instruct the jury on the elements of a voluntary-undertaking
claim;
 refusing to instruct the jury to disregard certain testimony;
 including in the charge a question concerning allocation of responsibility;
 making an ambiguous statement that has not been shown to be a comment
on the weight of the evidence and was not the subject of an objection; or
 admitting testimony that has not been identified in this appeal.
We also conclude that the plaintiff’s appellate complaints of improper jury
argument were not preserved for our review. Finally, we do not address her
appellate arguments about the legal effect of a release; because no one was found
to be at fault, a release of liability does not affect the outcome of the case. We
accordingly affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the summer of 2008, Terry Sean DeWolf was one of a group of people
scuba diving at the shipwreck of the Andrea Doria, which rests on the ocean floor
2
more than fifty miles from the shore of Nantucket, Massachusetts. He successfully
completed the first day of diving. On the morning of July 30, 2008, the second day
of the trip, Terry was seen entering the water, but he did not resurface when
expected. After hours of searching, his body was located on, and recovered from,
the ocean floor. In a draft autopsy report dated August 1, 2008, the local medical
examiner tentatively identified the cause of death as drowning. The statement was
qualified with the notation “PFS” for “pending further study.” After tissue samples
of Terry’s heart were reviewed, the cause of death was revised to reflect that Terry
died of natural causes, namely, myocarditis.
In July 2010, Terry’s wife Tammy filed suit in a Harris County district court
on behalf of herself, Terry’s estate, and Terry’s three children, each of whom
asserted claims arising from Terry’s death. She amended her petition several times
to assert claims against the following defendants, among others:
 M/V John Jack, the boat from which Terry was conducting his dive;
 Richie Kohler, the individual who chartered the John Jack on behalf of the
participants in the dive expedition;
 A&E Television Networks (“A&E”), a non-resident television network that
carried the History Channel, on which Terry had watched a program called
Deep Sea Detectives on which Kohler appeared;
 ITI Holdings, Inc. (“ITI”), a dive-training company from which Kohler
obtained credentials as a scuba-diving instructor;1 and
 Lamartek, a scuba-equipment manufacturer that does business under the
1
Tammy variously refers to the company as ITI Holdings, Inc., Scuba Diving
International Group, SDI, or SDI/TDI.
3
name “Dive Rite” or “DiveRite”2 and manufactured Terry’s rebreather.3
For the reasons set forth below, Tammy did not prevail in her claims against
any of these defendants.
A. M/V John Jack
The M/V John Jack did not answer the suit, and when Tammy moved for a
default judgment, the trial court dismissed the vessel sua sponte for lack of
jurisdiction. The trial court denied Tammy’s motion for reconsideration and her
motion to sever the claims against the vessel to allow an earlier appeal.
B. A&E Television Networks
A&E filed a special appearance contesting the trial court’s exercise of
personal jurisdiction. The trial court granted the special appearance, and Tammy
did not pursue an interlocutory appeal of that ruling. After the deadline to file an
interlocutory appeal had passed, Tammy filed a motion for reconsideration, which
the trial court denied. Shortly before trial two years later, Tammy again moved
unsuccessfully for reconsideration.
C. ITI Holdings, Inc.
ITI filed a combined motion for traditional and no-evidence summary
judgment on Tammy’s claims under the Texas Deceptive Trade Practices–
Consumer Protection Act (“DTPA”) and the federal Death on the High Seas Act.4
2
Both spellings are used in Tammy’s pleadings.
3
Additional defendants named in Tammy’s earlier pleadings were dropped when she
amended her pleadings. Oceanic Ventures, Inc., a Houston dealer that sells Lamartek’s scuba
equipment, also was named in Tammy’s live pleadings, but is not mentioned in the jury charge
or the judgment, and Tammy represents that she settled her claims against this defendant and an
individual employed by it.
4
See TEX. BUS. & COM. CODE ANN. § 17.41–.63 (West 2011 & Supp. 2014) (DTPA); 46
U.S.C. §§ 30301–30308 (2013) (Death on the High Seas Act). Tammy states in her brief that the
4
The trial court granted the motion without stating the grounds.5
D. Lamartek, Inc.
Lamartek filed a combined motion for traditional and no-evidence summary
judgment in which it addressed Tammy’s claim under the Death on the High Seas
Act and many of her state-law claims. In her response, Tammy discussed her
DTPA claim as if she had expressly asserted such a claim against Lamartek.
Lamartek stated in its summary-judgment reply that Tammy had not alleged a
DTPA cause of action against it, but it nevertheless addressed the claim.
The trial court initially denied the summary-judgment motion. Lamartek
filed two motions for reconsideration—first on the ground of limitations, and then
on both limitations and causation grounds, expressly incorporating all of the
arguments raised and evidence produced on these topics in its summary-judgment
motion, its summary-judgment reply, its first motion for reconsideration, and its
reply to Tammy’s response to that motion. The trial court then signed an order
granting the motion for reconsideration on limitations grounds.
E. Kohler
The case proceeded to a jury trial against Kohler. The jury was asked if “a
wrongful act, neglect or default of a vessel or a person proximately caused”
Terry’s death, and jurors unanimously answered, “No.” In answer to a separate
question, the jury also found that Terry “expressly assumed the risk of injury or
trial court dismissed all of her claims against ITI, Lamartek, and Kohler except for these two
causes of action, and that no issues regarding the other claims are before us.
5
After ITI filed its summary-judgment motion but before the trial court signed the order
granting it, ITI filed a motion for reconsideration in which it stated, “The Court apparently
denied [the summary-judgment] motion on July 16, 2012 but has not issued a written order
denying summary judgment.” The basis for this statement is not known, and in any event, ITI
incorporated into its motion for reconsideration all of the arguments made in, and evidence
attached to, its summary-judgment motion and reply.
5
death” in diving at the wreck of the Andrea Doria. The trial court incorporated
both findings into the final judgment.
Tammy appeals the judgment as to each of these five defendants. She did
not include a statement of issues in her brief, but instead summarized her argument
under eight headings with multiple subheadings. We first address her arguments
directed to the jurisdictional rulings, then her arguments concerning the summary
judgments, and finally, her arguments directed to events that occurred during the
jury trial.
II. JURISDICTIONAL RULINGS
A. The trial court did not err in dismissing the claims against the M/V
John Jack.
Tammy asserts that the trial court erred in dismissing the M/V John Jack
because a court can acquire personal jurisdiction over a vessel even if it is not in
Texas waters; however, the vessel did not file a special appearance contesting
personal jurisdiction. See TEX. R. CIV. P. 120a. Because the trial court acted sua
sponte, it instead appears that it dismissed the vessel for lack of subject-matter
jurisdiction.
A court is obliged to determine whether it has subject-matter jurisdiction and
must consider the question sua sponte even if it is not challenged by a party. See
Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.
2004), superseded by statute on other grounds, Act of May 25, 2005, 79th Leg.,
R.S., ch. 1150, § 1, 2005 TEX. GEN. LAWS 3783, 3783 (current version at TEX.
