text:
    Thomas Richard BROWN, Appellant, v. PENNZOIL-QUAKER STATE COMPANY, Appellee.
    No. 01-04-00137-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 18, 2005.
    Rehearing Overruled Oct. 24, 2005.

      Alton C. Todd, The Law Firm of Alton C. Todd, Friendswood, Levon G. Hovnata-nian, Martin, Disiere, Jefferson & Wisdom, L.L.P., Houston, TX, for Appellant.
    Joel Z. Montgomery, Baker Botts, L.L.P., Karlene Dunn Poll, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Thomas Richard Brown, appeals from the trial court’s judgment rendered upon appellee Pennzoil-Quaker State Company’s (Pennzoil’s) no-evidence motion for summary judgment. In two issues on appeal, Brown asserts that the trial court erred in rendering summary judgment on his claims for (1) an “intentional act” and (2) spoliation of evidence. We affirm the judgment in part, reverse it in part, and remand the cause.

Background

On January 18, 2000, an explosion occurred at Pennzoil’s refinery in Shreveport, Louisiana. Four people were injured, including Brown, a Pennzoil employee working at the refinery at the time of the accident. Brown sustained burns to over 85% of his body. Upon investigation of the accident, the Occupational Safety and Health Administration (OSHA) determined that the 02B heat exchanger had ruptured, causing a fire and explosion of hydrocarbons. Although the unfortunate events occurred in Louisiana, Brown filed suit against a variety of defendants in Harris County, Texas. Pennzoil later intervened in the suit to recover damages for the partial destruction of its refinery. After settling with some of the defendants, Brown asserted claims against Pennzoil.

In his fourth amended petition, Brown asserted causes of action against Pennzoil based on the following allegations: (1) Pennzoil committed intentional torts by knowing that Brown’s injuries were substantially certain to follow from its conduct and (2) Pennzoil intentionally destroyed evidence. Brown specified that Pennzoil failed (1) to test the heat exchanger for chloride levels; (2) to properly maintain the shell of the heat exchanger; (8) to test for shell thickness of the heat exchanger; (4) to discontinue operations without the water-wash system being in service; (5) to stop operations when a nearby valve failed and the water-wash system was down; (6) to remove the heat exchanger from service; and (7) to warn of the danger of the explosion.

On December 23, 2002, Pennzoil filed a no-evidence motion for summary judgment. It asserted that Brown had no evidence that an intentional act had occurred and that there was no evidence that Pennzoil was substantially certain Brown would be injured as a result of its conduct. In opposition to the motion, Brown submitted an affidavit, depositions, and OSHA materials to raise a fact issue. On April 30, 2003, the trial court, without stating its reasons, granted Pennzoil’s motion for summary judgment and dismissed all of Brown’s claims against Pennzoil. Brown filed a motion for reconsideration on June 2, 2003. Pennzoil responded, stating that no new evidence was presented. On September 19, 2003, Brown filed a supplemental motion for reconsideration. The trial court denied Brown’s motion for reconsideration on September 26, 2003. This appeal followed.

Standard of Review

A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (TexApp.-Austin 1998, no pet.). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant’s claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). Once the mov-ant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. Tex.R. Crv. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id.

A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. When the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, more than a scintilla of evidence exists. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A defendant who moves for summary judgment need only negate one element of the plaintiffs cause of action. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

Evidence

In his first issue, Brown asserts that the trial court erred in rendering a no-evidence summary judgment in Pennzoil’s favor on his claim that he was injured by Pennzoil’s “intentional act.” We disagree.

Louisiana Law

The parties agree that Louisiana law applies. Thus, we apply the substantive legal principles of Louisiana law. Robin v. Entergy Gulf States, Inc., 91 S.W.3d 883, 885 (Tex.App.-Beaumont 2002, pet. denied). Nevertheless, we apply the Texas standards of appellate review. Id.; see also Tex. Civ. PRác. & Rem.Code Ann. § 71.031(b) (Vernon Supp.2004-2005).

Since 1914, Louisiana has had worker’s compensation laws, but employees were formerly able to pursue additional remedies against their employers. See Reeves v. Structural Pres. Sys., 98-1795 (La.3/12/99), 731 So.2d 208, 209. In 1976, however, the Louisiana Legislature amended the Workers’ Compensation Act (“Act”) to provide that workers’ compensation shall be the exclusive remedy not only against the employer, but also against any principal, officer, director, stockholder, partner, or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. See La.Rev.Stat. Ann. § 23:1032(A)(l)(a) (West 1998); see also Reeves, 731 So.2d at 209-10. The Act provides:

Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representative, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

La.Rev.Stat. Ann. § 23:1032(A)(l)(a). The legislature also provided an exception, namely that the employee is not limited to workers’ compensation and may pursue any other remedy when his compensable injury resulted from an intentional act. See id. § 23:1032(B) (West 1998); Reeves, 731 So.2d at 210.

In this suit, Brown alleged that Pennzoil committed an intentional act, invoking the exception to the exclusive remedy provision provided for in section 1032(B) of the Act. This intentional act exception states,

Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

La.Rev.Stat. Ann. § 23:1032(B) (emphasis added).

Under Louisiana law, a person acts with “intent” if the person either

(1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or
(2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

Reeves, 731 So.2d at 211.

Louisiana courts narrowly construe the intentional act exception. See id. The “substantial certainty” element requires more than a reasonable probability that an injury will occur; rather “certain” has been defined to mean “inevitable” or “incapable of failing.” Id. at 213. An employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement. Id. Furthermore, mere knowledge and appreciation of a risk does not constitute intent; nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Id. Gross negligence does not meet the intentional act requirement. Id. at 211-12. “Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.” Id. at 210 (quoting Larson, 2A Workmen’s Compensation Law, § 68.13 (1989)).

Contentions of the Parties

In its motion for summary judgment, Pennzoil asserted there was no evidence to show that it acted with knowledge to a virtual certainty that Brown would be harmed at its facility. Essentially, Pennzoil argued that Brown presented no evidence that it knew an explosion would cause injury that was substantially certain to follow from its conduct.

Brown presented the following evidence to raise a material fact issue in response to Pennzoil’s motion for summary judgment: (1) OSHA documents showing violations of OSHA safety regulations at Pennzoil’s refinery; (2) the affidavit of Charles Hellier; and (3) the deposition testimony of Richard Nichols, Cliff Bigelow, Frank Johnson, Ed Juno, and William Taylor. We now review Brown’s evidence to determine whether he raised a genuine issue of material fact as to Pennzoil’s intentional act.

OSHA Evidence

Brown points out that, after the explosion, OSHA fined Pennzoil $202,500 for three willful and three serious violations at its refinery. The three serious violations included (1) deficiencies with Pennzoil’s Process Safety Management Program; (2) a violation that addressed mechanical integrity; and (3) Pennzoil’s “failure to properly inspect pressure vessels after corrosion problems were identified.” One of the willful violations included Pennzoil’s failure to identify and to address all known hazards and potential hazards related to corrosion in pressure vessels.

