by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals

DHI Holdings, LP v. Deutsche Bank Nat’l Trust Co., __ S.W.3d __, 2021 WL 5071472 (Tex. App.—Houston [14th Dist.] Nov. 2, 2021, no pet. h.) (Spain, J., majority and Zimmerer, J., dissenting).

In DHI Holdings, the court held that a party may not appeal a ruling it agreed to in the trial court.

After they filed cross-motions for summary judgment, the parties signed a Rule 11 agreement stipulating that (1) the trial court would enter summary judgment in favor of the defendants, and (2) the plaintiff did not waive any right to appeal the judgment or argue on appeal that the trial court erred in granting summary judgment. The trial court signed an “Agreed Final Judgment” granting the defendants’ motion and stating that the plaintiff “preserved its right to challenge this judgment on appeal.” Id. at *1. The plaintiff appealed the summary judgment.

The court began its analysis with a bedrock rule of appellate procedure: as a prerequisite to presenting a complaint on appeal, a party must present the complaint to the trial court and obtain a ruling. Id. at *2 (citing Tex. R. App. P. 33.1(a)). As an extension of this principle, the court held that parties “cannot agree to allow an appellate complaint unless a specific ground is presented to the trial court and the trial court makes an adverse ruling.” Id. at *3. But, here, nothing in the record indicated the trial court made a substantive ruling on the merits of the summary judgment motion before signing the parties’ “agreed” judgment. Concluding that “[a] party’s consent to the trial court’s entry of judgment waives any error, except for fundamental error,” the court held that the plaintiff did not preserve its complaint for appellate review. Id. at *4.


Nixon Home Care, Inc. v. Henry, __ S.W.3d __, 2021 WL 5313811 (Tex. App.—Houston [14th Dist.] Nov. 16, 2021, no pet. h.) (Wilson, J.).

In Nixon Home Care, the court held that a negligence claim stemming from a sexual assault at an adult day care did not constitute a health care liability claim under the Texas Medical Liability Act (TMLA).

Nixon Home Care operated a day care program for adults with mental and physical disabilities. D.W., an incapacitated adult, was attending the program when he was sexually assaulted in the restroom by another attendant. D.W.’s guardian sued Nixon for negligence. Nixon moved to dismiss the suit on grounds that the guardian asserted a health care liability claim that failed to comply with the TMLA’s expert-report requirement.

A “health care liability claim” includes those causes of action alleging “departure[s] from accepted standards of . . . safety . . . directly related to health care.” Id. at *3 (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13)). As the court explained, a safety-standards claim need not be directly related to the provision of health care to qualify as a health care liability claim, but “there must be a substantive nexus between the safety standards allegedly violated and the provision of health care.” Id. (internal quotation omitted).

Concluding that this nexus was absent, the court emphasized that the record showed (1) D.W. did not receive any medical care or treatment at the program; (2) neither D.W. nor the program’s other attendants were patients; and (3) the plaintiff’s claim did not implicate Nixon’s duties to provide for patient safety. Consequently, the court affirmed the denial of Nixon’s motion to dismiss.


HNMC, Inc. v. Chan, __ S.W.3d __, 2021 WL 6142163 (Tex. App.—Houston [14th Dist.] Dec. 30, 2021, no pet. h.) (en banc) (Poissant, J., majority, Hassan, J., concurring, Christopher, C.J., dissenting, and Jewell, J., dissenting).

Among other issues, the en banc court in HNMC concluded that defendant HNMC owed a duty to ensure its employee’s safety as she crossed a public roadway adjacent to its premises.

The employee had finished her shift at HNMC when she exited the medical center and crossed the roadway to access HNMC’s parking lot. Although there were two marked pedestrian crosswalks at each end of the block, the employee crossed at a previously abandoned crosswalk in a mid-block location. The employee was struck and killed by a car exiting the parking lot. The plaintiffs sued HNMC, asserting a claim for negligence. The parties proceeded to trial and the jury returned a verdict for the plaintiffs. HNMC appealed.

On appeal, HNMC argued it did not owe a duty to the plaintiff under these facts. Analyzing the issue, the court began with a general rule: property owners, like HNMC, ordinarily have no duty to ensure the safety of a person who leaves the owner’s property and suffers injury on an adjacent public roadway. But, noting that this “general rule is subject to certain exceptions,” the court explained that a premises owner may assume a duty of care if it knows of the danger but fails to warn, creates the dangerous condition, or assumes control over the adjacent property or the dangerous condition. Id. at *4.

To determine whether an exception applied here, the court employed a balancing test examining several interrelated factors. Weighing in favor of the imposition of a duty, the court noted that the risks to a pedestrian crossing at this location were significant and that the likelihood of injury was high. The court also held that these risks were foreseeable and pointed to multiple incidents where a pedestrian was struck or almost struck while crossing at this location. The court concluded that the remaining factors—the social utility of HNMC’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing this burden on HNMC—did not outweigh the factors supporting the imposition of a duty in these circumstances.

The court affirmed the trial court’s judgment.