GOV’T CODE ANN. § 311.034 (West 2013)), as recognized in Prairie View A&M
Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012); Gantt v. Gantt, 208 S.W.3d 27,
30 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). This principal is reflected
in the order dismissing the vessel. There, the trial court wrote, “this Court lacks
6
jurisdiction over said Defendant and over claims related to said Defendant. If it
becomes apparent to a Court that it has no authority under the law to adjudicate the
issues presented, it becomes its duty to dismiss it.”
Although Tammy does not specifically address subject-matter jurisdiction in
her brief, we note that the trial court’s ruling was correct. It is well-established that
“[a]n in rem suit against a vessel is . . . distinctively an admiralty proceeding, and
is hence within the exclusive province of the federal courts.” Am. Dredging Co. v.
Miller, 510 U.S. 443, 446–47, 114 S. Ct. 981, 985, 127 L. Ed. 2d 285 (1994)
(citing The Moses Taylor, 71 U.S. 411, 4 Wall. 411, 431, 18 L. Ed. 397 (1867)); cf.
Stier v. Reading & Bates Corp., 992 S.W.2d 423, 428–29 (Tex. 1999)
(distinguishing claims asserted in rem from those asserted in personam, and noting
that “state and federal courts have concurrent jurisdiction over in personam
maritime causes of action”); Exxon Corp. v. Choo, 881 S.W.2d 301, 304 (Tex.
1994) (same). Thus, if the trial court had not dismissed the case against the vessel,
we would have been obliged to do so. We accordingly overrule this issue.
B. The trial court did not err in granting A&E’s special appearance.
Unlike the M/V John Jack, A&E did file a special appearance contesting the
trial court’s exercise of personal jurisdiction. Before addressing the merits of the
trial court’s order granting A&E’s special appearance, we must address A&E’s
argument that we lack jurisdiction over the appeal of that ruling.
1. Tammy did not waive appellate review by failing to pursue an
interlocutory appeal.
Normally, an appeal will lie only from a final judgment. See LTTS Charter
School, Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 76 (Tex. 2011). By statute,
however, a litigant “may appeal from an interlocutory order of a district
court . . . that . . . grants or denies the special appearance of a defendant . . . .”
7
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (West 2008 & Supp. 2014).
A&E argues that if Tammy wished to appeal the order granting A&E’s special
appearance, she was required to do so through a timely interlocutory appeal, and
that this court lacks jurisdiction to consider the issue as part of Tammy’s appeal
from the final judgment.
A&E correctly points out that there is a split of authority among the lower
courts on the issue. See, e.g., GJP, Inc. v. Ghosh, 251 S.W.3d 854, 866–67 (Tex.
App.—Austin 2008, no pet.) (holding that appellate jurisdiction to review special-
appearance rulings is not limited solely to interlocutory appeals); Canyon (Austl.)
Pty., Ltd. v. Maersk Contractors, Pty., Ltd., No. 08-00-00248-CV, 2002 WL
997738, at *4 (Tex. App.—El Paso May 16, 2002, pet. denied) (not designated for
publication) (concluding that an interlocutory appeal was not “mandatory” and the
trial court’s order granting a special appearance could be reviewed on appeal from
the final judgment); see also Hernandez v. Ebrom, 289 S.W.3d 316, 327 (Tex.
2009) (Jefferson, C.J., dissenting) (pointing out that these cases reflect the
“prevailing view . . . that an order granting or denying a special appearance may be
challenged after final judgment”). But see Matis v. Golden, 228 S.W.3d 301, 305
(Tex. App.—Waco 2007, no pet.) (concluding that a challenge to the trial court’s
order denying the defendant’s special appearance, raised for the first time on
appeal from final judgment, was untimely).
Applying the reasoning employed by the Texas Supreme Court in
Hernandez v. Ebrom in construing a different subsection of the same statute, we
conclude that under the facts of this case, Tammy has not waived appellate review
of the special-appearance order. In Hernandez, a defendant physician in a health-
care-liability case argued that the plaintiff’s expert report was deficient and moved
to dismiss the plaintiff’s suit and recover attorney’s fees. Hernandez, 289 S.W.3d
8
at 317. The trial court denied the motion, and the defendant was entitled to bring
an immediate appeal of the interlocutory order, but did not do so. Id. at 317–18
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9)). The plaintiff argued
that because the defendant did not seek review until after a final judgment was
rendered dismissing the case with prejudice, the defendant waived the right to
challenge the trial court’s order. Id. at 318. The defendant responded “that
because the plain language of the statute says an interlocutory appeal ‘may’ be
taken from an order denying a challenge to an expert report, an interlocutory
appeal is permitted but not mandated.” Id. (citing TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)). The Texas Supreme Court agreed with the defendant,
explaining that “[t]he statutes authorizing the defendant’s objection and appeal do
not impose consequences if an interlocutory appeal is not pursued” and “[t]he
statute providing for interlocutory appeals states only that ‘[a] person may appeal
from’ certain specified interlocutory orders.” Id. at 317, 319.6
The same is true here. Texas Rule of Civil Procedure 120a authorizes any
party to file a special appearance to object to the trial court’s exercise of
jurisdiction over a defendant’s person or property, and Texas Civil Practice and
Remedies Code section 51.014(a)(7) provides that a person “may” appeal the
interlocutory order granting or denying the special appearance. Neither provision
imposes any penalty for the failure to pursue an interlocutory appeal. We therefore
conclude that Tammy did not waive her complaint regarding the special-
appearance ruling by failing to pursue an interlocutory appeal, and Tammy’s
timely appeal from the final judgment gives us appellate jurisdiction to consider
the merits of that complaint.
6
Although the court also noted that “[a]ppeals of some interlocutory orders become moot
because the orders have been rendered moot by subsequent orders,” id. at 319, the trial court’s
order granting A&E’s special appearance is not moot, nor does anyone argue to the contrary.
9
2. The trial court lacked personal jurisdiction over A&E.
The Texas Supreme Court has interpreted the broad language of the Texas
long-arm statute to extend Texas courts’ exercise of personal jurisdiction “‘as far
as the federal constitutional requirements of due process will permit.’” BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (quoting U–
Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977)). Those
requirements are fulfilled if the defendant has “certain minimum contacts with [the
forum state] such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)). Minimum contacts
are sufficient to support the exercise of personal jurisdiction if they show that the
nonresident defendant has purposefully availed itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its
laws. See id. at 319, 66 S. Ct. at 160; Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 784 (Tex. 2005).
Personal jurisdiction may be “general” or “specific.” Zinc Nacional, S.A. v.
Bouche Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010). A trial court properly
may exercise general jurisdiction over a defendant whose contacts with the forum
state have been continuous and systematic. Moki Mac River Expeditions v. Drugg,
221 S.W.3d 569, 575 (Tex. 2007); BMC Software, 83 S.W.3d at 796. On the other
hand, when there is a substantial connection between the defendant’s purposeful
contacts with Texas and the operative facts of the litigation, a trial court properly
may exercise specific jurisdiction over the defendant even if the defendant has not
had continuous, systematic contact with the state. See Moki Mac, 221 S.W.3d at
585.
