Schronk v. City of Burleson and Laerdal Medical Corp., No. 10-07-00399-CV (Tex. App. 7/22/2009)
| Decision Date | 22 July 2009 |
| Docket Number | No. 10-07-00399-CV.,10-07-00399-CV. |
| Parties | KEVIN GLENN SCHRONK, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HELEN PATRICIA SCHRONK, DECEASED, AND DUSTIN SCHRONK, Appellants, v. CITY OF BURLESON AND LAERDAL MEDICAL CORP., Appellees. |
| Court | Texas Court of Appeals |
Appeal from the 413th District Court, Johnson County, Texas, Trial Court No. C200600118.
Reversed and remanded.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS. (Chief Justice Gray dissenting in part and concurring in part with note)*
Kevin Schronk and his son Dustin filed a wrongful death suit against the City of Burleson and Laerdal Medical Corporation after emergency medical technicians employed by the City were unable to resuscitate Helen Schronk with an automatic external defibrillator (AED) manufactured by Laerdal. The trial court granted the City's plea to the jurisdiction and Laerdal's summary-judgment motion. The Schronks contend in four points that the court erred by: (1) granting Laerdal's summary-judgment motion because the motion did not address their product liability claim and genuine issues of material fact remain on their negligence claim; (2) denying their special exceptions to the City's plea to the jurisdiction; (3) granting the City's plea to the jurisdiction; and (4) sustaining the City's objections to evidence they offered in opposition to the City's plea to the jurisdiction. We will reverse and remand.
Kevin Schronk called 9-1-1 when his wife Helen suffered a cardiac arrest. EMT's employed by the City responded and tried to resuscitate Helen with an AED manufactured by Laerdal. However, the AED's battery was too weak to administer a defibrillating shock. The EMT's made several attempts to administer a shock with the AED but could not because of the low battery. Another AED was brought to the location, but Helen could not be resuscitated. She was pronounced dead on arrival at the hospital.
Kevin and Dustin filed suit against the City and Laerdal. They alleged that the City was liable for negligence based on its failure to properly maintain the AED and for violations of various statutes applicable to emergency services providers. They alleged that Laerdal was liable: (1) for negligence in the: (a) design, manufacture, marketing, etc. of the AED; (b) training of City employees in the operation and maintenance of the AED; (c) service and maintenance of the AED; and (d) labeling of the AED battery; and (2) for selling an unreasonably dangerous product.
The City filed a plea to the jurisdiction alleging that its "sovereign immunity has not been waived." Laerdal filed a summary-judgment motion presenting both no-evidence and traditional grounds. The Schronks filed pleadings responsive to the plea to the jurisdiction and to the summary-judgment motion. They also filed a summary-judgment motion of their own.
The City filed objections to evidence relied on by the Schronks in their response to the plea to the jurisdiction. Laerdal likewise filed objections to evidence relied on by the Schronks in their summary-judgment response.
The court conducted a hearing on the City's plea to the jurisdiction, Laerdal's summary-judgment motion, and the Schronks' summary-judgment motion. A week later, the court signed three separate orders: (1) granting the City's plea to the jurisdiction; (2) granting Laerdal's summary-judgment motion; and (3) sustaining the City's objections to the Schronks' evidence.
The Schronks contend in their second point that the court abused its discretion by denying their special exceptions to the City's plea to the jurisdiction. The City responds that the Schronks have failed to preserve this issue for appellate review because they did not obtain a ruling on their special exceptions. In the alternative, the City argues that no abuse of discretion is shown because the plea to the jurisdiction gave the Schronks fair notice of the basis for the City's immunity claim.
The trial court did not expressly rule on the special exceptions. When the Schronks called their special exceptions to the court's attention at the hearing on the plea to the jurisdiction, the court responded, But the order granting the City's plea to the jurisdiction reads in pertinent part:
came on to be considered the City of Burleson's Plea to the Jurisdiction, together with its Brief Supporting City of Burleson's Plea to the Jurisdiction (including an Appendix); Plaintiff's Special Exceptions and Response to City of Burleson's Plea to the Jurisdiction and to Brief Supporting City's Plea; Plaintiffs' Supplemental Response to Defendant Burleson's Plea to the Jurisdiction; and City of Burleson's Objections to Plaintiffs' Response; and arguments of counsel. Having considered such matters, the Court has determined that the Plea to the Jurisdiction is well founded and should be granted.
