rukmi-indah-idniarti-rubby-valentina-issakh-yohannes-roditya-mulyani ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00045-CV
RUKMI INDAH IDNIARTI, RUBBY APPELLANTS
VALENTINA ISSAKH, YOHANNES
RODITYA, MULYANI IRIANTI, DINA
NOVIA SARI, NOVIANTI DEBBY
PUTRI, DRRJ TRI SAPUTRA, AND SITI
SARAH
V.
BELL HELICOPTER TEXTRON, INC. APPELLEES
AND BELL HELICOPTER KOREA, INC.
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In six issues, Appellants Rukmi Indah Idniarti, Rubby Valentina Issakh,
Yohannes Roditya, Mulyani Irianti, Dina Novia Sari, Novianti Debby Putri, Drrj Tri
1
See Tex. R. App. P. 47.4.
Saputra, and Siti Sarah (collectively, Idniarti) appeal the trial court’s no-evidence
summary judgment for Appellees Bell Helicopter Textron, Inc. and Bell Helicopter
Korea, Inc. (collectively, Bell). We affirm.
II. Background
This wrongful death suit arose from a February 2001 helicopter crash. The
helicopter in question was assembled by Industri Pesawat Terbang Nusantara
(IPTN), an Indonesian company operating under a licensing agreement with Bell.
The Indonesian Forestry Department (IFD) purchased the helicopter, but it was
maintained by PT Dayajasa Transindo Pratama (Transindo) when it crashed,
killing its pilot, co-pilot, and passenger.
Two years after the crash, Idniarti sued Bell for negligence, product
liability, intentional and negligent misrepresentation, fraud, and gross negligence.
After the suit was dismissed for forum non conveniens in January 2004 and
dismissed twice for want of jurisdiction in Indonesia, Idniarti filed a motion to
reactivate in January 2009, and the case was reinstated in Tarrant County on
June 23, 2009. Although the trial court initially set a trial date for November
2010, it granted several extensions before it granted the final summary judgment
at issue here in November 2011.
III. Summary Judgment
In her third and fourth issues, Idniarti complains that the trial court erred by
granting Bell’s no-evidence motion for summary judgment because the affidavit
of her expert, Arthur Childers, should not have been stricken and because the
2
trial court had refused to let her take depositions of Bell’s key witnesses. In her
remaining issues, she complains about the trial court’s decisions to exclude her
summary judgment evidence and deny her motion for a continuance.
Specifically, in her third issue, as well as in parts of her fifth and sixth
issues, Idniarti contends that the trial court abused its discretion by striking or
ignoring Arthur Childers’s affidavit and her other evidence (affidavits from Mark
Sparks and Jerry Wells, as well as deposition testimony by Minaro Munarand,
Gary Morton, Enuh Nurhayat, Dr. Soerjanto Tjahjono, and Debby Putri). And in
her fourth issue—also included in her first issue and the remainder of her fifth
issue—Idniarti complains that in its August 16, 2010 order, the trial court refused
to allow her to take depositions of key Bell witnesses.
When an appellee objects to evidence on several independent grounds
and, on appeal, the appellant complains of the exclusion of evidence on only one
of those grounds, the appellant waives any error by failing to challenge all
possible grounds for the trial court’s ruling that sustained the objection. In re
Blankenship, 392 S.W.3d 249, 259 (Tex. App.—San Antonio 2012, no pet.);
Collin Cnty. v. Hixon Fam. P’ship, 365 S.W.3d 860, 877 (Tex. App.—Dallas 2012,
pet. denied); Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied) (op. on reh’g); Trahan v. Lone Star Title Co. of El Paso,
247 S.W.3d 269, 284–85 (Tex. App.—El Paso 2007, pet. denied).
Because Idniarti does not address any of the grounds upon which the trial
court could have sustained Bell’s objections to Childers’s first or second
3
affidavits, Sparks’s affidavit, or Wells’s affidavit,2 she has forfeited these
complaints on appeal. See Blankenship, 392 S.W.3d at 259; Collin Cnty., 365
S.W.3d at 877; Gulley, 321 S.W.3d at 218; Trahan, 247 S.W.3d at 284–85.
