ISABEL G. BAEZA, Individually and d/b/a BAEZA’S TRUCKING, Appellant, v. HECTOR’S TIRE & WRECKER SERVICE, INC., Appellee.
COUNSEL: FOR APPELLEE: Hon. Ronald E. Holub, Dallas, TX.
FOR APPELLANT: Hon. Steve Hershberger, Midland, TX.
JUDGES: Before McClure, C.J., Rodriguez, and Hughes, JJ.
Isabel Baeza appeals from a judgment in favor of Hector’s Tire & Wrecker Service, Inc. based on Baeza’s breach of contract. Baeza raises two issues on appeal. First, Baeza contends the trial court erred in refusing to find that Hector’s claim was barred by the affirmative defense of accord and satisfaction. Second, Baeza contends the evidence is legally and factually insufficient to support the trial court’s award of damages. We conclude the evidence supports the trial court’s determination that Baeza failed to meet its burden to establish the defense of accord and satisfaction. Further, although we agree there is insufficient evidence to support the amount of damages awarded, we conclude there is some evidence that Hector’s suffered damages as the result of Baeza’s breach of contract. We therefore reverse the trial court’s judgment and remand for a new trial on damages, unless Hector’s accepts the remittitur we suggest below.
Baeza [*2] is the owner of a trucking company that had contracts to haul paving materials from a plant in Reeves County to locations designated by its customers. Because Baeza could not fully accommodate the needs of his customers, he contacted Hector Garcia, the owner of Hector’s Tire & Wrecker Service, Inc., in July 2010 to assist his company in providing hauling services to his customers. Hector’s had previously performed unrelated work for Baeza in 2006 and 2007.
Hector Garcia on behalf of Hector’s Tire & Wrecker Service entered into an oral agreement with Baeza in which Hector’s agreed to provide hauling services to Baeza on an as-needed basis. The parties agreed that when requested by Baeza, Hector’s would send a truck to a plant in Reeves County to pick up materials and deliver the materials to a designated location. The parties agreed that the plant would furnish Hector’s driver with a “load ticket” specifying the amount of each load picked up from the plant, and Hector’s would then provide the load tickets to Baeza. In turn, Baeza would bill its customers for the loads and would pay Hector’s after receiving payment from his customers. The rate for payment on the load tickets was set by [*3] Baeza, and was based on the amount and type of a particular load. Hector’s agreed to pay Baeza a 5 percent commission on the amounts billed for each load.
Hector’s began performing work for Baeza in July 2010, but shortly thereafter a dispute arose regarding whether Baeza was properly compensating Hector’s under the terms of their agreement. Because of this unresolved dispute, Hector’s stopped providing services to Baeza in late October or early November 2010.
Hector’s subsequently retained an attorney who sent a demand letter to Baeza on or about April 11, 2011, claiming that Baeza owed Hector’s $15,042.55 for unpaid load tickets. In the letter, Hector’s attorney further demanded that Baeza pay $250 in attorney’s fees, and warned that if payment was not received within ten days, he would recommend to his client that a lawsuit be filed.
Although Baeza admittedly received the demand letter, neither Baeza nor any of his office staff directly responded to the letter. Instead, almost four months later, around July 31, 2011, Baeza sent Hector’s two checks: one for $2,376.41 and one for $3,644, totaling $6,020.41. There were no notations on the checks to indicate they were being tendered in [*4] response to the demand letter, and in fact the notation lines on both checks were left blank. Further, the record does not indicate that Baeza sent a transmittal letter or made any other communication to Hector’s explaining why he was sending the checks. Both checks were deposited by Hector’s into its bank account in August 2011.
On December 14, 2012, Hector’s attorney sent a second letter to Baeza, claiming that Baeza still owed Hector’s $9,900.25 for unpaid services. The letter further stated that if payment was not received within 30 days, Hector’s would assume the debt was valid, and proceed with the filing of a lawsuit. There is nothing in the record to reflect that Baeza responded to this letter.
Eight months later, Hector’s sued Baeza, alleging a breach of contract and requesting $9,900.25 in damages and reasonable attorney’s fees. In support of its claim, Hector’s attached several invoices it had allegedly submitted to Baeza and later supplemented its petition with a sworn account. The sworn account listed the invoice amounts that Hector’s had allegedly submitted to Baeza, together with a list of the payments that Hector’s had allegedly received. The account did not list any [*5] totals for the amounts billed to Baeza or the amounts received from Baeza, but it did list a final balance owed of $9,900.25. Baeza filed an answer verified by his office manager, Denise Baeza (also known as Denise Villanueva), that denied Hector’s claim and raised various affirmative defenses, including accord and satisfaction.