10
To defeat the trial court’s exercise of personal jurisdiction, the nonresident
defendant must negate all jurisdictional bases alleged. BMC Software, 83 S.W.3d
at 793; Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 772 (Tex. 1995).
Thus, the plaintiff has the initial burden of pleading sufficient facts to bring the
nonresident defendant within the provisions of the Texas long-arm statute. BMC
Software, 83 S.W.3d at 793; Brocail v. Anderson, 132 S.W.3d 552, 556 (Tex.
App.—Houston [14th Dist.] 2004, pet. denied). If the plaintiff fails to do so, then
proof of the defendant’s nonresidency is sufficient to negate personal jurisdiction.
Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658–59 (Tex. 2010). If the
plaintiff does allege sufficient jurisdictional facts, then the defendant may defeat
jurisdiction in several ways. The defendant may introduce evidence contradicting
the plaintiff’s factual allegations,7 or show that the defendant’s contacts with the
forum state “fall short of purposeful availment,”8 or demonstrate that “traditional
notions of fair play and substantial justice are offended by the exercise of
jurisdiction.”9 If specific jurisdiction is at issue, then the defendant also may show
that the plaintiff’s claims do not arise from the defendant’s contacts with Texas.10
Whether a trial court has personal jurisdiction over a defendant is a question
of law we review de novo. Moki Mac, 221 S.W.3d at 574; BMC Software, 83
S.W.3d at 794. When, as here, the trial court issues findings of fact and
conclusions of law in connection with its special-appearance ruling, the defendant
may challenge the trial court’s factual findings for legal and factual sufficiency.
7
See Parker v. Robert Ryan Realtors, Inc., No. 14-10-00325-CV, 2010 WL 4226550, at
*3 (Tex. App.—Houston [14th Dist.] Oct. 26, 2010, no pet.) (mem. op.) (“[B]oth parties can
present evidence either proving or disproving the allegations.” (citing Kelly, 301 S.W.3d at
659)).
8
Kelly, 301 S.W.3d at 659.
9
Id.
10
Id.
11
BMC Software, 83 S.W.3d at 794.
Tammy’s only jurisdictional allegation about A&E is that it is a nonresident
“television network which broadcasts into the [S]tate of Texas.” A&E challenged
this allegation in its special appearance and offered evidence about the
insufficiency of its contacts with Texas. In response, Tammy offered only her own
affidavit that (a) she and Terry “first learned of Richie Kohler” from watching
A&E’s show Deep Sea Detective at their home in Houston; (b) Terry would not
have heard of Kohler if Kohler had not been on the show; and (c) based on the
show, she thought Kohler was highly qualified.
Based on the evidence, the trial court made factual findings that included the
following:
 A&E is not a resident of Texas;
 It is a general partnership organized under the laws of Delaware and having
its principal office in New York;
 It does not have offices, employees, equipment, software, or a registered
agent in Texas;
 It has no physical presence in Texas;
 It does not host or offer scuba-diving trips or manage scuba operations;
 It was unaware of, and unconnected with, the scuba-diving trip on which
Terry died;
 A&E has never engaged in contact with Terry or Tammy DeWolf;
 It did not introduce Kohler and Terry DeWolf or facilitate a relationship
between them, and it has no involvement in or knowledge about their
association;
12
 It does not direct its television-network signals into Texas, but uplinks its
signals to satellites and authorizes third-party distributors to distribute those
signals to cable-television subscribers throughout the United States.
On appeal, Tammy does not challenge or even mention any of the trial court’s
factual findings. Instead, she briefly discusses two cases—one Texas case
concerning specific jurisdiction, and one federal case dealing with general
jurisdiction. Neither case is binding on this court, and both cases are
distinguishable.
Citing a case dealing with specific jurisdiction, Tammy asserts that the
Thirteenth Court of Appeals “determined that broadcasting in Texas established
minimum contacts.” In support of this statement, she provides a lengthy quote
from TV Azteca v. de los Angeles Trevino Ruiz, No. 13-12-00536-CV, 2014 WL
346031 (Tex. App.—Corpus Christi Jan. 30, 2014, pet. filed) (mem. op.). We need
not determine whether we would reach a similar result if presented with claims and
facts such as those presented in TV Azteca, because that case bears little
resemblance to the one before us. TV Azteca is a defamation case, and the
authoring court expressly relied on the legal principle that the tort “‘is generally
held to occur wherever the offending material is circulated.’” Id., 2014 WL
346031, at *4 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104
S. Ct. 1473, 1479, 79 L. Ed. 2d 790 (1983)). That legal principle does not apply to
this wrongful-death case. Indeed, Tammy did not even allege that A&E committed
a tort in Texas. Moreover, the trial court found—and Tammy does not dispute—
that A&E does not direct its television-network signals into Texas. Additionally,
the trial court correctly concluded that none of Tammy’s causes of action asserted
against A&E arise from or relate to any of A&E’s activities purposefully directed
to this forum.
13
In what appears to be an alternative argument, Tammy asserts that “because
plaintiff’s action arises under federal admiralty law, [she] need not prove minimum
contacts with the [S]tate of Texas, but only with the United States as a whole.”
Although this assertion appears to be directed to specific jurisdiction, she relies
exclusively on System Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY, 242
F.3d 322 (5th Cir. 2001)—a case dealing with general jurisdiction. There, the
authoring court wrote,
This court has held that Federal Rule of Civil Procedure 4(k)(2)
allows personal jurisdiction over foreign defendants for claims arising
under Federal law when the defendant has sufficient contacts with the
nation as a whole, despite lacking sufficient contacts to satisfy the due
process concerns of the long arm statute of a particular state.
Id. at 324 n.5. Federal Rule of Civil Procedure 4(k)(2)—which, tellingly, is
entitled “Federal Claim Outside State-Court Jurisdiction”—provides that a
defendant that “is not subject to jurisdiction in any state’s courts of general
jurisdiction” can be subject to a federal district court’s personal jurisdiction if the
claim arises under federal law.11 Thus, disregarding the undisputed fact that A&E
is not a foreign defendant, and setting aside the problem that by their terms, federal
rules of civil procedure apply in federal district courts and state rules of civil
procedure apply in state district courts,12 we still would be left with the
insurmountable hurdle that personal jurisdiction in a Texas district court and
personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2) are, by
definition, mutually exclusive. To argue that the state court erred in concluding
that it lacked personal jurisdiction is to concede that the federal rule does not
11
Emphasis added.
12
Compare FED. R. CIV. P. 1 (“These rules govern the procedure in all civil actions and
proceedings in the United States district courts . . . .”) with TEX. R. CIV. P. 2 (“These rules shall
govern the procedure in the justice, county, and district courts of the State of Texas in all actions
of a civil nature . . . .”).
14
apply.
