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At a Glance:
Title:
Arredondo v. Dugger
Date:
May 31, 2011
Citation:
347 S.W.3d 757
Status:
Published Opinion

Arredondo v. Dugger

Court of Appeals of Texas,

Dallas.

Mary Ann ARREDONDO, Individually and as Representative of the Estate of Joel Martinez, Deceased, Appellant

v.

Geoffrey DUGGER, Appellee.

No. 05–09–00625–CV.

|

May 31, 2011.

Attorneys & Firms

*759 Adam Rual Hardison, Hardison Law Firm, Addison, TX, for Appellant.

John K. Dunlap, Byrne, Cardenas & Smitherman, Dallas, TX, for Appellee.

Before Justices LANG.

OPINION

Opinion By Justice MOSELEY.

Appellant Mary Ann Arredondo filed this wrongful death lawsuit against appellee Geoffrey Dugger for damages arising out of the death of her son, Joel Martinez. She alleged Dugger was negligent in delaying to call 911 and in failing to advise paramedics that Martinez had used heroin, and that this negligence contributed to Martinez’s death. Dugger answered and moved for traditional summary judgment raising an affirmative defense under the unlawful acts doctrine, the common law doctrine that bars a plaintiff from recovering damages arising out of his own unlawful acts. See Gulf, C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 603 (1888). The trial court granted the motion for summary judgment without specifying the grounds relied on, and later denied Arredondo’s motion for new trial.

On appeal, Arredondo argues the trial court erred because the unlawful acts doctrine does not apply to her wrongful death claim and has been superseded by a similar statutory defense that requires conviction for the criminal act. We conclude the wrongful death act does not preclude application of the unlawful acts doctrine, but that section 93.0011 of the civil practice and remedies code applies to Arredondo’s claim and controls over the common law. Because the common law unlawful acts doctrine is inapplicable to Arredondo’s claim and because Dugger did not establish the elements of the section 93.001 affirmative defense, the trial court erred by granting summary judgment. Accordingly, we reverse the trial court’s judgment and remand for further proceedings.

BACKGROUND

According to his deposition, Dugger went to Martinez’s house on the night in question and saw Martinez put some black tar heroin in his pocket before they left to go to the liquor store. After buying some tequila, they went to Dugger’s house, drank tequila, smoked marijuana, and snorted black tar heroin. After a while, Martinez passed out. About thirty minutes later, Dugger noticed Martinez was still unconscious, vomiting, and choking. Dugger knew something was wrong with Martinez, but did not call 911 immediately. Instead he called Martinez’s mother, the plaintiff Arredondo. However, he told her only that Martinez had been drinking and was throwing up. She said to let him sleep it off. It was another fifteen minutes *760 before Dugger called 911. Police and paramedics arrived about five minutes later.

According to Arredondo’s allegations, Dugger then misled the paramedics by telling them Martinez had been drinking, but not telling them Martinez had also taken heroin. The paramedics treated Martinez for overdose of heroin, they would have treated him with additional drugs to counteract the effects of the narcotic.

Arredondo sued Dugger under the wrongful death and survival statutes, alleging Dugger was negligent by delaying calling 911 and by failing to disclose to the paramedics that Martinez had taken heroin. See Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex.App.-Dallas 2006, pet. denied).

Dugger filed a traditional motion for summary judgment asserting he proved the elements of the unlawful acts doctrine affirmative defense as a matter of law.2 He argued the unlawful acts doctrine “is especially applicable to this case because it is uncontested that the deceased, Joel Martinez, ingested illegal drugs just before his death, and the Plaintiff cannot establish her cause of action without conceding that her son had used heroin. In fact, [Martinez’s] use of heroin is the central issue in this extremely sad story.” The motion continued, “Here, if [Martinez] had not ingested heroin, cheese,3 and marijuana, then [he] would not have died. Thus, the Plaintiff is barred from recovery because [Martinez’s] illegal drug use is the reason he died....”

In her summary judgment response, Arredondo argued that Dugger had failed to prove the necessary elements of the defense, i.e., that (1) at the time of the injury, (2) Martinez was engaged in an illegal act, and (3) the illegal act contributed to the injury. Arredondo also argued the common law unlawful acts defense does not apply to this case because it is inconsistent with the terms of the wrongful death statute and with the statutory defense against plaintiffs who have been finally convicted of a felony that was the sole cause of the damages. See 93.001.

After a hearing, the trial court granted Dugger’s motion and dismissed Arredondo’s claims with prejudice. The trial court also denied Arredondo’s motion for rehearing and motion for new trial.