A bench trial was held on May 28, 2014. At trial, both parties acknowledged the existence of the parties’ oral agreement and further agreed that Hector’s was required to submit its load tickets to Baeza prior to receiving payments, and was also required to pay a 5 percent commission to Baeza on all amounts billed. However, the parties disagreed on: (1) whether Hector’s had properly provided Baeza with all of the load tickets, as required for payment; (2) whether Baeza had properly paid Hector’s for all of the load tickets it had submitted to Baeza; and (3) whether Baeza’s tender of the two checks to Hector’s in July 2011 constituted an “accord and satisfaction” fully discharging any debt Baeza owed to Hector’s.
Hector Garcia testified that at the end of every week in which his company had performed work for Baeza, he routinely placed all of the load tickets he [*6] had received in an envelope, which he placed in a mailbox at Baeza’s place of business. Hector Garcia further testified that he also generated an invoice, based on the total amount of load tickets he had received from the plant, which he then mailed to Baeza requesting payment. According to Hector Garcia, Baeza periodically sent him checks, but the amounts of the checks did not match his company’s invoice amounts; in addition, Hector Garcia testified that Baeza failed to include any references on the checks and failed to provide any other communications that would have allowed him to correlate the checks to any particular invoice Hector Garcia had prepared or to the load tickets he had submitted to Baeza. Hector Garcia testified that he therefore maintained an internal accounting system in which he tracked the amounts of the invoices he had submitted to Baeza and the amounts of the payments that he had received from Baeza, which formed the basis of his sworn account. This account was introduced into evidence as Plaintiff’s Exhibit One, together with copies of all of the invoices that Hector’s had allegedly sent to Baeza. This exhibit did not list any totals for the amounts owed or [*7] the amounts received, but listed a final balance owed of $9,900.25.
In her testimony, Baeza’s office manager, Denise Villanueva, did not directly dispute the mathematical calculations in Hector’s sworn accounting or question how Hector Garcia had arrived at $9,900.25 as the final balance due. Instead, she testified that based on her review of the records, she calculated that Baeza had paid Hector’s in full for all of the charges submitted. In an apparent attempt to explain the discrepancies in the parties’ calculations, Denise Villanueva testified that Hector’s had not submitted invoices to Baeza as claimed, but rather that Hector’s had instead only turned in load tickets to Baeza’s office. According to Villanueva, she did not see Hector’s invoices until after Hector’s attorney sent his demand letter to Baeza in April 2011.
Villanueva testified that she calculated the amounts owed based on the original load tickets that Hector’s provided, rather than on any invoices Hector’s might have submitted. According to Villanueva, when she received the load tickets from Hector’s, she would create her own invoices to send to Baeza’s customers based on the amounts in the tickets, and that after [*8] the customers had paid Baeza, Villanueva would then pay Hector’s based on the invoices that she had created. Villanueva further explained that she would deduct the 5 percent commission owed under the terms of the parties’ agreement before making payment to Hector’s. Villanueva acknowledged that she did not put any notations on the checks she sent to Hector’s to indicate the account on which she was paying or that she had made a deduction for the 5 percent commission. Instead, she would only reference her own invoice number on the check stubs that she retained for her records.
According to Villanueva, when she received Hector’s demand letter in April 2011, she went back and reviewed the load tickets submitted by Hector’s, Baeza’s invoices, and Baeza’s check stubs.1 Based on her review, Villanueva concluded that Baeza had failed to pay Hector’s a total of $6,020.41 for certain load tickets that he had previously submitted.2 Villanueva thereafter sent Hector’s two checks in July 2011: one for $2,376.41, and another for $3,644, both of which cleared the bank in August 2011.3 Villanueva also testified that after sending those two checks, she found another unpaid load ticket, and wrote a third [*9] check to Hector’s in the amount of $596.62. Villanueva testified, however, that the third check had not cleared the bank at the time of trial, and Hector Garcia testified that he never received that check.
