in Re Caroline Durham and Barry Durham ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00367-CV

In re Caroline Durham and Barry Durham

Original Proceeding

MEMORANDUM  Opinion

The amended petition for writ of mandamus is denied, and this Court’s November 6, 2009 stay order is lifted.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Petition denied

Opinion delivered and filed November 10, 2009

[OT06]

inst the school district employees.  If it could stop there, with a decision that the facts give rise to two claims that could have been asserted by the plaintiffs in two separate suits, we might be finished with our analysis.

          But we are not finished.  We are not finished for two reasons.  The first, which I will not belabor, is the use of the term “suit” in section 101.106(b) as contradistinguished from the term “claim” used elsewhere in the statute, and the second, is the unity of actual damages as pled by the plaintiffs.

          The first is simple.  The legislature used the broader term “suit” in section 101.106(b) than the term “claim” as used elsewhere in the statute, for example in section 101.106(c).  The legislature must have meant something by the use of different terms.

          Second, judicial economy not withstanding, I expect real and substantial problems for the plaintiffs in segregating the actual damages caused by the alleged wrongful termination claim from the damages for the malicious prosecution claim.  A fact finder in a single suit is probably the only way to sort out the difference in damages, if any.  This problem is made evident and persuasively argued by WISD by reference to the plaintiffs’ prayer for relief where the prayer is that plaintiffs recover “jointly and severally, their actual damages” and then goes on to seek punitive damages only against the individual defendants.  Based on the pleading, the “recovery” sought must relate to the same actual damages for both “claims.”  See Tex. Civ. Prac. Rem. Code Ann. § 101.106(b) (Vernon 2005).  How else could they be jointly and severally liable for any damages?

          As currently pled, with the prayer for joint and several liability for damages, there can be little question that the actions are alleged to arise “out of the same transaction, occurrence, or series of transactions or occurrences.”  See Tex. R. Civ. P. 40(a).  But in this instance, I think the trial court recognized that this may be only a technical issue, overcome with a pleading amendment, to be followed up with appropriate segregation of damages by the evidence and with an instruction limiting the use of damage evidence for only the claim to which it applied.  Thus, while I believe the plaintiffs defeated the trial court’s jurisdiction by the manner of their pleading, I believe it is a pleading defect that could be, and must be, remedied.  Thus, the appropriate result is to reverse the trial court’s order denying the plea to the jurisdiction and remand the case to the trial court for further proceedings consistent with our opinion.  See Subaru of American, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002); Johnson v. Tims, No. 10-05-00006-CV, 2005 Tex. App. LEXIS 5053 (Tex. App.—Waco June 29, 2005, no pet. h.).  Because the majority does not, I respectfully dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed September 7, 2005

Dissenting opinion reissued November 23, 2005