Affidavit of Charles Hellier

Genesis Crude Oil, L.P.’s expert, Charles Hellier, stated in his affidavit that

[Pennzoil’s] inspection program failed to comply with the American Petroleum Institute’s recommendations and did not comport with industry standards. Specifically, Pennzoil’s testing program failed to focus on areas in which corrosion problems and/or failures occurred in the past and inspections failed to take a representative number of samples which would allow for an accurate historical comparison.

Deposition Testimony

Richard Nichols

Richard P. Nichols, a senior engineer for Pennzoil, was responsible for inspecting and monitoring corrosion. He testified that corrosion could occur in any exchanger at any time. Nichols agreed that corrosion would occur in a heat exchanger as a result of the laws of nature and that corrosion occurs because of chemicals in the process and the metals, air, and moisture. He admitted that before January 18, 2000, he knew that corrosion would occur in the heat exchangers. He also admitted that it was important to evaluate the level of corrosion to maintain the shell’s integrity. He stated that testing the integrity of the metal was performed to avoid a breach and that, in the absence of testing, a catastrophic event could occur.

Nichols testified that organic chlorides in the crude were the primary cause of the explosion that injured Brown. He also testified that the water-wash system was important and that a failure to use it could potentially lead to corrosion. He stated that the water-wash system was not operating in January, 2000.

Cliff Bigelow

Cliff Bigelow, an engineer for Material Analysis, Inc., testified that “certainly at some time if corrosion advances to the point where it can no longer contain the pressure that it’s designed for, then [a breach] would be the ultimate result.” In that case, the breach would be inevitable. Bigelow opined that the cause of the heat exchanger’s failure was metal wastage due to corrosion caused by hydrochloric acid.

Frank Johnson

Frank Johnson, a mechanical engineer for Pennzoil, testified that Pennzoil knew in 1971, when it installed the heat exchanger, that corrosion would occur and was inevitable. He testified that Pennzoil knew the vessel would continue to thin from corrosion, but that periodic testing would enable Pennzoil to predict the thinning, so that, when Pennzoil retired the heat exchanger, the heat exchanger would still have substantial wall thickness. He stated that, “based on the '98 data ... an event like that should not have occurred at all.”

Ed Juno

Ed Juno, the Director of Optimization at Pennzoil’s Shreveport refinery, testified that, sometime after 1999, the refinery started to purchase high sulfur crude oil to reduce the “feedstock cost of the plant.” Because ammonium salts could build up in the heat exchanger, the refinery had a policy of running the water-wash system continuously to wash the salts off. Juno was aware that the water-wash system had had problems in 1998 and that Pennzoil had modified the system to use sour water. Juno testified that, in the absence of a water wash, ammonium salts and ammonium chlorides could lead to under-deposit corrosion in a heat exchanger, but that under-deposit corrosion was a very slow corrosion mechanism. Juno agreed that the organic chlorides level was higher than he wanted.

William Taylor

William Taylor, a senior engineering inspector for Pennzoil, was responsible for inspecting the Naphtha Unifiner and heat exchangers. He testified that Pennzoil had a policy of performing full turnaround inspections every three years on its heat exchangers. In 1998, Pennzoil performed an on-stream inspection instead of a full turnaround inspection because the industry had changed to allow on-stream inspections every five years. One of Taylor’s colleague’s, Jimmy Dupuy, recommended a full turnaround inspection in 1998, but Pennzoil did not perform this inspection because Dupuy did not give enough reasons why it should be done. In an incident interview statement, Taylor stated that he was not notified that crude with a higher chloride or sulfur count was entering the facility for processing.

Analysis

Intentional Act

In his opposition to the summary judgment motion, Brown argued that the evidence showed that Pennzoil had actual knowledge of the corrosion, the inevitability of a failure or explosion, and the extreme danger posed by the inevitable failure or explosion. He further argued that the evidence showed Pennzoil’s financial motivation for its disregard of the safety of its employees. On appeal, Brown argues that Pennzoil knew that the results of its conduct were substantially certain to follow from its conduct and that Pennzoil consciously subjected him to a hazardous work environment in which injury was inevitable.

Brown’s evidence to support his cause of action for an intentional tort can essentially be grouped under five allegations: (1) Pennzoil violated its own safety policies and procedures; (2) Pennzoil failed to allow its employees to participate in the Safety Management program; (3) Pennzoil failed to adequately inspect the heat exchangers and failed to inspect the crude that entered its refinery; (4) Pennzoil failed to shut down the heat exchanger when the water-wash system was not operating; and (5) Pennzoil knew that corrosion would occur in the heat exchanger.

Brown’s summary judgment evidence thus goes to establish that Pennzoil violated its own safety standards and procedures and that it knowingly permitted a hazardous condition to exist. However, the Louisiana Supreme Court noted in Reeves that the courts of appeals have almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. Id. at 211-12. “Violation of a statute alone is not per se such an intentional act as will result in the employer’s tort liability if injuries are sustained by an employee because of the violation.” Mott v. River Parish Maint., Inc., 432 So.2d 827, 832 (La.1983). Thus, such evidence is insufficient to raise a material fact issue with respect to the intentional act exception to Louisiana’s worker’s compensation laws. See Reeves, 731 So.2d at 211-12; Mott, 432 So.2d at 832.

Brown acknowledges that the failure to provide a safe place to work, the disregard of OSHA safety provisions, and the failure to correct unsafe working conditions are alone not sufficient to invoke the intentional act exception of section 1032(B), but he argues that these failures are sufficient in combination with summary judgment proof of Pennzoil’s knowledge that its conduct would nearly inevitably cause injury. Brown cites James v. Red Simpson, Inc., 2003-0304 (La.App. 3 Cir. 10/01/03), 856 So.2d 115 and Mouton v. Blue Marlin Specialty Tools, Inc., 2001-648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215. Although both cases restate the first half of Brown’s proposition, neither case supports the second half. In both cases, the trial court granted summary judgment in favor of the employer. See James, 856 So.2d at 116; Mouton, 799 So.2d at 1217. The court of appeals affirmed the grant of summary judgment in both cases. See James, 856 So.2d at 118; Mouton, 799 So.2d at 1220. In neither case did the court of appeals conclude that a combination of lapses, together with a defendant’s knowledge that a bad result would occur unless safety conditions were corrected, was sufficient to meet the intentional act exception.

Brown, however, contends that Louisiana courts have found an intentional act under similar circumstances. Although he cites numerous cases, he relies primarily upon three. We find these cases distinguishable on their facts.

