Gibbons v. Luby's Inc.
Decision Date | 31 August 2015 |
Docket Number | NO. 02-12-00202-CV,02-12-00202-CV |
Parties | CAROL ANN GIBBONS AND VIRGINIA FLOYD APPELLANTS v. LUBY'S INC., LUBY'S RESTAURANTS LIMITED PARTNERSHIP, AND LUBY'S MANAGEMENT, INC. APPELLEES |
Court | Texas Court of Appeals |
FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
Anaphylaxis reactions2 resulting from food allergies cause an estimated 30,000 emergency room visits and 150 deaths in the United States every year.3This case arose out of an anaphylaxis reaction suffered by Appellant Carol Ann Gibbons after dining with her cousin Appellant Virginia Floyd at a Luby's cafeteria-style restaurant (the restaurant) owned and operated by Appellee Luby's Restaurants, L.P. (Restaurants). Restaurants is a subsidiary of Appellee Luby's Management, Inc. (Management) and Appellee Luby's Inc., and Management is the general partner of Restaurants.
Gibbons and Floyd sued Restaurants, Management, and Luby's Inc. (collectively the Luby's entities). After a jury trial, the trial court signed a judgment awarding damages of $12,623.30 to Gibbons in accordance with the jury's verdict.
In 106 issues, Gibbons and Floyd complain of the trial court's final judgment and of its earlier orders setting aside a default judgment in their favor and granting a new trial, granting a directed verdict on some of Gibbons's claims, denying a directed verdict for Gibbons on the question of proportionate responsibility, denying their motion for judgment notwithstanding the verdict and other post-trial motions, and granting summary judgment for the Luby's entitieson Floyd's bystander claim. Because we hold that summary judgment was proper, that Gibbons cannot appeal from the granting of the new trial, and that sufficient evidence supports the judgment, we affirm.
Gibbons and Floyd dined at the restaurant on October 26, 2007. Gibbons, who was visiting from Pennsylvania, is allergic to whitefish.4 Gibbons ordered a salmon croquette, which she believed did not contain whitefish. Shortly after starting to eat, Gibbons's throat began feeling scratchy, and her face began to turn red. At Floyd's request, Restaurants employee Nicole Huffman checked with the kitchen staff to find out the croquette's ingredients. Huffman reported to Floyd that the ingredients included whitefish.
Certain that Gibbons was experiencing an allergic reaction, Gibbons and Floyd left the restaurant and headed toward the closest hospital. Fearing the hospital was too far away, Floyd stopped at a fire station, and paramedics there were able to treat Gibbons until an ambulance could arrive. By that time, Gibbons was unconscious. Gibbons was taken by ambulance to the hospital where she was admitted and diagnosed with anaphylactic shock, hypoxemia,and acute respiratory failure. She was sedated, intubated, and put on life support. After being treated, Gibbons recovered and was discharged two days after her admission.
Three days after the incident—that is, the day after Gibbons's discharge—she and Floyd went to the restaurant and discussed the incident with a manager there. The day after that, Gibbons discussed the incident over the telephone with Patricia Boudreaux, a risk manager working for the Luby's entities who called Gibbons to discuss what happened.
Gibbons and Floyd subsequently sued the Luby's entities. Gibbons asserted claims for negligence, gross negligence, violations of the Deceptive Trade Practices Act (DTPA),5 breach of contract, and products liability. Floyd asserted a bystander claim for mental anguish.
Restaurants filed an answer that contained a special exception stating that it had been sued in the wrong name because it "was sued as LUBY'S, INC., LUBY'S RESTAURANTS LIMITED PARTNERSHIP, AND LUBY'S MANAGEMENT, INC.," when its "correct name is simply LUBY'S RESTAURANTS LIMITED PARTNERSHIP." Luby's Inc. and Management did not file answers.
Gibbons and Floyd filed a motion for default judgment against Luby's Inc. and Management. After a hearing, a visiting judge signed a default judgment awarding Gibbons $2,870,998.61 in damages and $3,641,997.22 additional damages under the DTPA for knowing and intentional conduct, awarding Floyd $600,000 plus $1,200,000 additional damages under the DTPA, and awarding attorney's fees of $1,465,198.33 for Gibbons and $720,000 for Floyd.
Luby's Inc. and Management filed a motion to set aside the default judgment, and, after a hearing, the trial court granted the motion. The Luby's entities then filed a motion for summary judgment on Floyd's bystander claim and for no-evidence summary judgment on Gibbons's claims. The trial court granted the motion as to Floyd's bystander claim but denied the motion as to Gibbons's claims.
