Opinion

Opinion issued November 4, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-00-01054-CV

CHRISTOPHER SHAWN WOOD, INDIVIDUALLY AND AS NEXT

FRIEND OF SLADE ZACCHARIA WOOD, Appellant

V.

PHONOSCOPE, LTD.; PHONOSCOPE INC.; AND PHONOSCOPE

MANAGEMENT L.C., Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 98-27716

SUPPLEMENTAL OPINION

ON MOTION FOR REHEARING

Appellant, Christopher Shawn Wood, individually and as next friend of his

minor son, Slade Zacharia Wood, plaintiff in the court below ( Wood), has filed a

motion for rehearing, which he amended timely, to challenge our memorandum

opinion issued on May 27, 2004. In his first point on rehearing, Wood argues that we

erred in our disposition of his appeal because we did not address his third point of

error, in which he asserted that the trial court erroneously permitted the jury to

consider whether Wood was contributorily negligent and, in addition, erroneously

denied Wood’s motion for judgment notwithstanding the verdict, in which he asked

that the trial court set aside the jury’s finding that Wood was 12 percent negligent.

We deny rehearing, but issue this supplemental opinion to respond to Wood’s

contention that we erred in not addressing these issues.

Our opinion explained that, although several appeals had been perfected, all

had been dismissed except Wood’s challenge to the pretrial summary judgment

rendered in favor of Phonsocope. Neither Phonoscope nor its codefendant RNC

Communications, Inc. (RNC), which had also prevailed on a pretrial motion for

summary judgment, was present at the trial, and no question or instruction pertaining

to either Phonoscope or RNC was submitted to the jury. As our opinion also noted,

Wood voluntarily dismissed, pursuant to settlement, his appeals against trial-defendants Blythe and Eason.

Although the partial summary judgment in favor of Phonoscope became final

and appealable when it merged with the final judgment entered by the trial court at

the conclusion of the trial on the merits against Blythe and Eason, we reviewed the

summary judgment based on “the record as it existed when the summary judgment

was signed” and were precluded from “consider[ing] evidence introduced thereafter.”

See Pan Am. Petroleum Corp. v. Tex. Pac. Coal & Oil Co. , 324 S.W.2d 200 , 201

(Tex. 1959); State Farm Fire & Cas. Co. v. Griffin , 888 S.W.2d 150, 153 (Tex.

App.—Houston [1st Dist.] 1994, no writ).

When, as here, one party succeeded in its motion for summary judgment and

we conclude, on appeal, that the trial court committed reversible error by rendering

summary judgment in favor of that party, the proper disposition of the appeal is to

reverse the judgment and remand the cause for a trial on the merits. Jones v. Strauss ,

745 S.W.2d 898, 900 (Tex. 1988); Hall v. Mockingbird AMC/Jeep, Inc. , 592 S.W.2d

913, 914 (Tex. 1979); Duckett v. Board of Trustees , 832 S.W.2d 438, 440 (Tex.

App.—Houston [1st Dist.] 1992, writ denied); compare Holy Cross Church of God

in Christ v. Wolf , 44 S.W.3d 562, 566 (Tex. 2001); Jones , 745 S.W.2d at 900 (noting

exception that applies in case of mutually opposing motions for summary judgment

and authorizes court of appeals to determine all questions presented and to render

judgment).

In our opinion of May 27, 2004, we reached the conclusion that the trial court

did not err by rendering summary judgment in favor of Phonoscope, except as to

Wood’s negligent-hiring claim. Accordingly, we reversed that portion of the trial

court’s final judgment and remanded the cause for trial of that issue. It is well-settled

that, as movant for summary judgment, Phonoscope was not required to assert every

theory on which it might recover or defend. See Hudson v. Wakefield , 711 S.W.2d

628, 630-31 (Tex. 1986). Under that same, settled law, our judgment reversing the

trial court’s summary judgment on Wood’s negligent-hiring claim returned both

Wood and Phonoscope to their pretrial posture as to that claim. See Hudson , 711

S.W.2d at 630-31 . Because they are returned to their pretrial posture, Wood and

Phonoscope are free to add parties, amend their pleadings, or both, except as to those

claims on which we affirmed the summary judgment rendered in Phonsocope’s favor.

See Hudson , 711 S.W.2d at 630-31 ; Creative Thinking Sources, Inc. v. Creative

Thinking, Inc. , 74 S.W.3d 504, 510-11 (Tex. App.—Corpus Christi 2002, no pet.).

