McDaniel v. Continental Apartments Joint Venture

• Decision Date: 06 October 1994
• Docket Number: No. 05-92-01957-CV,05-92-01957-CV
• Citation: 887 S.W.2d 167
• Parties: J.L. and Mary McDANIEL, Appellants, v. CONTINENTAL APARTMENTS JOINT VENTURE, Janet Baulhaber, Gaylor Horn, James Blabaum, Carol Schultz, Clifford Strelow, William Hebert, Cyril Tilson, Richard Karls, Donald Wahlin, Charles Williams and Jerry Huckabee, Appellees.
• Court: Texas Court of Appeals

Page 167

887 S.W.2d 167

J.L. and Mary McDANIEL, Appellants, v. CONTINENTAL APARTMENTS JOINT VENTURE, Janet Baulhaber Gaylor Horn, James Blabaum, Carol Schultz, Clifford Strelow William Hebert, Cyril Tilson, Richard Karls, Donald Wahlin Charles Williams and Jerry Huckabee, Appellees.

No. 05-92-01957-CV.

Court of Appeals of Texas Dallas.

Oct. 6, 1994.

Tom A. Stribling, Austin, Gary Lewellen, Stephenville, Albert G. McGarth, Jr., Dallas, Paul A. Hoffman, Dallas, Cynthia Hollingsworth, David C. Godbey, Dallas, for appellants.

Ken Carroll, Dallas, for appellees.

Before Justices BAKER, OVARD, and MALONEY.

OPINION ON MOTION FOR REHEARING

MALONEY, Justice.

We deny appellants' motion for rehearing. We withdraw this Court's opinion of June 6, 1994. This is now the opinion of the Court.

J.L. and Mary McDaniel sued Continental Apartments Joint Venture, the individual members of the Joint Venture, ¹ and Jerry Huckabee in a wrongful death and survival action. The McDaniels alleged premises defect and negligent activity theories of recovery. The trial court disregarded certain jury findings and granted judgment for Appellees. In five points of error, the McDaniels argue that the trial court erred in: (1) granting judgment notwithstanding the verdict, (2) granting summary judgment, and (3) giving a dollar-for-dollar settlement credit. ² Hebert asserts two cross-points of error challenging the sufficiency of the evidence to support some elements of damages awarded by the jury. Faulhaber, Horn, Blabaum, and Schultz assert cross-points of error challenging the trial court's denial of their motion for new trial and motion for judgment.

We reverse and remand this cause for calculation of the settlement credit under section 33.012(b)(2) of the Texas Civil Practice and Remedies Code. We affirm the trial court's judgment in all other matters.

FACTUAL BACKGROUND

Lynn McDaniel, the deceased, lived at the Madrid Apartments in Stephenville, Texas. She died from injuries she received when one of the apartment complex's balconies collapsed as she walked under it.

Jerry Huckabee remodeled and extended that balcony eight years before it collapsed. Its construction did not comply with the Stephenville Building Code. At the time of the construction, the Joint Venture managed the Madrid Apartments. The Joint Venture employed Sue Dameron as the on-site manager. As manager, she employed Huckabee to extend the balcony.

All of the individual members of the Joint Venture lost their ownership interest in the Madrid apartments after Huckabee completed the balcony's extension, but before it collapsed. ³ Gleason and Hammit owned the property when the balcony collapsed.

PROCEDURAL BACKGROUND

Tilson, Karls, Wahlin, and Williams (the Movants) moved for summary judgment asserting that they were not liable because: (1) they transferred their property ownership involuntarily and (2) they did not know or have reason to know about the alleged construction defect or problems with the premises. The trial court granted their motions for summary judgment without specifying on which ground it based summary judgment.

The jury made no findings concerning Movants. The jury found that Gleason and Hammit were not negligent and did not cause the collapse. The jury found in:

Question One: The Joint Venture and Huckabee were negligent because of violations of the Stephenville building code and that their negligence proximately caused injury;

Question Two: The Joint Venture was negligent in hiring or supervising Huckabee and Dameron;

Question Three: Negligent hiring and/or supervising of Huckabee and Dameron proximately caused the complained-of injury; and

Question Four: Twenty percent liability was attributable to the Joint Venture and eighty percent to Huckabee.

The trial court disregarded the jury's responses to questions one, two, three, and four with respect to Faulhaber, Horn, Blabaum, Schultz, Strelow, Hebert, and the Joint Venture. The jury also found:

Huckabee was an independent contractor of the Joint Venture;

No gross negligence;

Faulhaber, Horn, Blabaum, Schultz, and Hebert did not know of, did not have reason to know of, and did not conceal their knowledge of the premises defect; ⁴ and

Hebert did not have a reasonable opportunity to discover the condition of the balcony.

