Texas Case Law
DRAKE v. SPRIGGS, 13-03-00429-CV (Tex.App. [13th Dist.]
12-14-2006) CAROL J. DRAKE, CARLENE K. VINYARD, JANET FAY
DAY, AND CHERYL A. KURTZ, Appellants v. LUCILLE SPRIGGS, ET
AL., Appellees. No. 13-03-429-CV. Court of Appeals of
Texas, Thirteenth District, Corpus Christi —
Edinburg. December 14, 2006.
On appeal from the 343rd District Court of Aransas County,
Texas.
Before Justices HINOJOSA, Ya??ez, and CASTILLO.
MEMORANDUM OPINION
LINDA REYNA Ya??ez, Justice.
Appellants, Carole J. Drake, Carlene K. Vinyard, Janet Fay
Day, and Cheryl A. Kurtz, appeal a judgment in favor of
appellees, Joe Zambrano d/b/a AA Pepe’s Bail Bonds and
Lucille Spriggs d/b/a Lulu’s Bail Bonds. On appeal,
appellants raise ten issues which, for purposes of
organization, will be reordered, addressed as eight, and
referred to numerically as herein sequenced: (1) the trial
court erred in entering judgment on the jury’s verdict; (2)
the trial court erred in denying appellants’ motion for new
trial; (3) the trial court erred in granting a motion for
instructed verdict on appellants’ causes of action of civil
conspiracy, conspiracy to defraud, fraud, fraudulent
misrepresentation, negligent misrepresentation, and breach
of the common law express warranty for services; (4) the
trial court erred by failing to submit to the jury all
grounds of recovery raised in appellants’ original petition;
(5) the trial court erred in requiring appellants to make
offers of proof under the rule of optional completeness; (6)
the trial court erred by improperly excluding evidence; (7)
appellants’ motion to recuse judge was denied in error;[fn1]
and (8) the trial court erred in granting a no-evidence
motion for summary judgment on appellants’ Deceptive Trade
Practice Act (“DTPA”) claim.[fn2] We reverse the summary
judgment and remand the cause for further trial proceedings.
BACKGROUND
Appellants are the heirs of Carl J. Kurtz (“Kurtz”).[fn3]
On September 17, 1999, a district court in Montrose County,
Colorado issued a warrant for Kurtz’s arrest; the State of
Colorado had charged Kurtz with two felony offenses,
conspiracy to commit murder and criminal solicitation to
commit murder, which were allegedly committed in Montrose
County. On September 28, 1999, as a result of the
outstanding warrant, Kurtz was arrested in Aransas County,
Texas and placed in the county jail. Shortly thereafter,
Kurtz was arraigned by an Aransas County judge. Though the
warrant fixed bail at $500,000 for both charges combined,
bail was instead set at $1,000,000 ($500,000 for each
charge). Kurtz subsequently paid appellees, AA Pepe’s Bail
Bonds and Lulu’s Bail Bonds, two Texas bonding companies, a
total of $100,000 ($50,000 to each) for two bonds to secure
his release from jail in Aransas County. After appellees
guaranteed the two $500,000 bonds, Kurtz was released from
jail on the condition that he appear for a hearing in
Montrose County, Colorado. On November 1, 1999, Joe
Zambrano, acting on behalf of himself and Lucille Spriggs,
escorted Kurtz to his advisement hearing in Montrose County.
At the hearing, Judge Richard Brown expressed concern and
confusion with regard to Kurtz’s bonds and his appearance
before the court. The court found that Kurtz, despite his
intent not to do so, had waived his right to contest
extradition from Texas by appearing in Aransas County.[fn4]
Judge Brown then considered whether or not Kurtz should be
required to post an additional bond to remain out on bail.
Zambrano attempted to reassure the court that appellees
would continue to hold themselves liable on the bonds in the
event of forfeiture, but the court ultimately concluded that
the bonds were invalid and that appellees were likely not
subject to the court’s jurisdiction in Colorado. As a
result, Judge Brown required Kurtz to post another bond from
a Colorado bondsman in the amount of $100,000. Kurtz
complied with the court’s order, paying a Colorado bonding
company $10,000 to help secure his release pending a trial
on the two charges. After the criminal case against him was
resolved, Kurtz obtained an attorney for the purpose of
recovering a portion of the $100,000 in bonding premiums
paid to appellees. Demand letters were sent to appellees on
Kurtz’s behalf. The letters alleged that appellees had
misrepresented to Kurtz the validity of the bonds and the
extent to which they would secure his release. A few months
later, Kurtz died on August 5, 2001.
On September 27, 2001, appellants, Kurtz’s heirs, filed
suit against appellees in Aransas County. By way of their
original petition, appellants alleged causes of action for
violation of the DTPA, fraudulent and negligent
misrepresentation, breach of warranty, breach of good faith
and fair dealing, and breach of contract. Appellees raised a
no-evidence motion for summary judgment as to appellants’
DTPA claim, which was ultimately granted on November 13,
2002. Trial began on March 24, 2003, and at the close of
appellants’ case-in-chief, the trial court granted
appellees’ motion for instructed verdict on appellants’
causes of action for breach of warranty and fraudulent and
negligent misrepresentation. The trial proceeded on
appellants’ breach of good faith and fair dealing and breach
of contract claims. The jury ultimately returned a verdict
in appellees’ favor on both claims. Appellants filed motions
for new trial, judgment notwithstanding the verdict, and to
recuse the trial judge; all three motions were denied.
