Taft Concurrence in
Showbiz Multimedia LLC v. Mountain States Mortgage Co. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)
(Sharp) (improper incurable jury argument)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00810-CV Showbiz Multimedia, LLC; Showbiz Multimedia Entertainment, LLC; and Vinay Karna
v. Mountain States Mortgage Company; Remington Financial Group, Inc.; and Matthew McManus
Appeal from 387th District Court of Fort Bend County
Concurring Opinion by Justice Taft Showbiz Multimedia, LLC; Showbiz Multimedia
The Majority Opinion is understandable in its dutiful obeisance to the per curiam opinion of the Texas
Supreme Court in Living Centers of Texas, Inc. v. Peñalver, 256 S.W.3d 678 (Tex. 2008). Because I
find the approach of the majority opinion of the Fourth Court of Appeals in Living Centers of Texas,
Inc. v. Peñalver, 217 S.W.3d 44 (Tex. App.—San Antonio 2006), rev’d, 256 S.W.3d 678 (Tex. 2008)
to be more sound, I respectfully concur.
The majority opinion of the Fourth Court of Appeals followed the prevailing standard of review and
analyzed the claim of incurable error in jury argument by viewing the argument in light of the entire
record. Id. at 51. The per curiam opinion of the Texas Supreme Court relied on the leading case of
Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835 (Tex. 1979) for several propositions. See
Peñalver, 256 S.W.2d at 680–81. When it came to the standard of review, however, it ignored the
standard of looking at the whole record and chose instead, without citing any authority, to expressly
reject the general harmless error analysis. Id. at 681.
The problem that I see in rejecting a general harmless error analysis that includes viewing the
complained-of argument in the context of the record of the trial as a whole is that it devolves into a
question of whether the argument in isolation shocks the particular panel of justices making the call.
Accordingly, I urge the Texas Supreme Court to reconsider its per curiam opinion in Peñalver with a
view toward returning this area of the law to its more objective precedent.