DeWolf v. Kohler

452 S.W.3d 373

Tammy DeWOLF, Individually and as Personal Representative of the Estate of Terry Sean DeWolf and as Next Friend of Christina DeWolf, Amanda DeWolf, and Kaitlyn DeWolf, Appellant

v.Richie KOHLER, Oceanic Ventures, Inc., M/V John Jack, A & E Television Networks, ITI Holdings, Inc., and Lamartek, Inc. d/b/a Dive Rite, Appellees.

No. 14–13–00778–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Nov. 18, 2014.

Rehearing and Rehearing En Banc Overruled Jan. 8, 2015.

David McKeand, Houston, for Appellant.

MV John Jack, Point Pleasant Beach, NJ, Nicole Shirley Bakare, Houston, Catherine Lewis Robb, Austin, Laura Lee Prather, Austin, James E. Doyle, Houston, for Appellees.

Panel consists of Justices CHRISTOPHER and BUSBY, and Visiting Judge DORFMAN.^*

OPINION

TRACY CHRISTOPHER, Justice.

After the jury failed to find that anyone caused her husband's death, plaintiff Tammy DeWolf brought this appeal, alleging a variety of errors in the trial court's interlocutory rulings and its conduct of the trial. On this record, we conclude that the trial court did not reversibly err in

• dismissing the claims against a vessel for lack of subject-matter jurisdiction;

• dismissing a nonresident television network for lack of personal jurisdiction;

• granting a dive-training company summary judgment on grounds that were not challenged on appeal;

• granting a scuba-equipment manufacturer summary judgment on limitations grounds where the manufacturer established, as a matter of law, that the plaintiff was not diligent in investigating and pursuing her potential claim;

• refusing to instruct the jury on the elements of a voluntary-undertaking claim;

• refusing to instruct the jury to disregard certain testimony;

• including in the charge a question concerning allocation of responsibility;

• making an ambiguous statement that has not been shown to be a comment on the weight of the evidence and was not the subject of an objection; or

• admitting testimony that has not been identified in this appeal.

We also conclude that the plaintiff's appellate complaints of improper jury argument were not preserved for our review. Finally, we do not address her appellate arguments about the legal effect of a release; because no one was found to be at fault, a release of liability does not affect the outcome of the case. We accordingly affirm the trial court's judgment.

I. Factual and Procedural Background

In the summer of 2008, Terry Sean DeWolf was one of a group of people scuba diving at the shipwreck of the Andrea Doria, which rests on the ocean floor more than fifty miles from the shore of Nantucket, Massachusetts. He successfully completed the first day of diving. On the morning of July 30, 2008, the second day of the trip, Terry was seen entering the water, but he did not resurface when expected. After hours of searching, his body was located on, and recovered from, the ocean floor. In a draft autopsy report dated August 1, 2008, the local medical examiner tentatively identified the cause of death as drowning. The statement was qualified with the notation “PFS” for “pending further study.” After tissue samples of Terry's heart were reviewed, the cause of death was revised to reflect that Terry died of natural causes, namely, myocarditis.

In July 2010, Terry's wife Tammy filed suit in a Harris County district court on behalf of herself, Terry's estate, and Terry's three children, each of whom asserted claims arising from Terry's death. She amended her petition several times to assert claims against the following defendants, among others:

• M/V John Jack, the boat from which Terry was conducting his dive;

• Richie Kohler, the individual who chartered the John Jack on behalf of the participants in the dive expedition;

• A & E Television Networks (“A & E”), a non-resident television network that carried the History Channel, on which Terry had watched a program called Deep Sea Detectives on which Kohler appeared;

• ITI Holdings, Inc. (“ITI”), a dive-training company from which Kohler obtained credentials as a scuba-diving instructor;¹ and

• Lamartek, a scuba-equipment manufacturer that does business under the name “Dive Rite” or “DiveRite”² and manufactured Terry's rebreather.³

For the reasons set forth below, Tammy did not prevail in her claims against any of these defendants.

A. M/V John Jack

The M/V John Jack did not answer the suit, and when Tammy moved for a default judgment, the trial court dismissed the vessel sua sponte for lack of jurisdiction. The trial court denied Tammy's motion for reconsideration and her motion to sever the claims against the vessel to allow an earlier appeal.