Appellants then filed this appeal.
ISSUES ON APPEAL
Issues 1-5
We begin by finding that appellants have waived the first
five issues on appeal. In their brief, appellants offer no
argument or authority for why they are entitled to a new
trial.[fn5] Regarding their motion for judgment
notwithstanding the verdict, appellants only argue that they
are entitled to JNOV because there was testimony at trial
that should have constituted a judicial admission. The
testimony believed to constitute a judicial admission is not
provided for us, nor is the Court directed to any specific
point in the record. We are not told whether the alleged
judicial admission constitutes some of the evidence that was
improperly excluded at trial, as appellants allege in
another issue, or whether this is an admission that was
actually presented as evidence before the jury.[fn6]
Appellants additionally failed to provide any argument for
why there was legally insufficient evidence to support the
jury’s verdict.[fn7]
In urging this Court to find error in the trial court’s
granting of instructed verdict and its failure to submit all
causes of action stated in appellants’ original petition,
appellants simply refer us to numerous portions of the
record. Appellants provide no legal authority and fail to
discuss the elements required to prove causes of action for
civil conspiracy, conspiracy to defraud, fraud, fraudulent
misrepresentation, negligent misrepresentation, and breach
of the common law express warranty for services; appellants
have also failed to discuss how alleged facts and evidence
presented establish each required element for each cause of
action asserted.[fn8]
Lastly, in their complaint regarding the trial court’s use
of the rule of optional completeness, outlined in rule 107
of the Texas Rules of Evidence, appellants simply define the
rule and direct us to numerous points in the record where
the rule was utilized. Appellants make no attempt to explain
how the trial court erred in its application of the rule,
nor do they explain how they were harmed by any such
error.[fn9]
We have little latitude on appeal and can neither remedy
deficiencies in a litigant’s brief nor supply an adequate
record.[fn10] Furthermore, we have no duty to perform an
independent review of the record and applicable law to
determine whether the error complained of occurred.[fn11]
Because appellants failed to adequately brief the five
aforementioned issues on appeal, they have presented nothing
for our review.[fn12]
Issue 6: Excluded Evidence
In the sixth issue, appellants allege the trial court erred
in excluding evidence that was material and relevant to
their causes of action. We review the trial judge’s
exclusion of evidence under an abuse of discretion
standard.[fn13] A trial court abuses its discretion when it
acts without regard for any guiding rules or
principles.[fn14] To obtain reversal of a judgment based on
error in the admission or exclusion of evidence, an
appellant must show the trial judge’s ruling was in error
and the error probably caused the rendition of an improper
judgment.[fn15]
Appellants first direct our attention to an excluded
portion of Joe Zambrano’s deposition, which allegedly
contains a judicial admission. This portion contains the
following exchange between appellants’ counsel and Zambrano:
Q [By counsel]: And so if that statement was not true, you
received $50,000 from Carl Jay Kurtz that you were not
entitled to; correct?
A [By Zambrano]: Correct.
The “statement” referred to in counsel’s question is the
“Oath of Sureties” that Zambrano signed on Kurtz’s bail
bond. The oath consisted of a sworn statement from Zambrano
to the State of Texas, whereby Zambrano swore to have a net
worth greater than one-million dollars.
After reviewing his entire deposition, we find that
Zambrano made a quasi-admission. The Texas Supreme Court, in
distinguishing a quasi-admission from a judicial admission,
has stated:
A party’s testimonial declarations which are contrary to
his position are quasi-admissions. They are merely some
evidence, and they are not conclusive upon the admitter. . .
. These are to be distinguished from the true judicial
admission which is a formal waiver of proof usually found in
pleadings or the stipulations of the parties. A judicial
admission is conclusive upon the party making it, and it
relieves the opposing party’s burden of proving the admitted
fact, and bars the admitting party from disputing it.[fn16]
In order to treat a party’s testimonial quasi-admission as
a conclusive judicial admission, the statement must be
“deliberate, clear, and unequivocal” and “the hypothesis of
mere mistake or slip of the tongue must be
eliminated.”[fn17] Zambrano’s testimony, as quoted above,
was but a small part of his deposition testimony. In other
parts of his deposition, Zambrano defends his entitlement to
the money he received from Kurtz. In light of the entire
deposition, we cannot definitively exclude the possibility
that Zambrano made a “mere mistake or slip of the tongue,”
nor can we say that his statement was “deliberate, clear,
and unequivocal.”
The excluded evidence appellants complain of consists of
Zambrano’s quasi-admission, other portions of his
deposition, and testimony from four other witnesses. All of
the testimony, which was excluded on relevance grounds
pursuant to a motion in limine, pertains to appellees’
financial status. Appellants sought to utilize the testimony
to prove that appellees misrepresented their net worth when
signing the “Oath of Sureties” contained on each bail bond.