In sum, we conclude that the trial court did not err in granting A&E’s special
appearance, and we overrule this issue.
III. SUMMARY JUDGMENTS
ITI and Lamartek each filed a combined motion for both no-evidence and
traditional summary judgment. The standards of review for each are well
established.
In a no-evidence motion for summary judgment, the movant represents that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact as to the
elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006). We review the trial court’s grant of summary judgment de novo.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam) (citing Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d
184, 192 (Tex. 2007)). We sustain a no-evidence summary judgment when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital
fact. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
A movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
15
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). We consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc.,
206 S.W.3d at 582. On appeal, the movant for traditional summary judgment still
bears the burden of showing that there is no genuine issue of material fact and that
it is entitled to judgment as a matter of law. See Rhône-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999).
A. The trial court did not err in granting ITI’s summary-judgment motion.
1. Death on the High Seas Act
If a party moves for summary judgment on multiple grounds and the trial
court does not specify the grounds on which it granted the motion, we will uphold
the ruling unless the appellant negates every ground on which the judgment could
have been granted. See Wohlstein v. Aliezer, 321 S.W.3d 765, 772 (Tex. App.—
Houston [14th Dist.] 2010, no pet.); Marsh v. Livington, No. 14-09-00011-CV,
2010 WL 1609215, at *3 (Tex. App.—Houston [14th Dist.] Apr. 22, 2010, pet.
denied) (mem. op.). Regarding Tammy’s claim under the Death on the High Seas
Act, ITI sought no-evidence summary judgment on the ground that there was no
evidence of causation. It sought traditional summary judgment on this claim on
the grounds that it owed no duty to Terry and did not cause his death.
In her appellate brief, Tammy does not challenge the summary judgment on
16
this claim on any grounds.13 We accordingly overrule this issue and affirm the
summary judgment in ITI’s favor as to this claim. See Wohlstein, 321 S.W.3d at
772.
2. DTPA
Regarding Tammy’s DTPA claim, ITI moved for no-evidence summary
judgment on the grounds that there was no evidence that (a) the DeWolfs sought to
acquire goods or services from ITI; (b) ITI committed any false, misleading, or
deceptive act or practice; (c) Terry DeWolf relied on any false, misleading, or
deceptive actions by ITI; and (d) ITI made any express or implied warranties
applicable to the dive trip that Terry DeWolf purchased from Kohler. ITI moved
for traditional summary judgment on the DTPA claim on the grounds that (a) the
claim is time-barred, (b) ITI did not engage in an act or practice that was the
producing cause of Terry’s death, and (c) no implied warranty from ITI applies to
the claims against it.
In her appellate brief, Tammy discusses the standard of review applicable to
a traditional motion for summary judgment, but does not mention that ITI also
sought summary judgment on no-evidence grounds. She then challenges the
summary judgment on her DTPA claim on only two grounds.14 First, she argues
13
In her appellate reply brief, Tammy argues for the first time that the summary
judgment in ITI’s favor must be reversed because some evidence was presented at trial that ITI
contributed to Terry’s death; however, we are not required to consider issues raised for the first
time in a reply brief. Salas v. LNV Corp., 409 S.W.3d 209, 219 n.6 (Tex. App.—Houston [14th
Dist.] 2013, no pet.); see also TEX. R. CIV. P. 166a(i) (“The court must grant the motion [for no-
evidence summary judgment] unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.”) (emphasis added); Young v. Leach, No. 14-03-00071-
CV, 2004 WL 1925967, at *5 (Tex. App.—Houston [14th Dist.] Aug. 31, 2004, pet. denied)
(mem. op.) (where appellant challenged the trial court’s grant of no-evidence summary judgment
as to one party’s claim, appellate court refused to consider evidence presented on that issue in the
subsequent trial on another party’s claims, explaining that the evidence was not before the trial
court when it ruled on the summary-judgment motion).
14
She additionally argues in her appellate reply brief that Terry was the intended
17
that Kohler would not have been able to charter a boat if ITI had not fraudulently
issued his credentials qualifying him as an instructor. Because Tammy did not
raise this argument and offer evidence supporting it in response to ITI’s summary-
judgment motion, we cannot reverse on this basis. See TEX. R. CIV. P. 166a(c), (i).
Second, she argues that the Death on the High Seas Act does not preempt her claim
under the Texas DTPA. Preemption, however, was not one of the grounds on
which ITI sought summary judgment.
Because Tammy does not challenge all of the independent grounds on which
summary judgment on this claim may have been granted, we overrule this issue
and affirm the summary judgment in ITI’s favor on this claim. See Navarro v.
Grant Thornton, LLP, 316 S.W.3d 715, 719–20 (Tex. App.—Houston [14th Dist.]
2010, no pet.).
B. The trial court did not err in granting Lamartek’s motion for summary
judgment on limitations grounds.
After initially denying Lamartek’s summary-judgment motion, the trial court
granted its motion for reconsideration and granted summary judgment on
limitations grounds. A defendant that moves for summary judgment on the
affirmative defense of limitations has the burden to conclusively establish that
defense. See Rhône-Poulenc, Inc., 997 S.W.2d at 223. The defendant also “must
negate the discovery rule, if it applies and has been pleaded or otherwise raised, by
proving as a matter of law that there is no genuine issue of material fact about
when the plaintiff discovered, or in the exercise of reasonable diligence should
have discovered the nature of its injury.” KPMG Peat Marwick v. Harrison Cnty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999) (footnotes omitted).
beneficiary of the training services that ITI rendered to Kohler and that Kohler testified at trial
that a diver’s certification cards are important to a dive-boat captain. But as previously
explained, we do not consider grounds for reversal raised for the first time in an appellant’s reply
brief.
18
A claim under the Death on the High Seas Act is subject to a three-year
limitations period,15 and a DTPA claim is subject to a two-year limitations
period.16 Although Tammy sued other defendants just before the second
anniversary of Terry’s death, she did not amend her petition to assert claims
against Lamartek until three years and eight months after his death.17 Thus, unless
her claim against Lamartek under the Death on the High Seas Act accrued on or
after March 29, 2009, the claim is time-barred. Her claim under the DTPA is time-
barred unless it accrued on or after March 29, 2010. The parties’ limitations
arguments therefore focus on the date on which Tammy’s claims against Lamartek
accrued.
1. Death on the High Seas Act
A cause of action under the Death on the High Seas Act generally accrues on
the date of death. See, e.g., Phillips v. Heine, 984 F.2d 489, 490–91 (D.C. Cir.
1993) (holding that if the date of death is not disputed, then “the cause of action
accrued, and the statute of limitations began to run, on that date”); Hassanati v.
Int’l Lease Fin. Corp., No. CV 11-02251 MMM (MANx), 2014 WL 5032354, at
*5 (C.D. Cal. Feb. 18, 2014) (“DOHSA claims must be brought within three years
of a decedent’s death.”); Moyer v. Rederi, 645 F. Supp. 620, 627 (S.D. Fla. 1986)
(“[A]uthority is clear that a cause of action under DOHSA accrues at the time and
place where an allegedly wrongful act or omission ‘was consummated’ in an actual
15
See 46 U.S.C. § 30106 (2013).