Arredondo does not argue on appeal whether Dugger established the elements of the unlawful acts affirmative defense as a matter of law.4 She contends only that *761 the defense does not apply here because of “express contrary language” in the wrongful death statute and because the defense has been superseded by section 93.001.

STANDARD OF REVIEW

The standards for reviewing summary judgments are well established and we follow them in reviewing this appeal. See Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex.App.-Dallas 2006, no pet.).

APPLICABLE LAW

A. Wrongful Death Act

Arredondo’s cause of action is based on sections 71.002 and 71.006 of the wrongful death act. Subsection 71.002(b) provides that “a person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s ... wrongful act, neglect, carelessness, unskilfulness or default.” § 71.006.6

B. Unlawful Acts Doctrine

The unlawful acts doctrine prevents a plaintiff from recovering claimed damages that arise out of his or her own unlawful conduct:

In those cases where it is shown that, at the time of the injury, the plaintiff was engaged in the denounced or illegal act, the rule is, if the illegal act contributed to the injury, he cannot recover; but, if plaintiff’s act did not contribute to the injury, the fact alone that at the time he was engaged in an act in violation of law will not of itself preclude a recovery.

Johnson, 9 S.W. at 603 (citations omitted).

The common law doctrine is based on the public policy against allowing wrongdoers to benefit from their own wrongs. See Pyeatt v. Anderson, 269 S.W. 429, 430 (Tex. Comm’n App.1925, judgm’t adopted) (plaintiff allowed to recover absent evidence plaintiff’s driving motorcycle without permission of owner was proximate cause of collision).

C. Statutory Defenses

In 1987, the legislature enacted a statutory affirmative defense to certain claims for personal injury or death brought by persons convicted of a felony. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 86.001–.007 (West 2011). We address these statutes in more detail herein.

D. Statutory Construction

Resolution of this case requires us to construe several statutes to determine if the common law unlawful acts doctrine has been superseded by statute. Questions of statutory construction are questions of law and reviewed de novo. TEX. GOV’T CODE ANN. §§ 311.001–.034 (West 2005).

We begin with the plain and common meaning of the statute’s words, and if the language is unambiguous, we interpret the statute according to its plain meaning. See McIntyre, 109 S.W.3d at 745.

It is presumed that in enacting a statute, the legislature intended: (1) compliance with the United States and Texas Constitutions; (2) the entire statute to be effective; (3) a just and reasonable result; (4) a result feasible of execution; and (5) the public interest to be favored over any private interest. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987)).

The interplay between statutory language, the rules of statutory construction, and the common law is illustrated in the supreme court’s opinion in Hunter, 620 S.W.2d at 548.

At common law, dissolution of a corporation terminated its legal existence and abated all claims against it, leaving the plaintiff with no defendant to sue. See Id.

In Id.

The supreme court concluded that the remedial statute would serve no purpose unless the legislature intended to replace the equitable trust fund theory:

Even if the trust fund theory did exist outside of these remedial statutes, we must assume that when the legislature enacted Article 7.12 it knew to what extent the equitable doctrine already provided a remedy for pre-dissolution claims.... With this in mind, no real purpose would be served by the enactment of Article 7.12, permitting suits against officers, directors, and shareholders of a dissolved corporation [if brought within three years of corporate dissolution], unless the legislature intended for the statute to bar resort to the trust fund theory apart from the statute in order to enforce post-dissolution claims. To hold otherwise would violate the rule of statutory construction that the legislature is never presumed to do a useless act.... Accordingly, we hold Article 7.12 bars resort to the trust fund theory as it exists apart from the statute.

Hunter, 620 S.W.2d at 551 (emphasis added) (citations omitted).

ANALYSIS

In her single issue on appeal, Arredondo argues the trial court erred by granting summary judgment on the unlawful acts doctrine because in this case that doctrine is preempted by the wrongful death act and section 93.001.

A. Wrongful Death Act

We begin with the wrongful death act. Arredondo makes two arguments in support of her contention that the wrongful death act abrogates the common law unlawful acts doctrine.

1. Section 71.002

First, Arredondo contends that section 71.002 creates a cause of action for wrongful death “irrespective of anything outside ‘this section,’ including the [Unlawful] Acts doctrine.” Arredondo argues her petition alleged the statutory elements of subsection 71.002(b) that Dugger’s negligence caused Martinez’s death. Thus, she asserts, she has a “viable cause of action for wrongful death as a matter of law.” She contends the trial court erred by granting summary judgment because the wrongful death statute controls over the common law unlawful acts doctrine.

