The Texas Supreme Court issued one opinion today and granted three new cases for its future argument calendar.
Post-answer defaults; what constitutes evidence of reasonable repair costs
Bennett v. McDaniel, No. 08-0618 (per curiam) (DocketDB)
This was a post-answer default judgment case in the vein of the Court’s recent decision in Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (DocketDB)
Dolgencorp came out on the same day that my blog began its brief hiatus this summer. Here’s what you need to know about it:
When a party fails to appear for trial after filing an answer, that can lead to a “post-answer” default. The key is that the issues put into play by the answer remain in dispute when the case is decided on its merits:
In cases of no-answer default, . . . a defaulting defendant admits all facts properly pled in the plaintiff’s petition except for the amount of unliquidated damages. Thus, the plaintiff is only required to prove its claim for unliquidated damages. But if the defendant files an answer, as in this case, a trial court may not render judgment on the pleadings and the plaintiff is required to offer evidence and prove all aspects of its claim. (( From the Dolgencorp opinion; citations omitted. ))
In Dolgencorp, the Court concluded that the plaintiff had not presented legally sufficient evidence on part of its claim. Faced with a decision about whether to remand for a new trial or to render judgment for the (defaulting) defendant, the Court decided that remand was the proper relief.
In the Bennett case, decided before Dolgencorp but in similar circumstances, the court of appeals rendered judgment. The Texas Supreme Court reversed the court of appeals and remanded for a new trial, consistent with its decision in Dolgencorp.
The notable thing about today’s decision might be the reason why the evidence presented below was legally insufficient. The damages here involved repairs that were needed for a roof, and in this default proceeding, the plaintiff testified about an estimate that she received for those repair costs.
The court of appeals held that the plaintiff’s testimony about the price of the estimated repair in this case was, in essence, hearsay, since there was no testimony from the firm that calculated the estimate. The Texas Supreme Court said that perhaps it was hearsay, but no hearsay objection had been preserved. (It was, after all, a default proceeding.)
But the Texas Supreme Court held that this damages testimony was insufficient for a different reason — there was no testimony that these repair costs would be reasonable:
The record indicates, however, that Mary Bennett merely stated an estimated price and did not testify that the estimate was reasonable. For this reason, we agree with the court of appeals that the Bennetts did not present legally sufficient evidence of damages.
The Court thus granted the petition for review and remanded for a new trial.
The Texas Supreme Court granted the petition for review in three cases, setting them for argument later this fall.
- Texas Parks and Wildlife Department v. The Sawyer Trust, No. 07-0945 (DocketDB). This is a petition that the Court previously denied, and then reinstated after a motion for rehearing. It involves the question of how, if at all, you can sue the State to determine the State’s title to property.
- Presidio Independent School District v. Robert Scott, as Commissioner of Education, No. 08-0958 (DocketDB) This dispute between a school district and the State asks how (if at all) the school district can challenge the commissioner’s decision to reinstate a teacher who had been disciplined for using excessive force. The court of appeals concluded that §21.307(a)(2) of the Education Code requires that “all parties” agree to any further challenge to the commissioner’s decision in court. Accordingly, it held that sovereign immunity barred the district’s suit.
Scott and White Memorial Hospital, et al. v. Fair, No. 08-0970 (DocketDB) This is a slip-and-fall case about ice outside of a hospital in Temple. The petition urges the Court to adopt what it calls “the ‘Massachusetts Rule’ in cases involving slips and falls on ice.” The “Massachusetts Rule” puts the burden on the pedestrian to look out for his own safety if the ice is a natural accumulation. This is in contrast to “the Connecticut Rule,” which places the burden on the premises owner to clear ice.
The petition’s argument begins, “While ice storms and resulting slip and fall accidents occur in Texas on a regular basis, no Texas Supreme Court case has yet addressed . . . .”
During our record-setting heat wave and drought this summer, we can only hope for our biennial Austin ice storm, or at least some 70-degree high temperatures, by the time this case comes up on the December argument calendar.
Motion for leave to participate in argument denied
The Court denied an amicus curiae’s request to expand the argument time to permit an amicus argument in D.R. Horton-Texas Ltd. v. Markel International Insurance Co., No. 06-1018 (DocketDB).
That case is coming up for oral argument on September 8, 2009, and will be the first case argued on the Texas Supreme Court’s fall calendar.