Continental Airlines, Inc. v. Kiefer

• Decision Date: 12 April 1996
• Docket Number: Nos. 94-1143,95-0500,s. 94-1143
• Citation: 920 S.W.2d 274
• Parties: , 39 Tex. Sup. Ct. J. 468 CONTINENTAL AIRLINES, INC., Petitioner v. Norma L. KIEFER and Robert C. Kiefer, Respondents. AMERICAN AIRLINES, INC. and Metro Airlines, Inc., Petitioners v. Douglas O. SHUPE, Douglas A. Shupe and Marsha L. Shupe, Respondents.
• Court: Texas Supreme Court

Page 274

920 S.W.2d 274

64 USLW 2677, 39 Tex. Sup. Ct. J. 468

CONTINENTAL AIRLINES, INC., Petitioner v. Norma L. KIEFER and Robert C. Kiefer, Respondents.

AMERICAN AIRLINES, INC. and Metro Airlines, Inc., Petitioners v. Douglas O. SHUPE, Douglas A. Shupe and Marsha L. Shupe, Respondents.

Nos. 94-1143, 95-0500.

Supreme Court of Texas.

Argued Sept. 5, 1995.

Decided April 12, 1996.

Dee J. Kelly, Fort Worth, Debra S. Fitzgerald, Dallas, Kim M. Meaders, Dallas, Donald E. Herrmann, Tomi Kay Mills, Fort Worth, for petitioner.

Laurance L. Priddy, Fort Worth, for respondents.

On Application for Writ of Error to the Court of Appeals for the First District of Texas.

On Application for Writ of Error to the Court of Appeals for the Second District of Texas.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, C.J., and GONZALEZ, CORNYN, ENOCH, SPECTOR, OWEN and ABBOTT, JJ., join.

We granted the applications for writ of error in these two cases and consolidated them to consider to what extent state common-law personal-injury negligence actions against airlines are preempted by the federal Airline Deregulation Act of 1978 (ADA), which as recodified provides, with certain limitations unimportant here, that "a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier...." 49 U.S.C.A. § 41713(b)(1) (West Supp.1995).

In one case, Norma Kiefer claims to have been injured while riding on a Continental Airlines plane when she was struck in the back of the head by a briefcase that fell from an overhead storage bin a flight attendant had opened to retrieve an article for another passenger. Kiefer and her husband sued Continental for negligence, and later asserted other claims which we will discuss momentarily. Continental moved for summary judgment in part on the ground that the Kiefers' action was preempted by the ADA, and the district court granted the motion expressly on that basis. A divided court of appeals reversed and remanded the case for further proceedings. Kiefer v. Continental Airlines, Inc., 882 S.W.2d 496 (Tex.App.--Houston [1st Dist.] 1994).

In the other case, Douglas Shupe claims that he was injured when American Airlines, Metro Airlines and Firelands Travel failed to provide an agent to meet his Metro American Eagle flight at Dallas-Fort Worth International Airport and assist him in transferring to an American connecting flight. Shupe alleges that his parents had paid a $25 fee for this "meet-and-assist" service when they purchased his ticket, explaining to the travel agent that because of a sudden onset of mental illness Shupe was confused and unable to exercise the judgment necessary to care for himself. When no one met Shupe at the Airport, he contends he wandered away from the terminal into a parking lot where he found himself in an altercation with airport police that led to his arrest and jailing. Shupe and his parents sued American, Metro and Firelands Travel for negligence, breach of contract, and violations of the Texas Deceptive Trade Practices--Consumer Protection Act, TEX.BUS. & COM.CODE §§ 17.41-.63. American and Metro moved for summary judgment on the ground that the ADA preempted the Shupes' action, and the district court granted the motion. The court then severed out the Shupes' action against Firelands Travel, making the summary judgment for the airlines final. The court of appeals affirmed as to the DTPA claim but reversed as to the breach of contract and negligence claims and remanded them for further proceedings. Shupe v. American Airlines, Inc., 893 S.W.2d 305 (Tex.App.--Fort Worth 1995). Only the airlines applied to this Court for writ of error, and they complain only of the court of appeals' reversal of the summary judgment on the negligence claim.

We hold that neither the Kiefers' nor the Shupes' claims are preempted and therefore affirm the judgments of the courts of appeals.