*764 A statutory wrongful death claim is wholly derivative of the decedent’s claim and is subject to any defense that would have been available against the decedent had they survived. section 71.002 that is inconsistent with the applicability of the common law unlawful acts doctrine.

2. Section 71.006

Second, Arredondo argues the unlawful acts doctrine is abrogated by TEX. CIV. PRAC. & REM.CODE ANN. § 71.006. Resolving this argument requires a review of the origin and history of the wrongful death statute and the language referring to a felonious act.

At common law, there was no recognized cause of action for wrongful death. Id. The rule that the civil remedy is merged into the felony is commonly referred to as the felony-merger doctrine.7

In 1846, the English Parliament responded to criticism of the common law rule prohibiting civil claims for wrongful death by passing Lord Campbell’s Act. See Fatal Accidents Act, 1846, 9 & 10 Vict., c. 93 (Eng.). The Act created a civil claim for damages for death caused by wrongful act, neglect or default:

[T]he person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.

Id. (emphasis added) (quoted in Wex S. Malone, The supra, at 1058 (“It seems clear, therefore, that the draftsmen, even at this later date, were satisfied that the felony[-]merger doctrine was accepted law.”).

Significantly, the felony-merger doctrine was never accepted in the United States. Le Gierse, 51 Tex. at 199, 1879 WL 7659, at *6. That statute provided that when

the death of any person may be caused by wrongful act, neglect, unskilfulness or default, and the act, neglect, unskilfulness or default is such as would (if death had not ensued) have entitled the party, injured, to maintain an action for such injury, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount, in law, to a felony.

Act approved Feb. 2, 1860, 8th Leg., R.S., ch. 35, § 1, 1860 Tex. Gen. Laws 32, 32, reprinted in 4 H.P.N. Gammel, THE LAWS OF TEXAS 1822–1897, at 1394 (Austin, Gammel Book Co. 1898) (emphasis added).

Soon after adoption of the wrongful death act, the Texas Constitution was amended to recognize a right to recover exemplary damages for homicide caused by a willful act or omission or gross neglect, “without regard to any criminal proceeding that may or may not be had in relation to the homicide.” Traveler’s Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 850–51 (Tex.1995) (purpose of constitutional provision “was the resolution of ambiguities existing in the statutory and common law of punitive damages”).9

In summary, the wrongful death cause of action is a statutory creation altering the common law rule. See Moreno, 787 S.W.2d at 356. In Texas, the structure and history of the wrongful death act and the constitution indicate they were designed to avoid application of the felony-merger doctrine and to make actual and punitive damages available in wrongful death cases without regard to criminal proceedings against the defendant.10 The focus of the statutory and constitutional *766 provisions is the felonious conduct of—or criminal proceedings against—the wrongful death defendant. Nothing in this language or history indicates that the decedent’s conduct in causing his own death was not to be considered in a wrongful death action.

Arredondo cites no authority for her position and, contrary to her assertion, at least one early case applied the unlawful acts doctrine to bar a wrongful death lawsuit. See Id.

At that time the penal code made it a misdemeanor for any person to board a train without good faith intent to become a passenger, with intent to obtain a free ride, and without consent of the person in charge of the train. Id. at 84.

The jury found for the plaintiff. On appeal, the court of civil appeals stated the “evidence shows that the illegal act of [the] deceased in jumping on appellant’s train directly contributed to his injury, and, if it shows any negligence whatever on the part of appellant’s employees, it certainly fails to disclose any intentional act of negligence on their part evidencing a willful or reckless disregard for the safety of deceased.” Johnson, 9 S.W. at 603). The court did not discuss any conflict between the unlawful acts doctrine and the wrongful death statute.

We decline to read section 71.006 as superseding the unlawful acts doctrine.

3. Conclusion

Accordingly, we reject Arredondo’s contention that the common law unlawful acts doctrine is abrogated by the wrongful death act.

B. Section 93.001

The legislature in 1987 and again in 1995 enacted statutes dealing with civil suits brought by convicted criminals seeking to recover damages arising out of the commission of the crime. See section 93.001, abrogates the common law unlawful acts doctrine.

*767 Id. § 93.001(c).

Section 86.002 also applies to derivative claims, such as wrongful death claims. See id. § 86.003.

These statutes—86.002—show a legislative intent that persons convicted of crimes may not recover damages for injuries caused by their own criminal conduct. In contrast, the unlawful acts doctrine does not require that the plaintiff be finally convicted of a criminal offense.14 Thus, the statutory defenses require more than does the common law unlawful acts doctrine; namely (and as relevant here), that the plaintiff be convicted of a crime that caused his or her injury or damages.15

Although many cases have applied the unlawful acts doctrine when the plaintiff has been convicted of a crime,16 other *768 cases have applied the doctrine without mentioning a conviction.17 No case has resolved how section 86.002 relate to the unlawful acts doctrine.18

Thus, we are presented with the question of whether the more specific statutory defenses leave room for the existence of the more general common law defense. Arredondo contends that applying the unlawful acts doctrine to bar her claim would render section 93.001 is established.

