Opinion issued January =
31, 2008=20
Appellant,=20
Glenn Floyd Smith, challenges the trial court's summary judgment =
rendered=20
in favor of appellees, County of Galveston, Texas ("Galveston") =
and ABL=20
Management, Inc. ("ABL"), in Smith's suit against Galveston and =
ABL for=20
food poisoning that he allegedly sustained after eating a meal =
while=20
incarcerated in the Galveston County jail. In his first issue, =
Smith=20
contends that the trial court erred in granting Galveston and ABL =
summary=20
judgment "based upon no evidence." In his second and third issues, =
Smith=20
contends that his trial counsel "breached his fiduciary duties in=20
representing [him] in a civil action" and that he "present[ed] a =
basis for=20
imposing a duty upon his trial counsel when [his] counsel =
established a=20
duty of care." We affirm.
Smith filed=20
suit, along with over 100 other inmates incarcerated in the =
Galveston=20
County jail, for food poisoning that he allegedly sustained as a =
result of=20
Galveston's and ABL's negligence in serving him a meal. Smith =
alleged that=20
Galveston and ABL, the food service contractor, Galveston filed a =
plea to=20
the jurisdiction In its plea to the =
jurisdiction and summary judgment motion, Galveston similarly =
asserted=20
that there was no evidence to support the essential elements of =
Smith's=20
claims and that the evidence affirmatively established that =
neither it nor=20
ABL proximately caused Smith's injuries. In accord with ABL's =
motion,=20
Galveston cited Moffett's testimony that all samples taken from =
the=20
inmates shortly after the incident tested negative for bacteria =
that would=20
have indicated food-borne illness. Galveston further cited =
Guidry's=20
testimony that the test results for the inmates came back negative =
for=20
various bacteria associated with food poisoning and that these =
results=20
were consistent with the conclusion that there was no instance of =
food=20
poisoning at the jail. Guidry opined that viral infections would =
be=20
consistent with the complaints reported by the inmates, but =
concluded that=20
"no medical authority would be capable of rendering a definitive =
diagnosis=20
of the cause of the outbreak or illness among the inmates." =
Finally,=20
Galveston cited testimony from Michael Henson, Commander of the=20
Corrections Division of the Galveston County Jail, that no =
employee of=20
Galveston had any role in the actual preparation of the food in =
the=20
jail. The trial=20
court, without specifying its reasons, signed an order granting =
ABL's and=20
Galveston's summary judgment motions as to all of Smith's =
claims. In his first =
issue, Smith=20
First,=20
Smith contends that the trial court abused its discretion in not=20
compelling Galveston and ABL "to produce discovery of policies,=20
regulations, and procedures . . . pertaining to their job =
descriptions=20
that was essential in establishing negligence, conscious =
indifference,=20
strict liability, and breach of warranty of fitness for =
consumption."=20
Smith complains that the trial court never ordered Galveston and =
ABL "to=20
comply with requests for production or present supplementation" =
[sic] and=20
that Galveston and ABL "withheld the production documentation." In =
support=20
of this sub-contention, Smith relies upon a motion to compel filed =
by his=20
trial counsel in October 2006, prior to his counsel's filing a =
motion to=20
withdraw. We review a=20
trial court's discovery orders for an abuse of discretion.=20
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d =
913, 917=20
(Tex. 1991). Here, for various reasons, we cannot determine =
whether the=20
trial court abused its discretion. First, we note that the motion =
to=20
compel was never ruled upon by the trial court. See Tex. =
R. App.=20
P. 33.1. Second, to the extent Smith is arguing that the trial =
court=20
abused its discretion in not ruling upon the motion to compel, =
Smith, in=20
his appellate briefing, only references the motion to compel in =
general=20
terms. Smith asserts that the trial court abused its discretion in =
denying=20
the motion in its entirety; he neither identifies any specific =
requests,=20
nor does he specifically address the objections asserted in the =
discovery=20
responses by Galveston or ABL. "A claim of error on appeal must be =
argued=20
in the party's brief; it is insufficient simply to refer the =
appellate=20
court to the party's trial court arguments." Allen v. United =
of Omaha=20