In Clark v. Division Seven, Inc., a foreman ordered two roofers to work on a wet roof. 99-3079 (La.App. 4 Cir. 12/20/00), 776 So.2d 1262, 1263, writ denied, 2001-0183 (La.3/16/01), 787 So.2d 318. At the time the roofers were working, light rain and occasional heavy rain would force them to stop. Id. Both workers told the foreman that it was too dangerous to resume work because of the weather conditions. Id. The foreman responded that they could either continue working or be fired. Id. One of the workers slipped on the roof and narrowly avoided falling off the three-story church on which they were working. The employee who slipped objected again to working, to which the foreman repeated that they needed to continue working or they would be fired. Id. at 1263-64. Although the other employee chose to be fired and left the worksite, the plaintiff stayed. Id. A short time later, the plaintiff slipped on the wet roof, fell to the ground, and was severely injured. Id. at 1264. The plaintiff sued, and the trial court rendered judgment in his favor. Id. The court of appeals affirmed, holding that when the foreman ordered the plaintiff to return to the wet, slippery roof shortly after the other roofer had slipped, the “circumstances indicated that injury to the plaintiff was inevitable or substantially certain to occur.” Id.

Brown relies on Clark to show that Pennzoil had notice of the relevant hazard — without identifying the relevant hazard. To support the assertion that Pennzoil had notice, Brown refers us to OSHA reports stating that Pennzoil was aware of corrosion in the heat exchanger. He further cites to evidence of previous corrosion that was reported in 1982 and a prior accident that occurred 19 years ago at Pennzoil’s refinery. Based on the OSHA reports showing previous instances of corrosion at the Pennzoil refinery, Brown argues that we should reverse the summary judgment because Pennzoil had more notice than the employer in Clark. We disagree.

Clark is distinguishable from the present facts for at least two reasons. First, the Clark facts occurred over a very short time period and under unchanged conditions, whereas here the long lapse of time — 19 years — minimizes any notice from the prior accident. Second, in Clark, an event occurred that put the employer on notice of the specific hazard, i.e., one employee had already slipped and nearly fallen off the wet three-story roof. Here, Brown submitted no evidence, or no more than a scintilla of evidence, to show that Pennzoil was substantially certain that an explosion and subsequent injuries to its employees would occur as a result of its conduct. To the extent that Brown argues that Pennzoil had notice of corrosion in the heat exchanger and that the knowledge of corrosion made Pennzoil aware that an explosion would occur, we conclude that knowledge of corrosion in the heat exchanger is of no relevance because corrosion in a heat exchanger is a natural process; thus, mere knowledge of corrosion, without evidence that Pennzoil had notice that the corrosion had reached the point at which an explosion in the near future was substantially certain to occur, is no evidence that an explosion was about to occur.

Brown also cites Wainwright v. Moreno’s, Inc. 602 So.2d 734 (La.App. 3 Cir. 1992). In Wainwright, the plaintiff was digging a 10-foot-deep ditch when it caved in. Id. at 736. The plaintiff sued his employer and the foreman who had ordered him to dig the ditch. Id. The trial court found that the plaintiff’s employer and the foreman knew that the injuries to the plaintiff were substantially certain to result from their actions. Id. at 738. The appeals court affirmed, noting there was testimony that a cave-in had occurred the day before the accident. Id. at 739. Because of this cave-in, the employer had held a safety meeting at which the employees were told not to enter a ditch unless they could see out of it. Id. at 739. Additional evidence indicated that a cave-in was inevitable, including testimony from an engineer who stated that he had told a foreman that the soil was sloughing off the sides of the ditch and that no one should be allowed in the ditch without protection. Id. The engineer also told a superintendent that the dirt was unstable and that “no one should be allowed in the ditch until they protected the ditch against a cave-in.” Id. As in Clark, the evidence in Wainwright shows that the employer was aware of an accident that had occurred very recently — the day before — under the same conditions and that the employer ignored evidence of instability in the soil which indicated that another accident was substantially certain to occur and to cause injury to persons in the ditch.

Finally, Brown relies on Bailey v. United Gas Pipe Line Co. 27655 (La.App. 2 Cir. 12/6/95), 665 So.2d 664, writ denied, 96-0058 (La.2/28/96), 668 So.2d 372. In Bailey, the employee was killed while making repairs to a pipe coupling. Id. at 666. The employee’s wife filed suit against his employer, contending that his employer had committed an intentional act. Id. The employer filed a motion for summary judgment, disputing that the employee’s death was caused by an intentional act. Id. In response, the plaintiff submitted affidavits from two experts who both concluded that the course of conduct, combined with the weather conditions, made it substantially certain that the pipeline would fail, resulting in damages and injuries. Id. The trial court granted the summary judgment, finding that the experts’ affidavits were inadmissible. Id. at 666-67. The appellate court held that, to prevail on summary judgment, a party must show that there is no genuine issue of material fact as to whether the employer intended to cause the death of the employee. Id. at 667. The appellate court then held that the record was replete with evidence, including the experts’ affidavits, to show a genuine issue of fact. Id. at 667-68.

Bailey is distinguishable from the present facts because Bailey’s expert witnesses testified that the employer’s “course of conduct, combined with the weather conditions, made it substantially certain that the pipeline would fail, resulting in damages and injuries.” Id. at 666. Here, Brown did not present more than a scintilla of evidence that Pennzoil knew that conditions at the refinery were such that an explosion, causing injuries, was substantially certain to occur from its conduct. There was no evidence that Pennzoil was on notice that the heat exchanger was about to explode or that, knowing such danger, an employee of Pennzoil ordered Brown to work where he would be injured if the substantially certain explosion occurred. The closest that Brown came to surmounting its hurdle was through Nichols’s testimony that, in the absence of proper testing to avoid a breach, “you may have a catastrophic event.” This testimony does not meet the requirement of substantial certainty. See Reeves, 731 So.2d at 212 (stating, “Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by worker’s compensation”); see also Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1327-28 (5th Cir.1996) (holding that no genuine issue of fact was raised as to employer’s knowledge that employee’s injury was substantially certain to follow from employer’s actions); Landry v. Uniroyal Chem. Co., 94-1274 (La.App. 1 Cir. 3/3/95), 653 So.2d 1199, 1203-04, writ denied, 95-1381 (La.9/15/95), 660 So.2d 461; cf. Mitchell v. Exxon Corp., 907 F.Supp. 198, 200 (M.D.La.1995) (“[Ajbsent the most egregious of circumstances ... no plant owner will intentionally destroy or badly damage its own plant facility. No degree of carelessness, negligence, or even gross negligence can, or ever will, amount to ‘an intentional act’ so long as those words remain a part of the English language.”). The “substantial certainty’ element requires more than a reasonable probability that an injury will occur. Reeves, 731 So.2d at 213.