1 At trial, Baeza introduced into evidence his invoices, together with cancelled checks, bank records, and other documentation regarding the payments it made to Hector’s; however, Baeza did not submit into evidence the original load tickets that it had received from Hector’s.
2 Villanueva testified that her research also revealed that there may have been three or four “lost” load tickets, which Hector’s claimed it had submitted, amounting to $1,155.05 in charges. However, at the time of trial, her office was still investigating whether Baeza had already paid Hector’s for those tickets. Villanueva further explained that without the original load tickets, she would not be able to pay Hector’s for those particular loads.
3 Villanueva testified, however, that she inadvertently failed to “take off the five percent” from one of the checks that she wrote for $3,644, and stated that it should have instead been written for $3,461.80.
At the close of evidence, the trial court ruled in Hector’s favor, finding that the parties had entered into a valid contract and that Baeza had breached the parties’ contract. The court awarded damages to Hector’s in the amount of $9,900.25, as requested in its petition, together with prejudgment interest and attorney’s fees.
In his first issue on appeal, Baeza contends the trial court erred by not finding Hector’s claims were barred by the affirmative defense of accord and satisfaction. [HN1] The party asserting the affirmative defense of accord [*11] and satisfaction has the burden of proof to establish its existence. Group Med. & Surgical Serv., Inc. v. Leong, 750 S.W.2d 791, 796 (Tex.App. — El Paso 1988, writ denied) (burden of proof is on the moving party to present evidence of the affirmative defense of accord and satisfaction); see also Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979) (same).
The trial court made an express finding that Baeza did not present sufficient evidence to meet its burden to establish the defense of accord and satisfaction. [HN2] Findings of fact in a bench trial have the same force and dignity as a jury’s verdict upon questions and are reviewed for legal and factual sufficiency of the evidence by the same standards. Farrell v. Farrell, 459 S.W.3d 114, 118 (Tex.App. — El Paso 2015, no pet.) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)); see also Tierra Sol Joint Venture v. City of El Paso, 311 S.W.3d 492, 498 (Tex.App. — El Paso 2009, no pet.).
When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence is that the party established a fact or issue as “a matter of law.” Tierra Sol Joint Venture, 311 S.W.3d at 498. In conducting our review, we must consider the evidence in the light most favorable to the trial court’s finding, and indulge every reasonable inference that would support it. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)); see also Farrell, 459 S.W.3d at 118 (the reviewing court must credit evidence that supports the trial court’s finding if a reasonable fact finder [*12] could rely on that evidence, and disregard contrary evidence unless a reasonable fact finder could not).
[HN3] When appealing the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that the adverse finding is against the great weight and preponderance of the evidence. Thomas v. Layton, 324 S.W.3d 150, 153 (Tex.App. — El Paso 2010, pet. denied) (citing Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620-21 (Tex. 2004)). In determining if a trial court’s findings of fact were factually sufficient, we review all evidence in the record, including evidence contrary to the verdict. Id. We may set aside the verdict only if the trial court’s finding is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Id. Further, we may not substitute our judgment for that of the fact finder, even if we would have reached a different conclusion when reviewing the evidence. Id.; see also Tierra Sol Joint Venture, 311 S.W.3d at 498-99.
[HN4] A party may assert the defense of accord and satisfaction under a common law doctrine, under statutory authority, or both. At trial, Baeza did not indicate which of these two theories he believed applied to his case, but makes reference to both [*13] theories in his brief. We therefore review the record to determine whether he met the requirements under either of these two theories.
The common law defense of “accord and satisfaction” rests upon a new contract, express or implied, in which the parties agreed to the discharge of an existing obligation by means of a lesser payment tendered and accepted. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex. 2000); Melendez v. Padilla, 304 S.W.3d 850, 852 (Tex.App. — El Paso 2010, no pet.). The term “accord” refers to the new agreement in which one party agreed to give or perform and the other to accept “something other than or different from what she is, or considers herself to be, entitled to.” Melendez, 304 S.W.3d at 852-53. The term “satisfaction” refers to the actual performance of the new agreement, in which the party accepts the tendering of the lesser payment. Id.
