Antonio Salinas, Jr. and San Juana Salinas, Individually and as Personal Representatives of the Estate of Tiffany Marie Salinas v. John W. Kristensen, M.D.

NUMBER 13-08-00110-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANTONIO SALINAS, JR. AND SAN JUANA
SALINAS, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVES OF THE ESTATE OF
TIFFANY MARIE SALINAS, DECEASED, Appellants,

v.

JOHN W. KRISTENSEN, M.D., Appellee.

On appeal from the 197th District Court
of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez

This is an appeal from a take-nothing judgment entered in favor of appellee, John

W. Kristensen, M.D. By five issues, appellants, Antonio Salinas, Jr. and San Juana
Salinas, individually and as personal representatives of the estate of their daughter, Tiffany

Salinas, contend (1) the trial court erred in granting judgment for Dr. Kristensen because

the doctrine of parental immunity applied, and (2) the trial court erred in failing to award the

Salinases a certain percentage of damages. By one cross-issue, Dr. Kristensen contends

that, should this Court sustain any of the Salinases' issues, the trial court abused its

discretion when it denied his motion to dismiss, which complained of the adequacy of the

Salinases' expert report. We reverse and remand.

I. Background

On April 3, 2003, the Salinases filed a medical malpractice suit against Dr.

Kristensen in connection with the death of their daughter. After a trial on the merits, a jury

found Dr. Kristensen, Antonio, and San Juana negligent, with Dr. Kristensen 40%

responsible, Antonio 30% responsible, and San Juana 30% responsible. The jury awarded

the Salinases $152,000 in damages for the claims made under the survival statute and

$25,000 each for the wrongful death claims. However, because the parents were

collectively more than 50% responsible for causing the death of their daughter, the trial

court entered a take-nothing judgment against the Salinases and in favor of Dr. Kristensen.

The Salinases filed their notice of appeal and requested a partial reporter's record. See

TEX . R. APP. P. 34.6.

II. Discussion

A. Limited Appeal

The Salinases filed this appeal on a partial reporter's record containing only

"arguments of counsel and objections and rulings of the Court of the hearing held on

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October 5, 2007, on [Dr. Kristensen's] Motion to Enter Judgment." See TEX . R. APP. P.

34.6(c)(1). Under the Texas Rules of Appellate Procedure, an appellant may present a

limited appeal based on a partial reporter's record if the appellant includes in his request

for the reporter's record a statement of the points or issues to be presented on appeal. Id.;

In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.–Dallas 2006, no pet.). "If a party complies

with rule 34.6(c), he is entitled to the presumption that the omitted portions of the record

are not relevant to the disposition of the appeal." Brown v. McGuyer Homebuilders, Inc.,

58 S.W.3d 172, 175 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). When an

appellant appeals with a partial reporter's record but does not designate points or issues

relied upon for appeal, we must presume that the missing portions of the record support

the trial court's judgment. In re A.W.P., 200 S.W.3d at 245 (citing Bennett, 96 S.W.3d at

229); Davis v. Kaufman County, 195 S.W.3d 847, 851 (Tex. App.–Dallas 2006, no pet.);

Brown, 58 S.W.3d at 175.

In this case, while the Salinases did file a written request with the court reporter to

prepare a partial reporter's record, they did not announce in their request or in their notice

of appeal any intention to limit their appeal, nor did they include in the request or notice the

issues to be presented on appeal. See TEX . R. APP. P. 34.6(c)(1). Thus, the Salinases are

not entitled to the presumption that the omitted portions of the reporter's record are

irrelevant to the disposition of the appeal. Brown, 58 S.W.3d at 175. Rather, we must

presume that the omitted portions of the record support the judgment the trial court

rendered. See In re A.W.P., 200 S.W.3d at 245.

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 B. Parental Immunity

By their first issue, the Salinases argue that Dr. Kristensen is not entitled to a

reduction of the estate's damages by the percentage of negligence found against the

Salinases because of the doctrine of parental immunity. The Salinases urge that because

parental immunity bars a child from bringing a cause of action against his parents, Dr.