Likewise, although Idniarti complains that the trial court improperly struck her fact
witnesses3 and that she had good cause for failing to timely designate her
witnesses, she does not argue that her failure to timely make, amend, or
supplement her discovery responses did not unfairly surprise or unfairly prejudice
Bell—the other ground presented in Bell’s motion to exclude. Therefore, Idniarti
has also forfeited this complaint. See Blankenship, 392 S.W.3d at 259; Collin
Cnty., 365 S.W.3d at 877; Gulley, 321 S.W.3d at 218; Trahan, 247 S.W.3d at
284–85; see also Tex. R. Civ. P. 193.6(a)(2). Accordingly, we overrule Idniarti’s
third issue and this portion of her fifth and sixth issues.
2
On October 31, 2011, Bell filed objections to Sparks’s affidavit and
Childers’s affidavit, which the trial court sustained on November 8, 2011. On
January 17, 2012, Bell responded to Idniarti’s motion for new trial and filed
additional objections. The trial court sustained Bell’s renewed objections to the
first Childers affidavit and sustained Bell’s objections 2, 3, 5, 6, 7, 8, 9, 10, and
12 to Childers’s second affidavit while overruling Bell’s objections 1, 4, and 11. It
also sustained Bell’s renewed objections to Sparks’s affidavit and sustained
Bell’s objections 4, 5, and 6 to Wells’s affidavit while overruling objections 1, 2, 3,
and 7.
3
Bell’s motion to exclude did not seek to exclude any of the plaintiffs
themselves, so Putri’s deposition should have been considered by the trial court.
However, Putri, one of the deceased co-pilot’s children, testified primarily about
the effect her father’s death had on her and her family; as to liability, she testified
only that her father had called her the night before the accident and told her that
there was a problem with the helicopter but did not tell her what the problem was.
4
Furthermore, contrary to Idniarti’s argument in her fourth issue—also
included in her first issue and part of her fifth issue—that the trial court refused to
allow her to take depositions of Bell’s key witnesses at all, the record reflects that
the actual August 16, 2010 order, signed after a hearing on July 6, 2010, only
states, ―Bell’s Motion to Quash the Four Deposition Notices Served on Bell on
March 9, 2010 is hereby GRANTED.‖ [Emphasis added.] The order also reflects
that the trial court only took under advisement Bell’s motion for sanctions and
that it agreed to allow depositions to move forward in Indonesia.4 The order does
not specify upon which of Bell’s grounds the trial court granted the motion to
quash, and on appeal, Idniarti does not address any of the grounds Bell raised in
its motion.5 Because Idniarti does not challenge any of Bell’s grounds or explain
4
While the August 2010 order denied Idniarti’s request for an extension of
time and to reset scheduling order dates, in April 2011, the trial court reset the
scheduling order deadlines.
5
In the trial court, Bell complained that Idniarti had never responded to its
March 4, 2010 objections to Idniarti’s proposed deposition topics or conferred
with Bell and that Idniarti had failed to comply with the court’s March 5, 2010
deadline to respond to Bell’s July 2007 requests for production. Bell also
asserted that Idniarti’s deposition notices were not properly served; that the
deposition topics were improper under rule of civil procedure 199.2(b)(1) and (3);
and that Idniarti sought depositions that had already been provided in 2003. Bell
also made objections to each deposition notice individually, and it attached to its
motion the trial court’s order giving Idniarti until March 5, 2010 to produce her
responses; correspondence between Idniarti and Bell in February and March
2010 regarding Idniarti’s request for an agreed extension and Idniarti’s potential
deposition topics; Idniarti’s four deposition notices; the September 1, 2009 letter
agreement between the parties extending Idniarti’s time to respond to Bell’s
requests for production until September 21, 2009; Idniarti’s 2003 deposition
notice for Gary Morton; and a July 10, 2003 letter from Mark Sparks—Idniarti’s
counsel in 2003.