The trial court entered judgment for the McDaniels against Huckabee for $3,860,000 less the $1,000,000 settlement received from Gleason and Hammit. It entered judgment that the McDaniels take nothing on their claims against Faulhaber, Horn, Blabaum, Schultz, Strelow, Hebert, and the Joint Venture. The trial court also incorporated the interlocutory summary judgment for the Movants into the final judgment.

DISREGARDED JURY FINDINGS AND JUDGMENT NOTWITHSTANDING THE VERDICT

In their first point of error, the McDaniels argue the trial court erred in entering a take nothing "Amended Final Judgment And Judgment Notwithstanding The Verdict And Disregarding Jury Findings." In their second point of error, they argue the trial court erred in overruling their "Motion To Modify The Judgment Or Alternatively For New Trial." They maintain they are entitled to judgment because the jury found the Joint Venture negligent and that negligence was a proximate cause of Lynn McDaniel's death.

1. Applicable Law

A trial court properly enters a judgment notwithstanding the verdict (1) when the evidence is conclusive and one party is entitled to judgment as a matter of law or (2) when a legal principle precludes recovery. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227-28 (Tex.1990) (evidence conclusive); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.--Houston [1st Dist.] 1992, writ denied) (evidence conclusive, principle of law). A trial court may disregard an immaterial jury finding and enter judgment on the remaining findings. Dewberry v. McBride, 634 S.W.2d 53, 55 (Tex.App.--Beaumont 1982, no writ).

A trial court may disregard an immaterial jury finding on its own motion. Id. A jury finding is immaterial when the trial court should not have submitted the question to the jury and the jury's finding does not apply to the case. Brown v. Armstrong, 713 S.W.2d 725, 728 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). A trial court may also disregard a jury finding when other

jury findings render it immaterial. C & R Transp., Inc. v. Campbell, 406 S.W.2d 191, 195 (Tex.1966); Watson v. Nortex Wholesale Nursery, Inc., 830 S.W.2d 747, 750 (Tex.App.--Tyler 1992, writ denied). When a trial court disregards an immaterial jury response, we do not consider it as a judgment notwithstanding the verdict. Brown, 713 S.W.2d at 728; Dewberry, 634 S.W.2d at 55.

2. Theories of Recovery

An owner or occupier of land has a duty to use reasonable care to keep premises under his control in a safe condition. Redinger v. Living, Inc. 689 S.W.2d 415, 416 (Tex.1985). The owner or occupier may be liable for negligence in two situations: (1) those arising from a premises defect and (2) those arising from an activity or instrumentality. Id.

When the alleged injury is the result of a negligent activity, the injured party must have been injured by, or as a contemporaneous result of, the activity itself--not a condition the activity created. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). When the alleged injury is the result of the premises's condition, the injured party can only recover under a premises defect theory. See H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.1992). "Adroit phrasing of the pleadings to encompass design defects, per se negligence or any other theory of negligence" does not affect application of premises liability law. See generally First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 291 (Tex.App.--Corpus Christi 1990, writ denied). To prevail on a premises defect claim, a plaintiff must prove:

(1) The owner/operator's actual or constructive knowledge of some condition on the premises;

(2) The condition posed an unreasonable risk of harm;

(3) The owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4) The owner/operator's failure to use reasonable care proximately caused the plaintiff's injuries.

Keetch, 845 S.W.2d at 264; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983).

An ordinance legislatively defines the conduct required to show "reasonable care." See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). An unexcused violation of a statute or ordinance may conclusively prove failure to use reasonable care if the legislative body designed the statute or ordinance: (1) to protect a particular class of persons (2) from a particular type of harm and (3) the plaintiff is a member of that class, (4) who suffers the particular type of harm so protected. See Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 320, 206 S.W.2d 587, 590 (1947). However, before a plaintiff can prove the defendant failed to use reasonable care, he must prove the defendant knew or should have known of the dangerous condition. See Keetch, 845 S.W.2d at 265.

3. Application of Law to Facts

The undisputed evidence shows that any negligent act in constructing the balcony extension occurred eight years before the balcony collapsed and killed Lynn McDaniel. Because the construction activity itself did not injure Lynn McDaniel, the only recovery theory available to the McDaniels was premises defect.

For the McDaniels to recover under a premises defect theory, the jury had to find that the Joint Venture and the Individuals knew or had reason to know of the dangerous condition. The jury found that Faulhaber, Horn, Blabaum, Schultz, and Hebert did not know or have reason to know of the dangerous condition. ⁵ The trial court did not submit, and the McDaniels did not request, a jury question on the Joint Venture's and Strelow's liability under a premises defect theory. Consequently, the McDaniels could not recover under...