I

A question about the finality of the summary judgment in Kiefer and the status of other claims the Kiefers assert necessitates a brief prelude to our consideration of the preemption issues.

As we have said, the Kiefers sued for negligence, and Continental moved for summary judgment based on preemption. Before the district court granted Continental's motion, the Kiefers amended their pleadings twice. The first amended petition has not been included in the appellate record, and thus we do not know what it contained. Nor can we ascertain whether it was filed timely--that is, at least seven days before the summary judgment hearing, Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988) (applying TEX.R.CIV.P. 63)--although the Kiefers assert in their brief in this Court that it was. The Kiefers' response to Continental's motion for summary judgment referred to an amended pleading filed contemporaneously, which was ten days before the hearing, that asserted federal causes of action. We surmise this was the first amended petition, but we cannot be sure.

The Kiefers' second amended petition is in the record. It asserted two new causes of action: an implied cause of action under the ADA, and a federal common-law negligence action. The second amended petition was filed only five days before the summary judgment hearing and thus was untimely unless filed with leave of court. Id. However, leave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise. Id. The Kiefer judgment's recital that the court, "after examining the pleadings", concluded that Continental was entitled to summary judgment satisfies the first condition. We thus presume that the Kiefers filed their second amended petition with leave of court.

Continental moved for summary judgment "on all claims brought by" the Kiefers, thus including the two federal claims even though they were first raised after the motion was filed. However, no ground stated in Continental's motion entitles it to summary judgment on the later-filed claims. Obviously, the ADA does not preempt federal claims, and Continental does not argue otherwise. If the district court held the Kiefers' federal claims to be preempted, it plainly erred; but if the court simply did not consider the federal claims, then the summary judgment was not final and appealable. "In order to be a final, appealable summary judgment, the order granting the motion must dispose of all parties and all issues before the court." Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993).

The summary judgment states that "the cause of action is dismissed as being preempted". The reference to "cause of action", singular, suggests that summary judgment was not granted on all the Kiefers' causes of action, plural. However, the judgment is entitled, "FINAL SUMMARY JUDGMENT ". The district court did not overlook the Kiefers' federal causes of action. The Kiefers specifically pointed them out in their response to the motion for summary judgment and in a motion for new trial. Continental's reply to the motion for new trial did not argue that summary judgment was proper, but that no federal causes of action existed like those the Kiefers asserted. After hearing argument on the motion for new trial, the district court denied it by signed order.

Finality "must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties." 5 RAY W. MCDONALD, TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed., 1992 ed.); see Ferguson v. Ferguson, 338 S.W.2d 945, 947 (Tex.1960). In the circumstances described here, we think the district court intended to render a final, appealable judgment. The court's rejection of the Kiefers' arguments that the federal claims should be treated differently favors this conclusion. Neither the parties nor the court of appeals have suggested that the judgment was not final.

The Kiefers complained to the court of appeals that their federal claims should not have been dismissed. The appeals court did not address those complaints because it concluded from the prayer in the Kiefers' brief that those complaints were "only in the alternative" to their complaint as to their state common-law negligence claim. 882 S.W.2d at 505. We do not read the Kiefers' prayer for relief so narrowly. The Kiefers asked the court of appeals "that the Order of the trial court dismissing appellant's case ... be in all things reversed and that this Court remand this case to the trial court for a full trial on the merits...." The court of appeals was obliged to address the dismissal of the Kiefers' federal claims. However, the Kiefers have not complained to us of this error.

That still is not the end of the matter. The court's opinion states that summary judgment is reversed only on the state common-law negligence claim. Nevertheless, the judgment of the court of appeals orders "that the judgment of the court below be in all things reversed and the cause remanded for proceedings consistent with the opinion of this Court." (Emphasis added.) The judgment of the court of appeals thus conflicts with its opinion. As the mandate of the court must issue "in accordance with the judgment", TEX.R.APP.P. 86(a), we hold that the language of the judgment controls over the conflicting language of the opinion, and therefore that summary judgment was reversed as to all the Kiefers' claims. Continental does not complain of the reversal of summary judgment on the Kiefers' federal claims. Accordingly, we intimate no view as to their validity.

II

To summarize, while plaintiffs in both consolidated cases asserted several causes of action against the airline defendants in the courts below, the only cause of action now before us...