Madison v. Williamson

• Court: Texas Court of Appeals
• Writing for the Court: Jane Bland
• Citation: Madison v. Williamson, 241 S.W.3d 145 (Tex. App. 2007)
• Decision Date: 27 September 2007
• Docket Number: No. 01-05-00678-CV.,01-05-00678-CV.
• Parties: Saskia MADISON, As Next Friend of M.M., A Minor, Appellant, v. Warren Reid WILLIAMSON and Jane Smith, Appellees.

241 S.W.3d 145

Saskia MADISON, As Next Friend of M.M., A Minor, Appellant, v. Warren Reid WILLIAMSON and Jane Smith, Appellees.

No. 01-05-00678-CV.

Court of Appeals of Texas, Houston (1st Dist.).

September 27, 2007.

Rehearing Overruled November 16, 2007.

Kristin Diane Wilkinson, The Wilkinson Law Firm, Houston, TX, for Appellant.

Brett J. Sileo, Britton B. Harris, Harris, Hilburn & Sherer, L.L.P., Alexandra Ilana Smoots-Hogan, Brown McCarroll, LLP, Warren Reid Williamson, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

OPINION

JANE BLAND Justice.

Appellant Saskia Madison, as next friend of M.M., a minor, appeals a judgment in favor of appellee Jane Smith and against Warren Reid Williamson.¹ Madison contends (1) the trial court erred in granting Smith's no-evidence motion for summary judgment on Madison's negligence claims and in not allowing an adequate time for discovery; (2) the trial court abused its discretion in excluding certain summary judgment evidence; (3) Smith lacked standing to submit a proposed final judgment to the trial court, and the trial court erred in including a statement that Smith did not appear at trial in its final judgment; (5) the trial court erred in assessing court costs in favor of Smith; (6) the trial court erred in applying the election of remedies rule to Madison's award of actual damages; and (7) the trial court erred in applying the statutory damage caps to Madison's award of exemplary damages. We conclude that the trial court properly granted summary judgment to Smith, allowed adequate time for discovery, and any abuse of discretion in the exclusion of Madison's summary judgment evidence was harmless. We further conclude that Smith had standing, and the trial court did not err in the form of its final judgment. Finally, we conclude that the trial court properly assessed court costs, and properly applied the election of remedies rule and statutory damage caps. We therefore affirm the trial court's judgment, both on the jury's verdict against Williamson and the summary judgment in favor of Smith.

Background

In 1999, Williamson lived with his wife, Smith, and their three children, a daughter and two sons. Madison lived with her daughter a few houses down the street. M.M. was seven years old in 1999.

Williamson did not appear for the jury trial on damages in this case, so the facts as presented with respect to the claims against him are uncontested. During the summer of 1999, M.M. had planned to spend the night at Williamson's and Smith's house on two separate occasions. On both occasions, Williamson bathed M.M. and his daughter together. M.M. testified that during the baths, Williamson touched her "privates." M.M. could not recall if Williamson used a washcloth or his bare hands. M.M. did not spend the night at Williamson's and Smith's house on either occasion because she got scared before she went to sleep. M.M. told Madison about the baths when she arrived at home on both occasions but Madison did not take any action.

During a weekend in October 1999, M.M. was playing with Williamson's children at Williamson's and Smith's house. M.M. was playing video games when Williamson asked to have a "private talk" with her. M.M. accompanied Williamson into his room and he locked the door. Williamson told M.M. that he wanted to show her something. Williamson then undressed M.M. and performed oral sex on her. M.M. told Williamson to stop and she screamed for Smith to help her. Smith, however, was downstairs cooking dinner and she did not hear M.M.'s cries for help. Williamson instructed M.M. not to tell anyone about what had happened. M.M. went home immediately, and she did not see Smith as she was leaving the house. M.M. told Madison about the incident as soon as she arrived at home. Madison called the police and M.M. never again visited Williamson's and Smith's house.

The State charged Williamson with indecency with a child and aggravated sexual assault in December 1999. Williamson separated from Smith and moved out of their home in June 2000. In January 2001, Williamson pleaded no contest to the Class A misdemeanor offense of assault, pursuant to a plea bargain with the State. See TEX. PEN.CODE ANN. § 22.01 (Vernon Supp.2006). The trial court deferred adjudication of the offense and placed Williamson on community supervision for two years. In February 2001, the trial court modified the terms of Williamson's community supervision and added a provision prohibiting Williamson from traveling on the street where M.M.'s house was located. Williamson, however, was not prohibited from visiting his children or otherwise being present on Smith's property (which is located on the same street as M.M.'s house), but to adhere to the terms of his community supervision, he had to enter Smith's residence from a rear entrance. M.M. alleges that after the trial court modified Williamson's community supervision, he continued to appear on the street in front of her house and often made intimidating faces in an attempt to frighten her. Williamson and Smith divorced in October 2001.

Madison civilly sued Williamson and Smith, on behalf of M.M., in 2002. In her petition, Madison asserts that Smith was negligent in allowing Williamson to sexually assault M.M., and in allowing Williamson to violate the terms of his community supervision by driving on the street where M.M.'s house was located. Smith moved for summary judgment, asserting that Madison had produced no evidence that Smith had a duty to (1) prevent Williamson from sexually assaulting M.M., and (2) ensure Williamson's compliance with the terms of his deferred adjudication. The trial court granted Smith's no-evidence summary judgment. Madison's claims against Williamson for assault, false imprisonment, and negligence proceeded to trial. The jury returned a verdict in favor of Madison, awarding compensatory and exemplary damages. After electing the most favorable recovery, and applying exemplary damages caps, the trial court entered a final judgment against Williamson of $3 million in actual damages and $1.75 million in exemplary damages, plus interest and costs.

The Summary Judgment

Madison contends the trial court erred in granting Smith's no-evidence motion for summary judgment because she produced sufficient evidence to raise a genuine issue of material fact with regard to her negligence claims against Smith. In addition, Madison contends that the trial court abused its discretion in excluding certain summary judgment evidence. Smith responds that Madison produced no evidence of the element of duty.

At the outset, we note that "in addition to showing an abuse of discretion, a party complaining of error in the exclusion of evidence must also show that the trial court's error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment." City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); see also TEX.R.APP. P. 44.1(a)(1); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992); Bartosh v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 439 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Centurion Planning Corp. v. Seabrook Venture II, 176 S.W.3d 498, 510 (Tex.App.-Houston [1st Dist.] 2004, no pet.). In our review of this summary judgment, we consider all of the evidence Madison presented to determine if she raises a fact issue on her negligence claims. If the evidence, including evidence that the trial court excluded, does not raise a fact issue, then any abuse of discretion in the trial court's exclusion of evidence is harmless. See TEX.R.APP. P. 44.1(a)(1); Alvarado, 897 S.W.2d at 753; McCraw, 828 S.W.2d at 757.

A. Standard of Review

In a Rule 166a(i) no-evidence summary judgment motion, the movant represents that no evidence exists as to one or more essential elements of the non-movant's claims, on which the non-movant would have the burden of proof at trial. TEX.R. CIV. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113-14 (Tex.App.Houston [1st Dist.] 2005, no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). On review, we ascertain whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson, 979 S.W.2d at 70-71. More than a scintilla of evidence exists if the evidence "`rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. To defeat a no-evidence motion for summary judgment, the respondent is not required to marshal her proof; her response need only point out evidence that raises a fact issue on the challenged elements. TEX.R. CIV. P. 166a(i) cmt.

B. Negligence

A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex.App.-Houston [1st Dist.] 2006, no pet.). The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In determining whether a duty exists, a court...