Christopher Shawn Wood, Individually and as Next Friend of Slade Zaccharia Wood v. Boyd Blythe, George Eason, Jr., RNC Communications, Inc., Phonoscope, Ltd., Phonoscope, Inc., and Phonoscope Management, Inc.

Opinion

Opinion issued November 4, 2004 

In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-01054-CV

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CHRISTOPHER SHAWN WOOD, INDIVIDUALLY AND AS NEXT FRIEND OF SLADE ZACCHARIA WOOD, Appellant

V.

PHONOSCOPE, LTD.; PHONOSCOPE INC.; AND PHONOSCOPE MANAGEMENT L.C., Appellees

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On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 98-27716

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SUPPLEMENTAL OPINION

ON MOTION FOR REHEARING

          Appellant, Christopher Shawn Wood, individually and as next friend of his minor son, Slade Zacharia Wood, plaintiff in the court below (Wood), has filed a motion for rehearing, which he amended timely, to challenge our memorandum opinion issued on May 27, 2004. In his first point on rehearing, Wood argues that we erred in our disposition of his appeal because we did not address his third point of error, in which he asserted that the trial court erroneously permitted the jury to consider whether Wood was contributorily negligent and, in addition, erroneously denied Wood’s motion for judgment notwithstanding the verdict, in which he asked that the trial court set aside the jury’s finding that Wood was 12 percent negligent. We deny rehearing, but issue this supplemental opinion to respond to Wood’s contention that we erred in not addressing these issues.

          Our opinion explained that, although several appeals had been perfected, all had been dismissed except Wood’s challenge to the pretrial summary judgment rendered in favor of Phonsocope. Neither Phonoscope nor its codefendant RNC Communications, Inc. (RNC), which had also prevailed on a pretrial motion for summary judgment, was present at the trial, and no question or instruction pertaining to either Phonoscope or RNC was submitted to the jury. As our opinion also noted, Wood voluntarily dismissed, pursuant to settlement, his appeals against trial-defendants Blythe and Eason.

          Although the partial summary judgment in favor of Phonoscope became final and appealable when it merged with the final judgment entered by the trial court at the conclusion of the trial on the merits against Blythe and Eason, we reviewed the summary judgment based on “the record as it existed when the summary judgment was signed” and were precluded from “consider[ing] evidence introduced thereafter.” See Pan Am. Petroleum Corp. v. Tex. Pac. Coal & Oil Co., 324 S.W.2d 200, 201 (Tex. 1959); State Farm Fire & Cas. Co. v. Griffin, 888 S.W.2d 150, 153 (Tex. App.—Houston [1st Dist.] 1994, no writ).

          When, as here, one party succeeded in its motion for summary judgment and we conclude, on appeal, that the trial court committed reversible error by rendering summary judgment in favor of that party, the proper disposition of the appeal is to reverse the judgment and remand the cause for a trial on the merits. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); Hall v. Mockingbird AMC/Jeep, Inc., 592 S.W.2d 913, 914 (Tex. 1979); Duckett v. Board of Trustees, 832 S.W.2d 438, 440 (Tex. App.—Houston [1st Dist.] 1992, writ denied); compare Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Jones, 745 S.W.2d at 900 (noting exception that applies in case of mutually opposing motions for summary judgment and authorizes court of appeals to determine all questions presented and to render judgment).

          In our opinion of May 27, 2004, we reached the conclusion that the trial court did not err by rendering summary judgment in favor of Phonoscope, except as to Wood’s negligent-hiring claim. Accordingly, we reversed that portion of the trial court’s final judgment and remanded the cause for trial of that issue. It is well-settled that, as movant for summary judgment, Phonoscope was not required to assert every theory on which it might recover or defend. See Hudson v. Wakefield, 711 S.W.2d 628, 630-31 (Tex. 1986). Under that same, settled law, our judgment reversing the trial court’s summary judgment on Wood’s negligent-hiring claim returned both Wood and Phonoscope to their pretrial posture as to that claim. See Hudson, 711 S.W.2d at 630-31. Because they are returned to their pretrial posture, Wood and Phonoscope are free to add parties, amend their pleadings, or both, except as to those claims on which we affirmed the summary judgment rendered in Phonsocope’s favor. See Hudson, 711 S.W.2d at 630-31; Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 510-11 (Tex. App.—Corpus Christi 2002, no pet.).