[HN5] To prevail under the common law theory of accord and satisfaction, the moving party is required first to establish the existence of a dispute between the parties. Id. at 853. It is the very existence of a dispute that provides the consideration for the parties’ new contract and for the accord and satisfaction itself. Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 304 (Tex.App. — Houston [1st Dist.] 2009, no pet.). If a pre-existing dispute is established, the moving party must then establish that [*14] the parties “specifically and intentionally agreed” that the tendering and acceptance of the reduced sum would discharge the underlying obligation that formed the basis of their dispute. Melendez, 304 S.W.3d at 853; Milton M. Cooke Co., 290 S.W.3d at 304. Further, the moving party must establish that he tendered the reduced sum to the nonmoving party with an “unmistakable communication” to the nonmoving party that the tender of the reduced sum was upon the condition that acceptance would satisfy the underlying obligation. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969); Richardson v. Allstate Texas Lloyd’s, 235 S.W.3d 863, 865 (Tex.App. — Dallas 2007, no pet.).
There is no doubt in the present case that Baeza established the first element of the defense of accord and satisfaction, as both parties agreed there was a “dispute” between the parties at the time Baeza sent its two checks to Hector’s in July 2011, three months after Hector’s attorney sent its demand letter to Baeza requesting payment of over $15,000 in damages. Therefore, the only issue left to consider is whether Baeza’s tender of the reduced sum of $6,020.41 was made with an “unmistakable communication” to Hector’s that accepting this sum was upon the condition that its acceptance would satisfy the entire underlying obligation, or that the parties “specifically and intentionally” agreed that the acceptance of [*15] the reduced sum would discharge all of Baeza’s obligations to Hector’s.
In his brief, Baeza fails to point to any evidence in the record to demonstrate that he provided any such communication to Hector’s when tendering the checks, or that the parties entered into any agreement to resolve their entire dispute at that time; instead, Baeza relies solely on the facts that he sent two checks to Hector’s after receiving the demand letter from Hector’s attorney, and that Hector’s accepted and cashed those checks.4 These facts, however, are insufficient, standing alone, to meet the burden to establish the defense of accord and satisfaction. Courts have long held that [HN6] the mere acceptance of a tendered check is not enough to meet that burden. See, e.g., Lopez, 22 S.W.3d at 863; Jenkins, 449 S.W.2d at 455; Milton M. Cooke Co., 290 S.W.3d at 304; Pate v. McClain, 769 S.W.2d 356, 361-62 (Tex.App. — Beaumont 1989, writ denied) (citing Infra–Pak v. Carlson Stapler & Shippers Supply, 803 F.2d 862 (5th Cir. 1986) (a creditor’s acceptance of a check in an amount less than a disputed dollar claim does not automatically discharge the entire debt)).
4 Baeza correctly points out that the trial court mistakenly stated that it was not finding an accord and satisfaction based, in part, on the fact that Baeza tendered an amount that was less than the amount demanded by Hector’s. As set forth above, we recognize [*16] the very hallmark of “accord and satisfaction” is a party’s acceptance of a payment that is less than the amount originally requested or demanded by the other party. However, the trial court did not rest its decision solely on the fact that the amount tendered did “not match” the amount demanded. Instead, the trial court also based its decision on the fact that there was “nothing on the check[s] that indicate” that the parties intended for the tendering and acceptance of the checks to be an accord and satisfaction.
Instead, there must be some evidence in the record to establish that the parties intended for the tendered check to be payment in full of the parties’ dispute. Industrial Life Ins. Co. v. Finley, 382 S.W.2d 100, 105-06 (Tex. 1964). For example, when a party includes a notation on a check or a transmittal letter indicating that the check is being tendered in “[f]ull and final settlement” of the parties’ dispute, the acceptance and cashing the check with knowledge of this recital may be viewed as an unequivocal acceptance of the settlement offer, thereby establishing an accord and satisfaction of the dispute. Id. Under such circumstances, an accord and satisfaction will be established unless the opposing party presents some evidence to establish an express [*17] agreement that the check was to be accepted only as partial payment. Id. While no particular language is needed to put the other party on notice that the acceptance of a lesser sum is intended as an accord and satisfaction, the Texas Supreme Court has held that any such statement must be made in “plain, definite and certain” terms, and must “be so clear, full and explicit that it is not susceptible of any other interpretation.” Jenkins, 449 S.W.2d at 455; see also Pate, 769 S.W.2d at 361-62.
In the present case, the record does not contain any evidence to establish that Baeza put Hector’s on notice that the two checks it sent to Hector’s were being tendered in full settlement of the parties’ dispute. Neither check contained a notation that the checks were being tendered in full settlement of the parties’ dispute, and neither of the checks was accompanied by a communication to that effect. Similarly, there is no evidence in the record to suggest that the parties otherwise came to any oral agreement regarding the effect of the checks.