After reviewing all of the evidence and arguments, we hold that Brown did not produce more than a scintilla of evidence of an intentional act. Accordingly, we conclude that the trial court properly granted Pennzoil’s no-evidence motion for summary judgment on Brown’s intentional act claim.

We overrule Brown’s first issue on appeal.

Spoliation of Evidence

In his second issue on appeal, Brown argues that the trial court improperly granted summary judgment on his spoliation of evidence claim because Pennzoil did not move for summary judgment on this claim.

We cannot uphold a summary judgment based on arguments that were not presented to the trial court by written motion. See Tex.R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (“A motion must stand or fall on the grounds expressly presented in the motion.”).

In his fourth amended petition, Brown added a claim for spoliation of evidence. His petition states,

In addition to the allegations previously made herein, the evidence will show that [Pennzoil] has destroyed intentionally evidence upon which it relies to pursue its claim and defend the claim of [Brown]. [Pennzoil] should not benefit from its spoliation of the evidence. Ae-cordingly, [Brown] alleges a claim pursuant to Louisiana State Common Law for spoliation of the evidence which was a proximate and/or producing cause of damage and injury to [Brown],

On appeal, Pennzoil asserts that Louisiana has not clearly recognized the tort of spoliation of evidence under this set of facts. Thus, it contends that the trial court did not err in dismissing Brown’s spoliation cause of action. Alternatively, Pennzoil argues that the trial court properly treated Brown’s claim as a request for a spoliation presumption.

Because Brown added his spoliation claim for the first time in his fourth amended petition, Pennzoil could not address that claim in its motion for summary judgment, which had already been filed in the trial court. Pennzoil did not file an amended motion for summary judgment that could have addressed the spoliation claim. Because Pennzoil did not move for summary judgment on Brown’s spoliation arguments, it is barred from raising those arguments for the first time on appeal. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (“[A] summary judgment cannot be affirmed on grounds not expressly set out in the motion_”).

Additionally, in rendering summary judgment on this claim, the trial court erred by granting more relief than Pennzoil requested in its motion for summary judgment. See Muston v. Nueces County Sheriff’s Dep’t, 122 S.W.3d 469, 471 (Tex.App.-Corpus Christi 2003, no pet.) (“A summary judgment that purports to dispose of causes of action not addressed in the summary judgment motion is erroneous.”).

We sustain Brown’s second issue on appeal.

Conclusion

We affirm that portion of the judgment that granted Pennzoil’s no-evidence motion for summary judgment on Brown’s intentional act claim. We reverse that portion of the judgment that granted Pennzoil’s no-evidence motion for summary judgment on the spoliation of evidence claim and remand the cause for further proceedings in accordance with this opinion.

      . Our review of Pennzoil’s intent is limited to subsection (2) because the parties agree that Brown’s pleadings alleged the subsection (2) definition of intent only.

      . The legislative history of section 1032 is also enlightening. The House rejected two amendments to section 1032. First, it rejected an amendment to award double the normal compensation against an employer when the death, injury, or disease was caused by the employer’s violation of a recognized safety rule or regulation, failure to provide a safety device required by a recognized safety rule or regulation or by a statute, or by gross negligence on the part of a supervisory employee. See Reeves, 731 So.2d at 210. Second, the House rejected an amendment that would have allowed an exception to the Act if the injury or compensable sickness or disease was caused by the gross negligence of the said party or parties. See id.

      . Brown originally brought suit against Genesis Crude Oil; it sued Pennzoil only after Genesis settled prior to trial. Genesis is not a party to this appeal.

      . Salts accumulate on the surface of the heat exchangers. The water-wash system washes the salts away.

      . An on-stream inspection was less comprehensive than a full turnaround inspection.

      . The parties dispute whether Louisiana recognizes an independent cause of action for spoliation of evidence.


source: Caselaw Access Project

author: Justice WRIGHT.

license: Public Domain

text:
    Jason FEUERBERG, Appellant, v. Jeffery Martin BUSH, Appellee.
    No. 05-04-00729-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2005.
    Rehearing Overruled Nov. 18, 2005.

      Edward L. Rice, Capelle & Burdette, L.L.P., Dallas, for Appellant.
    Michael Philip Aigen, Lackey Hersh-man, L.L.P., Dallas, for Appellee.
    Before Justices WRIGHT, MOSELEY, and LANG.
   OPINION

Opinion by

Justice WRIGHT.

This is a breach of contract action filed by Bush with counterclaims asserted by Feuerberg. Jason Feuerberg appeals from a judgment awarding Jeffery Bush damages and attorney’s fees. In two points of error, Feuerberg contends: (1) the evidence is legally and factually insufficient to support the judgment; and (2) the trial court erred in failing to award him damages and attorney’s fees for Bush’s breach of the contract. We sustain Feuer-berg’s first point of error, reverse the trial court’s judgment, and render judgment that Bush take nothing on his breach of contract claim.

Background

Bush owned an auto parts store named Horsepower Store, Inc. He decided to sell the store and began looking for a buyer. He met Feuerberg who, at the time, was still in college. Feuerberg was interested in Horsepower and his parents gave him $30,000 to invest. On January 2, 2002, Bush and Feuerberg signed an agreement whereby Feuerberg paid Bush $30,000 and, in return, Bush was to transfer 1,500 shares to him. Thereafter, Feuerberg was to make monthly payments for additional shares. Feuerberg also became the Store’s manager. Bush became dissatisfied with Feuerberg’s management of the Store. In June of 2002, Feuerberg quit his job.

On September 10, 2002, Feuerberg made a written demand for the return of the money paid for the purchase of the stock. Bush filed this lawsuit against Feuerberg on January 28, 2003 seeking damages for Feuerberg’s failure to purchase the additional shares. Feuerberg filed a counterclaim alleging Bush breached the contract by failing to transfer the shares to him.

On December 31, 2003, Bush prepared a stock transfer ledger listing the transfer of shares to Feuerberg post-dated to the dates the transfers should have been made. At the time Bush created this written documentation of the transfer of shares, the corporation had ceased doing business and was worthless. In February 2003, The Horsepower officially ceased doing business.

The case was tried before a jury. The jury found that both Bush and Feuerberg breached the agreement. The jury awarded $70,500 to Bush and zero damages to Feuerberg. The trial court rendered judgment according to the jury’s verdict and this appeal timely followed.

Standard of Review

Feuerberg raises two points of error concerning whether the evidence supports the jury’s answers to questions in the jury charge.

An appellant attacking the legal sufficiency of an adverse jury finding on which he had the burden of proof must demonstrate that the evidence establishes, as a matter of law, all vital facts in support of the finding. Dow Chem,. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per cu-riam). In reviewing such a claim, we first examine the record for evidence supporting the jury’s finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the fact finder’s answer, only then will we review the entire record to assess whether the contrary proposition was established as a matter of law. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991).