(emphases added).
Rule of Appellate Procedure 33.1 recognizes that issues may be preserved either by express or implicit rulings. See Tex. R. App. P. 33.1(a)(2)(A). In the summary-judgment context, this Court has consistently held that the grant of a summary-judgment motion, standing alone, does not constitute an implicit ruling on objections to the movant's summary-judgment proof. See, e.g., Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex. App.-Waco 2002, no pet.). The Schronks contend that a different rule applies for special exceptions. See, e.g., Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 824 n.3 (Tex. App.-Fort Worth 2008, no pet.) ("a trial court implicitly overrules special exceptions when it grants summary judgment on the motion to which the special exceptions pertain"). However, we need not decide in this case whether a different rule applies.
The Schronks called their special exceptions to the trial court's attention at the hearing on the plea to the jurisdiction. The court stated on the record that it did not want to consider the special exceptions, but stated in its written order that it did consider them. See In re Marriage of Jordan, 264 S.W.3d 850, 855 (Tex. App.-Waco 2008, no pet.) (written order controls over oral rulings). Thus, the court considered the Schronks' challenges to the adequacy of the City's plea to the jurisdiction and implicitly overruled their challenges by ruling on the merits of the City's pleading. See Clement v. City of Plano, 26 S.W.3d 544, 550 n.5 (Tex. App.-Dallas 2000, no pet.) (by granting summary judgment, trial court implicitly overruled special exceptions which were "presented" to court), disapproved on other grounds by Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002).
"The purpose of a special exception is to compel clarification of pleadings when the pleadings are not clear or sufficiently specific." Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam). Pleadings must give "fair notice" of a party's claims or defenses. Horizon/CMS Heathcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000); Schwartz v. Ins. Co. of the State of Pa., 274 S.W.3d 270, 276 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). The test long-recognized by intermediate appellate courts1 in Texas is "whether an opposing attorney of reasonable competence, perusing the pleadings, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant." 2 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 7:4[b] (2d ed. 2002); see Schwartz, 274 S.W.3d at 276; Schley v. Structural Metals, Inc., 595 S.W.2d 572, 587 (Tex. Civ. App.-Waco 1979, writ ref'd n.r.e.); Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex. Civ. App.-Dallas 1959, writ ref'd n.r.e.).
The Schronks first argue that the City's plea to the jurisdiction does not give fair notice of whether the City was asserting immunity from suit or immunity from liability. It is true that the City's pleading only uses the term "sovereign immunity" and does not specify whether immunity from suit or immunity from liability is claimed.
The Schronks cite Baylor College of Medicine v. Hernandez, 208 S.W.3d 4 (Tex. App.-Houston [14th Dist.] 2006, pet. denied), for the proposition that, because the City explicitly claimed immunity as an affirmative defense and never used the term "immunity from suit" in its pleading, the City's plea to the jurisdiction does not allege immunity from suit. In Baylor College of Medicine, however, the plaintiff did not challenge the defendants' pleadings by special exceptions, and the defendants/appellants did not claim immunity from suit in their appellate pleadings. See id. at 9 n.5. Thus, the court made it clear that immunity from suit was not an issue in that case.
As the text of appellants' motions and briefs make clear, Baylor and the Physicians interpret section 312.006 of the Health and Safety Code to confer immunity from liability on each of them and base their claims of immunity on this section and on the alleged lack of notice. Although appellants' motion to dismiss also contains the conclusory statement that Baylor and the Physicians are immune from both liability and suit pursuant to "TEX. HEALTH & SAFETY CODE Section 312 et seq., TEX. CIV. PRAC. & REM.CODE Section 101 et seq., and Tex. Educ. Code Section 61 et seq.," the appellants repeatedly state that section 312.006(a) confers immunity from liability and present neither argument nor authority supporting their claim that any specific section of the globally-cited codes renders them immune from suit. To the extent that such an issue has been raised, it is waived pursuant to TEX. R. APP. P. 33.1(a)(1)(A) and 38.1(h).
Here, the City unequivocally claims immunity from suit on appeal, so we will examine...
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