We find that this evidence was properly excluded. A
bondsman’s misrepresentation of net worth on a bond could
possibly create a cause of action for the principal if bail
was prematurely terminated as a direct result of the
misrepresentation. This, however, did not occur in the
instant case. According to the testimony of Judge Richard
Brown, he required Kurtz to post an additional bond through
a Colorado bondsman because (1) appellees were not licensed
bondsmen under the State of Colorado, (2) he did not know if
appellees would be subject to Colorado’s jurisdiction in the
event of a bond forfeiture, and (3) appellees’ bonds were
not supplemented with formal proof that substantiated
appellees’ claimed net worth, as was traditionally required
in Colorado. In fact, Judge Brown testified that appellees’
financial “representation actually meant nothing to [him].”
There was simply no evidence indicating that appellees’
bonds were replaced as a result of any perceived financial
misrepresentation. Since the evidence relating to whether
appellees actually made financial misrepresentations was
wholly irrelevant, we find that the trial court did not
abuse its discretion. Accordingly, appellants’ sixth issue
is overruled.
Issue 7: Motion to Recuse Judge
In the seventh issue, appellants complain that Judge David
Peeples, Presiding Judge of the Fourth Administrative
Judicial District in Texas, erred in denying their motion to
recuse Judge Janna K. Whatley. On an appeal from the denial
of a recusal motion, the reviewing court may reverse the
trial court’s decision only if the trial court abused its
discretion.[fn18]
At the motion to recuse hearing, appellants asserted that
Judge Whatley (1) exhibited a physical demeanor that was
hostile toward appellants,[fn19] (2) made a number of
rulings that were persistently unwarranted and biased
against appellants,[fn20] (3) was biased as a result of a
prior employment relationship with appellees’ counsel, and
(4) derived an opinion, from an extrajudicial source, that
was hostile or critical of appellants’ counsel.[fn21]
“Judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.”[fn22] As noted
earlier, appellants waived any error pertaining to the trial
court’s application of the rule of optional completeness and
its granting of the instructed verdict. In asserting this
seventh point on appeal, appellants do not reattempt to
argue how these two issues amounted to trial error, and we
will again decline to construct any such arguments for them.
Since we have already determined that evidence was properly
excluded, the only trial court rulings that remain
unaddressed relate to the no-evidence motion for summary
judgment and the alleged favoritism that was exercised in
the sustaining and overruling of trial objections. After
reviewing the record, we do not find that the trial court’s
rulings constitute any proof of bias or partiality.
“[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a
bias or partiality challenge.”[fn23] “Such remarks may
[support recusal] if they reveal an opinion deriving from an
extrajudicial source, and such remarks will do so if they
reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.”[fn24] Though the record
shows that Judge Whatley’s light chastising of appellants’
counsel was prompted by an extrajudicial source, as outlined
in footnote 21, we find insufficient evidence of favoritism
or antagonism resulting therefrom, as is required to support
recusal.
Judge Whatley’s employment under appellees’ counsel, which
terminated when she became a judge, is not a relationship
that explicitly warrants recusal under the Texas Rules of
Civil Procedure; nor do we believe that her impartiality
should reasonably be questioned in light of this
relationship.[fn25] Lastly, because her complained of
demeanor does not establish bias or partiality,[fn26] we
find that Judge Peeples did not abuse his discretion in
denying appellants’ motion to recuse. Appellants’ seventh
issue is overruled.
Issue 8: No-Evidence Motion for Summary Judgment
The eighth and final issue before us concerns whether the
trial court erred in granting appellees’ no-evidence motion
for summary judgment on appellants’ DTPA claim. The motion
was granted on the grounds that appellants had failed to
present evidence showing that appellees committed any act
that was the “producing cause” of the damages claimed.
Appellants attack the motion on two grounds.
a. Appellants’ Special Exceptions
Appellants first assert the trial court erred in overruling
their special exceptions to the no-evidence motion.
Appellants objected and specially excepted to the motion on
the basis that it failed to state the relief sought with
specificity. In the no-evidence motion’s prayer, appellees
requested the trial court to grant the motion and to award
“such further relief as the court deems just.” According to
appellants, the prayer should have specifically requested
that a judgment be summarily rendered that the claimants
take nothing.
We liberally construe pleadings because special exceptions
are only a challenge to determine if the “fair notice”
requirements of pleadings have been met.[fn27] If by
examining the plaintiff’s pleadings alone, we may ascertain
with reasonable certainty the elements of a cause of action
and the relief sought, the pleading is sufficient.[fn28] We
believe one may ascertain with reasonable certainty the
relief sought in appellees’ prayer. Accordingly, we find the
trial court did not err in overruling appellants’ special
exceptions.
b. Standard of Review
Pursuant to Texas Rule of Civil Procedure 166a(i), a
defendant may move for summary judgment on the ground that
there is “no evidence of one or more essential elements” of
a plaintiff’s claim.[fn29] Once a defendant moves for
summary judgment on no-evidence grounds, the burden shifts
to the plaintiff to present evidence sufficient to raise a
genuine issue of material fact on the challenged element or
elements.[fn30] If the plaintiff fails to satisfy its
burden, the trial court must grant the motion.[fn31]
In reviewing a no-evidence summary judgment, we apply the
same legal sufficiency standard that is applied in reviewing
directed verdicts[fn32] Therefore, we review the evidence
in the light most favorable to the nonmovant and disregard
all contrary evidence and inferences.[fn33]”A no evidence
point will be sustained when (a) there is a complete absence
of evidence of a vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere
scintilla, or (d) the evidence conclusively establishes the
opposite of a vital fact.”[fn34] Thus, a no-evidence summary
judgment is improperly granted if the nonmovant brings forth
more than a scintilla of probative evidence to raise a
genuine issue of material fact.[fn35] More than a scintilla
of evidence exists when the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in
their conclusions.”[fn36] Less than a scintilla of evidence
exists when the evidence is “so weak as to do no more than
create a mere surmise or suspicion” of a fact.