If an appellant challenges the factual sufficiency of a jury finding regarding an issue upon which the appellant had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 241. In reviewing this challenge, we consider all of the evidence in determining whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King’s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951). We may reverse and remand for a new trial if we conclude the jury’s failure to find is against the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Breach of the Agreement

In his first point of error, Feuerberg contends the evidence is legally and factually insufficient to support the jury findings that he breached the Agreement and that his breach was not excused. Specifically, he contends: (1) under the unambiguous terms of the Agreement, he was not in breach, and (2) the evidence does not support the jury finding that Feuerberg’s breach was not excused by Bush’s failure to transfer the initial 1,500 shares paid for by Feuerberg.

The Agreement provides, in pertinent part, as follows:

1. Sale and Transfer of the Shares. Seller shall sell and transfer the Shares to Buyer, and Buyer shall tender to Seller the purchase price per share for the Shares, as follows:
(a) Upon the signing of this Agreement, Seller shall sell and transfer One Thousand Five Hundred (1,500) shares of the Shares to Buyer, and Buyer shall pay Seller Thirty Thousand Dollars ($30,000) in cash for the One Thousand Five Hundred (1,500) shares:
(b) Seller shall then sell Three Thousand Six Hundred (3,600) shares of the remaining Shares to Buyer and Buyer shall pay Seller Twenty Dollars ($20.00) per share for each of the Three Thousand Six Hundred (3,600) shares for a total of Seventy-Two Thousand Dollars ($72,000); provided that Buyer pay Seller no less than Five Hundred Dollars ($500) on the first of each and every month following the date this Agreement is signed until all of the Three Thousand Six Hundred (3,600) shares are purchased. Seller shall convey and transfer to Buyer on the thirty-first day of December of each year following the date this Agreement is signed the number of such shares for which Seller has been paid-in-full. However, in the event that a company distribution or dividend (See (d) below) is paid to shareholders, Seller shall transfer and convey to Buyer all shares that Buyer has paid for in-full prior to such distribution or dividend ....

The jury found Feuerberg failed to comply with the requirement in section 1(b) to purchase an additional 3,600 shares. Feuerberg contends this finding was error because, under the unambiguous terms of the contract, he was not in breach. Feuerberg, however, did not object to the submission of this question asking the jury to interpret this provision of the Agreement.

Any complaint as to a jury question is waived unless a specific objection is submitted to the trial court. Tex.R. Crv. P. 274. Failure to object to a jury question before the charge is submitted to the jury waives the issue on appeal. Tex.R.App. P. 33.1; State Farm Fire & Cas. Co. v. Gros, 818 S.W.2d 908, 916 (Tex.App.-Austin 1991, no writ). Because Feuerberg did not object to the question asking whether he was in breach of the Agreement, he has not preserved this complaint for review.

We turn now to whether the evidence supports the jury finding that Feuerberg’s breach was not excused by Bush’s failure to comply with a material obligation. The jury found that Bush failed to comply with his obligation to transfer the initial 1,500 shares to Feuerberg. However, the jury found that the transfer of shares was not a material obligation that would, in turn, excuse Feuerberg’s failure to pay for the additional 3,600 shares.

Feuerberg contends the evidence is legally and factually insufficient to support the jury’s finding that Bush did not fail to comply with a material obligation thereby excusing his breach. We agree.

The jury charge did not define the term “material.” Webster’s defines “material” as being of real importance or having great consequences. See WebsteR’s ThiRd New Int’l Dictionaky 1392 (1981). The Agreement provided that in return for Feuerberg’s payment of $30,000, Bush was to transfer 1,500 shares of Horsepower’s stock. The consideration given by each party was substantial. Feuerberg suffered a great consequence by Bush’s failure to transfer the initial 1,500 shares Feuerberg paid for — Feuerberg did not become a shareholder. The transfer of shares was, as a matter of law, a material obligation under the agreement. But for the promise to transfer the shares, Feuer-berg would not have paid Bush $30,000. The Agreement itself shows that Bush’s obligation to transfer the shares was a material obligation.

Bush argues the Agreement and corporate resolution approving the Agreement effectively transferred the shares. The Agreement, however, states that Bush shall transfer the shares. The corporate resolution merely approves the Agreement without addressing the transfer of shares. Thus, contrary to Bush’s contention, the corporate resolution approving the Agreement does not itself suffice as a transfer of stock.

Horsepower’s bylaws do address the transfer of shares. Pursuant to corporation’s bylaws, a transfer of shares does not occur until a written designation appears on the corporation’s books. Section 6.02 of the bylaws provides: “Transfers of shares or other securities shall be made only on the books of the Corporation by the registered holder thereof, or by such holder’s attorney thereunto authorized by power of attorney and filed with the Secretary of the Corporation or the transfer agent.” Furthermore, with regard to the corporation’s books, the bylaws provide as follows:

Section 10.06. Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders, Board of Directors and each committee of its Board of Directors, and shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of the original issuance of shares issued by the Corporation and a record of each transfer of those shares that has been presented to the Corporation for registration of transfer. Such original issuance and transfer records shall contain the names and addresses of all past and current shareholders of the Corporation and the number and class or series of shares held by each. Any books, records, minutes and share transfer records may be in written form or in other form capable of being converted into written form within a reasonable time.

The corporation maintained a stock transfer ledger. The transfer of shares to Feuerberg was not listed on the stock ledger until December 31, 2003. According to the bylaws, the shares were not transferred until that date.

Bush argues that he did not fail to comply with a material obligation because Feuerberg did, in fact, become a shareholder. Bush relies on the testimony that Feuerberg initially thought he was a shareholder and acted as a shareholder. Regardless of what Feuerberg may have thought, Bush was the sole shareholder of Horsepower when the parties signed the Agreement in January of 2002 and signing the Agreement did not change that fact. It was only after litigation had ensued and Horsepower’s value had become worthless that Bush transferred the shares.

We conclude the evidence is legally insufficient to support the jury’s finding that Feuerberg’s failure to comply with the Agreement was not excused. After reviewing the entire record, we conclude the evidence conclusively established that Bush did fail to comply with a material obligation. The jury found Bush suffered damages in the amount of $70,500 as a result of Feuerberg’s breach. Because Feuerberg’s breach is excused, Bush is not entitled to any damages. We sustain Feuerberg’s first point of error.

Damages

As noted earlier, the jury found that Bush breached the Agreement by failing to transfer the shares. However, the jury found that Feuerberg did not incur any damages as a result of Bush’s breach. In his second point of error, Feuerberg contends the evidence is legally and factually insufficient to support the award of zero damages. We disagree.