5
how the trial court abused its discretion in light of those grounds and Bell’s
supporting evidence, we conclude that she has forfeited this complaint as well.6
See In re Toyota Motor Corp., 191 S.W.3d 498, 503 (Tex. App.—Waco 2006,
orig. proceeding) (noting that the trial court has discretion to determine what
restrictions on discovery are required and that the appellate court will not
interfere with the exercise of this discretion ―unless the party opposing discovery
failed to present evidence to support the ruling‖). Therefore, we overrule
Idniarti’s first and fourth issues, as well as part of her fifth issue.
Further, outside of her stated issues but within her argument on appeal,
Idniarti challenges only two of the no-evidence grounds Bell raised in its no-
evidence motion for summary judgment. When a trial court’s order granting
summary judgment does not specify the ground or grounds relied on for its ruling,
summary judgment will be affirmed on appeal if any of the theories presented to
the trial court and preserved for appellate review are meritorious. Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram,
Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). And when, as here, the trial
court’s judgment rests upon more than one independent ground, the aggrieved
6
Further, the record is devoid of any effort made by Idniarti to renotice the
Bell depositions with proper service or to cure any of the other potential bases
upon which the trial court could have granted Bell’s motion. And although Idniarti
argues on appeal that ―[i]n this case, the law is so clear that the Trial Court
abused its discretion in refusing to allow the depositions of Bell’s key witnesses
that a mandamus could have issued,‖ there is no indication that Idniarti ever filed
a petition for writ of mandamus to seek such relief at any point in this case’s
lengthy procedural history.
6
party must assign error to each ground, or the judgment will be affirmed on the
ground to which no complaint is made. Davis v. Conveyor-Matic Inc., 139
S.W.3d 423, 428 (Tex. App.—Fort Worth 2004, no pet.); Scott v. Galusha, 890
S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied).
In its motion, Bell complained that Idniarti had produced no evidence
 of the cause of the subject accident or that a defect existed in the
subject helicopter, thus defeating Idniarti’s strict product liability theories
(unsafe design, manufacturing defect, inadequate warning);
 that any express warranty was made by Bell to Idniarti or breached by
Bell, or that an implied warranty existed between Idniarti and Bell;
 of a misrepresentation made by Bell sufficient to bring a claim for
negligent misrepresentation, intentional misrepresentation, fraud, or
fraud by concealment; or
 that a duty was owed to Idniarti by Bell and that Bell breached any duty
to them under a general negligence or strict product liability theory.
The trial court granted the no-evidence summary judgment ―in all respects.‖
While Idniarti argues that negligence per se and ―fleet liability‖ support the
duty element of her negligence claim7 against Bell and that res ipsa loquitur is the
7
We note that the trial court denied Idniarti’s request to amend her original
petition to add a claim based on her ―fleet liability‖ theory and that she has not
appealed the denial of that request. She also never amended her petition or
sought to amend her petition to include a claim for negligence per se. Cf.
Callahan v. Vitesse Aviation Servs., LLC, No. 05-11-00914-CV, 2013 WL
1287188, at *11 (Tex. App.—Dallas Mar. 29, 2013, no pet. h.) (stating that
negligence per se is a common law tort concept in which a duty is based on a
standard of conduct created by a statute).
7
basis for causation for her design and manufacturing defect claims,8 she does
not complain about each independent ground upon which summary judgment
could have been granted. See Davis, 139 S.W.3d at 428; Scott, 890 S.W.2d at
948. Therefore, we overrule these unnumbered arguments.9
8
Specifically, Idniarti asserts that a design defect occurred based on ―gear
box engine failure‖ and that Bell had a safer alternative design; that a
manufacturing defect occurred based on IPTN’s failure to comply with Bell and
FAA standards; and that res ipsa loquitur is the basis for causation for either
defect claim because the helicopter crashed within 112 hours of its initial sale.
However, with regard to causation, even if the trial court had not struck Dr.