The DTPA contains a list, commonly referred to as the
“laundry list,” of actions declared to constitute false,
misleading, or deceptive acts.[fn37] Private parties are
empowered to maintain an action for damages, whether
economic or for mental anguish, where a laundry-list
violation is the producing cause.[fn38] To succeed in a DTPA
laundry-list action, a plaintiff must show that (1) he is a
consumer, (2) the defendant engaged in false, misleading, or
deceptive acts, (3) on which the plaintiff relied, and (4)
these acts constituted a producing cause of the consumer’s
damages.[fn39]
A producing cause is “an efficient, exciting, or
contributing cause, which in a natural sequence, produced
injuries or damages complained of, if any.”[fn40] Common to
both proximate and producing cause is causation in fact,
including the requirement that the defendant’s conduct or
product be a substantial factor in bringing about the
plaintiff’s injuries.[fn41] While foreseeability is an
element of proximate cause, it is not of producing
cause.[fn42]
c. Evidence of Producing Cause
Appellants contend there was more than a scintilla of
evidence to support the producing cause element of their
DTPA claim. In their original petition, appellants claimed
that appellees misrepresented that (1) they were of a
financial net worth as sworn on their bonds’ “Oath of
Sureties,” (2) they were authorized to write bail bonds in
the State of Colorado, and (3) the bonds would be valid in
the State of Colorado. Appellants specifically claimed that
these alleged misrepresentations violate the following
subsections of section 17.46(b) of the Texas Business and
Commerce Code:[fn43]
(b) Except as provided in Subsection (d) of this section,
the term “false, misleading, or deceptive acts or practices”
includes, but is not limited to, the following acts:
. . . .
(5) representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or
quantities which they do not have or that a person has a
sponsorship, approval, status, affiliation, or connection
which he does not;
. . . .
(12) representing that an agreement confers or involves
rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law;
. . . .
(20) representing that a guarantee or warranty confers or
involves rights or remedies which it does not have or
involve, provided, however, that nothing in this subchapter
shall be construed to expand the implied warranty of
merchantability as defined in Sections 2.314 through 2.318
and Sections 2A.212 through 2A.216 to involve obligations in
excess of those which are appropriate to the goods;
. . . .
(24) failing to disclose information concerning goods or
services which was known at the time of the transaction if
such failure to disclose such information was intended to
induce the consumer into a transaction into which the
consumer would not have entered had the information been
disclosed.[fn44]
Appellants also asserted that appellees’ alleged
misrepresentations constituted an unconscionable action or
course of action in violation of section 17.50(a)(3) of the
business and commerce code.
When the trial court’s order specifies the ground relied on
for the summary judgment ruling, as in this case, the
summary judgment can be affirmed only if the theory relied
on by the trial court is meritorious.[fn45] Accordingly,
our review is limited to whether the alleged
misrepresentations were the producing cause of damages; it
does not encompass determinations as to appellants’ consumer
status, nor the existence of misrepresentation and
reliance.[fn46]
When we addressed issue six, relating to the exclusion of
evidence, we deemed irrelevant any evidence relating to
whether appellees misrepresented their financial net worth
on the bonds. For all the same reasons already expressed
therein, we find that any such misrepresentation, if made,
was not a producing cause of appellants’ damages and lends
no support to their DTPA claim.
As was also discussed in issue six, we note the deposition
testimony of Judge Brown. In the deposition, which
appellants proffered to the trial court in their response to
appellees’ no-evidence motion, Judge Brown stated that in
his opinion, “neither one of [the] bonds were subject to the
Court’s jurisdiction in Colorado and were not valid in
Colorado.” When asked if appellees’ bonds were worthless,
his response was that in “terms of being a
legally-recognized document in Colorado that we would accept
for bonding purposes so that Mr. Kurtz could remain out of
custody pending his case resolution, they did not have any
significance for us.” We thus find that Judge Brown’s
deposition provides some evidence that a misrepresentation
of the bonds’ validity in Colorado, which encompasses the
issue of licensing, was the legal cause of appellants’
damages.
In addition to legal cause, appellants needed to prove that
but for appellees’ conduct, appellants’ injuries would not
have occurred.[fn47] This means that, but for the alleged
misrepresentations of appellees, Kurtz would not have
elected to secure bonds with them. We note, however, that
where the misrepresentation is material, as here,[fn48] we
presume that this factor is met, “in absence of facts
showing the contrary.”[fn49]Appellees did not present
evidence to rebut the presumption that misrepresentation of
the bonds’ validity in Colorado induced Kurtz to enter into
bonding agreements with appellees. We may thus conclude
that, but for appellees’ misrepresentations, Kurtz would not
have incurred the damages in question. Accordingly, we find
for appellants on this issue.