Feuerberg testified that Bush’s failure to transfer the shares prevented him from selling those shares. He said that he thought about selling his stock when he left the store. At the time that he left, he thought the stock still had some value. Bush testified, however, that at the time Feuerberg left, the stock was worthless and that Horsepower’s liabilities exceeded its assets.

It is undisputed that when Feuerberg sent a written demand to Bush for the return of his money, the stock had no value. Thus, when Feuerberg first made an attempt to sell the stock he thought he owned, its value was worthless. We conclude the evidence is legally and factually sufficient to support the jury finding of zero damages for Feuerberg. We overrule Feuerberg’s second point of error.

We reverse the trial court’s $70,500 damages award and $3,525 award of prejudgment interest in favor of Bush. We render judgment that Bush take nothing on his breach of contract claim. In light of this Court’s holdings, we remand the award of attorney’s fees to the trial court.

      . Horsepower was also a plaintiff in the lawsuit seeking recovery for property allegedly converted by Feuerberg. The jury awarded Horsepower $546.61. Feuerberg does not appeal that award and Horsepower is not a party to this appeal.

      . Question No. 1
      Did Feuerberg fail to comply with the Sale and Purchase Agreement?
      It is your duty to interpret the following language of the agreement:
      “Seller shall then sell Three Thousand Six Hundred (3,600) shares of the remaining Shares to Buyer and Buyer shall pay Seller Twenty Dollars ($20.00), per share for each of the Three Thousand Six Hundred (3,600) shares for a total of Seventy-Two Thousand Dollars ($72,000); provided that Buyer pay Seller no less than Five Hundred Dollars ($500) on the first of each and every month following the date this Agreement is signed until all of the Three Thousand Six Hundred (3,600) shares are purchased.”
      You must decide its meaning by determining the intent of the parties at the time of the agreement. Consider all the facts and circumstances surrounding the making of the agreement, the terms of the entire agreement, the interpretation placed on the agreement by the parties, and the conduct of the parties.
      Answer "Yes” or "No.”
      Answer: Yes

      . Question No. 4
      Did Bush fail to comply with the Sale and Purchase Agreement?
      It is your duty to interpret the following language of the agreement!,
      "Upon the signing of this Agreement, Seller shall sell and transfer One Thousand Five Hundred (1,500) shares of the Shares to Buyer.” and
      "Seller shall convey and transfer to Buyer on the thirty-first day of December of each year following the date of [sic] this Agreement is signed the number of shares for which Seller has been paid-in-full.”
      You must decide its meaning by determining the intent of the parties at the time of the agreement. Consider all the facts and circumstances surrounding the making of the agreement, the terms of the entire agreement, the interpretation placed on the agreement by the parties, and the conduct of the parties.
      Answer "Yes” or "No.”
      Answer: Yes

      . Question No. 3
      Was Feuerberg's failure to comply excused?
      Failure to comply is excused if, before Feuerberg failed to comply, Bush failed to comply with a material obligation of the same agreement.
      * * *
      Answer "Yes” or "No.”
      Answer: No

      . The trial court awarded Bush $45,088.75 in attorney’s fees. Feuerberg does not raise a separate point of error challenging the award of attorney’s fees. However, because we are rendering judgment that Bush is not entitled to any damages, we remand the issue of attorney’s fees to the trial court.


author:
EVELYN V. EEYES, Justice.
      GEORGE C. HANKS, JR., Justice,

text:
    In re Eilene HUAG, R.N. & Kevin Rittger, M.D., Relators.
    No. 01-05-00173-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 25, 2005.
    Rehearing Overruled Sept. 28, 2005.

      Erin E. Lunceford, Munisteri, Sprott, Rigby, Newson & Vincent, P.C., Jeffrey H. Uzick, Joel Randal Sprott and Roger A. Berger, Houston, TX, for Appellant.
    Lynn J. Element, Element & Burridge, L.L.P., Angleton, TX, for Appellee.
    Panel consists of Justices TAFT, EEYES, and HANES.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

EVELYN V. EEYES, Justice.

Relators, Eilene Huag, R.N. and Eevin Rittger, M.D. (together referred to as rela-tors) have filed a petition for writ of mandamus complaining about the trial court’s order granting the real party in interest’s, Harold Dean Willes, Independent Administrator of the Estate of Charles Albert Willes Jr.’s, motion to compel deposition testimony. We conditionally grant the relief requested in relators’ petition for writ of mandamus.

Background

The real party in interest, Willes, filed a medical malpractice suit against relators and others under the Texas Medical Liability Act (TMLA). Relators answered and denied Willes’ allegations. On October 7, 2004, Willes sent a request to depose each relator. Both relators declined. In response, Willes filed a motion to compel the deposition testimony of relators. After a hearing, the trial court granted the motion to compel on October 20, 2004. On February 24, 2005, relators filed a petition for writ of mandamus seeking relief from this Court to vacate the trial court’s order. Pursuant to our order, the real party in interest has filed a response to relators’ petition for writ of mandamus.

Mandamus

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or the violation of a legal duty when there is no adequate remedy at law. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). In determining whether there has been a clear abuse of discretion justifying mandamus relief, the reviewing court must consider whether the trial court’s ruling was one compelled by the facts and circumstances or was arbitrary, unreasonable, or reached without reference to any guiding rules or principles. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Analysis

Relators ask this Court to interpret section 74.351 of the TMLA. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351 (Vernon 2005). Statutory interpretation is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex.2001). Our primary goal is to ascertain and effectuate the legislature’s intent. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). In doing so, we begin with the statute’s plain language because we assume that the legislature tried to say what it meant and, thus, that its words are the surest guide to its intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). To ascertain legislative intent, however, we must look to the statute as a whole and not to its isolated provisions. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Mentor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001). We may also consider, among other things and whether or not the statute is ambiguous, the statute’s objectives, the circumstances under which the statute was enacted, legislative history, common law, former law, similar provisions, and the consequences of the statutory construction. See Tex. Gov’t Code Ann. § 311.023(l)-(5) (Vernon 2005).

It is a well-settled rule of statutory construction that we must presume that every word of a statute has been used for a purpose. Laidlaw Waste Sys., Inc. v. Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Likewise, we must presume that every word excluded from a statute has been excluded for a purpose. Id. This rule complements another general statutory construction principle that courts should not insert words into a statute except to give effect to clear legislative intent. Id. Moreover, a court of appeals should presume the legislature intended a just and reasonable result in enacting a statute. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 287 (Tex.App.-Houston [1st Dist.] 2004, no pet.). An appellate court should not construe a statute in a manner that will lead to a foolish or absurd result when another alternative is available. Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 367 n. 20 (Tex.2004) (quotations omitted).

With these principles in mind, we turn to the substance of relators’ complaints.

Subsection 74.351(s) of the TMLA stays all discovery in a medical malpractice suit until the expert report has been filed, unless excepted. It provides:

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(s)(l)-(3) (Vernon 2005).