The case proceeded to a jury trial, and, after the close of evidence, the trial court granted a directed verdict on Gibbons's gross negligence, breach of contract, DTPA, and strict liability claims. The court submitted Gibbons's negligence claim against Management and Restaurants to the jury. The charge asked the jury to find whether "Luby's" or Gibbons were negligent and to apportion what percentage of responsibility each bore, with "Luby's" defined to include Restaurants, Management, and the employees at the restaurant.
The jury returned a 10-2 verdict finding Gibbons and Luby's each 50% negligent and assessing Gibbons's damages at $10,000 for past pain and mental anguish, $1,050 for loss of earning capacity in the past, $10,000 for past physicalimpairment, $3,996.61 in medical expenses, $100 for replacing the clothes Gibbons was wearing at the time of the occurrence, and $100 for the cost of changing her ticket for her return flight to Pennsylvania.
Management and Restaurants filed a motion for entry of final judgment. They subsequently filed a motion to quash notices of deposition of jurors Bobby Mayo, Brenda Webster, Tris Renee Fitzgibbon, and Elaine Whitman, which had been sent by Gibbons and Floyd's attorney. They also filed a motion to strike, for sanctions, and for protection, asserting that despite the filing of the motion to quash, Gibbons and Floyd's attorney had deposed "various jurors." Mayo and Whitman also filed objections to the depositions.
Gibbons responded by filing a motion to compel the testimony of Mayo, Fitzgibbon, and Whitman. Gibbons attached the affidavits of jurors John Bell and James Parks and asserted that Mayo, Fitzgibbon, and Whitman had all made comments to other jurors that they did not believe in awarding damages for pain and suffering or mental anguish. After a hearing, the trial court signed an order of protection ordering that Gibbons, Floyd, and their attorney were prohibited from issuing any further deposition notices or subpoenas to Mayo and Whitman without prior court order.
Gibbons filed a motion for mistrial and, in the alternative, for judgment notwithstanding the verdict (JNOV). In the motion, Gibbons asserted among other grounds that the Luby's entities had in discovery misrepresented and concealed the identity of the food server who had served Gibbons.
In light of the jury's findings on proportionate responsibility,6 the trial court signed a final judgment ordering that Gibbons recover $12,262.30 from Restaurants and Management. Gibbons and Floyd then filed a motion for new trial, which the trial court denied. Gibbons and Floyd now appeal.
The appellants' brief in this case raises 106 issues, and "many of [the] issues are repetitive and subsumed by, or overlap, other issues."7 The brief contains 30,000 words over 180 pages.8 Although the argument section includes underlined text that appears in many (but not all) instances to serve as headings, the headings do not clearly correlate with the issues, and not every change of argument is prefaced with underlined text. We have structured this opinion to address what we understand to be the complained-of actions by the trial court and Gibbons and Floyd's "contentions as they appear in the argument section of[their] brief, considering them only to the extent they are preserved for appellate review and adequately briefed."9
3.1. Order Granting a New Trial and Setting Aside
the Interlocutory Default Judgment
Gibbons and Floyd's first thirty-eight issues relate to the trial court's granting of Luby's Inc. and Management's motion for new trial and setting aside the default judgment, as well as the trial court's denial of their motion asking that the default judgment be reinstated.
Aside from two limited exceptions not applicable here, "an order granting a new trial rendered while the trial court has plenary power over the case is not subject to appellate review, either by direct appeal from the order or from a final judgment rendered after later proceedings."10 Accordingly, the trial court's grant of a new trial and setting aside of the default judgment is not reviewable in this appeal.11 For the same reason, neither may we review the trial court's denial ofGibbons and Floyd's motion to set aside the grant of the new trial, which asked the trial court to reconsider its grant of the new trial. Accordingly, we overrule Gibbons and Floyd's first thirty-eight issues.
3.2. Floyd's Bystander Claim
The next four issues challenge the trial court's summary judgment for the Luby's entities on Floyd's bystander claim. In the summary judgment motion, the Luby's entities asserted that a bystander claim requires the claimant to be "closely related" and that Floyd and Gibbons were not closely related. Relying on a standard first articulated by a California court and applied by the San Antonio Court of Appeals, they argued that because Gibbons and Floyd are cousins and Gibbons has lived in Pennsylvania her entire life while Floyd has lived in Arlington, Texas since 1984, Gibbons and Floyd were, as a matter of law, not closely related.
To their motion, the Luby's entities attached excerpts of Gibbons's deposition in which she testified that she was sixty-three...
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