Tjahjono’s deposition, Dr. Tjahjono testified that there was not enough evidence
to render a decision on the accident’s cause or to rule anything out—from engine
failure or design defect to pilot error or running out of fuel. And the record also
reflects that ten years after the crash, Idniarti still had virtually no records
pertaining to the helicopter or the accident; none of the helicopter’s metal
components except parts of two rotor blades; no helicopter log books; no
helicopter assembly records from IPTN; no helicopter purchase records; no
records from the Indonesian National Transportation Safety Committee; no
weather reports; and no testimony from either the helicopter’s owner-operator or
the decedents’ employer. Compare BIC Pen Corp. v. Carter, 346 S.W.3d 533,
540–41 (Tex. 2011) (stating that a manufacturing defect exists when a product
deviates, in its construction or quality, from the specifications or planned output in
a manner that renders it unreasonably dangerous and the deviation is the
producing cause of the injury), and Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
311 (Tex. 2009) (stating that the elements of a product liability claim for a design
defect are that a product was defectively designed so as to render it
unreasonably dangerous, a safer alternative design existed, and the defect was
the producing cause of the plaintiff’s injury), with Haddock v. Arnspiger, 793
S.W.2d 948, 950 (Tex. 1990) (stating that res ipsa loquitur—a rule of evidence by
which negligence may be inferred by the jury—applies only when the accident’s
character is such that it would not ordinarily occur in the absence of negligence
and the instrumentality causing the injury is shown to have been under the
defendant’s management and control).
9
Idniarti also appears to raise an unnumbered issue regarding spoliation;
however, she does not appeal the trial court’s implicit denial of her motion for
leave to file a spoliation motion and, other than a few allegations in some of her
8
Finally, in her second issue and the remainder of her fifth and sixth issues,
Idniarti argues that the trial court erred by refusing to grant her a ―reasonably
short continuance‖ of the November 2, 2011 summary judgment hearing and the
November 7, 2011 trial setting. However, a litigant who fails to diligently use the
rules of civil procedure for discovery purposes is not entitled to a continuance,
see State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); see also
Massey v. Allen Nat’l Prop., L.L.C., No. 02-11-00503-CV, 2013 WL 173737, at *2
(Tex. App.—Fort Worth Jan. 17, 2013, no pet.) (mem. op.), and whether a
nonmovant has had adequate time for discovery under rule 166a(i) is case
specific and reviewed for an abuse of discretion. See Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Rest. Teams Int’l, Inc. v. MG
Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.).
Here, the record reflects that Idniarti had already received multiple
continuances throughout this case by the time she supplemented her September
2011 motion for continuance on October 17, 2011.10 It also reflects that the case
motions, she made no spoliation argument in the trial court. See Tex. R. App. P.
33.1.
10
That is, on March 5, 2010, Idniarti received sixty days to supplement her
responses to Bell’s requests for production and requests for disclosure; on
December 9, 2010, the trial court reset the trial date from November 8, 2010, to
June 20, 2011; on April 25, 2011, the trial court reset the trial date again to
November 7, 2011, and reset Idniarti’s deadline to designate testifying experts to
August 9, 2011, and the discovery deadline to October 7, 2011; and at the end of
September 2011, the trial court reset the summary judgment hearing from
October 4, 2011, to November 2, 2011.
9
had been reinstated over two years before, in June 2009; that Bell’s no-evidence
summary judgment motion had been on file since September 23, 2010; that
although on July 6, 2010, Idniarti had received permission from the trial court to
hold depositions in Indonesia, the depositions did not occur until the end of
September 2011 and beginning of October 2011; and that the summary
judgment hearing had already been reset once to accommodate the Indonesian
depositions. Based on this record, and despite the apparent hardships of
conducting discovery in Indonesia, we cannot say that the trial court abused its
discretion by denying Idniarti’s request for a continuance, and we overrule
Idniarti’s second issue and the remainder of her fifth and sixth issues. Cf.
McInnis v. Mallia, 261 S.W.3d 197, 205 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (op. on reh’g) (concluding that the trial court abused its discretion by
allowing a no-evidence motion for summary judgment more than five months
before the expiration of the discovery period set forth in the docket control order).
IV. Conclusion
Having overruled all of Idniarti’s issues, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J; MCCOY and GABRIEL, JJ.
DELIVERED: May 9, 2013
10