DeWolf v. Kohler
452 S.W.3d 373
| Tex. App. | 2014Background
- Decedent Terry DeWolf died after a scuba dive on the Andrea Doria wreck (July 30, 2008); initial autopsy suggested drowning, later revised to myocarditis. Plaintiff Tammy DeWolf sued on behalf of herself, the estate, and children.
- Defendants included the dive vessel M/V John Jack (did not appear), expedition leader Richie Kohler (trial defendant), A&E Television Networks (nonresident broadcaster), ITI (dive-training company), and Lamartek/DiveRite (manufacturer of the rebreather).
- The trial court dismissed the vessel for lack of subject-matter jurisdiction, granted A&E’s special appearance for lack of personal jurisdiction, granted ITI summary judgment (grounds not specified in order), and granted Lamartek summary judgment on limitations after reconsideration.
- At trial against Kohler the jury found no wrongful act, neglect, or default by any vessel or person caused Terry’s death and found Terry expressly assumed the risk; judgment incorporated those findings.
- Plaintiff raised multiple appellate complaints about jurisdictional rulings, summary-judgment rulings, charge instructions, evidentiary rulings, jury argument, and the effect of a release; the appellate record was partial and plaintiff did not supply a statement of issues or a complete reporter’s record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over M/V John Jack | Trial court erred dismissing vessel; vessel can be sued in personam even if not in Texas waters | Dismissal appears to be for lack of subject-matter jurisdiction; in rem vessel claims are federal admiralty matters | Affirmed: dismissal proper because in rem vessel suits fall in federal admiralty jurisdiction |
| Personal jurisdiction over A&E | A&E broadcasts into Texas so Texas courts have jurisdiction; admiralty claim may require only national contacts | A&E had no purposeful Texas contacts related to claims; no evidence linking A&E to the dive | Affirmed: trial court lacked personal jurisdiction; appellant did not overcome trial court findings |
| ITI summary judgment (DOHSA & DTPA) | ITI improperly granted summary judgment on some claims | ITI sought no-evidence (causation) and traditional (no duty/causation) grounds for DOHSA and multiple grounds for DTPA | Affirmed: ITI summary judgment upheld (plaintiff did not challenge DOHSA ground and failed to oppose no-evidence grounds for DTPA) |
| Lamartek summary judgment (statute of limitations) | Discovery rule delayed accrual because cause of death was uncertain | Lamartek: DOHSA (federal) 3-year and DTPA 2-year limitations; plaintiff lacked diligence and inquiry notice began in 2008–2009 | Affirmed: Lamartek established limitations as a matter of law; plaintiff not reasonably diligent, claims time-barred |
| Refusal to instruct on voluntary-undertaking claim | Trial court should have instructed jury on undertaking elements | Plaintiff failed to present evidence of necessary elements; appellate record incomplete | Affirmed: no reversible error—plaintiff failed to show harmful error and omitted record presumed to support judgment |
| Charge inclusion of allocation question & refusal to instruct on release evidence | Allocation question irrelevant; should have instructed jury to disregard testimony about a release | Omitted record presumed to show evidence supporting submission; jury found no causation so release immaterial | Affirmed: allocation question immaterial (jury found no causation); release validity did not affect outcome |
| Alleged improper jury argument and judge’s comment | Counsel made improper/inflammatory remarks and judge commented on evidence ("She’s got it") | Most objections not preserved; isolated comment ambiguous and not objected to; omitted record presumed harmless | Affirmed: complaints not preserved or not shown to be harmful |
Key Cases Cited
- Am. Dredging Co. v. Miller, 510 U.S. 443 (federal admiralty in rem actions fall within exclusive federal jurisdiction)
- Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004) (trial courts must consider subject-matter jurisdiction sua sponte)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (Texas long-arm construed to the limits of due process)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (constitutional minimum-contacts due process standard)
- Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007) (distinction between general and specific personal jurisdiction)
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) (interpretation of interlocutory-appeal statute and waiver of interlocutory appeals)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (no-evidence summary-judgment standards)
- Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) (movant’s burden on traditional summary judgment)
- Kubrick v. United States, 444 U.S. 111 (discovery rule principles; accrual when plaintiff knows enough to seek advice)