Our opinion of May 27, 2004 reached the following conclusion: Phonoscope

was entitled to prevail as a matter of law on all claims that Wood had alleged except

his negligent-hiring claim. Having reached only that legal conclusion, we decided

no other issue of law and no issues of fact as to Phonoscope, because these remain for

the trial on the merits against Phonoscope. See First Nat. Bank v. Sledge , 616 S.W.2d

954, 957 (Tex. Civ. App.—Fort Worth 1981), rev’d on other grounds , 653 S.W.2d

283 (Tex. 1983). Accordingly, we did not address Wood’s third point of error, in

which he contended that there was no evidence that he was contributorily negligent

and challenged the trial court’s rulings that (1) permitted the jury to determine this

issue and (2) denied Wood’s motion for judgment notwithstanding the verdict.

Moreover, Wood’s third point of error addressed a jury finding that attributed

a percentage of negligence to Wood, but only in comparison to the negligence of

Eason and Blythe—parties whom Wood has since voluntarily dismissed from his

appeal based on settlement—and not in comparison to any alleged negligence of

Phonoscope.

Wood acknowledges that he voluntarily dismissed his appeals against Eason

and Blythe, but contends that his “Report of Settlement Affecting Appeal and

Unopposed Motion to Dismiss Appeal in Part” (report of settlement and motion to

dismiss) preserved review of both the trial court’s submitting his contributory

negligence to the jury and the jury’s resolution of that issue.

Wood relies on the following language from his report of settlement and

motion to dismiss:

Wood wishes to continue the appeal as it relates to Phonoscope, Ltd.[,]

however. In this connection, insofar as Phonoscope, Ltd. might claim

the benefit of the doctrine of issue preclusion on the amount of damages,

Phonoscope ought to be the real party in interest on the appellate point

regarding no evidence of any negligence on the part of Wood.

(Emphasis added.) In reporting that he had settled with and released his claims

against Blythe, Eason, and RNC, Wood stated that his appeals against those parties

“ought to be dismissed as moot, since all have been compromised and settled.”

Despite acknowledging again that he had settled with and released all parties

except Phonoscope, Wood nevertheless contends, in his motion for rehearing, that his

“appeal of the judgment to the extent that it reflected a deduction of his damages

because of a jury finding of contributory negligence is not moot.” Wood defends the

viability of these issues in his motion for rehearing by asserting, as in his report of

settlement and motion to dismiss, that Phonoscope “ may claim that the issue of

damages has been adjudicated” and further asserts that Phonoscope may claim that

“the issue of Wood’s contributory negligence is now the law of the case.” (Emphasis

added.)

Wood’s motion for rehearing thus recognizes that our reversal as to

Phonoscope means that both he and Phonoscope return to their pretrial posture and

may assert new claims and defenses. See Pan Am. Corp. , 325 S.W.2d at 201; Griffin ,

888 S.W.2d at 153 ; Creative Thinking Sources, Inc. , 74 S.W.3d at 510 -11 . More

importantly, Wood also concedes that Phonsocope’s asserting certain claims and

defenses are mere possibilities .

The dispositive issue, therefore, is not whether Wood’s contributory-negligence

findings are moot, but whether they are ripe. This Court properly exercises its

jurisdiction solely in cases of actual controversy. See Hallmark Personnel, Inc. v.

Franks , 562 S.W.2d 933, 935 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ.).

Stated otherwise, we determine “presently existing disputes between parties in

relation to facts out of which controverted questions arise.” Greene v. Gregg , 520

S.W.2d 924, 926 (Tex. Civ. App.—Tyler 1975, no writ). Accordingly, we have no

authority to issue advisory opinions. McAllen Med. Ctr., Inc. v. Cortez , 66 S.W.3d

227, 232 (Tex. 2001); see also Hallmark Personnel, Inc. , 562 S.W.2d at 935 . The

prohibition against advisory opinions encompasses controversies that are not ripe and

thus precludes premature adjudication on a hypothetical set of facts. McAllen Med.

Ctr, Inc ., 66 S.W.3d at 232 .

Wood’s motion for rehearing asserts that we erred in not addressing the issue

of his contributory negligence, as determined in his trial against the since-released

parties, Eason and Blythe—a trial in which Phonoscope did not participate—on the

grounds that Phonoscope “may” or “might” assert contentions based on that

adjudication on remand. These issues are not yet ripe. See id. Accordingly, we lack

jurisdiction to address them.

Conclusion

We deny Wood’s amended motion for rehearing.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.