CONCLUSION
We reverse the trial court’s judgment on the DTPA claim and
remand that claim to the trial court for further
proceedings. We affirm the trial court’s judgment in all
other respects.
Justice Errlinda Castillo
[fn1] Appellants’ issues seven and eight are addressed in
our issue seven.
[fn2] Appellants’ issues one and two are addressed in our
issue eight.
[fn3] Kurtz died intestate. The appellants before us include
his wife, Cheryl A. Kurtz, and his three daughters, Carol J.
Drake, Carlene K. Vinyard, and Janet Fay Day.
[fn4] Though not applicable to our resolution of the issues
presented in this case, we are inclined to express our
concern regarding the manner in which officials in Aransas
County arranged Kurtz’s return to Colorado. In 1951, Texas
adopted the Uniform Criminal Extradition Act (“UCEA”),
presently codified in article 51.13 of the Texas Code of
Criminal Procedure. Tex. Code Crim. Proc. Ann. Art. 51.13
(Vernon 2006). Section 16 of the UCEA states:
Unless the offense with which the prisoner is charged is
shown to be an offense punishable by death or life
imprisonment under the laws of the State in which it was
committed, a judge or magistrate in this State may admit the
person arrested to bail by bond, with sufficient sureties
and in such sum as he deems proper, conditioned for his
appearance before him at a time specified in such bond, and
for his surrender, to be arrested upon the warrant of the
Governor in this State. Id. Therefore, under section 16,
Kurtz should have been released on bond on the condition
that he return to Aransas County so that he could be
extradited in accordance with other sections of the UCEA.
Section 25a of the UCEA, however, expressly provides that an
arrested person may voluntarily waive all extradition
procedures if the waiver is made in the presence of a judge,
and if the judge has informed the person of his rights under
the statute. Id. We find nothing in the record indicating
that Kurtz made such a formal waiver, and all inferences
drawn from the record seemingly indicate that no formal
waiver was made.
Although a waiver signed in the presence of a judge may be
the preferred method, section 25a contains a proviso that
specifically states it is not the exclusive method of
securing a valid waiver. It provides in part as follows:
[T]hat nothing in this section shall be deemed to limit the
rights of the accused person to return voluntarily and
without formality to the demanding state, nor shall this
waiver procedure be deemed to be an exclusive procedure or
to limit the powers, rights or duties of the officers of the
demanding state or of this state. (Emphasis added).
On one occasion, the Texas Court of Criminal Appeals
utilized this proviso in holding that formal extradition
proceedings are not necessary when returning “absconding
parolees or probationers who have signed a prior waiver of
extradition as a condition to their release.” Ex parte
Johnson, 610 S.W.2d 757, 759-60 (Tex.Crim.App. 1980).
Accordingly, one might argue that Kurtz informally waived
his rights under the UCEA by agreeing to enter into a
bonding agreement that conditioned his release on his return
to Colorado; we find this contention, however, problematic.
The parole agreement in Johnson explicitly notified the
parolee of his waiver of rights; no such notice was afforded
to Kurtz under his bonding agreements. Though no court that
we are bound to follow has directly addressed what, if any,
protections attach to an informal waiver procedure, we
believe that a valid waiver needs three essential elements:
(1) an unequivocal statement by the accused of his intent to
waive extradition rights; (2) made voluntarily; and (3) with
some rudimentary understanding of the rights being
relinquished. See McBride v. Soos, 512 F. Supp. 1207,
1212-13 (N.D. Ind. 1981), aff’d, 679 F.2d 1223 (7th Cir.
1982). These elements are not found in the instant case. The
transcript of Kurtz’s initial hearing in Colorado reveals
that Kurtz had never intended to waive extradition by
appearing in Colorado; it also shows that appellees’
understanding of extradition law was no better than Kurtz’s.
Even a Colorado state prosecutor at the hearing is quoted
stating: “In all honesty, every indication I had was that
Mr. Kurtz was going to fight extradition and that he was
simply bailing out of jail in Texas, to do this hearing down
there.” The failure of Aransas County officials to follow
prescribed statutory procedures has made it difficult for
this Court to decipher how and why Kurtz’s bonding
predicament came into existence. We have attempted herein to
rationalize the County’s actions, but we ultimately find
that they are without justification. We believe that
officials failed to afford Kurtz procedural due process
protections as was required of them under the UCEA.
[fn5] See Tex. R. App. P. 38.1(h); Fed. Sign v. Tex. S.
Univ., 951 S.W.2d 401, 410 (Tex. 1997); Tex. Dep’t of Pub.
Safety v. Struve, 79 S.W.3d 796, 801 n. 6 (Tex.App.-Corpus
Christi 2002, pet. denied).
[fn6] See Tex. R. App. P. 38.1(h).
[fn7] Id.
[fn8] Id.
[fn9] Id.
[fn10] Green v. Kaposta, 152 S.W.3d 839, 841
(Tex.App.-Dallas, no pet.) (citing Strange v. Cont’l Cas.
Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet.
denied)).
[fn11] See id.
[fn12] See id.; Tex. R. App. P. 38.1(h).
[fn13] See Owens-Corning Fiberglas Corp. v. Malone, 972
S.W.2d 35, 43 (Tex. 1998) (concluding that the admission or
exclusion of evidence is a matter within trial judge’s
discretion).