B. A & E Television Networks

A & E filed a special appearance contesting the trial court's exercise of personal jurisdiction. The trial court granted the special appearance, and Tammy did not pursue an interlocutory appeal of that ruling. After the deadline to file an interlocutory appeal had passed, Tammy filed a motion for reconsideration, which the trial court denied. Shortly before trial two years later, Tammy again moved unsuccessfully for reconsideration.

C. ITI Holdings, Inc.

ITI filed a combined motion for traditional and no-evidence summary judgment on Tammy's claims under the Texas Deceptive Trade Practices—Consumer Protection Act (“DTPA”) and the federal Death on the High Seas Act.⁴ The trial court granted the motion without stating the grounds.⁵

D. Lamartek, Inc.

Lamartek filed a combined motion for traditional and no-evidence summary judgment in which it addressed Tammy's claim under the Death on the High Seas Act and many of her state-law claims. In her response, Tammy discussed her DTPA claim as if she had expressly asserted such a claim against Lamartek. Lamartek stated in its summary-judgment reply that Tammy had not alleged a DTPA cause of action against it, but it nevertheless addressed the claim.

The trial court initially denied the summary-judgment motion. Lamartek filed two motions for reconsideration—first on the ground of limitations, and then on both limitations and causation grounds, expressly incorporating all of the arguments raised and evidence produced on these topics in its summary-judgment motion, its summary-judgment reply, its first motion for reconsideration, and its reply to Tammy's response to that motion. The trial court then signed an order granting the motion for reconsideration on limitations grounds.

E. Kohler

The case proceeded to a jury trial against Kohler. The jury was asked if “a wrongful act, neglect or default of a vessel or a person proximately caused” Terry's death, and jurors unanimously answered, “No.” In answer to a separate question, the jury also found that Terry “expressly assumed the risk of injury or death” in diving at the wreck of the Andrea Doria. The trial court incorporated both findings into the final judgment.

Tammy appeals the judgment as to each of these five defendants. She did not include a statement of issues in her brief, but instead summarized her argument under eight headings with multiple subheadings. We first address her arguments directed to the jurisdictional rulings, then her arguments concerning the summary judgments, and finally, her arguments directed to events that occurred during the jury trial.

II. Jurisdictional Rulings

A. The trial court did not err in dismissing the claims against the M/V John Jack.

Tammy asserts that the trial court erred in dismissing the M/V John Jack because a court can acquire personal jurisdiction over a vessel even if it is not in Texas waters; however, the vessel did not file a special appearance contesting personal jurisdiction. See Tex.R. Civ. P. 120a. Because the trial court acted sua sponte, it instead appears that it dismissed the vessel for lack of subject-matter jurisdiction.

A court is obliged to determine whether it has subject-matter jurisdiction and must consider the question sua sponte even if it is not challenged by a party. See Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004), superseded by statute on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (current version at Tex. Gov't Code Ann. § 311.034 (West 2013) ), as recognized in Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex.2012) ; Gantt v. Gantt, 208 S.W.3d 27, 30 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). This principal is reflected in the order dismissing the vessel. There, the trial court wrote, “this Court lacks jurisdiction over said Defendant and over claims related to said Defendant. If it becomes apparent to a Court that it has no authority under the law to adjudicate the issues presented, it becomes its duty to dismiss it.”

Although Tammy does not specifically address subject-matter jurisdiction in her brief, we note that the trial court's ruling was correct. It is well-established that “[a]n in rem suit against a vessel is ... distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts.” Am. Dredging Co. v. Miller, 510 U.S. 443, 446–47, 114 S.Ct. 981, 985, 127 L.Ed.2d 285 (1994) (citing The Moses Taylor, 71 U.S. 411, 4 Wall. 411, 431, 18 L.Ed. 397 (1867) ); cf. Stier v. Reading & Bates Corp., 992 S.W.2d 423, 428–29 (Tex.1999) (distinguishing claims asserted in rem from those asserted in personam, and noting that “state and federal courts have concurrent jurisdiction over in personam maritime causes of action”); Exxon Corp. v. Choo, 881 S.W.2d 301, 304 (Tex.1994) (same). Thus, if the trial court had not dismissed the case against the vessel, we would have been obliged to do so. We accordingly overrule this issue.

B. The trial court did not err in granting A & E's special appearance.

Unlike the M/V John Jack, A & E did file a special appearance contesting the trial court's exercise of personal jurisdiction. Before addressing the merits of the trial court's order granting A & E's special appearance, we must address A & E's argument that we lack...