16
TEX. BUS. & COM. CODE ANN. § 17.565.
17
Filing suit against one group of defendants does not toll limitations against a different,
unrelated defendant that is later added to the suit through an amended petition. See Alexander v.
Turtur & Assocs., Inc., 146 S.W.3d 113, 121 (Tex. 2004); Cooke v. Maxam Tool & Supply, Inc.,
854 S.W.2d 136, 140 (Tex. App.—Houston [14th Dist.] 1993, writ denied); see also Leeds v.
Cooley, 702 S.W.2d 213, 215 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) (“The
statute of limitations is tolled at the time a party defendant is brought into the suit and not when
an original pleading is filed.”).
19
injury . . . .” (quoting Chute v. United States, 466 F. Supp. 61, 64 (D. Mass.
1978))); see also Reading Co. v. Koons, 271 U.S. 58, 64, 46 S. Ct. 405, 407, 70 L.
Ed. 835 (1926) (construing the analogous FELA statute of limitations, and holding
that the limitations period runs from “the definitely ascertained time of death”).
Neither we nor the parties have identified authority specifically holding that the
discovery rule does or does not apply to delay accrual of a claim under the Death
on the High Seas Act where, as Tammy maintains, the plaintiff knew the date of
death but not its cause.
In arguing that the discovery rule does not apply, Lamartek relies heavily on
Texas Civil Practice and Remedies Code section 16.003(b) and cases construing it.
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(b) (West 2002 & Supp. 2014)
(“A person must bring suit not later than two years after the day the cause of action
accrues in an action for injury resulting in death. The cause of action accrues on
the death of the injured person.”). For two reasons, Lamartek’s reliance on this
statute and the cases construing it do not support its limitations argument. First,
claims under the Death on the High Seas Act are governed by the federal statute of
limitations for maritime torts, not by section 16.003(b) or the cases construing the
state statute. See Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1547–49 (11th Cir.
1994); Anderson v. Diamond M-Odeco, Inc., 912 S.W.2d 371, 372 (Tex. App.—
Houston [14th Dist.] 1995, writ dism’d by agr.). Second, even where a claim is
governed by a state statute, Texas courts repeatedly have applied the discovery rule
to statutes of limitations that do not specify when a cause of action accrues. See
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351–52 (Tex. 1990) (collecting
cases). As the Texas Supreme Court explained, the discovery rule does not apply
to the Texas statute of limitations governing wrongful-death claims under state
law, because in that statute, the legislature expressly stated that “[t]he cause of
20
action accrues on the death of the injured person.” Id. at 350–52. But unlike the
state statute cited by Lamartek, the federal statute of limitations provides only that
a claim must be brought within three years “after the cause of action arose.” See
46 U.S.C. § 30106.
Tammy argues that a claim governed by the federal statute of limitations
does not accrue until the plaintiff knew or should have known of “the injury and its
cause,” but the only case that she cites on the issue is not a wrongful-death case.
See White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435 (11th
Cir. 1997) (refusing to apply the discovery rule to a maritime worker’s claim
against a manufacturer of marine engines for hearing loss he suffered in the course
of three decades of occupational exposure). The White court discussed the
Supreme Court’s precedents applying the discovery rule to claims of latent disease
and medical malpractice. See id. at 1432 (citing Urie v. Thompson, 337 U.S. 163,
69 S. Ct. 1018, 93 L. Ed. 1282 (1949) (a silicosis claim brought under the Federal
Employers’ Liability Act) and United States v. Kubrick, 444 U.S. 111, 100 S. Ct.
352, 62 L. Ed. 2d 259 (1979) (a medical-malpractice claim brought under the
Federal Tort Claims Act)). It is uncertain whether the Court would extend the
discovery rule to a claim under the Death on the High Seas Act—especially where,
as here, the date of death was never uncertain, and the plaintiff contends that the
death was caused by an accident rather than a progressive illness or latent injury.
See Rotella v. Wood, 528 U.S. 549, 555, 120 S. Ct. 1075, 1081, 145 L. Ed. 2d 1047
(2000) (“[I]n applying a discovery accrual rule, we have been at pains to explain
that discovery of the injury, not discovery of the other elements of a claim, is what
starts the clock.”); see also Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 229
(5th Cir. 1984) (distinguishing cases of latent injury to which the discovery rule
applies, and explaining that the time-of-event rule applies if “some injury is
21
discernible”). While acknowledging that federal district and intermediate courts
“generally apply a discovery accrual rule when a statute is silent on the issue,” the
Court pointed out that it has not adopted that position, and instead has “recognized
a prevailing discovery rule” only in the contexts of latent disease and medical
malpractice. See TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S. Ct. 441, 447, 151
L. Ed. 2d 339 (2001) (quoting Rotella, 528 U.S. at 555, 120 S. Ct. at 1081).
We need not decide whether the discovery rule Tammy cites could apply to
a claim under the Death on the High Seas Act where the date of death is known but
the plaintiff alleges that she did not discover the cause of death until a later date.
Assuming, without deciding, that the discovery rule is available under such
circumstances, it would delay accrual of the claim only during the time it would
take for a reasonably diligent plaintiff to investigate and discover the cause of the
injury. See Merck & Co. v. Reynolds, 559 U.S. 633, 646, 130 S. Ct. 1784, 1794,
176 L. Ed. 2d 582 (2010) (“[T]reatise writers now describe ‘the discovery rule’ as
allowing a claim ‘to accrue when the litigant first knows or with due diligence
should know facts that will form the basis for an action.’” (quoting 2 C. CORMAN,
LIMITATION OF ACTIONS §§ 11.1.1, p. 134 (1991 and 1993 Supp.))). Thus, the
plaintiff’s lack of diligence can defeat application of the discovery rule. See
Skwira v. United States, 344 F.3d 64, 77 (1st Cir. 2003) (“If [a plaintiff] fails to
undertake a reasonably diligent investigation into the cause of injury, the law will
impute to her an awareness of any knowledge that she would have uncovered if she
had undertaken that inquiry.” (citing Kubrick, 444 U.S. at 123–24 & n.10)); Garza
v. U.S. Bur. of Prisons, 284 F.3d 930, 935, 937 (8th Cir. 2002) (holding that the
discovery rule can apply to a wrongful-death claim even where the date of death is
known, but concluding that the estate’s representative “was certainly on inquiry
notice by the time its counsel began to pursue its claims” and “actual knowledge is
22
not determinative if [the plaintiff] did not act reasonably and, ‘in effect, closed
[his] eyes to evident and objective facts concerning accrual of [his] right to sue’”
(quoting Chrysler Workers Ass’n v. Chrysler Corp., 834 F.2d 573, 579 (6th Cir.