[fn14] Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985).
[fn15] See Tex. R. App. P. 44.1; Owens-Corning Fiberglas
Corp., 972 S.W.2d at 43.
[fn16] Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692, 694 (Tex. 1980).
[fn17] Griffin v. Superior Ins. Co., 338 S.W.2d 415, 419
(Tex. 1960).
[fn18] Tex. R. Civ. P. 18a(f).
[fn19] This consisted of rolling her eyes and appearing
inattentive while appellants’ counsel spoke.
[fn20] These rulings, in large part, pertain to the
application of the rule of optional completeness, the
exclusion of evidence complained of in issue five, the
granting of summary judgment and instructed verdict against
appellants’ causes of action, and the overruling and
sustaining of trial objections in a manner that appellants
claim wholly favored appellees.
[fn21] To demonstrate evidence of an extrajudicial source,
appellants refer us to a pretrial discussion between
appellees’ counsel, Robert L. Joseph, appellants’ counsel,
John F. Dietze, and Judge Whatley. In the following excerpt,
Dietze and Judge Whatley discuss the no-evidence summary
judgment motion that had been granted days earlier to
appellees:
COURT: Mr. Dietze, I have read that. I mean, I can talk to
you about that for days. You do not know how many people
have told me what you thought about my ruling on that. It’s
gotten back to me. That’s okay; I understand. Disagreements
are good. That’s fine. I’ve read it. I feel like I know the
case very well and I’m comfortable with my ruling. Court of
Appeals may tell me I’m wrong and I’ll be glad to redo it at
that time.
DIETZE: May I inquire of the Court who has told you about
my-what I vocalized about my opinion of the ruling?
COURT: I am trying to recall. No one that’s a party in the
case. I can tell you that. Someone said something to me in
Sinton that you were totally dismayed with me over my
ruling. And that’s okay; that’s fine. I just wish you’d come
tell me. Okay.
DIETZE: Judge, I tried-I tried to tell you in the form of a
motion for reconsideration. I wrote you two letters.
COURT: Don’t talk about me to other people, though. That’s
my only-that’s my only — that’s my only thing is it
did upset me that you did that. But I can’t recall who it
was. I promise you it wasn’t Mr. Joseph or any of the
parties in this case. It was somebody totally unrelated.
That’s why I was like . . . If I think about who it is, I’ll
be glad to tell you.
[fn22] Liteky v. United States, 510 U.S. 540, 555 (1994).
[fn23] Id.
[fn24] Ludlow v. DeBerry, 959 S.W.2d 265, 271
(Tex.App.-Houston [14th Dist.] 1997, no writ).
[fn25] See Tex. R. Civ. P. 18b.
[fn26] Liteky, 510 U.S. at 555 (holding that “judicial
remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or
partiality challenge”).
[fn27] See Wortham v. Dow Chem. Co., 179 S.W.3d 189, 198-99
(Tex.App.-Houston [14th Dist.] 2005, no pet.).
[fn28] Id. at 198.
[fn29] Tex. R. Civ. P. 166a(i).
[fn30] See id.; Branton v. Wood, 100 S.W.3d 645, 647
(Tex.App. — Corpus Christi 2003, no pet.) (citing
Tex. R. Civ. P. 166a cmt.).
[fn31] See Branton, 100 S.W.3d at 647 (citing Lampasas v.
Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex.App.-Houston
[14th Dist.] 1999, no pet.)).
[fn32] King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003); Zapata v. Children’s Clinic, 997 S.W.2d 745,
747 (Tex.App. — Corpus Christi 1999, pet. denied).
[fn33] King Ranch, 118 S.W.3d at 750; Zapata, 997 S.W.2d at
747 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997); Moore v. Kmart Corp., 981 S.W.2d 266,
269 (Tex.App.-San Antonio 1998, pet. denied)).
[fn34] King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow
Pharms., 953 S.W.2d at 711).
[fn35] Id. (citing Tex. R. Civ. P. 166a(i); Wal-Mart Stores,
Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)).
[fn36] Id. (quoting Merrell Dow Pharms., 953 S.W.2d at 711).
[fn37] Tex. Bus. & Com. Code Ann. § 17.46(b) (Vernon
2006); Checker Bag Co. v. Washington, 27 S.W.3d 625, 634
(Tex.App.-Waco 2000, pet. denied) (citing Crown Life Ins.
Co. v. Casteel, 22 S.W.3d 378, 386 (Tex. 2000)).
[fn38] Tex. Bus. & Com. Code Ann. § 17.50(a)(1)
(Vernon 2006).
[fn39] Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 705
(Tex. 2002) (citing Tex. Bus. & Com. Code Ann. §
17.50(a)(1); Checker Bag, 27 S.W.3d at 634).
[fn40] Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775
(Tex. 1995).
[fn41] Id.
[fn42] Id.
[fn43] In their original petition, appellants listed causes
of action under section 17.46(b)(19) and (23), rather than
subsections (20) and (24) as we have listed herein.
Appellants failed to account for statutory revisions to the
DTPA that were made effective approximately four weeks prior
to the filing of their petition. When the revisions became
effective, causes of action which would have been pleaded
under subsections (19) and (23) were now renumbered as
subsections (20) and (24). This defect was not addressed at
trial nor has either party made it an issue on appeal. We
have been apprised of this defect through appellants’
petition, which described each wrongly numerated subsection
with sufficient detail to alert us of their intended
pleadings. We have elected to set out those causes of action
that appellants clearly intended to raise in this opinion.