Life Ins. Co., 236 S.W.3d 315, 325 (Tex. App.--Fort Worth =
2007, pet.=20
filed). Because Smith, in his brief on appeal, does not address =
his=20
specific requests or the specific objections posed by Galveston or =
ABL, we=20
cannot determine whether the trial court abused its discretion in =
failing=20
to compel, in only general terms, responses to Smith's discovery =
requests.=20
See id. Second,=20
Smith contends that the trial court should have granted him a =
continuance=20
before rendering summary judgment. Our review of the record =
reveals that=20
Smith's trial counsel had filed motions for continuance in January =
and=20
February 2007. In these motions, Smith's trial counsel stated, =
among other=20
things, that he needed more time to secure deposition testimony =
for=20
certain witnesses. Third, Smith =
contends that=20
his trial counsel presented deposition testimony that defeated =
summary=20
judgment. However, Smith does not specifically identify this =
testimony or=20
cite to any other testimony in the record that would defeat the =
summary=20
judgment. Fifth,=20
Smith contends that Galveston waived its immunity by violating its =
own=20
policies and failing and refusing to conduct evaluations on =
relevant food=20
samples. This contention is not supported by citations to =
supporting legal=20
authority or the record and is inadequately briefed. See=20
id. Sixth,=20
Smith contends that through his "sworn affidavit to =
interrogatories [and]=20
offer of proof through circumstantial evidence," he "had =
identified the=20
offending meal and described the same food poisoning symptoms that =
manifested and persisted with the exact same time frame as other =
inmates"=20
and that this circumstantial evidence points "to the fact sought =
to be=20
established with that degree of certainty as to make the =
conclusion=20
reasonably probable." This contention is not supported by =
citations to=20
supporting legal authority or the record and is inadequately =
briefed.=20
See id. Seventh,=20
Smith contends that there "was evidence of an Eighth Amendment =
violation=20
of deliberate indifference." Smith argues that Galveston and ABL =
were=20
involved in a separate food poisoning incident in 2002 and, thus, =
they=20
"had prior knowledge of . . . a potential risk of food poisoning =
to the=20
inmates in the instant case." This contention is not supported by=20
citations to supporting legal authority or the record and is =
inadequately=20
briefed. See id. Moreover, our independent review of the =
record=20
reveals no evidence that would support Smith's claim of an Eighth=20
Amendment violation. We overrule=20
Smith's first issue, including the numerous sub-contentions =
asserted=20
within his first issue. Smith, in=20
his briefing, does not clearly set forth his position as to how =
his=20
attempt to assert claims against his trial counsel for the first =
time on=20
appeal would impact his claims against Galveston and ABL, which =
were=20
disposed of by the trial court's summary judgment. The underlying=20
proceedings concerned solely those claims brought by Smith against =
Galveston and ABL. Smith made no claims against his trial counsel =
in the=20
underlying proceedings, and the trial court's summary judgment =
disposing=20
of Smith's claims does not in any way address any claims brought =
by Smith=20
against his trial counsel. Smith is not entitled to assert these =
new=20
claims on appeal. See Baxter v. Gardere Wynne Sewell LLP, =
182=20
S.W.3d 460, 465 (Tex. App.--Dallas 2006, pet. denied) (holding =
that=20
appellants could not assert claim for first time on appeal to =
avoid=20
summary judgment and noting that "[i]ssues a nonmovant contends =
avoid=20
summary judgment that are not expressly presented to the trial =
court by=20
written answer or other written response to the summary judgment =
motion=20
are waived on appeal"); Loera v. Interstate Inv. Corp., =
93 S.W.3d=20
224, 228 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) =
(noting that=20
DTPA and breach of fiduciary duty theories were never pleaded, =
were not=20
issues in trial, were not subject of request for finding of fact =
or=20
conclusion of law and that appellants could not "rewrite their =
pleadings=20
to allege new causes of action for the first time in a motion for =
new=20
trial"); see also Tex. R. App. P. 33.1(a). We overrule=20
Smith's second and third issues.
We affirm=20
the judgment of the trial court. Panel=20
consists of Chief Justice Radack and Justices Jennings and Bland.=20
2. 3. 4. 5. 6.