1987))); cf. Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985) (explaining, in
the context of a latent-illness case, that a claim against the government under the
Federal Tort Claims Act accrues “either when the government cause is known or
when a reasonably diligent person (in the tort claimant’s position) reacting to any
suspicious circumstances of which he might have been aware would have
discovered the government cause—whichever comes first”).
Here, Lamartek established as a matter of law that Tammy was not diligent.
Terry died on July 30, 2008, and in the draft autopsy report of August 1, 2008, the
medical examiner tentatively concluded that Terry drowned. The medical
examiner also arranged for Terry’s scuba equipment to be inspected. Lamartek
produced evidence that Tammy’s attorney called the medical examiner’s office on
April 21, 2009; represented that he had spoken with the medical examiner “last
year”; and stated he had been told that the investigation would be completed by
“October [2008] at the latest,” i.e., more than five months before the date of the
follow-up call. Tammy’s attorney further stated that “the statute of limitations
against the product manufacturer is running out.” Two weeks later, Tammy called
the medical examiner’s office herself, and told staff member Robert Golden that
her attorney had not told her the cause of Terry’s death. Golden explained that
Terry died of myocarditis. According to Golden, Tammy said that she did not
want Terry’s scuba equipment sent anywhere at that time, but would “reflect on
this information before deciding where she wants the equipment sent.” The scuba
equipment remained in the evidence room of the medical examiner’s office until, at
the family’s request, Golden shipped the equipment to Tammy in August 2010.
23
Even if the same discovery rule used in federal medical-malpractice and
latent-illness cases were available here, the cases applying that rule to facts such as
these support the conclusion that Tammy was not diligent. Tammy knew enough
about the cause of death to protect her interests by hiring counsel in 2008, even
before the medical examiner’s investigations were completed. See Kronisch v.
United States, 150 F.3d 112, 121 (2d Cir. 1998) (“[A] claim will accrue when the
plaintiff knows, or should know, enough of the critical facts of injury and causation
to protect himself by seeking legal advice.”); Guccione v. United States, 670 F.
Supp. 527, 536 (S.D.N.Y. 1987) (same), aff’d, 847 F.2d 1031 (2d Cir. 1988). The
reports on the investigations were finished before the end of that year, and even
without any further investigation of the equipment, Tammy’s counsel
acknowledged the existence of a potential claim against the scuba equipment’s
manufacturer. See Kubrick, 444 U.S. at 122, 100 S. Ct. at 359 (explaining that the
discovery rule does not apply to “a plaintiff in possession of the critical facts that
he has been hurt and who has inflicted the injury” because “[h]e is no longer at the
mercy of the latter. There are others who can tell him if he has been wronged, and
he need only ask”); Chasteen v. United States, 334 Fed. App’x 271, 273–74 (11th
Cir. 2009) (holding that the discovery rule did not apply to a medical-practice
claim under the Federal Tort Claims Act, because even before the autopsy report
was released, the decedent’s husband suspected that his wife’s physician caused
her death; the report merely confirmed what he already believed); see also
Kronisch, 150 F.3d at 121 (“A claim does not accrue when a person has a mere
hunch, hint, suspicion, or rumor of a claim, but such suspicions do give rise to a
duty to inquire into the possible existence of a claim in the exercise of due
diligence.”) (citations omitted); id. at 122 (holding that the claim accrued by a
certain date because “based on the information he possessed prior to that date, [the
claimant] believed strongly enough in his claim to (unsuccessfully) seek legal
24
representation”). Despite the acknowledgment by Tammy’s counsel that the
limitations period was running out, Tammy declined to take physical possession of
the evidence.18 She then timely asserted claims against other defendants under the
Death on the High Seas Act, but failed to timely sue Lamartek.
In sum, we conclude that even if the discovery rule that Tammy cites might
apply to some claims under the Death on the High Seas Act, Tammy’s own lack of
diligence bars its application here. We therefore overrule this issue and hold that
the trial court did not err in granting Lamartek summary judgment on this claim on
the ground that the claim is time-barred.
2. DTPA
Tammy stated in her appellate brief that she is not challenging the trial
court’s rulings on any causes of action other than her claims under the DTPA and
the Death on the High Seas Act. In its summary-judgment reply and its appellate
brief, Lamartek stated that Tammy did not plead a DTPA claim against it;
however, in both of those documents, as well as in both motions for
reconsideration, Lamartek also argued that any such claim was time-barred.
Assuming, without deciding, that Tammy’s pleadings can be construed to
encompass a DTPA claim against Lamartek, we agree with Lamartek that any such
claim would be time-barred.19
A discovery rule—with its requirement of reasonable diligence by the
claimant—is expressly incorporated into the DTPA statute of limitations. See TEX.
18
Tammy already constructively possessed the equipment. See GTE Commc’ns Sys.
Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (orig. proceeding) (“The right to obtain
possession is a legal right based upon the relationship between the party from whom [the
material] is sought and the person who has actual possession of it.”).
19
The parties also have assumed that any DTPA claim survived the trial court’s dismissal
with prejudice of all of Tammy’s state-law wrongful-death and survival claims against Lamartek.
Because doing so will not affect the outcome of this appeal, we will make the same assumption.
25
BUS. & COM. CODE ANN. § 17.565 (providing that DTPA claims must be filed
within two years after the date on which the plaintiff discovered, “or in the exercise
of reasonable diligence should have discovered,” the false, misleading or deceptive
act or practice). Because we have just explained that Tammy’s lack of diligence
bars her claim under the Death on the High Seas Act, with its three-year statute of
limitations, it is unnecessary to repeat the same evidence in our discussion of a
claim with a shorter limitations period. It is sufficient to point out that Tammy
first asserted claims against Lamartek in March 2012—nearly six years after Terry
purchased the rebreather; more than three-and-a-half years after Terry’s death;
more than three years after she retained counsel; and nearly three years after she
declined to take physical possession of the rebreather.
We therefore conclude that Lamartek established that any DTPA claim
would have accrued more than two years before Tammy sued Lamartek. We
accordingly overrule this issue and hold that the trial court did not err in granting
summary judgment on this claim based on limitations.
IV. THE TRIAL AGAINST KOHLER
By the time of trial, Richie Kohler was the only remaining defendant.
Although all of Tammy’s remaining issues concern events that occurred during
trial, we know little of what actually occurred. This is because the contents of the
reporter’s record is determined, in the first instance, by the appellant. See TEX. R.
APP. P. 34.6(b)(1). Tammy chose to request only a transcript of a pre-trial hearing,
the charge conference, the parties’ closing arguments, and the testimony of two
witnesses—Richie Kohler and herself—called in Tammy’s case-in-chief. The
portions of the record that are before us contain references to more than a dozen
witnesses whose testimony has been omitted. Tammy also omitted from the
reporter’s record every trial exhibit and the entirety of the defense’s case.
26
Under the Rules of Appellate Procedure, an appellant may request a partial
reporter’s record, but “must include in the request a statement of the points or
issues to be presented on appeal and will then be limited to those points or issues.”
