Chrisondath Badall v. Rukmin Durgapersad, Susan Durgapersad, Reshma Durgapersad and Rekha Durgapersad

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-08-00188-CV ____________________ CHRISONDATH BADALL, Appellant V. RUKMIN DURGAPERSAD, SUSAN DURGAPERSAD, RESHMA DURGAPERSAD, AND REKHA DURGAPERSAD, Appellees On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV70552 MEMORANDUM OPINION Chrisondath Badall appeals from a summary judgment granted to the claimants in a wrongful death case. Badall contends that his prior conviction for murdering the decedent does not collaterally estop him from obtaining a proportionate-responsibility finding as to the decedent's alleged fault and that the existence of material fact issues precludes the trial court's damages award. Because there are fact issues to be resolved with respect to the amount of damages suffered by the plaintiffs, we reverse and remand. Background This civil case arises from a murder case in which a jury convicted Badall for murdering Ramdath Durgapersad, the late husband of appellee Rukmin Durgapersad and the late father of Susan Durgapersad, Reshma Durgapersad, and Rekha Durgapersad, the remaining appellees. See Badall v. State, 216 S.W.3d 865, 866 (Tex. App.-Beaumont 2007, pet. ref'd). The jury assessed Badall's punishment at fifty-five years of confinement in the Texas Department of Criminal Justice, Institutional Division. Id. The presiding judge in the murder case also was the judge who granted summary judgment to appellees. In 2006, appellees filed suit against Badall for wrongful death under Chapter 71 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-71.051 (Vernon 2008). Subsequently, appellees filed their motion for summary judgment and claimed primarily that the doctrine of collateral estoppel prevents Badall from re-litigating issues decided in the criminal case. In response to appellees' motion for summary judgment, Badall contended that: 1) his conviction does not preclude the possibility that the decedent attempted to shoot Badall, 2) appellees' damage claims are fact issues that cannot be decided by summary judgment, and 3) the appellees' affidavits contained conclusory statements. (1) The trial court granted the appellees' motion for summary judgment and awarded damages without specifying the allocation of the damages between the individual appellees. In his sole appellate issue, Badall contends that the trial court erred by granting summary judgment. Standard of Review Appellees brought a traditional summary judgment motion under Rule 166a(c). See Tex. R. Civ. P. 166a(c). A summary judgment under this section "is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law." Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). When a plaintiff moves for summary judgment, it must prove every element of its cause of action as a matter of law, including damages. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); Newsom v. State, 922 S.W.2d 274, 281 (Tex. App.-Austin 1996, no writ). Damages We first consider Badall's arguments on damages. He contends that the summary judgment proof does not support the award of damages and that certain types of damages are fact issues for the factfinder. We agree. Included with appellees' motion for summary judgment was an affidavit from each appellee. The affidavit of decedent's wife, Rukmin Durgapersad, states in pertinent part: 2. The Defendant, Chrisondath Badall killed my husband and took away the love of my life. My children, who are my three daughters and are named as Plaintiffs in this suit, Susan, Reshma and Rekha, had their father taken away from them by the criminal act of Chrisondath Badall. As a result of Badall killing my husband I had to make arrangements for my husband's funeral. I have lost the love and affection of my husband. The pain, anguish, depression, loss of sleep, and hurting heart I have endured as a result of Badall's criminal acts goes without saying. 3. I, with the other Plaintiffs in the case, seek the following damages from Defendant: A. Past medical bills and funeral expenses in the amount of $35,000.00; B. Past and future loss of earning capacity and/or other pecuniary losses in the amount of $500,000.00; C. Pain and suffering in the amount of $100,000.00; D. Mental anguish in the amount of $100,000.00; E. Loss of consortium in the amount of $200,000.00; F. Loss of inheritance in the amount of $100,000.00; G. Punitive/exemplary damages in the amount of $4,000,000.00; and H. Prejudgment and postjudgment interest calculated at the highest rate allowed under law. The daughters' affidavits are virtually identical to their mother's. The amounts requested by the daughters for damages are exactly the same as their mother's. Further, their fact recitations vary from paragraph 2 of their mother's affidavit only to the extent necessary to explain their father-daughter relationships with the decedent. The trial court awarded damages of $1,200,000.00 generally to all appellees. The court did not determine the amount awarded to each individual appellee or the amounts allocated to the specific types of damages sought by the appellees. Badall asserts that the appellees' affidavits are defective because they are conclusory. Conclusory statements, i.e., those that are unsupported by underlying facts, are not competent summary judgment evidence. See LeBlanc v. Lamar State College, 232 S.W.3d 294, 301 (Tex. App.-Beaumont 2007, no pet.) (citing 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)). "Conclusory statements without factual support are not credible, and are not susceptible to being readily controverted." Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no writ); see Tex. R. Civ. P. 166a(c). In their affidavits, appellees alleged the following categories of damages: 1) past medical bills and funeral expenses, 2) past and future loss of earning capacity and/or other pecuniary losses, 3) pain and suffering, 4) mental anguish, 5) loss of consortium, 6) loss of inheritance, and 7) exemplary damages. The affidavits contain no facts to support the damages the appellees request for medical bills, funeral expenses, loss of earning capacity, and loss of inheritance, but the affidavits do contain certain statements related to the appellees' other alleged injuries-pain, suffering, mental anguish, and loss of consortium. For cases involving these types of injuries, however, summary judgment is not appropriate because the resulting losses are subjective, unliquidated, and nonpecuniary. Rivera v. White, 234 S.W.3d 802, 805-06 ( Tex. App.-Texarkana 2007, no pet.); Newsom, 922 S.W.2d at 281. Decisions on unliquidated damages are "inherently one[s] for the jury or judge to decide. . . ." State v. Roberts, 882 S.W.2d 512, 514 (Tex. App.-Austin 1994, no writ) (citing Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 862 (Tex. Civ. App.-Fort Worth 1981, writ ref'd n.r.e.)). We find the trial court erred in granting summary judgment in this case and sustain Badall's sole appellate issue. We need not consider Badall's other arguments because a favorable finding on them would afford him no greater relief. Because damages in this case are unliquidated and Badall contests liability, the appropriate remedy is to remand the entire cause as to both liability and damages. See Tex. R. App. P. 44.1(b); Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 581 (Tex. App.- Beaumont 2008, pet. denied). Therefore, the trial court's judgment is reversed and the cause is remanded for further proceedings. REVERSED AND REMANDED. ______________________________ HOLLIS HORTON Justice Submitted on February 26, 2009 Opinion Delivered April 2, 2009 Before McKeithen, C.J., Kreger and Horton, JJ. 1. Appellees argue that Badall waived his objection to their affidavits because he did not obtain a ruling from the trial court. However, objections to conclusory affidavits are objections of substance and may be considered for the first time on appeal. Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.-Dallas 2004, no pet.).