In re Butt

• Decision Date: 09 May 2016
• Docket Number: NUMBER 13–16–00132–CV
• Parties: In re Charles Butt, Craig Boyan, Carmen Gellhausen, and Kevin Holguin
• Court: Texas Court of Appeals

495 S.W.3d 455

In re Charles Butt, Craig Boyan, Carmen Gellhausen, and Kevin Holguin

NUMBER 13–16–00132–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 9, 2016

Rachel Anne Ekery, Amy Warr, Wallace B. Jefferson, Alexander, Dubose, Jefferson & Townsend LLP, Austin, TX, Victor A. Vicinaiz, Roerig, Oliveira & Fisher, McAllen, TX, for Relator.

Harold Kenneth Tummel, Lydia Casso Tummel, Tummel & Casso, Edinburg, TX, for Real Parties in Interest.

Aida Salinas Flores, Edinburg, TX, for Respondent.

Before Chief Justice Valdez and Justices Rodriguez and Benavides

OPINION

Opinion by Justice Benavides¹

Relators, Charles Butt, Craig Boyan, Carmen Gellhausen, and Kevin Holguin, who are corporate officials for H.E.B. Grocery Company, L.P. (“H.E.B.”), filed a petition for writ of mandamus in the above cause on February 26, 2016. Relators and H.E.B. are defendants in a premises liability case predicated on a slip-and-fall accident at an H.E.B. grocery store. Through this original proceeding, relators seek to compel the trial court to: (1) vacate its order denying relators' motion to dismiss under Texas Rule of Civil Procedure 91a

; (2) grant their motion to dismiss; and (3) award them their costs and attorney's fees. See TEX.R. CIV. P. 91a (providing for the dismissal of “baseless” causes of action).² We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

Arturo Garcia slipped and fell while shopping at a McAllen-area H.E.B. grocery store. He and his wife, Aurelia, sued H.E.B. for his injuries. In their fourth amended petition, the Garcias complained in two paragraphs of their petition that a wet floor created an unreasonably dangerous condition, that H.E.B. failed to use adequate methods to detect and remove foreign substances on its store floors, and that H.E.B. intentionally breached a duty to preserve the fluid Garcia purportedly slipped on, thereby justifying spoliation sanctions:

27. On the occasion in question, H.E.B. owed a duty to H.E.B.'s invitees, including Garcia, reasonably to inspect the store to discover dangerous conditions in the store which could harm H.E.B.'s invitees, including Garcia. H.E.B. breached such duty, by using an approach to inspecting the store which was known to H.E.B. not to identify timely and reliably the presence of foreign materials on the floor of the store. H.E.B. breached such duty, by choosing not to use computerized video surveillance, or a comparably effective and financially feasible alternative means, to inspect the store to identify timely and reliably the presence of foreign materials on the floor of the store. Such breaches of duty by H.E.B. constituted negligence and gross negligence, which proximately caused Garcia's slip/fall incident and Plaintiffs' damages resulting from such incident which have been made subjects of this case.

28. On the occasion in question, H.E.B. owed a legal duty to Garcia, to preserve the fluid as evidence, because H.E.B. had reason to believe: (1) that it was reasonably likely that Garcia would assert a claim against H.E.B. for personal injuries, and (2) the fluid could be relevant to such a claim. H.E.B. intentionally breached such duty. H.E.B is therefore subject to the imposition of such sanction as the Court in its discretion determines to be appropriate, which may consist of either of the following sanctions, among others: (1) a ruling that H.E.B. is liable to Garcia, as a matter of law; or (2) an instruction to the jury, that it may assume that the fluid, had it not been destroyed by H.E.B., would have proven H.E.B.'s negligence on the occasion in question.

The Garcias' fourth amended petition also included claims against four apex corporate officials for H.E.B.: Charles Butt, H.E.B.'s chairman and chief executive officer; Craig Boyan, H.E.B.'s president; Carmen Gellhausen, H.E.B.'s “top risk management employee”; and Kevin Holguin, H.E.B.'s “top safety employee.” With regard to claims against these individuals, the petition alleged:

29. On information and belief, Plaintiffs allege that Holguin, Gellhausen, Boyan and Butt, singularly and/or collectively, had control over what was and was not done by H.E.B., to discharge H.E.B.'s duty to its patrons, as described in paragraph 27. Plaintiffs further allege that Holguin, Gellhausen, Boyan and/or Butt failed to exercise such control with reasonable care, and that such failure constituted negligence and gross negligence which proximately caused Garcia's slip/fall incident and Plaintiffs' damages made subjects of this case.