Accordingly, we conclude that the evidence does not establish accord and satisfaction as a matter of law and that the trial court’s finding that Baeza failed to meet its burden to establish the common law [*18] defense of accord and satisfaction is not against the great weight and preponderance of the evidence.
[HN7] In addition to the common law defense of accord and satisfaction, the Texas Business and Commerce Code provides an alternative method to establish the defense of accord and satisfaction when a person has tendered a negotiable instrument, such as a check, to another person who has made a claim against him. TEX.BUS.&COM. CODE ANN. § 3.311 (West 2002). In particular, the Code provides that a person may discharge a debt when: (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim; (2) the amount of the claim was unliquidated or subject to a bona fide dispute; and (3) the claimant obtained payment of the instrument.
Once again, it is clear that there was a “bona fide dispute” at the time the checks were sent, and that Hector’s “obtained payment” when the checks were accepted and cashed in August 2011. However, there was no evidence presented at trial that Baeza tendered the checks “as full satisfaction of the claim.” We do note the trial court would not allow Villanueva to testify regarding her intent [*19] in sending the checks, believing that her “thought process” was not relevant to the suit. [HN8] Unlike the common law defense of accord and satisfaction, the statutory defense of accord and satisfaction does take into account the defendant’s state of mind in sending a negotiable instrument, as the Code expressly requires that the instrument be sent with a “good faith” intent for it to be a full settlement of a dispute. Accordingly, although Baeza does not raise this issue on appeal, we believe that the trial court may have erred by refusing to allow Villanueva to testify regarding her intent in sending the checks. However, we need not resolve this issue, as Baeza did not meet the remaining requirements under the Code to establish the statutory defense of accord and satisfaction, and therefore, any such error would be harmless. See Franco v. Franco, 81 S.W.3d 319, 342 (Tex.App. — El Paso 2002, no pet.) (even if we were to agree that the trial court erroneously excluded evidence, we must still conduct a harm analysis to determine if the evidence was controlling on a material issue and is not cumulative); Patel v. Kuciemba, 82 S.W.3d 589, 594 (Tex.App. — Corpus Christi 2002, pet. denied) (error may not be predicated upon a ruling that admits or excludes evidence [*20] unless a substantial right of the party is affected).
As many courts have recognized, the remaining requirements of the Code are similar to the common law requirements for establishing accord and satisfaction. Milton M. Cooke Co., 290 S.W.3d at 304 ([HN9] section 3.311 does not conflict with the common-law doctrine of accord and satisfaction; rather, the statute is consistent with the doctrine as interpreted by Texas courts); Case Funding Network, L.P. v. Anglo–Dutch Petroleum Intern., Inc., 264 S.W.3d 38, 50 (Tex.App. — Houston [1st Dist.] 2007, pet. denied) (Texas has adopted the Uniform Commercial Code’s provisions on accord and satisfaction, which are consistent with the Texas courts’ recognition of the common law doctrine of accord and satisfaction); see also TEX.BUS.&COM.CODE ANN. § 3.311, cmt. 3 (“Section 3-311 is based on a belief that the common law rule produces a fair result and that informal dispute resolution by full satisfaction checks should be encouraged.”). As such, the person attempting to assert that a debt has been discharged under the Code by the tendering of an instrument must still establish that the nonmoving party was clearly made aware that the instrument was intended to discharge the debt prior to its acceptance.
The Code provides two methods for establishing this key element. First, [*21] subsection (b) provides that a claim will be discharged by the tendering and acceptance of a negotiable instrument “if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” For the same reasons that we concluded Baeza was unsuccessful in establishing the common law defense of accord and satisfaction, we also conclude that Baeza failed to meet the statutory requirements of the defense under this particular subsection. As discussed above, the undisputed evidence at trial revealed that Baeza failed to provide any notation on the checks, let alone a “conspicuous statement,” to the effect that the checks were being tendered in full satisfaction of Hector’s claims; similarly, the record is devoid of any evidence that Baeza accompanied the checks with a written communication of any kind that could have fulfilled this statutory requirement.