Kristensen, likewise, is not entitled to any reduction.

Under the parental immunity doctrine, an unemancipated minor is restricted in

bringing a negligence action against his parents if the actionable conduct involves a

reasonable exercise of parental authority or discretion. Shoemake v. Fogel, Ltd., 826

S.W.2d 933, 935 (Tex. 1992) (concluding that parental immunity applied to claim for

negligent supervision of child who drowned). "[W]here the parental immunity doctrine bars

legal action by a child against his parents, that child's recovery from other defendants is

not reduced by his parents' percentage of negligence." Plainview Motels v. Reynolds, 127

S.W.3d 21, 41 (Tex. App.–Tyler 2003, pet. denied) (applying parental immunity when a

father held his child to prevent him from running about the premises which, the court

concluded, was an act of supervision).

The parental immunity doctrine is applicable to "alleged acts of ordinary negligence

which involve a reasonable exercise of parental authority or the exercise of ordinary

parental discretion with respect to provisions for the care and necessities of the child."

Shoemake, 826 S.W.2d at 938. However, parental immunity does not apply if the

evidence shows that (1) the parents committed a willful, malicious, or intentional wrong

against a child or abandoned or abdicated their parental responsibility, (2) the act

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complained of arises outside of a normal family relationship of a parent to a child, or (3) the

damages were caused to the child by the parents negligently operating a motor vehicle.

See McCullough v. Godwin, 214 S.W.3d 793, 801 (Tex. App.–Tyler 2007, no pet.) (citing

Reynolds, 127 S.W.3d at 41; Hall v. Martin, 851 S.W.2d 905, 909 (Tex. App.–Beaumont

1993, writ denied) (concluding that parental immunity applied to claim that parent was

negligent in entrusting a motor scooter to child without instructions or helmet)).

The transcript from the October 5, 2007 hearing on Dr. Kristensen's motion for entry

of judgment appears in the appellate record and provides no support for the Salinases'

parental immunity contentions. Moreover, there is no record from the trial before us, and

therefore the record contains no evidence on the issue of parental immunity. Because we

must presume that the omitted portions of the reporter's record support the trial court's

judgment, see In re A.W.P., 200 S.W.3d at 245; Brown, 58 S.W.3d at 175, we cannot

conclude that the trial court erred in refusing to apply the doctrine of parental immunity in

this case. We overrule the Salinases' first issue as it relates to parental immunity.

C. Proportionate Responsibility

The Salinases also contend by their first issue that the trial court improperly entered

a take-nothing judgment based on the jury's findings that the mother's and father's

percentage of responsibility, taken together, was greater than 50 percent. We agree.

Section 33.001 of the Texas Civil Practice and Remedies Code provides that "a

claimant may not recover damages if his percentage of responsibility is greater than 50

percent." TEX . CIV. PRAC . & REM . CODE ANN . § 33.001 (Vernon 2008). "If the claimant is

not barred from recovery under Section 33.001, the court shall reduce the amount of

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damages to be recovered by the claimant with respect to a cause of action by a percentage

equal to the claimant's percentage or responsibility." Id. § 33.012(a) (Vernon 2008).

During the relevant time, chapter 33 defined "claimant" as follows:

"Claimant" means a party seeking recovery of damages pursuant to the
provisions of Section 33.001, including a plaintiff, counterclaimant, or third-
party plaintiff seeking recovery of damages. In an action in which a party
seeks recovery of damages for . . . death of another person, . . . "claimant"
includes both that other person and the party seeking recovery of damages
pursuant to the provisions of Section 33.001.

Act of May 8, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 TEX . GEN . LAW S 971, 973 (current

version at TEX . CIV. PRAC . & REM . CODE ANN . § 33.011(1) (Vernon 2008)). Further, section

33.003, entitled "Determination of Percentage of Responsibility," provides that the trier of

fact shall determine the percentage of responsibility for each claimant, each defendant,

each settling person, and each responsible third party with respect to each person's

causing or contributing to cause harm from, among other things, a negligent act or a

defective product, for which recovery of damages is sought. TEX . CIV. PRAC . & REM . CODE

ANN . § 33.003 (Vernon 2008).