As illustrated in id.

Because TEX. CIV. PRAC. & REM.CODE ANN. § 93.001(a)(1), the trial court erred by granting summary judgment.

Dugger contends Arredondo’s argument is based on the false premise that by adopting section 93.001 and the common law was raised by the parties (and there is no indication in the opinion that it was), it was unnecessary for the court to discuss any conflict between the statute and the doctrine.

Moreover, it is the similarity between the statute and the common law doctrine that leads to the conclusion that the legislature intended the statute to operate over the common law in similar situations. The specific requirements of the statute must be given effect over the general principles of the common law doctrine. Otherwise, the similar common law doctrine would swallow the statute. “Where the common law is revised by statute, the statute controls.” Bartley v. Guillot, 990 S.W.2d 481, 485 (Tex.App.-Houston [14th Dist.] 1999, pet. denied)).

Dugger also contends a statute should not be interpreted to abrogate a common law principle unless the statutory intent to do so is clearly indicated by the express terms of the statute or by necessary implication, citing Del Indus., 35 S.W.3d at 596 (“The common law has been dramatically engrafted upon by the legislature. Where the common law is revised by statute, the statute controls.”).

Dugger argues the strong public policy behind the unlawful acts doctrine prevents the implication that section 93.001 controls over the general policy supporting the unlawful acts doctrine.

Additionally, Dugger can claim no vested right in the general common law rule to defeat that policy. “[N]o one has any vested or property interest in the rules of the common law, and therefore no one is deprived of a constitutional right by their change through legislative enactment.” Middleton v. Tex. Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561 (1916) (upholding constitutionality of workers’ compensation act).20

Dugger argues section 93.001 cannot apply to preempt his common law defense under the unlawful acts doctrine.

But this argument rewrites section 93.001 applies to—and prevails over any other law in—all civil actions for damages for personal injury or death other than those circumstances excepted from the statute by the legislature.

Dugger contends the unlawful acts doctrine does not make Del Indus., 35 S.W.3d at 596.

Dugger says Hunter, 620 S.W.2d at 551.23

Dugger also argues that section 93.001 precludes application of the unlawful acts doctrine in cases asserting claims for damages other than for personal injury or death.25

Dugger cites several other cases discussing the unlawful acts doctrine and the policy behind it, but those cases were either decided before the enactment of section 93.001.27 Thus, those cases are distinguishable. *772 28

We express no opinion on whether the unlawful acts doctrine is preempted in cases other than civil actions to which section 93.001. We overrule the remainder of the issue.

CONCLUSION

Because the unlawful acts doctrine is inapplicable to Arredondo’s claims and because Dugger did not establish the elements of the affirmative defense under subsection 93.001(a)(1), the trial court erred by granting summary judgment. Accordingly, we reverse the trial court’s order granting Dugger’s motion for summary judgment and remand for further proceedings.

Footnotes

1

See TEX. CIV. PRAC. & REM.CODE ANN. § 93.001 (West 2011). Unless otherwise indicated, all statutory references in this opinion are to the civil practice and remedies code.

2

Dugger’s motion also included a no-evidence motion for summary judgment attacking the elements of Arredondo’s claims. By a rule 11 agreement at the trial court, the parties submitted to the trial court only the unlawful acts doctrine defense under the traditional motion for summary judgment.

3

A dangerous mixture of black tar heroin and Tylenol P.M.

4

In her response to Dugger’s motion for summary judgment, Arredondo also argued that the chapter 33 proportionate responsibility system superseded the unlawful acts doctrine. However, she does not raise that issue on appeal. See TEX.R.APP. P. 47.1.

5

Injury is not defined in the statute, but generally means “[t]he violation of another’s legal right, for which the law provides a remedy; a wrong or injustice,” or “[a]ny harm or damage.” BLACK’S LAW DICTIONARY (9th ed. 2009).

6

The language of these sections was adopted as part of the non-substantive statutory revision program when the civil practice and remedies code was adopted in 1985. See TEX. CIV. PRAC. & REM.CODE ANN. § 1.001 (West 2002). By adopting the code, the legislature intended no substantive change in the law. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 10, 1985 TEX. GEN. LAWS 3242, 3322.

