Nacogdoches County v. Fore

• Decision Date: 14 July 1983
• Docket Number: No. 12-81-0188-CV,12-81-0188-CV
• Citation: 655 S.W.2d 347
• Parties: NACOGDOCHES COUNTY, Texas, Appellant, v. Danny FORE, et al., Appellees.
• Court: Texas Court of Appeals

Page 347

655 S.W.2d 347

NACOGDOCHES COUNTY, Texas, Appellant, v. Danny FORE, et al., Appellees.

No. 12-81-0188-CV.

Court of Appeals of Texas,

Tyler.

July 14, 1983.

Grover Russell, Jr., Fairchild, Price, Russell & Thomas, Center, for appellant.

Robert Markowitz, Houston, Jack Sparks, Austin, Kelly Ireland, Tyler, for appellees.

McKAY, Justice.

This is an appeal from a summary judgment in favor of the Texas Department of Corrections (TDC) and against Nacogdoches County (County) rendered in the County's third-party action for indemnity and contribution against TDC.

The original plaintiff in this lawsuit, Danny Fore, was placed in the Nacogdoches County Jail by Nacogdoches County sheriff's deputies, following his arrest on a misdemeanor charge, in October 1976. At the time of his arrest, Fore was in a highly intoxicated condition. He proceeded to raise such a commotion that either the other prisoners in the jail set fire to his mattress or he himself dislodged a light fixture which set fire to it. At any rate, the mattress in his cell did catch fire and burn, causing him serious bodily injuries.

The polyurethane foam pad inside the mattress cover was manufactured by E.R. Carpenter Co. in Temple and was the source of Fore's injuries. TDC purchased these pads and mattress covers and assembled them into mattresses with prison labor. It is undisputed that the mattress in Fore's cell was purchased from TDC.

Fore filed suit against TDC alleging causes of action under the Texas Tort Claims Act, art. 6252-19, Tex.Rev.Civ.Stat.Ann. (Vernon 1970), ¹ and against Carpenter in negligence and strict liability. He thereafter amended his petition to join Nacogdoches County, its sheriff and his deputies as defendants. Carpenter's plea of privilege was sustained, and it is not involved in the present action.

County filed a motion for summary judgment based on the exemption from liability in § 14(9) of art. 6252-19, which provides that no liability arises under the Act for any claim based on an injury connected with any act or omission "arising out of the failure to provide, or the method of providing, police or fire protection." This motion was granted by the trial court, which rendered summary judgment in favor of the County in September 1979. Since the County was not severed from the main suit, said summary judgment remained interlocutory pending final judgment in the main suit.

TDC also filed a motion for summary judgment based on § 14(9) of art. 6252-19, no notice, and no evidence of negligence on its part. Along with this motion, TDC filed a motion to sever all claims against it by plaintiff Fore and by the sheriff and his deputies, who claimed indemnity and contribution from TDC as third party plaintiffs. Since TDC obtained an order of severance, and this summary judgment was not appealed, said judgment became final 30 days after it was signed. Rule 329b, Tex.R.Civ.P.

Some months thereafter, in July 1980, plaintiff Fore moved the court to set aside the interlocutory summary judgment in favor of the County, based on a decision in the interim by the Fort Worth Court of Civil Appeals holding a city liable under virtually identical facts in the case of Forbus v. City of Denton, 595 S.W.2d 621 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.). ² The trial court granted said motion, set aside the summary judgment in favor of the County, and reinstated County as a party defendant. Thereafter, with leave of court, County filed a third party action against TDC for contribution and/or indemnity. TDC filed an answer and plea in bar, and then moved for summary judgment based on res judicata, estoppel by judgment, and the rule that contribution and indemnity may not be recovered from a party against whom the injured plaintiff has no cause of action, as well as the grounds asserted in its first motion for summary judgment. The trial court rendered summary judgment for TDC, dismissed County's third party action with prejudice, and County appeals from this judgment.

On appeal, County contends the trial court erred in granting TDC's motion for summary judgment because the evidence raised the issues of negligence by, and actual notice to, TDC. We note however that County filed no written response to TDC's motion presenting these issues to the trial court. Therefore, we find that County is precluded from raising the issues it now asserts because they were not presented to the trial court in a written response to TDC's motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677-8 (Tex.1979); Klafehn v. Fain, 643 S.W.2d 227, 228-9 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.); Rule 166-A(c),...