TEX. R. APP. P. 34.6(c)(1). If the appellant complies with the rule, then “[t]he
appellate court must presume that the partial reporter’s record designated by the
parties constitutes the entire record for purposes of reviewing the stated points or
issues.” TEX. R. APP. P. 34.6(c)(4). Even a late-filed statement of issues will
support the presumption, absent some indication that the appellee was adversely
affected by the delay. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002)
(per curiam). But if the appellant entirely fails to submit a statement of the points
or issues to be presented on appeal, “we must presume that the omitted portions of
the record are relevant and would support the judgment.” Mason v. Our Lady Star
of the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).
Tammy requested only a partial reporter’s record but did not comply with
the rules and interpretive caselaw governing such a request. Even after Kohler
pointed out in his response brief that Tammy had neither provided a statement of
issues nor requested a complete record of the trial proceedings, Tammy did not
attempt to remedy the problem. The result is that, as discussed below, our
disposition of her remaining complaints is largely driven by the presumption in
support of the judgment.
A. Complaints of Charge Error
Tammy contends that the trial court reversibly erred by refusing to include
two requested instructions in the charge and by including a question concerning
allocation of responsibility. The trial court must “submit the questions,
instructions and definitions” that are “raised by the written pleadings and the
27
evidence.” TEX. R. CIV. P. 278. A trial court has broad discretion in submitting
jury questions and instructions. Interstate Northborough P’ship v. State, 66
S.W.3d 213, 224 (Tex. 2001) (sub. op.) (jury instructions); Indian Oil Co. v.
Bishop Petroleum, Inc., 406 S.W.3d 644, 658 (Tex. App.—Houston [14th Dist.]
2013, pet. denied) (jury questions). We review alleged charge errors for abuse of
that discretion. See Indian Oil Co., 406 S.W.3d at 658. We will reverse only if the
error probably caused rendition of an improper judgment or probably prevented the
appellants from properly presenting the case to the appellate court. See TEX. R.
APP. P. 44.1(a); Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex.
2006).
To determine whether the absence of an instruction probably caused an
improper judgment, we examine the entire record. Island Recreational Dev. Corp.
v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986) (op. on reh’g)
(explaining that when determining whether a trial court reversibly erred in omitting
an instruction, “the reviewing court must consider the pleadings of the parties, the
evidence presented at trial, and the charge in its entirety”). In a single-theory-of-
liability case, we similarly must review the entire record to determine whether the
inclusion of erroneous charge questions or instructions probably caused rendition
of an improper judgment. Thota v. Young, 366 S.W.3d 678, 693 (Tex. 2012).
Here, however, no such review is possible. In addition, as discussed below, some
of the complaints concern matters that are immaterial for other reasons.
1. Tammy failed to show that the trial court reversibly erred in
refusing to instruct the jury on the elements of a voluntary-
undertaking claim.
Tammy contends that, with respect to her claim against Kohler, the trial
court erred in refusing her request to instruct the jury on the elements of an
undertaking claim. A defendant is liable for negligence in connection with a
28
voluntarily assumed undertaking only if (a) the defendant undertook to perform
services that it knew or should have known were necessary for the plaintiffs’
protection; (b) the defendant failed to exercise reasonable care in performing those
services; and (c) either the plaintiffs relied upon the defendant’s performance, or
the defendant’s performance increased the plaintiffs’ risk of harm. See Torrington
Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000) (citing Colonial Sav. Ass’n v.
Taylor, 544 S.W.2d 116, 119–20 (Tex. 1976) and RESTATEMENT (SECOND) OF
TORTS § 323 (1965)).
We need not address Tammy’s argument about the first of these three
elements, because she cites no evidence of the second and third elements.
Moreover, the reporter’s record before us is incomplete. Because Tammy relies on
a partial reporter’s record and failed to provide a statement of the points or issues
to be presented on appeal, we presume that a review of the complete record would
have revealed an absence of harmful error. See Christiansen v. Prezelski, 782
S.W.2d 842, 842, 843–44 (Tex. 1990) (per curiam) (holding that an appellate court
is unable to conclude that an alleged error is harmful if the appellant neither
requests the complete reporter’s record nor complies with the procedures for
requesting a partial reporter’s record). We therefore conclude that the trial court
did not reversibly err in refusing to instruct the jury on the elements of an
undertaking claim.
2. Tammy failed to show that the trial court reversibly erred in asking
the jury to allocate responsibility for Terry’s death.
Tammy next complains that the trial court erred by including in the charge a
question in which the jury was asked to allocate responsibility for Terry’s death
among Terry, Kohler, and two non-parties. Tammy argues that there was no
evidence that Terry or the two non-parties were responsible for the death. Given
the partial state of the record, however, we must presume that there was such
29
evidence. Moreover, the jury was instructed not to answer the question unless it
found “that a wrongful act, neglect or default of a vessel or a person proximately
caused the death.” Because the jury failed to find that anyone caused the death, it
did not answer the question allocating responsibility. Thus, the inclusion of the
question did not lead to an improper judgment or prevent Tammy from properly
presenting her case on appeal. See TEX. R. APP. P. 44.1(a); Fleet v. Fleet, 711
S.W.2d 1, 2 (Tex. 1986) (per curiam) (explaining that issues submitted to the jury
are immaterial “if their answers can be found elsewhere in the charge or if they
cannot alter the effect of the verdict”).
3. Tammy failed to show that the trial court reversibly erred in failing
to instruct the jury not to consider testimony as to whether she
agreed to release any party from liability.
Tammy argues that the trial court erred in refusing her proposed instruction,
“Do not consider any testimony as to whether or not the Plaintiffs agreed to release
the Defendant Kohler or any party from liability.”20 Once again, we cannot
conclude based on the record before us that the trial court reversibly erred in
refusing this instruction. The reporter’s record did not include the actual release.
Moreover, in the first question of the charge, the jury was asked if “a wrongful act,
neglect or default of a vessel or a person proximately caused the death of Terry
Sean DeWolf.” The jury answered, “No.” Because the jury failed to find that
Kohler caused Terry’s death, Kohler is not liable; thus, the validity or invalidity of
the release from liability does not affect the outcome of the case. Cf. City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (explaining that the
20
Tammy appears to have been the only plaintiff, and she alleged that she sued in her
capacities as an individual, as a representative of Terry’s estate, and as next friend of her three
children, one of whom she alleged was a minor. Terry was not a plaintiff, and in the record
before us, Tammy did not ask the trial court to instruct the jury to disregard testimony that he
agreed to release anyone from liability. She also did not ask the trial court to include an
instruction to the jury to disregard any documentary evidence.
30
defendant was exonerated from liability because the jury failed to find that the
defendant caused the death; thus, the jury’s answer to a question about the
decedent’s negligence could not have altered the verdict).
For the foregoing reasons, we overrule each of Tammy’s complaints of
charge error.
