In re T.R.B.
No. 04-11-00192-CV
Court of Appeals of Texas, San Antonio.
June 1, 2011.
350 S.W.3d 227
REBECCA SIMMONS, Justice.
Based on the undisputed evidence at trial, Briggs Ranches did not know, or have reason to anticipate, that Ochoa would consume alcohol and then drive his car at a high rate of speed, thus causing a fatal accident. Accordingly, there is no evidence of foreseeability. Absent foreseeability, Salinas cannot establish the duty element of a Section 317 cause of action. Because we conclude that the evidence at trial established as a matter of law that Ochoa‘s conduct was not foreseeable to Briggs Ranches, the trial court should not have submitted Question No. 3 to the jury, and therefore the question was immaterial. See Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999) (a question is immaterial when it should not have been submitted because it calls for a finding beyond the province of the jury, such as a question of law); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994). Given that Question No. 3 was immaterial, Salinas‘s complaint that the jury erred in answering the question in the negative is overruled.
CONCLUSION
Based on the foregoing, we overrule Salinas‘s issues on appeal and affirm the judgment of the trial court.
Kimberly Shawn Burley, Assistant District Attorney, Jeffrey J. Jowers, Clemens & Spencer, P.C., Rashin Mazaheri, Sally L. Justice, Attorney at Law, Irene Vela Cadena, Law Office of Irene Vela Cadena, Robert L. Graul, Jr., Robert L. Graul, Jr., P.C., San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, REBECCA SIMMONS and MARIALYN BARNARD, Justices.
OPINION
Opinion by: REBECCA SIMMONS, Justice.
On March 11, 2011, relator T.R.B. filed a petition for writ of mandamus, complaining the trial court abused its discretion in denying T.R.B. her right to a jury trial in a child custody case, and in failing to present the issue of real party in interest D.S.‘s standing to the jury for a determination. We conditionally grant mandamus relief.
BACKGROUND
Relator T.R.B. is the adoptive mother of Y.B. (age 16), K.B. (age 12), and T.B. (age 9). T.R.B. is the girls’ only legal parent. On April 22, 2007, T.R.B. married D.S., but they later separated. On March 10, 2008,
While the interlocutory appeal was pending before this court, T.R.B.‘s youngest daughter T.B. made a sexual assault outcry against her eldest sister Y.B. After an investigation by the Texas Department of Family and Protective Services (the Department), it was determined that an assault had occurred, and, therefore, T.R.B. requested the Department remove Y.B. from her home. On June 12, 2009, the Department filed a parental termination suit in Cause No. 2009-PA-01189, seeking to terminate T.R.B.‘s parental rights to Y.B., to which T.R.B. consented. Because Y.B. also made abuse allegations against T.R.B., the Department filed a parental termination suit against T.R.B. in Cause No. 2010-PA-02037 for the termination of T.R.B.‘s parental rights to the remaining two children K.B. and T.B. In response, D.S. and Y.B. sought to intervene in the termination case, and the Department filed a motion to strike their interventions and all pleadings. The motion to strike was denied.
On October 18, 2010, all parties attended mediation, and agreed to the following: (1) to have one single trial “that encompasses all the parties, issues and causes“; (2) to have the trial court grant a mistrial in Cause No. 2009-PA-01189 (parental termination suit as to Y.B.); (3) to consolidate Cause No. 2010-PA-02037 (parental termination suit as to all three girls) into Cause No. 2008-CI-03913 (the original SAPCR filed by D.S.); and (4) to set the case for a consolidated jury trial on December 6, 2010 under consolidated Cause No. 2008-CI-03913. The trial court adopted the parties’ agreement and consolidated Cause No. 2010-PA-02037 (parental termination suit as to all three girls2) into Cause No. 2008-CI-03913 (the original SAPCR filed by D.S.). Likewise, the trial court granted a mistrial in Cause No. 2009-PA-01189 (termination as to Y.B.), and dismissed the case pursuant to a nonsuit on December 7, 2010.
On December 6, 2010, D.S. filed a motion to determine standing, and T.R.B. filed a motion to bifurcate, requesting the standing issue be tried before the merits of the case.3 The consolidated case proceeded to trial, and the parties selected a jury. The Department called T.R.B. as its first witness. On December 23, 2010, after presenting several days of evidence, but before the Department rested and before T.R.B. presented her case, all parties except T.R.B. announced they had reached an agreement the evening before. According to the settlement, the Department, D.S., and the various ad litem attorneys agreed that the Department and D.S. would be joint managing conservators of
DISCUSSION
I. Standard of Review
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,” and “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker, 827 S.W.2d at 840. In cases involving child custody, “[j]ustice demands a speedy resolution,” and “appeal is frequently inadequate to protect the rights of parents and children.” In re Tex. Dep‘t of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex.2006). The Supreme Court has previously held that an appeal is inadequate because the children, the subject of the suit, would remain in the Department‘s custody and it was unknown when the trial court would issue a final order subject to appeal. See In re Dep‘t of Family & Protective Servs., 273 S.W.3d 637, 645 (Tex.2009) (holding appeal is inadequate when the Department was holding the children in its custody despite its retaining them in violation of a statutory provision).