7

Legal historians have generally concluded that the only substantial basis for the common law rule against recovery for wrongful death was the early English felony-merger doctrine. See Id.

8

A similar provision was contained in the constitution of 1869. See Le Gierse, 51 Tex. 189, 1879 WL 7659, at *6.

9

The supreme court explained the purpose of this constitutional provision:

A prominent common law decision refusing to allow recovery for wrongful death did so on the basis that a death is solely a criminal matter and not cognizable in a civil court. See Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808). Further, a division of authority existed in the middle and late 19th century concerning whether punitive damages were recoverable when the same wrong was punishable in a criminal proceeding. See W. EGGLESTON, EGGLESTON ON DAMAGES § 47 (1880); J. SUTHERLAND, 1 SUTHERLAND ON DAMAGES Ch. IX, p. 738 (1883). TEX. CONST. ANN. art. 16, § 26 (Vernon 1993).

Fuller, 892 S.W.2d at 850–51.

10

The penal code expressly states that a civil injury does not merge into the criminal offense. TEX. CONST. art. I, § 21 (“No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.”).

11

As the appellate court recognized, the railroad could still be liable if its employees were “guilty of such intentional wrong as to render their negligence a willful disregard of their duty to deceased.” Id. at 83.

12

Subsection 93.001(b) states that the section does not apply in an action brought by an employee or his beneficiaries under the workers’ compensation law nor to any action against an insurer based on a contract of insurance, a statute, or common law. Id. § 93.001(b).

13

In her briefing, Arredondo does not rely on McIntyre, 109 S.W.3d at 745.

14

See Sharpe, 191 S.W.3d at 366.

15

There are, of course, other differences between the statutory and common law defenses. For example, subsection 93.001(a)(1) requires that the felony be the “sole cause of the damages sustained by the plaintiff,” TEX. CIV. PRAC. & REM.CODE ANN. § 86.002(a) (emphasis added). We need not resolve these differences in this case.

16

See 909 S.W.2d 494 (Tex.1995) (“We therefore hold that, as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned.”).

17

See House v. Blum, 56 S.W. 82, 84 (Tex.Civ.App.-Galveston 1900, no writ) (wrongful death judgment reversed where evidence showed decedent’s unlawful act of jumping on defendant’s train to obtain a free ride directly contributed to his injury).

18

The Fifth Circuit has discussed the Texas unlawful acts doctrine and Ward ], however, was not especially searching.”).

19

See Ward, 37 S.W.3d at 503 (“Despite the ambiguous nature of Ward’s claimed damages, Ward’s claims are for damages that arose from the murder she committed.... More simply, Ward would have suffered none of her alleged injuries in the absence of her mother’s murder.”).

20

In any event, section 93.001 was effective before Arredondo’s cause of action arose.

21

Subsection 93.001(a) provides:

(a) It is an affirmative defense to a civil action for damages for personal injury or death that the plaintiff, at the time the cause of action arose, was:

(1) committing a felony, for which the plaintiff has been finally convicted, that was the sole cause of the damages sustained by the plaintiff; or

(2) committing or attempting to commit suicide, and the plaintiff’s conduct in committing or attempting to commit suicide was the sole cause of the damages sustained; provided, however, if the suicide or attempted suicide was caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard, then such suicide or attempted suicide shall not be a defense.

TEX. CIV. PRAC. & REM.CODE ANN. § 93.001(a) (emphasis added).

22

“This section does not apply in any action brought by an employee, or the surviving beneficiaries of the employee, under the Workers’ Compensation Law of Texas, or in an action against an insurer based on a contract of insurance, a statute, or common law.” TEX. CIV. PRAC. & REM.CODE ANN. § 93.001(b).

23

We also do not see how Dugger’s argument that section 93.001 provides an absolute defense is not persuasive.

24

Arredondo’s original petition seeks to recover personal injury damages for Martinez under the survival statute and wrongful death damages under the wrongful death act.

25

And again, we express no opinion on the impact of chapter 86 on the unlawful acts doctrine because the parties have not briefed the issue and it is not necessary to the resolution of this appeal. See TEX.R.APP. P. 47.1.

26

See Houston Ice & Brewing Co. v. Sneed, 63 Tex.Civ.App. 17, 132 S.W. 386, 388 (Tex.Civ.App.-Texarkana 1910, writ dism’d).

27

See Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex.App.-Houston [1st Dist.] 1993, no pet.).

28

We have applied the unlawful acts doctrine in two recent cases. See section 93.001 did not apply. In neither case did the parties raise the application of chapter 86. Thus our decision today is not inconsistent with those opinions.

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