Second, subsection (d) of the Code provides that a debt may be discharged by the tendering of a negotiable instrument “if the person against whom the claim is asserted proves that [*22] within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.” Once again, we conclude that Baeza failed to present any evidence to support a finding that Hector Garcia or anyone at Hector’s was aware that Baeza was tendering the checks in “full satisfaction of the claim.” As set forth above, when Baeza tendered its two checks, he admittedly failed to alert Hector Garcia, either in writing or orally, that he considered the checks to be in full satisfaction of Hector’s claim. Further, Hector Garcia testified that when he received Baeza’s checks, he did not consider them to be in full satisfaction of his claims, and there is simply no evidence in the record to suggest that Hector Garcia accepted and cashed the checks with the knowledge that they were meant to be in satisfaction of his claim.
Accordingly, we conclude that the evidence does not establish statutory accord and satisfaction as a matter of law and that the trial court’s implied finding that Baeza failed to meet its burden to establish [*23] the statutory defense of accord and satisfaction is not against the great weight and preponderance of the evidence. Issue One is overruled.
In his second claim of error, Baeza challenges the award to Hector’s of damages in the amount of $9,900.25, contending that the evidence is both legally and factually insufficient to support that award. Baeza asks this Court to either reverse and render judgment, or in the alternative, to remand the case to the trial court to reconsider the amount of damages to be awarded.
[HN10] The universal rule for measuring damages for breach of contract is just compensation for the loss or damage actually sustained. Davis v. Chaparro, 431 S.W.3d 717, 726 (Tex.App. — El Paso 2014, pet. denied) (citing Dakil v. Lege, 408 S.W.3d 9, 12 (Tex.App. — El Paso 2012, no pet.)); see also Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex.App. — El Paso 2000, no pet.). A non-breaching party is generally entitled to all actual damages necessary to put him in the same economic position he would have been had the contract not been breached. This is commonly referred to as the benefit of the bargain. Davis, 431 S.W.3d at 726 (citing Bowen v. Robinson, 227 S.W.3d 86, 96 (Tex.App. — Houston [1st Dist.] 2006, pet. denied)). Under the implementation of this rule, a party should not receive less or more [*24] than the actual damages he incurred. Id. (citing Abraxas Petroleum Corp., 20 S.W.3d at 760).
We review challenges to the amount of a damages award by the same standard as any other challenge to a court’s finding. Dakil, 408 S.W.3d at 12-13. Therefore, we will review the trial court’s judgment under a legal sufficiency or “no evidence” standard, as well as under a factual sufficiency standard. The finding as to damages should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. at 12 (citing Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App. — El Paso 1981, no writ)).
Baeza makes three challenges to the trial court’s award of damages: (1) the trial court did not credit a payment of $596.62 that Baeza allegedly made to Hector’s in July 2011; (2) the trial court failed to take into consideration the 5 percent commission owed to Baeza when calculating its award; and (3) the trial court failed to “match the disputed invoices” submitted at trial.
Baeza’s argument that the trial court failed to credit a payment of $596.62 in calculating the damages award is the easiest to resolve. The undisputed evidence at trial revealed that Hector’s never actually received a check in this amount. Hector [*25] Garcia testified that he never received this payment, and more importantly, Baeza’s own office manager testified that she had no record that the check she reportedly wrote for $596.62 cleared the bank. As such, we conclude that there was no basis for the trial court to have considered this payment in making its determination of the proper award of damages.
We find it more troubling to resolve the questions whether in making its determination that Hector’s was entitled to $9,900.25 in damages, the trial court properly took into consideration the 5 percent commission owed to Baeza and the invoices submitted in evidence.
In its initial pleading, Hector’s requested $9,900.25 in damages based on the balance it believed was owed, as set forth in its sworn accounting, and the trial court awarded damages to Hector’s in that exact amount. Although Baeza presented conflicting evidence in an attempt to establish that he did not owe anything to Hector’s, the trial court was allowed to rely on Hector’s sworn account, the invoices Hector’s submitted at trial, and Hector Garcia’s testimony at trial in calculating the damages award. Even Baeza’s own attorney recognized during closing argument that the [*26] parties’ dispute over the amount owed came down to “one company’s word against another.” Accordingly, if we did not believe there were other discrepancies in the trial court’s calculation of damages, our inquiry would stop here, and we would be compelled to uphold the trial court’s judgment.