In the trial court‘s response to the petition for writ of mandamus, the court asserts T.R.B. has an adequate remedy by way of an accelerated appeal. See
II. Directed Verdict
T.R.B. complains the trial court erred in granting a directed verdict before she was able to present her evidence to the jury. The Texas Constitution guarantees that the right to a trial by jury “shall remain inviolate.”
In the consolidated case, D.S. sought to: (1) reduce T.R.B.‘s status from sole managing conservator to joint managing conservator; (2) deny T.R.B. the right to determine the primary residence of the children; and (3) deny T.R.B. access to the children. Pursuant to section 153.005 and 263.404 of the Family Code, the Department sought to reduce T.R.B.‘s status from sole managing conservator of all of the children to possessory conservator, and alternatively, sought to terminate her parental rights to all three of her children. T.R.B. opposed diminishing her conservatorship and filed a general denial and plea to the jurisdiction relating to the standing of D.S.
As noted earlier, the trial court granted a directed verdict in favor of the Department and D.S. before they completed their case in chief and before T.R.B. had an opportunity to present her evidence. In granting the directed verdict, the trial court specifically did not rely on the evidence but rather pointed to a pleading deficiency: “[t]he Court is making a finding that as a matter of law that [T.R.B.‘s] failure to assert affirmative relief, [sic] the Court is accepting the settlement agreement of all other parties that are parties to this suit. There is no longer a question to the jury. I am taking this matter away from the jury and directing a verdict in compliance and accordance with the settlement agreement made by the parties, save and except your client.”6 In its response to the petition for writ of mandamus, the trial court maintains that because T.R.B. filed only a general denial in the SAPCR proceeding and did not assert any affirmative relief, once the Department and D.S. came to an agreement on conservatorship there was no jury issue remaining and T.R.B. could not present evidence.7
In the context of this case, T.R.B.‘s general denial was sufficient to contest any change in conservatorship. See
In its response, the trial court relies on In re Russell, 321 S.W.3d 846, 855 (Tex.App.-Fort Worth 2010, orig. proceeding [mand. denied]), for the proposition that to satisfy Texas‘s fair notice pleading standard, a respondent in a family law case must describe in her pleadings “‘what action the court is requested to take concerning the child and the statutory grounds on which the request is made.‘” Id. (quoting
The burden of proof, at trial, was on the Department and D.S. There is a rebuttable presumption that a parent, such as T.R.B., shall be appointed sole managing conservator unless the court finds that appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child‘s physical health or emotional development.
We conclude T.R.B.‘s general denial was sufficient to require the Department and D.S. to carry their burden when seeking to reduce or eliminate T.R.B.‘s conservatorship status. As the only legal parent of the children, T.R.B. was the sole managing conservator when trial began. Both the Department and D.S. sought to reduce or eliminate her conservatorship status. In order to accomplish that, both the Department and D.S. had to meet their burden. The trial court‘s belief that the general denial was insufficient to raise a fact issue on T.R.B.‘s conservatorship neglects the burden of proof in this consolidated case. We conclude the trial court abused its discretion in granting the directed verdict.
III. Standing
Because the petition for writ of mandamus has been conditionally granted and the case will be remanded to the trial court for a jury trial, we briefly address the standing issue. This court previously concluded D.S. raised a fact question regarding his standing to pursue his SAPCR, and, therefore, we reversed the trial court‘s judgment that granted the plea to the jurisdiction and remanded the case to the trial court for further proceedings consistent with our opinion. See Y.B., 300 S.W.3d at 6. T.R.B. complains the trial court abused its discretion by not permitting the standing issue to be resolved by the trier of fact in accordance with our prior opinion. Id. The trial court responds that the issue of standing is moot because once D.S. and the other parties reached a settlement agreement, T.R.B. was left with insufficient pleadings to raise any issue for the jury. The trial court also notes that at the time it granted the directed verdict, T.R.B. did not argue nor reassert the issue of standing.8 However, as we noted in our prior opinion, “Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law.” Id. at 4. Therefore, the issue of D.S.‘s standing to seek the affirmative relief sought in his SAPCR remains to be resolved by the trier of fact.
CONCLUSION
We conclude the trial court abused its discretion in granting the directed verdict. Therefore, we conditionally grant the petition for writ of mandamus and order the trial court to proceed in a manner consistent with this opinion. The writ will issue only if the trial court fails to comply with this court‘s opinion.
REBECCA SIMMONS
JUSTICE