30. On information and belief, Plaintiffs allege that Holguin, Gellhausen, Boyan and Butt, singularly and/or collectively, had control over what was and was not done by H.E.B., to discharge H.E.B.'s duty to its patrons, as described in paragraph 28. Plaintiffs further allege that Holguin, Gellhausen, Boyan and/or Butt failed to exercise such control with reasonable care, and that such failure constituted negligence and gross negligence which proximately caused Garcia's slip/fall incident and Plaintiffs' damages made subjects of this case.

These corporate officials moved to dismiss the claims against them pursuant to Rule 91a of the Texas Rules of Civil Procedure

on grounds that the corporate form of H.E.B. insulates them from liability and the Garcias failed to plead any cause of action which would result in personal liability. See generally id. The Garcias filed a response to the motion to dismiss and a brief in support of their response. After additional briefing by the parties, the trial court held a hearing on the motion to dismiss. After the hearing, the trial court denied the relators' motion to dismiss.

This original proceeding ensued. By one issue, relators contend that the Garcias' claims that apex corporate officials are individually liable for a slip and fall in a grocery store lacks any basis in law or fact. According to relators, Texas Rule of Civil Procedure 91

a mandates dismissal of claims like these and relators lack an appellate remedy for the trial court's denial of their motion to dismiss. This Court requested and received a response to the petition for writ of mandamus from the Garcias. The Garcias argue generally that H.E.B. should be liable for Arturo's fall, and specifically contend that mandamus is premature because they have not “been provided basic information about relators' job duties” and relators should be required to respond to discovery requests before proceeding on a Rule 91a motion to dismiss. The Court has also received a reply to the Garcias' response from the relators.

II. STANDARD OF REVIEW

“Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal.” In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex.2012)

(orig.proceeding); see

In re Olshan Found.

Repair Co., 328 S.W.3d 883, 887 (Tex.2010) (orig.proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d at 888

; Walker, 827 S.W.2d at 840. Mandamus will not issue “when the law provides another plain, adequate, and complete remedy.” In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex.2006) (orig.proceeding) (quoting In re Prudential, 148 S.W.3d at 135–36 ).

The Texas Supreme Court has held that mandamus is available to review a trial court's denial of a motion to dismiss under Texas Rule of Civil Procedure 91a

. In re

Essex Ins. Co., 450 S.W.3d 524, 528 (Tex.2014) (orig.proceeding) (per curiam). In that case, the supreme court granted mandamus relief in favor of an insurer where the trial court refused to grant the insurer's Rule 91a motion to dismiss based on the “no direct action” rule. See id. ; see, e.g.,

Angus Chem. Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138, 138 (Tex.1997) (per curiam) (“In Texas, the general rule ... is that an injured party cannot sue the tortfeasor's insurer directly until the tortfeasor's liability has been finally determined by agreement or judgment.”); Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex.2009) (per curiam) (“The plaintiffs sued only Dr. Aviles; they could not sue his insurer under the Texas rules barring direct actions.”). Balancing the benefits of mandamus review against the detriments, the supreme court stated that it had “previously held that ‘mandamus relief is appropriate to ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re

Essex Ins. Co., 450 S.W.3d at 528 (quoting In re John G. & Marie Stella Kenedy Mem'l Found., 315 S.W.3d 519, 523 (Tex.2010) (orig.proceeding)). The court thus concluded that, “[i]n light of the conflict of interest and prejudice [rationales for the “no direct action rule”], we conclude that mandamus relief is appropriate to spare the parties and the public the time and money spent on fatally flawed proceedings.” Id.

Rule 91a

was promulgated at the behest of the Legislature who “directed that a more determined effort be made to reduce the expense and delay of litigation, while maintaining fairness to litigants.” Misc. Docket No. 12–9191, Adoption of Rules for Dismissals and Expedited Actions, (Tex. Nov. 13, 2012) (per curiam), available at http://www.txcourts.gov/AII_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/12/12919100.pdf. The concern for an expedited proceeding in matters regarding “baseless” causes of action is illustrated by the strict deadlines imposed by Rule 91a. See TEX.R. CIV. P. 91a.3 (requiring the Rule 91a motion to dismiss to be filed within sixty days after the first pleading containing the challenged cause of action and the motion to be granted...