Opinions Released September 1, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Adame v. State Farm Lloyds, No. 13-15-00357-CV (Opinion by Justice Benavides; Panel Members: Justices Valdez and Rodriguez)

In this direct appeal, defendant’s untimely motion to transfer the case to the proper venue was erroneously granted, although such error was held harmless.

Adame sued State Farm for multiple causes of action stemming from a homeowner’s insurance policy issued for her property in Sandia, Texas. Adame filed suit in Jim Wells County because the property was located in Jim Wells County, and “all or a substantial part of the events” occurred there. State Farm filed a general denial and plea in abatement. Two months later, State Farm filed a motion to transfer venue to Live Oak County, claiming that the property at issue was actually located in Live Oak County. Adame argued that State Farm waived the issue under the due order of pleading. After a hearing, the trial court granted State Farm’s motion and transferred venue to Live Oak County. Once in Live Oak County, Adame amended her petition to state that her Sandia property was located in Live Oak, and that Live Oak was the proper venue. A Live Oak County jury returned a take-nothing verdict for Adame, and the trial court entered judgment accordingly.

Adame appealed, re-urging the venue issue.

Held: Although the trial court erred in transferring venue, the error was harmless.

The Thirteenth Court began by noting that “proper venue” is established either by the mandatory venue statutes if applicable. Otherwise the plaintiff may select from among the permissive venue provisions and file suit accordingly. Unless the plaintiff’s chosen venue is timely challenged, the defendant waives the issue and submits to the venue.

Since State Farm did not file its motion to transfer venue until two months after its original answer, “any objection from state Farm regarding the propriety of venue was undisputedly waived.” The Thirteenth Court thus held that the trial court erred by granting State Farm’s motion to transfer.

Moving on to the harm analysis, the court of appeals noted that an improper transfer of venue is harmful when it results in trial in an improper venue, or when it denies the plaintiff of his right to bring suit in the county of his choice. However, the Thirteenth Court noted that there is no case law on Adame’s particular situation, i.e. where the plaintiff chose an improper venue, the defendant waived his right to challenge, but the trial court nonetheless transferred the case to the proper venue. Consequently, the Thirteenth Court of Appeals applied the standard harmless error analysis and held that the trial court’s improper transfer was harmless. Live Oak was indeed the proper venue for the case, and Adame later admitted as much in her pleadings. Consequently, the judgment of the trial court was affirmed.

Read the Full Case Here

Gonzalez v. State, No. 13-16-00092-CR (Opinion by Justice Rodriguez; Panel Members: Justices Benavides and Perkes)

In this appeal, Gonzalez challenged the trial court’s denial of her motion to suppress.

Here, two police officers stopped the car in which Gonzalez was riding for failing to yield to a pedestrian. When the officers asked Gonzalez to identify herself, she claimed her name was “Cindy Garcia” before ultimately giving the officers her real name. Gonzalez admitted that she did not want to identify herself because she had outstanding warrants.

Gonzalez was charged with two counts of class B failure to identify. Soon thereafter, Gonzalez filed a motion to suppress claiming that her 4th amendment rights had been violated because the officers had no reasonable suspicion to detain her. The trial court denied Gonzalez’s motion to suppress, and Gonzalez pleaded guilty to the charges, retaining her right to appeal the suppression issue.

Held: A defendant cannot challenge the legality of his or her detention in a motion to suppress when lawful detention is an element of the alleged offense. Thus, the trial court did not err in denying Gonzalez’s motion to suppress, and the judgment is affirmed.

The State argued that Gonzalez’s motion to suppress was in reality a challenge to the “lawful detention” element of her class B failure to identify charge, and that such challenge could not be raised in a pretrial motion.

The Thirteenth Court of Appeals agreed, comparing the case to Woods v. State, 153 S.W.3d 413 (Tex. Crim. App. 2005). There, the Texas Court of Criminal Appeals held that a motion to suppress could not be used to challenge the defendant’s detention because lawful detention was an element of the underlying evading arrest charge. Similarly with Gonzalez, lawful detention was an element of class B failure to identify. As such, Gonzalez could not ask the trial court to rule on the merits of an element of an offense via a motion to suppress. Thus, Gonzalez’s motion to suppress was improper and the trial court did not err by denying such motion.

Read the Full Case Here

De La Garza v. Home Care Team, Inc., No. 13-15-00571-CV (Memorandum Opinion by Justice Garza; Panel Members: Justices Valdez and Longoria)

This is a direct appeal from the trial court’s dismissal of a case for the plaintiff’s failure to file an expert report in compliance with the Texas Medical Liability Act (“TMLA”).

Nydia De La Garza worked for The Home Care Team, Inc. as a home health care services provider, and was injured while providing such services at a home owned by Maria Patricia Solis. De La Garza sued Solis for negligence and gross negligence related to the condition of the premises. However, De La Garza did not serve Solis with an expert report within 120 days after Solis filed her answer. Thus, Solis moved to dismiss, claiming that De La Garza was providing health services when she was injured, but failed to timely serve an expert report in compliance with TMLA. The trial court agreed and dismissed the case, noting that De La Garza was a home health care service provider, subject to TMLA. De La Garza appealed and claimed that her case was not subject to the TMLA.

Held: The claim was not subject to TMLA because the defendant was not a physician or health care provider. Thus, the trial court’s order is reversed.

TMLA requires a plaintiff in a “health care liability claim” to serve an expert report on the defendant within 120 days after the defendant files an original answer. A “health care liability claim” is any “cause of action against a health care provider or physician.” Here, Solis is not a health care provider or physician; whether or not De La Garza was providing health care when she was injured is thus irrelevant. The claim was not subject to the TMLA.

The trial court’s order was reversed and the case remanded.

Read the Full Case Here