The Salinases assert that the trial court improperly considered them as one claimant

by combining their percentages of responsibility. They contend that each parent is entitled

to be considered separate and distinct when reducing any damage apportionment under

section 33.003. See id. In response, Dr. Kristensen urges that the father and mother in

this case do constitute a single "claimant," and therefore, their collective 60% responsibility

precludes recovery under section 33.001. Id. § 33.001.

In Sanchez v. Brownsville Sports Center, Inc., a products liability and wrongful death

case, we concluded that if more than one plaintiff is found responsible for the harm, the

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plaintiffs' percentages of responsibility cannot be combined to reach the 51% threshold and

bar them from recovering damages. 51 S.W.3d 643, 656 (Tex. App.–Corpus Christi 2001),

vacated w.r.m. sub nom. Honda Motor Co. v. Sanchez, No. 01-1040, 2003 Tex. LEXIS 8,

at *1 (Tex. Feb. 6, 2003). Specifically, we ruled that the percentages of responsibility

assigned to the Ramoses, the parents in that case, could not be combined to bar recovery

under chapter 33. See id. We explained that,

[a]lthough only one cause of action exists in . . . [a] wrongful death case,
each of the parents is entitled to recover for the death of their son. . . . As
they are each entitled to recover, each of the Ramoses is a claimant for the
purposes of the civil practice and remedies code. Each one of the Ramoses
should have recovered the amount of damages apportioned to them by the
jury and reduced by their respective percentages of responsibility.

Id.

Dr. Kristensen argues that following our precedent in Sanchez would be inconsistent

with the Texas Supreme Court's holding in Drilex Systems, Inc. v. Flores. See 1 S.W.3d

112, 122 (Tex. 1999). We disagree. In Drilex, the supreme court concluded that all of the

Flores family members who were party-plaintiffs seeking recovery of damages for the

injuries suffered by Jorge Flores were included in the term "claimant" and were to be

treated as one claimant for purposes of applying the dollar-for-dollar credit. Id.; see TEX .

CIV. PRAC . & REM . CODE ANN . § 33.012(b) (Vernon 2008). The Drilex court addressed a

settlement credit issue. See Drilex, 1 S.W.3d at 120. It clarified the proper procedure for

applying settlement credits when family plaintiffs are seeking damages for injury to the

same person. Id. at 120-24.

The issue in this case does not involve settlement credits. As in Sanchez, this case

generally involves a determination of whether the trial court's judgment provided the

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Salinases with all the relief to which they are entitled under chapter 33 of the Texas Civil

Practice and Remedies Code. See TEX . R. CIV. P. 301 (providing that a judgment "shall

be so framed as to give the party all the relief to which he may be entitled either in law or

equity"). Concluding that the trial court erred in rendering a take-nothing verdict under

applicable Texas law, we resolved that issue in favor of the parents in Sanchez, see 51

S.W.3d at 656, and following our precedent, we now resolve it in favor of the Salinases.

We stated in Sanchez, "[a] fair reading of the relevant statutory provisions precludes

combining percentages to bar recovery, just as it bars combining multiple defendants'

percentages to determine if joint and several liability is appropriate." Id.; see TEX . CIV.

PRAC . & REM . CODE §§ 33.012(a) (setting out that the amount of damages due a claimant

shall be reduced by a percentage of responsibility assessed against the claimant), 33.013

(providing that each liable defendant is jointly and severally liable for damages recoverable

by the claimant if the percentage of responsibility attributed to the defendant is greater than

50 percent).

Noting that Sanchez involved only a wrongful death claim, Dr. Kristensen attempts

to distinguish that case from the Salinases' survival claims. He urges that, in a survival

claim, each parent is not entitled to recover; rather, the parents, as representatives of the

estate, would be entitled to a single recovery. Thus, with respect to the survival claims, he

contends that the parents cannot each be considered separate claimants under Sanchez.