[fn44] Tex. Bus. & Com. Code Ann. § 17.46(b)(5),
(12), (20), (24) (Vernon 2006).
[fn45] See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d
374, 380 (Tex. 1993).
[fn46] The record reveals that during a pretrial discussion
of appellees’ no-evidence motion, Judge Whatley expressed to
appellants the evidentiary problems she had with their DTPA
claim. Judge Whatley called into question whether there was
any evidence showing that Kurtz and appellees had
specifically agreed to enter into bonding agreements that
would survive beyond Kurtz’s initial hearing in Colorado.
This evidentiary issue, however, begs the question of
whether a misrepresentation exists, not whether any such
misrepresentation is a producing cause; we view these two
issues as two distinct elements that a party must prove when
asserting a DTPA cause of action. However, we do believe,
without formally holding on the matter, that the transcript
of Kurtz’s Colorado hearing provides more than a scintilla
of evidence that Kurtz and appellees intended for the bonds
to survive longer than they actually did.
[fn47] See Prudential Ins. Co. v. Jefferson Assocs., Ltd.,
896 S.W.2d 156, 161 (Tex. 1995).
[fn48] “A misrepresentation is material if it would be
likely to induce a reasonable person to manifest his
assent.” Restatement (Second) of Contracts § 162 cmt.
c. We find that a misrepresentation as to the duration for
which a bail bond will secure release undoubtedly concerns a
material matter.
[fn49] See Restatement (Second) of Contracts § 162
cmt. c.; Provident Life & Accident Ins. Co. v. Hawley, 123
F.2d 479, 483 (4th Cir. 1941); Miller v. Celebration Mining
Co., 2001 UT 64, 29 P.3d 1231, 1235 (Utah 2001).
CONCURRING AND DISSENTING MEMORANDUM OPINION.
ERRLINDA CASTILLO, Justice.Concurring and Dissenting
I join the majority opinion except as to its conclusion
that the trial court erred in granting the no-evidence
motion for summary judgment on appellants’ Deceptive Trade
Practices Act (“DTPA”) claims. Because I would affirm the
trial court’s ruling on this issue, I respectfully dissent.
Appellants alleged in the First Amended Petition that
unlawful acts and practices were the producing cause(s) of
damages to Cheryl A. Kurtz, wife of the deceased, Carl J.
Kurtz (“Kurtz”). Kurtz paid $50,000 to Valdez and Spriggs,
d/b/a Lulu’s Bail Bonds, for a bail bond, and another
$50,000 to Zambrano d/b/a AA Pepe’s Bail Bonds, in order to
secure his release from jail in Aransas County, Texas.[fn1]
Kurtz had been arrested on warrants issuing from Montrose
County, Colorado, for conspiracy to commit murder and
criminal solicitation to commit murder.
By their lawsuit, appellants, as Kurtz’s heirs, complained
that the sureties were not approved to make bonds or render
bonding services in Montrose County, Colorado, and that
Kurtz was subsequently required to post another bond from a
Colorado bondsman. Appellants alleged violations of the
DTPA, complaining that appellees misrepresented the validity
of bonds and the extent to which the bonds would secure
Kurtz’s release. Specifically, appellants charged that
appellees had “failed to disclose” to Kurtz that “they were
not approved to write bail bonds in Colorado,” that the
bonds would need to be replaced upon his appearance in the
Colorado court, and that they would be relieved from any
liability once he appeared at the advisement hearing in
Colorado. It is undisputed that Kurtz was released from
Aransas County officials’ custody upon tender of the bonds.
Appellants contended Kurtz sustained pecuniary economic loss
in the amount of $100,000, the monies paid for the
“worthless and `bogus'” bail bonds.
In their no-evidence motion for summary judgment, appellees
contended there was no evidence that any allegations, even
if true, including that appellees made any false statements
or were not approved to write bail bonds in the state of
Colorado, were a producing cause of any damages. The trial
court’s order finding no evidence as to “`producing cause’
under the DTPA on any action alleged to have been committed
by the Defendants” and granting the no-evidence motion for
summary judgment as to all DTPA claims was entered November
13, 2002.
Appellants contend, and the majority agrees, that they
tendered more than a scintilla of evidence to support the
producing cause element of the DTPA claims. Specifically,
the majority concludes that deposition testimony of Judge
Brown, the Colorado judge, in which he stated that Colorado
did not recognize the Texas bonds as having legal
significance, constituted some evidence that a
misrepresentation of the bond’s validity in Colorado was a
producing cause of damages.[fn2] I disagree. Judge Brown’s
statement is nothing more than a recognition that Colorado
does not recognize Texas bonds. It serves as no evidence of
a producing cause of damages.