B Complaints of Improper Jury Argument
Three of Tammy’s appellate complaints concern allegations of improper jury
argument. We conclude that these complaints were not preserved.21
If the probable harm from an improper jury argument is curable, then the
error must be preserved by obtaining an adverse ruling on a timely objection,
motion to instruct the jury, or motion for mistrial. See TEX. R. APP. P. 33.1(a);
Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678, 680 (Tex. 2008) (per
curiam); Tex. Emp’rs’ Ins. Ass’n v. Haywood, 153 Tex. 242, 244–45, 266 S.W.2d
856, 858 (1954). Most instances of improper jury argument can be cured if the
argument is retracted or the trial court instructs the jury to disregard it. Living
Ctrs. of Tex., Inc., 256 S.W.3d at 680. If the probable harm is incurable, the
complaining party need not object at the time, but can choose instead to preserve
error through a motion for new trial. See TEX. R. CIV. P. 324(b)(5); Clark v. Bres,
217 S.W.3d 501, 509 n.1 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(“While no contemporaneous objection is required in order to raise incurable jury
argument on appeal, a party must include incurable jury argument as a point in a
motion for new trial.”).
21
Because the complaints were not preserved, we do not reach the question of whether
the arguments actually were improper, and if so, whether any improper jury arguments were
incurable. But cf. Wooten v. S. Pac. Transp. Co., 928 S.W.2d 76, 80 (Tex. App.—Houston [14th
Dist.] 1995, no pet.) (holding that the lack of a complete record precluded appellate review of
allegedly incurable jury argument).
31
Two of Tammy’s complaints of improper jury argument were not raised in
the trial court through a contemporaneous objection or a timely motion for an
instruction or for a new trial. Specifically, there was no objection during closing
argument that Kohler’s counsel engaged in improper jury argument concerning
assumption of the risk or that any argument constituted an improper personal
attack on Tammy’s counsel. She did not move for an instruction to the jury to
disregard any such statements, and in her motion for new trial, she did not contend
that any such statements constituted an incurable jury argument. These complaints
accordingly have not been preserved for our review. See TEX. R. CIV. P. 33.1(a).
Tammy’s remaining complaint was raised through a contemporaneous
objection, but the trial court did not rule on it, and Tammy did not raise the issue
again in her motion for new trial. Thus, Tammy has failed to preserve her
appellate complaint that Kohler’s counsel engaged in improper jury argument by
suggesting that Tammy possessed a dive computer that was mentioned but not
produced at trial.22 See TEX. R. CIV. P. 324(b)(5) (explaining that a point in a
motion for new trial is a prerequisite to a complaint on appeal of “[i]ncurable jury
argument if not otherwise ruled on by the trial court”) (emphasis added).
22
The dive computer was part of Terry’s dive equipment. Kohler testified that a dive
computer “records every aspect of your dive, time, depth, water temperature, and also transmits
to you backup decompression information.” It also would have shown Terry’s “rate of ascent
and rate of descent.” Kohler testified that when Terry’s body was recovered, he looked at the
dive profile on Terry’s dive computer, and it showed that Terry moved laterally near the surface
for a minute or two, then stopped moving and dropped straight down to the ocean floor, where he
remained until his body was discovered eight hours later. Kohler also testified that he had asked
for the dive computer in this case, but that it had never been produced. In closing argument,
Kohler’s counsel referred to the testimony of a witness from the medical examiner’s office who
stated that he shipped the dive computer to Tammy, and testimony from one of Tammy’s
relatives that Tammy received the dive computer and put it in her vehicle. The testimony of
these witnesses was not included in the reporter’s record on appeal.
32
C. Complaint of Improper Comment on the Weight of the Evidence
Tammy asserts that it was “[f]undamental error for the judge to tell the jury
the plaintiff had the dive computer.” We construe this as a complaint that the trial
court made an improper comment to the jury on the weight of the evidence. The
exchange that is the subject of her complaint occurred while she was testifying.
The entirety of that exchange is as follows:
Q: And after you knew that we were looking for the dive
computer, correct?
A: We never had the dive computer.
Q: You knew that we were looking for the dive computer?
A: We were looking for it, too.
PLAINTIFF’S COUNSEL: Objection, Your Honor, it’s duplicative
and it’s argumentative.
THE COURT: She’s got it. It’s overruled.
In asserting that the trial court told the jury that the plaintiff had the dive computer,
Tammy presumably is referring to the sentence, “She’s got it.”
For four reasons, this complaint must be overruled. First, we cannot be
certain of the antecedent to either of the pronouns in the sentence, “She’s got it.”
Second, contrary to Tammy’s characterization, the record does not indicate that the
trial court was addressing the jury. Third, even assuming without deciding that this
statement could have been construed as a comment on the weight of the evidence,
Tammy waived the complaint by failing to object to it. See Moody v. EMC Servs.,
Inc., 828 S.W.2d 237, 145 (Tex. App.—Houston [14th Dist.] 1992, writ denied).
And fourth, as previously stated, we presume that the omitted portions of the
record support the judgment. See Bennett, 96 S.W.3d at 229 (“There is no question
that, had [the appellant] completely failed to submit his statement of points or
issues, Rule 34.6 would require the appellate court to affirm the trial court’s
33
judgment.”). Thus, even if error had occurred and had been preserved, we still
would presume that the omitted portions of the record would have shown the error
to be harmless.
D. Complaint of Erroneous Admission of Evidence
Tammy also asserts that the trial court erred in “allow[ing] the void release
into testimony.” The erroneous admission of evidence is reversible only if it
resulted in an improper judgment. Nissan Motor Co. Ltd. v. Armstrong, 145
S.W.3d 131, 144 (Tex. 2004). Tammy has not cited any objectionable testimony,
and she does not contend that its admission resulted in an improper judgment, but
in any event, the absence of a complete record would prevent us from determining
that Tammy was probably harmed by the erroneous admission of evidence. See id.
(“We review the entire record, and require the complaining party to demonstrate
that the judgment turns on the particular evidence admitted.”). We instead
presume that the omitted portions of the record support the judgment. We
therefore overrule this issue.
E. Arguments About the Effect of a Release
Finally, Tammy argues that a document signed by Terry DeWolf releasing
Kohler from liability is void. We conclude that no reversible error is shown. First,
the release is not in the reporter’s record. Second, Tammy has not identified the
trial court’s ruling to which her arguments are addressed. And third, the jury failed
to find that Kohler caused the decedent’s death. Because Kohler accordingly is not
liable, the validity or invalidity of the release from liability does not affect the
outcome of the case. See Fleet v. Fleet, 711 S.W.2d 1, 2 (Tex. 1986) (per curiam)
(explaining that issues submitted to the jury are immaterial “if their answers can be
found elsewhere in the charge or if they cannot alter the effect of the verdict”).
34
V. CONCLUSION
After considering the arguments raised in Tammy’s appellate brief and
reviewing the partial record before us, we overrule each of the issues presented and
affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher and Busby, and Visiting Judge Dorfman.23
23
The Honorable Grant Dorfman, Judge of the 334th Civil District Court of Harris
County, sitting by assignment pursuant to section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2013).
35