Subsection 74.351(u) provides, however:

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a).

Tex. Crv. PRAC. & Rem.Code Ann. § 74.351(u) (Vernon 2005) (emphasis added).

Willes contends that subsection 74.351(u) expands the discovery permitted by section 74.351(s) to permit the claimants to take two oral or written depositions of parties or non-parties, in addition to the depositions permitted by subsection 74.351(s). He argues that subsections 74.351(s) and 74.351(u) are independent and equal provisions of section 74.351 and that the language “notwithstanding any other provision of this section” in subsection 74.351(u) means exactly what it says on its face: independently of any other subsection of section 74.351, “all claimants, collectively, may take not more than two depositions before the expert report is served.”

Relators disagree. They contend that subsection 74.351(s) stays all discovery in a medical malpractice action before the filing of the claimant’s expert report with the exception of the types of discovery expressly referenced in that subsection and that subsection 74.351(u) further restricts the depositions permitted by subsection 74.351(s) prior to service of the expert report to two depositions by all claimants collectively. Relators argue that because the legislature expressly referenced the rules governing depositions on written questions and depositions of non-parties in defining permitted discovery in subsection 74.351(s), but did not reference the rules governing the oral depositions of parties, and did not define the term depositions in subsection 74.351(u), the same definition of the term should be used in both sections under the doctrine of expres-sio unius est exclusio alterius. We acknowledge that because oral depositions of parties are not expressly mentioned in subsection 74.351(s) as exceptions to the stay, they are not permitted by that subsection. However, subsection 74.351(u) is an independent subsection of section 74.351 that applies, by its plain language, notwithstanding any other subsection. Therefore, we do not agree that the doctrine of expression unius est exclusio al-terius requires us to read subsection 74.351(u) as limited by the references to rules governing permissible discovery in subsection 74.351(s).

Relators also argue that because the general term depositions is not defined in subsection 74.351(u), while Texas Rules of Civil Procedure 200 and 205 governing written depositions and depositions of non-parties are specifically referenced in subsection 74.351(s), the rule of ejusdem gen-eris requires us to construe the general term depositions in subsection 73.351(u) as restricted to the specific types of depositions mentioned in subsection 74.351(s). We find this argument unpersuasive also and for the same reasons: subsection 74.351(u) is an independent subsection of section 74.351, and the disclaimer at the beginning of subsection 74.351(u) expressly states that all claimants, collectively, are allowed to take two depositions “notwithstanding any other provision of this section.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(u).

Relators also rely, however, on In re Miller, 133 S.W.3d 816 (Tex.App.-Beaumont 2004, orig. proceeding), to support their arguments. In Miller, the Beaumont Court of Appeals addressed the same question with which we are now confronted. The court discussed the phrase “notwithstanding any other provision” and concluded that it could not mean that in construing subsection 74.351(u) the court should ignore entirely the discovery provisions set forth in subsection 74.351(s). See id. at 818. It reasoned that the numerical limitation in subsection 74.351(u) would be given no effect if unlimited depositions were permitted by subsection 74.351(s) and two additional depositions were permitted by subsection 74.351(u). Id. In addressing the phrase “notwithstanding any other provision,” the court stated,

The phrase notwithstanding any other provision of this section in subsection (u) references the reporting requirements imposed by the section and the discovery authorized by subsection (s). Nevertheless, subsection (u) limits the number of depositions allowed by subsection (s) to two; subsection (u) places this numerical limitation on the type of depositions permitted by subsection (s). The limitation is imposed in spite of the expert report requirements, and notwithstanding the lack of a numerical limitation on depositions in subsection (s). We conclude any oral depositions stayed under subsection (s) are not authorized by subsection (u).

We agree with the reasoning in Miller. The correct construction of the statute turns upon harmonizing the language of subsections 74.351(s) and 74.351(u). The question is (1) whether subsection 74.351(u) should be read as providing that, notwithstanding the language in subsection 74.351(s) limiting discovery by a claimant during the stay prior to service of the expert report, subsection 74.351(u) permits two additional oral or written depositions to be taken of anyone by all claimants together, as Willes argues, or (2) whether it should be read as providing that, notwithstanding the language in subsection 74.351(s) permitting a claimant to take a number of different types of discovery during the stay prior to service of the expert report, including certain oral and written depositions, subsection 74.351(u) limits the permitted depositions to a total of two for all claimants together, as relators argue. Because the plain language of the statute permits either reading, we must determine whether only one reading is reasonable and consistent with legislative intent.

In promulgating the TMLA in 2003, the Texas Legislature listed a number of findings regarding the current state of health care in Texas. See Tex. Civ. PRAC. & Rem. Code Ann. § 74.001 historical note (Vernon 2005) [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884]. The findings indicated that the number of health care claims and the amounts being paid out in settlements and judgments had increased “inordinately” since 1995, affecting medical professional liability rates; there was, consequently, a serious problem in the availability and affordability of adequate medical professional liability insurance, creating a medical malpractice insurance crisis with a material adverse impact on the delivery of medical and health care and with both direct and indirect costs to patients and the public; and the adoption of modifications to the “medical, insurance and legal systems” would lower insurance rates for medical liability insurance. Id.

Because of these findings, the legislature stated that its purpose was to improve and modify the system by which health care liability claims are determined in order to:

(1)reduce excessive frequency and severity of health care liability claims through reasonable improvements and modification in the Texas insurance, tort, and medical practice systems;
(2) decrease the cost of those claims and ensure that awards are rationally related to actual damages;
(3) do so in a manner that will not unduly restrict a claimant’s rights any more than necessary to deal with the crisis;
(4) make available to physicians, hospitals, and other health care providers protection against potential liability through the insurance mechanism at reasonably affordable rates;
(5) make affordable medical and health care more accessible and available to the citizens of Texas;
(6) make certain modification in the medical, insurance, and legal systems in order to determine whether or not there will be an effect on rates charged by insurers for medical professional liability insurance; and
(7) make certain modifications to the liability laws as they relate to health care liability claims only and with an intention of the legislature to not extend or apply such modifications of liability laws to any other area of the Texas legal system or tort law.

See id. § 74.001 [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884-885] (emphasis added). We are also mindful of the former provisions of the Medical Liability and Insurance Improvement Act of Texas, which did not place any limitations on discovery. See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2064, repealed by Act of May 16, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 74.001 (Vernon 2005)) (“former article 4590i”).

The legislature’s express purposes in enacting the TMLA included the modification of the Texas tort practice system to decrease the cost of health care liability claims without unduly restricting a claimant’s rights. See Tex. Civ. PRAC. & Rem. Code Ann. § 74.001. With the addition of subsections 74.351(s) and 74.351(u) to section 74.351, the legislature satisfied these purposes — the Act now stays discovery prior to the expert’s report, but lifts the stay with respect to specified types of discovery. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u).