Kurtz fled from Colorado where warrants against him had
issued related to murder charges. He was detained and jailed
in Aransas County, Texas, on September 28, 1999. He was
arraigned by an Aransas County judge who set bail. Kurtz
obtained two bonds to secure his release from the Aransas
County authority, and he was released on the condition that
he appear for a hearing in Montrose County, Colorado. He was
subsequently escorted to that advisement hearing by a
representative of one of the sureties; that hearing took
place November 1, 1999. Between the date of posting of the
bonds and his appearance at the hearing, Kurtz was free on
bond, just as promised by the Aransas County court and the
sureties.[fn3] Appellants complain that Kurtz was
subsequently required to obtain an additional bond, thereby
sustaining damages because the Texas bonds were inoperative
in Colorado. However, regardless of whether any
misrepresentations were made to Kurtz, the summary judgment
evidence establishes the Colorado court would have required
bond be posted by a Colorado surety.
Under the DTPA, a consumer may bring suit against any
person whose false, misleading, or deceptive acts, or other
practices enumerated in the act are the producing cause of
the consumer’s harm. Miller v. Keyser, 90 S.W.3d 712, 715
(Tex. 2002). As noted by the majority, producing cause
requires proof of actual causation in fact. Prudential Ins.
Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex.
1995). “This requires proof that an act or omission was a
substantial factor in bringing about injury which would not
otherwise have occurred.” Id. “The first component of
producing-cause analysis is a purely fact-based examination,
considering whether, but for the defendant’s conduct, the
plaintiff’s injuries would not have occurred.” Amstadt v.
United States Brass Corp., 919 S.W.2d 644, 655 (Tex. 1996)
(Gonzales, J., concurring in pat and dissenting in part).
Cause in fact is not shown if the defendant’s negligence did
no more than furnish a condition which made the injury
possible. Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex.
1995).
Appellants were required to tender more than a scintilla of
evidence that, but for appellees’ conduct, Kurtz sustained
injuries which otherwise would not have occurred. In this
instance, that means that, but for the alleged
misrepresentations of appellees, Kurtz would not have
secured the bonds which subsequently had to be replaced by
Colorado bonds. The record should therefore reflect some
evidence that either (a) Kurtz would have elected to remain
in jail pending being transferred to Colorado through
extradition procedures, or (b) he would have sought Colorado
bonds beginning with the initiation of his arrest, bypassing
any Texas bonding companies.[fn4] As noted above, it is
undisputed that the Texas bonds were effective to secure
Kurtz’s release on bond from Texas custody.
In their response to the no-evidence motion for summary
judgment, appellants tendered as evidence of “producing
cause” the following: (1) deposition testimony of Joe
Zambrano that he knew the bond, when issued, related to a
warrant from Colorado, that he did not know the bond would
not be recognized in Colorado, that he worked with Spriggs
of Lulu’s Bail Bonds to get the second bond issued in
Kurtz’s behalf, that he posted virtually all of his
collateral to cover Kurtz, and that he accompanied him to
Colorado because if Kurtz hadn’t appeared before the
Colorado court, Zambrano would have lost everything he had;
(2) deposition testimony of Jesse Valdez who, as an agent of
Spriggs and Lulu’s Bail Bonds, executed that bond,
understood it was returnable to Montrose County, Colorado,
and knew that Zambrano would accompany Kurtz to the Colorado
court; (3) testimony of Lucille Spriggs that her company
provided a bond for Kurtz, she knew Zambrano was also
providing a bond, that the bonds were returnable to
Colorado, and that it was important to present Kurtz to the
Colorado court; (4) testimony of Olivia Zambrano; and (5)
testimony of Judge Brown, District Judge in Montrose County,
Colorado, that bond posted by Kurtz had to be approved by
the court, posted by a company subject to the court’s
jurisdiction, and licensed to do business in Colorado, that
the two Texas bonds did not meet those requirements, and
therefore, that when Kurtz did appear in his court, a
replacement bond was required.
None of these foregoing facts are disputed. None of these
facts address whether or not Kurtz would have opted to
secure the bonds and his release from the Texas jail had he
known an additional bond would be required once he appeared
before the Colorado court. I find no evidence that, but for
the alleged misrepresentation, Kurtz would have acted
differently. Appellants argue that we should presume such
harm simply because the Texas bonds were inadequate to
secure Kurtz’s release pending resolution of the entire
matter in Colorado.[fn5] However, we may not presume or
speculate as to evidence of harm, and, as such, I cannot
conclude that the trial court erred in finding no evidence
that any alleged DTPA violation was a producing cause of
damages to Kurtz or his heirs. Accordingly, I respectfully
dissent.
Concurring and Dissenting Memorandum Opinion
[fn1] Evidence reflects that Kurtz, although subject to
Aransas County authorities, was at least for some portion of
the relevant time hospitalized instead of housed in the
jail.
[fn2] Appellants also contended that appellees made perjured
statements regarding their net worth on the face of the
bonds. I agree with the majority that any misrepresentation
of financial net worth, if made, was not a producing cause
of any damages and cannot be relied upon to support the DTPA
claims.
[fn3] Kurtz’s appearance before the Colorado court was
interpreted as voluntary and a waiver of extradition
procedures.
[fn4] The question as to whether Colorado bonding companies
would be recognized by Texas authorities is not before this
Court.
[fn5] The majority cites to no Texas law, and I find none,
to support its contention that where a misrepresentation is
alleged to have been material, courts should “presume” that
the “but for” prong has been satisfied, absent evidence to
the contrary. Such an approach constitutes an improper
shifting of the burden of proof.