          Our opinion of May 27, 2004 reached the following conclusion: Phonoscope was entitled to prevail as a matter of law on all claims that Wood had alleged except his negligent-hiring claim. Having reached only that legal conclusion, we decided no other issue of law and no issues of fact as to Phonoscope, because these remain for the trial on the merits against Phonoscope. See First Nat. Bank v. Sledge, 616 S.W.2d 954, 957 (Tex. Civ. App.—Fort Worth 1981), rev’d on other grounds, 653 S.W.2d 283 (Tex. 1983). Accordingly, we did not address Wood’s third point of error, in which he contended that there was no evidence that he was contributorily negligent and challenged the trial court’s rulings that (1) permitted the jury to determine this issue and (2) denied Wood’s motion for judgment notwithstanding the verdict.

          Moreover, Wood’s third point of error addressed a jury finding that attributed a percentage of negligence to Wood, but only in comparison to the negligence of Eason and Blythe—parties whom Wood has since voluntarily dismissed from his appeal based on settlement—and not in comparison to any alleged negligence of Phonoscope.

          Wood acknowledges that he voluntarily dismissed his appeals against Eason and Blythe, but contends that his “Report of Settlement Affecting Appeal and Unopposed Motion to Dismiss Appeal in Part” (report of settlement and motion to dismiss) preserved review of both the trial court’s submitting his contributory negligence to the jury and the jury’s resolution of that issue.

          Wood relies on the following language from his report of settlement and motion to dismiss:

Wood wishes to continue the appeal as it relates to Phonoscope, Ltd.[,] however. In this connection, insofar as Phonoscope, Ltd. might claim the benefit of the doctrine of issue preclusion on the amount of damages, Phonoscope ought to be the real party in interest on the appellate point regarding no evidence of any negligence on the part of Wood.

(Emphasis added.) In reporting that he had settled with and released his claims against Blythe, Eason, and RNC, Wood stated that his appeals against those parties “ought to be dismissed as moot, since all have been compromised and settled.”

          Despite acknowledging again that he had settled with and released all parties except Phonoscope, Wood nevertheless contends, in his motion for rehearing, that his “appeal of the judgment to the extent that it reflected a deduction of his damages because of a jury finding of contributory negligence is not moot.” Wood defends the viability of these issues in his motion for rehearing by asserting, as in his report of settlement and motion to dismiss, that Phonoscope “may claim that the issue of damages has been adjudicated” and further asserts that Phonoscope may claim that “the issue of Wood’s contributory negligence is now the law of the case.” (Emphasis added.)

          Wood’s motion for rehearing thus recognizes that our reversal as to Phonoscope means that both he and Phonoscope return to their pretrial posture and may assert new claims and defenses. See Pan Am. Corp., 325 S.W.2d at 201; Griffin, 888 S.W.2d at 153; Creative Thinking Sources, Inc., 74 S.W.3d at 510-11. More importantly, Wood also concedes that Phonsocope’s asserting certain claims and defenses are mere possibilities.

          The dispositive issue, therefore, is not whether Wood’s contributory-negligence findings are moot, but whether they are ripe. This Court properly exercises its jurisdiction solely in cases of actual controversy. See Hallmark Personnel, Inc. v. Franks, 562 S.W.2d 933, 935 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ.). Stated otherwise, we determine “presently existing disputes between parties in relation to facts out of which controverted questions arise.” Greene v. Gregg, 520 S.W.2d 924, 926 (Tex. Civ. App.—Tyler 1975, no writ). Accordingly, we have no authority to issue advisory opinions. McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex. 2001); see also Hallmark Personnel, Inc., 562 S.W.2d at 935. The prohibition against advisory opinions encompasses controversies that are not ripe and thus precludes premature adjudication on a hypothetical set of facts. McAllen Med. Ctr, Inc., 66 S.W.3d at 232.

          Wood’s motion for rehearing asserts that we erred in not addressing the issue of his contributory negligence, as determined in his trial against the since-released parties, Eason and Blythe—a trial in which Phonoscope did not participate—on the grounds that Phonoscope “may” or “might” assert contentions based on that adjudication on remand. These issues are not yet ripe. See id. Accordingly, we lack jurisdiction to address them.

                                                         Conclusion

          We deny Wood’s amended motion for rehearing.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.