Significantly, the only types of discovery not excepted from the stay in subsection 74.351(s) are the oral depositions of parties and pre-suit depositions. Subsection 74.351(s) expressly lifts the stay with respect to requests for disclosure, requests for production, interrogatories, requests for admission, depositions on written questions, and oral depositions of non-parties. The only limitations on the permissible forms of discovery for each claimant established by subsection 74.351(s) are those provided by the rules specifically referenced in that subsection, including, for example, rule 205’s limitation of discovery from a non-party to a deposition on written questions, a request for production of documents with an oral examination, and a request for production without deposition. Thus, if subsection 74.351(u) permitted the claimants to take two oral depositions of parties in addition to the oral and written depositions of an unlimited number of non-parties and an unlimited number of depositions on written questions of parties permitted each claimant by subsection 74.351(s), the stay of discovery imposed by section 74.351(s) prior to service of the expert report would be effectively meaningless and the detailed articulation of permissible discovery in subsection 74.351(s) would be otiose.

We will not interpret a statute in such a way as to make any part of it meaningless. See Ramirez v. Collier, Shannon, Scott, PLLC, 123 S.W.3d 43, 48 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). We conclude that subsections 74.351(s) and 74.351(u) can be meaningfully harmonized only if subsection 74.351(s) is read as limiting each claimant’s discovery prior to service of the expert report to the types of discovery permitted by the rules referenced in that subsection, and subsection 74.351(u) is read as further limiting discovery during the stay by permitting all claimants, collectively, to take not more than two depositions of the types permitted by subsection 74.351(s). We further conclude that only this interpretation of subsections 74.351(s) and 74.351(u) fulfills the stated purpose of the TMLA of holding down legal costs and thus malpractice insurance costs.

Accordingly, we hold that subsection 74.351(s) of the TMLA defines the types of permissible discovery excepted from the stay imposed prior to service of the expert’s report and that subsection 74.351(u) restricts all claimants collectively to taking not more than two depositions of the types permitted by subsection 74.351(s) during the stay.

Conclusion

Based on our interpretation of section 74.351, we conclude that the trial court abused its discretion in compelling relators to give deposition testimony. We conditionally grant the relief requested in rela-tors’ petition for writ of mandamus and order the trial court to vacate its order compelling relators to give deposition testimony. Mandamus will issue only if the trial court fails to comply.

Justice HANKS, dissenting.

GEORGE C. HANKS, JR., Justice,

dissenting.

I respectfully dissent. I would affirm the order of the trial court and allow the party depositions to proceed. Subsection 74.351(u) allows a claimant, prior to filing the expert report, to take two oral depositions of any witness the claimant chooses. Subsection 74.351(u) provides:

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a).

Tex. Civ. PRac. & Rem.Code Ann. § 74.351(u) (Vernon 2005) (emphasis added). The language “notwithstanding any other provision of this section” in subsection 74.351(u) means exactly what it says on its face: independent of any other subsection of section 74.351, “all claimants, collectively, may take not more than two depositions before the expert report is served.” Going outside the subsection to interpret its effect renders the phrase “notwithstanding any other provision of this section” meaningless. Nowhere in subsection 74.351(u) does the Legislature state that (1) parties are immune from being deposed under this subsection or (2) the two depositions are limited to only non-parties.

For this reason, I would hold that the trial court’s order was not a clear abuse of discretion justifying mandamus relief. Because the majority holds otherwise, I respectfully dissent.

      . This is the second petition for writ of mandamus filed by relators. The Fourteenth Court of Appeals issued a memorandum opinion, In re Huag & Rittger, 14-04 — 01077-CV, 2005 WL 171456 (Tex.App.-Houston [14th Dist.] Jan. 27, 2005), that denied relief because the petition failed to comply with the verification requirements. Relators filed that petition on December 8, 2004.

      . The Honorable James A. Blackstock, judge of the County Court at Law No. 3 of Brazoria County, Texas. The underlying lawsuit is Harold Dean Willes, Independent Administrator of the Estate of Charles Albert Willes Jr. v. Chris-tus St. John Hospital, Katherine Sheffield, M.D., Kevin Rittger, M.D., & Eilene Huag, No. 26062 (County Court at Law No. 3., Brazoria County, Texas).

      . See Tex Civ. Prac. & Rem.Code Ann. §§ 74.001 et seq. (Vernon 2005).

      . We have no record from the trial court’s hearing.

      . Subsection 74.351(a) requires a claimant to file an expert report and a curriculum vitae of each expert listed in the report not later than the 120th day after the date the claim was filed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon 2005).

      . Rule 192.7 defines written discovery as "requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.” Tex.R. Civ. P. 192.7(a).

      . Rule 200 allows a party to "take the testimony of any person or entity by deposition on written questions before any person authorized by law to take depositions on written questions.” Tex.R. Civ. P. 200(a). The notice may include a request for production of documents. Id. at 200.1(b).

      .Rule 205.1 allows the following types of discovery from a nonparty: (1) an oral deposition; (2) a deposition on written questions; (3) a request for production of documents or tangible things served with a notice of deposition on oral examination or written questions; and (4) a request for production of documents and tangible things without deposition, as provided by rule 205.3. See TexR. Civ. P. 205.1(a),(b),(c), and (d).

      . Both subsections 74.351(s) & 74.351(u) were added to section 74.351 in the 2003 Legislative session. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 876-877.

      . The doctrine of expressio unius est exclusio alterius means the 'expression of one implies the exclusion of others. ’ See Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273-74 (Tex.1999). The doctrine is an aid in determining legislative intent, but not an absolute rule, just as are other aids to statutory interpretation such as the presumption that the legislature acts with knowledge of prior court decisions and interpretations of statutory language. See Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999); Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex.1968).

      .There is also another reason for not viewing the term depositions as defined for all of section 74.351 by references to rules governing depositions on written questions and non-party depositions in subsection 74.351(s). Relators ask us to define the term consistently throughout other subsections within section 74.351, but they refer us only to subsections 74.35l(s) and 74.35l(u). The term depositions, however, is used elsewhere in the statute. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(k)(2) (Vernon 2005). Subsection 74.35 l(k)(2) states than an expert report served under section 74.351 shall not be used in a deposition, trial, or other proceeding. Id. If we were to hold that the term depositions refers only to depositions on written questions and depositions of non-parties consistently throughout section 74.351, because the term is so limited in subsection 74.35l(s), we would also have to conclude that the same definition applies to subsection 74.35 l(k)(2), which we are unwilling to do.

      . Under the rule of ejusdem generis, “when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed.” Black’s Law Dictionary 535 (7th ed.1999).

      . The only oral depositions stayed under subsection (s) are oral depositions of parties and pre-suit depositions.