We find no authority supporting this argument. Without more, we cannot conclude that the

collective responsibility of the parents should bar recovery of damages awarded for injuries

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the child suffered before her death. We, thus, are bound by our precedent in Sanchez.

See 51 S.W.3d at 656.

Dr. Kristensen also argues that the language found in section 13.01(r)(3) of the

former article 4590i of the Texas Revised Civil Statutes, the applicable medical liability

statute, supports the argument that the parents are one claimant and, thus, their

proportionate liability should be combined. See Act of May 5, 1995, 74th Leg., R.S., ch.

140, § 13.01(r)(3), 1995 TEX . GEN . LAW S 985, 986 (current version at TEX . CIV. PRAC . &

REM . CODE ANN . § 74.001) (Vernon 2005)). Former article 4590i, section 13.01(r)(3)

provides "[a]ll plaintiffs claiming to have sustained damages as the result of the bodily

injury or death of a single person are considered to be a single claimant." Id. Again,

however, we find no case law that interprets the applicability of section 13.01(r)(3) in a

proportionate liability context or that distinguishes between health care liability claims under

former article 4590i and products liability claims in determining proportionate responsibility.

Therefore, we are bound to follow Sanchez. See 51 S.W.3d at 656.

We conclude that the trial court erred in determining that the mother's and father's

percentages of responsibility, taken collectively, barred recovery and in rendering a take-

nothing judgment on the wrongful death and survival claims. Thus, we sustain the

Salinases' first issue on that basis.

D. Motion to Dismiss

By a conditional cross-issue, Dr. Kristensen asserts that, should we sustain any of

the Salinases' issues and reverse the trial court's take-nothing judgment, the trial court

abused its discretion in denying his motions to dismiss because the Salinases did not serve

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an expert report complying with the requirements of former section 13.01 in that the report

failed to adequately address causation. See Act of May 5, 1995, 74th Leg., R.S., ch. 140,

§ 13.01, 1995 TEX . GEN . LAW S 985, 986 (current version at TEX . CIV. PRAC . & REM . CODE

ANN . § 74.001); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)

(explaining that the report must include the expert's opinion on each of the three elements

that the statute identifies: standard of care, breach, and casual relationship). Dr.

Kristensen suggests that this argument is raised in this appeal as an additional basis upon

which the take-nothing judgment could have been supported. We disagree.

Rule 25.1(c) of the Texas Rules of Appellate Procedure requires any party "who

seeks to alter the trial court's judgment or other appealable order" to file a notice of appeal.

TEX . R. APP. P. 25.1(c); Welkener v. Welkener, 71 S.W.3d 364, 368 (Tex. App.–Corpus

Christi 2001, no pet.); City of Freeport v. Vandergrifft, 26 S.W.3d 680, 683 (Tex.

App.–Corpus Christi 2000, no pet.). Dr. Kristensen's cross-issue in this case challenges

the trial court's ruling on his motion to dismiss. It does not address the trial or the trial

court's take-nothing judgment. Were we to sustain this conditional cross-issue, we would

not affirm the take-nothing judgment. Rather, as Dr. Kristensen acknowledges, we would

reverse the trial court's order denying Dr. Kristensen's motions to dismiss and dismiss the

Salinases' claims. Therefore, this is an issue to be raised in a cross-appeal, not as an

additional basis to uphold the judgment.

Our review of the record reveals that Dr. Kristensen did not file a notice of appeal.

See TEX . R. APP. P. 26.1(d) (setting out that if any party files a timely notice of appeal,

another party may file a notice of appeal within thirty days after the judgment is signed, with

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exceptions that do not apply here, or fourteen days after the first filed notice, whichever is

later). Therefore, this cross-issue is not properly before this Court.

III. Conclusion

We reverse the trial court's take-nothing judgment against the Salinases and

remand for entry of a judgment in accordance with this opinion.

NELDA V. RODRIGUEZ
Justice

Dissenting Memorandum Opinion by Justice Vela.

Delivered and filed the 25th
day of November, 2009.

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