Smith Services, a Business Unit of Smith International, Inc. F/K/A Smith Co. v. Timothy Scott

NO. 07-08-0140-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C AUGUST 13, 2009 ______________________________ SMITH SERVICES, a business unit of SMITH INTERNATIONAL, INC., f/k/a SMITH CO., Appellant v. GRINNELL CORPORATION, Appellee _________________________________ FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY; NO. 8108; HON. KELLY G. MOORE, PRESIDING _________________________________ Opinion _________________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Smith Services, a business unit of Smith International, Inc., f/k/a Smith Co. (Smith) appeals from two orders. The first is a final summary judgment denying it recovery against Grinnell Corporation (Grinnell). The second is an order granting Grinnell’s motion to strike Smith’s second amended petition. We consider only the former since our resolution of it is dispositive of this appeal. And, upon considering it, we affirm the judgment. Background Timothy Scott was employed by Gray Wireline at a carbon dioxide injection well in Yoakum County. While Scott was working, a metal swedge/hammer union came apart resulting in his injury. A portion of the tool was made by Grinnell. Smith had acquired the item for use by its employees. One of those employees, Cipriano Almager, had exchanged the Smith swedge/hammer union with another owned by Gray Wireline. Alleging a products liability claim, Scott sued Smith to redress his injuries caused by the swedge/hammer. The two litigants eventually settled their dispute, but before it was dismissed, Smith sued Grinnell for both statutory and common law indemnity. By way of counterclaim, Grinnell sought indemnity from Smith. Competing motions for summary judgment were filed and, after a hearing, the trial court granted that of Grinnell but denied that of Smith. A Seller Under Chapter 82 The statutory indemnity provision underlying Smith’s claim is that found in Chapter 82 of the Texas Civil Practice and Remedies Code. Per that chapter, a manufacturer must indemnify and hold harmless a “seller” against loss arising out of a products liability action except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission. Tex. Civ. Prac. & Rem. Code Ann. §82.002(a) (Vernon 2005). Furthermore, a “seller” is defined as one “who is engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.” Id. §82.001(3). According to Grinnell, Smith fell outside the scope of the provision since it was not a “seller.” Nor was Smith an innocent “retailer in the chain of distribution” for purposes of common law indemnity, according to Grinnell. According to the Supreme Court, the legislature intended that Chapter 82 provide indemnity for all who stand in the position of a retailer. New Tex. Auto Auction Servs., L.P. v. De Hernandez, 249 S.W.3d 400, 405 (Tex. 2008). This may be why it has said that the term “seller,” under §82.001(3), connotes one “who commercially distributes a product.” SSP Partners v. Gladstrong Invs. Corp., 275 S.W.3d 444, 449 (Tex. 2008); accord, USX Corp. v. Salinas, 818 S.W.2d 473, 489 (Tex. App.–San Antonio 1991, writ denied) (involving common law indemnity and noting that indemnity serves to protect innocent retailers and “member[s] of the marketing chain” that act “merely [as] a conduit for the defective product”). Given the foregoing definition and the Supreme Court’s interpretation of it, we must conclude, as a matter of law, that Smith was not a “seller” under the evidence of record. That Smith was in the business of providing services to oil companies in the form of maintaining and repairing wells was undisputed. Similarly uncontested was the evidence that Almager was a reverse unit operator for Smith. He did not sell swedge/hammer units. Nor did we find that part of his job or the business of Smith consisted of trading or conveying such tools. Moreover, the “exchange” of tools was characterized as merely a “casual” act between men working on a well. This scenario fails to evince effort by Smith to “commercially distribute” the tools in question. Nor would it permit one to reasonably infer that Smith’s “business” included distributing or placing the hammer into the stream of commerce. Rather, the item was acquired for use by the company to perform services others hired it to do. Simply put, it arrived in the hands of a Gray Wireline employee through a casual, non-commercial swap. Common Law Indemnity As for common law indemnity, we note that the type expressly invoked by Smith was that accorded to an innocent retailer. The latter status connotes one involved in the business of passing or marketing the product to others. See Crane Carrier Co. v. Bostrom Seating, Inc., 89 S.W.3d 153, 156 (Tex. App.–Corpus Christi 2002), rev’d on other grounds, 140 S.W.3d 681 (Tex. 2004) (stating that one must act as a mere innocent conduit for the product to receive indemnity); USX Corp. v. Salinas, supra. Having previously determined that nothing of record would permit one to reasonably infer that Smith marketed or participated in the chain of marketing the swedge/hammer union to others, it cannot be afforded common law indemnity as an innocent retailer. In sum, we conclude that Grinnell was entitled to summary judgment as a matter of law on Smith’s indemnity claims. Therefore, the issues of Smith are overruled, and the summary judgment in favor of Grinnell is affirmed. Brian Quinn Chief Justice yle="color: #000000">Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Drew v. State, 942 S.W.2d 98, 99 (Tex.App.–Amarillo 1997, no pet.) (each noting that the plain meaning of Art. 42.12, § 5(b) is that an appellant whose deferred adjudication community supervision has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process). One example of such an impermissible challenge is a claim of ineffective assistance of counsel at the hearing on the motion to adjudicate. Brown v. State, 79 S.W.3d 140, 141 (Tex.App.–Texarkana 2002, no pet.); Cooper v. State, 2 S.W.3d 500, 504 (Tex.App.–Texarkana 1999, pet. ref’d). However, because appellant’s original notice of appeal made specific reference to the issue of ineffective assistance, and the trial court gave appellant permission to appeal, we have reviewed the record to determine whether it would support an arguably meritorious issue on that point. We find nothing in the record to support an ineffective assistance of counsel claim. We agree with appellate counsel also that no arguably meritorious issue appears with regard to sufficiency of the evidence. At the revocation hearing, appellant plead “true” to each of the State’s allegations of violation of the terms of community supervision. A plea of “true” to even one allegation in the State’s motion is sufficient to support a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.–San Antonio 2006, pet. denied). The Anders brief makes reference also to the evidence supporting the affirmative finding the court made as to appellant’s use of a deadly weapon. Appellant’s 2001 indictment gave her notice that the State would seek an affirmative finding on her use of a deadly weapon. When appellant plead guilty to the offense later that year, she confessed that she committed each and every allegation contained within the indictment. This included the use of the deadly weapon. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App. 2005). Lastly, we find no arguably meritorious point may be raised with regard to the punishment assessed to appellant. While she may challenge punishment following her adjudication of guilt, the trial court assessed punishment for appellant at fifteen years of confinement in the Institutional Division of the Texas Department of Criminal Justice, an acceptable term within the permissible range. In fact, given the enhancement of appellant’s sentence, the trial court sentenced appellant to the lowest possible term. See Tex. Penal Code Ann. § 12.42(a)(3) (Vernon 2007). It is the general rule that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal, as permitted by statute. We agree it presents no arguably meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court. James T. Campbell Justice Do not publish.