With today’s orders list, the Court issued one opinion and granted one petition for review. For those watching the calendar, the Court is scheduled to hold another internal conference next Monday and Tuesday.

Casteel does not apply to an erroneous contributory-negligence submission

Thota v. Young, No. 09-0079 (Green, J.) (opinion).

This was a medical-malpractice case that actually made it past the expert-witness phase to a merits trial. The question on appeal was whether a jury charge question about contributory negligence (by the patient) had been erroneous and, if so, whether that was a harmful error. The doctor argued that this issue had been waived because the plaintiff had not made a specific enough objection at the charge conference.

Where there is broad-form submission, there are appellate lawyers arguing over Casteel. In this case, the court of appeals concluded that the particular charge error qualified for a Casteel “presumed harm” analysis that would allow it to reverse for a new trial without walking through a formal harmless-erorr analysis. The court of appeals thus ordered a new trial.

The Texas Supreme Court originally denied the petition for review. On rehearing, however, it decided to grant the petition and set it for oral argument last November. Today, the Court issued a unanimous opinion reversing the court of appeals. (I wrote a blurb about the case when rehearing was granted.)

The Court first addressed the question of whether this appellate point had been preserved by a no-evidence objection. Here, it sided with the plaintiff, concluding that — at least for this particular type of charge error — the no-evidence objection was specific enough.

It then reached the question whether this charge error was significant enough to reverse the judgment. The Court rejected the court of appeals’s analysis about “presumed harm,” concluding that the “presumed harm” analysis of Casteel did not apply to a contributory-negligence question in a case with only one theory of liability.

That extends (or maybe just applies) the Court’s decision in Bed, Bath, and Beyond v. Urista, which had refused to apply the presumed-harm rule to an erroneous “inferential rebuttal” instruction in a single-theory case. This case, unlike Urista involved a question about a defense (not just an instruction about weighing the evidence). But the Court found the principle the same, refusing to presume that it was harmful error.

The Court then walked through a more traditional harmful-error analysis, concluding that any error here was not harmful. It reversed the court of appeals and remanded to that Court for it to consider other issues in the case.

New grant: Debts of a spouse after divorce

The Court granted the petition for review in Tedder v. Gardner Aldrich, LLP, No. 11-0767, a divorce case out of the Fort Worth Court of Appeals. The case should be scheduled for an oral argument on the fall calendar.

The suit is between one of the wife’s creditors and her ex-husband. And, if you couldn’t guess by the style of the case, the wife’s creditor (Gardner Aldrich LLP) is the law firm she hired to handle the divorce litigation. The husband’s petition for review argues that the Family Code limits which debts of a spouse can be attributed to the other, and that the creditor did not establish that the debts involved were “necessaries” or that the husband had not complied with the support orders of the divorce court.