The first discrepancy we see in the record is the fact that Hector Garcia acknowledged at trial that he failed to take into consideration the parties’ agreed upon 5 percent commission when he initially calculated that Baeza owed him $9,900.25, as requested in his petition. If this were the only mathematical error in this case, we would be compelled to agree with Baeza that the trial court erred by failing to deduct 5 percent from the amount of damages owed to Hector’s; it would then be a relatively easy task to reform the judgment to deduct for that amount, and to render judgment in the correct amount.
In its brief, however, Hector’s argues that even if the trial court failed to deduct the 5 percent commission from the $9,900.25 amount that Hector’s initially requested, this failure is of no consequence, because Hector’s revised its damages calculations midway through trial and allegedly the evidence [*27] presented at trial actually supported a greater award of $14,558.45.5 If Hector’s revised damages calculation was mathematically sound, we would be compelled to agree that the trial court had more than sufficient evidence to support an award of the lesser amount of $9,900.25. We note, however, that Hector Garcia and his attorney appear to have made a fundamental error when they recalculated the damages amount.
5 We note that Hector’s failed to request a trial amendment seeking this additional amount of damages, and instead advised the trial court that it would be satisfied with an award of $9,900.25 as requested in its petition.
After a recess during the trial, Hector Garcia testified that he and his attorney had reviewed the numbers set forth in the sworn account and concluded that they had originally made a mathematical error when they first calculated that Baeza owed Hector’s $9,900.25. In particular, Hector Garcia testified that he and his attorney had added up the charges to Baeza that were set forth in his sworn account, and arrived at a total amount of $60,587.17. Hector Garcia then testified that, after deducting for the 5 percent commission owed to Baeza, he believed that the total amount of allowable charges to Baeza was $57,557.81. Rather than rely on his own figures in his sworn account to calculate the total amount of money that Baeza had paid him, however, Hector Garcia instead referred to an exhibit that Baeza had presented at trial, which listed 13 cancelled checks that Baeza had allegedly written to Hector’s from July 2010 through July 2011, totaling $42,998.26. [*29] 6 Hector Garcia stated that he had then subtracted that amount from the $57,557.81 in allowable charges when he concluded that Baeza owed him more than the original $9,900.25 that he had requested in his petition. Although Hector Garcia did not testify as to the revised amount he believed Baeza owed him, Hector’s attorney asserted, both in his closing argument at trial and in his brief on appeal, that he used these same figures to calculate that Baeza owed Hector’s a total of $14,558.45.
6 At trial, Hector Garcia mistakenly testified that Defendant’s Exhibit 1 showed a total of $42,999.36 in payments.
If this calculation were correct, once again, our analysis would end, as this would have provided a sufficient basis for upholding the court’s award of the lesser amount of $9,900.25 as originally requested by Hector’s in his petition. However, our review of the evidence, including the invoices and sworn account submitted by Hector’s at trial, reveals that when Hector Garcia and his attorney recalculated the total charges to Baeza for work performed under the 2010 contract, they mistakenly included $8,279.28 in charges that Hector’s had submitted to Baeza for unrelated work performed in 2006 [*30] and 2007. Hector’s own records reflect that Baeza paid all of these earlier charges prior to the time the parties entered into their contract in 2010. In its recalculation, however, Hector Garcia and his attorney failed to deduct Baeza’s payments for the 2006 and 2007 work performed, and instead only deducted Baeza’s payments for the 2010 work performed.
Our review of both the invoices and the sworn account reveals that Hector’s presented evidence of charges to Baeza totaling $52,307.89 for the 2010 work performed under the terms of the parties’ contract. When that amount is discounted by the 5 percent agreed-upon commission ($2,615.39), this leaves a total of $49,692.50 in allowable charges for the 2010 work performed. The next step in the equation would be to subtract the amounts that Baeza paid to Hector’s for the work Hector’s performed in 2010.
The trial court was presented with three different figures at trial regarding the amounts that Baeza allegedly paid to Hector’s under the terms of the parties’ 2010 contract. First, Hector Garcia initially testified at trial that he believed Baeza had paid him a total of $40,447.19, but presented no evidence to support that belief. Using that figure, [*31] the amount owed to Hector’s would be $9,245.31. Second, by our calculation, Hector’s own sworn account listed payments received from Baeza in the total amount of $42,407.64. Using that figure, the amount owed to Hector’s would be $7,284.86. Third, as set forth above, Baeza presented an exhibit at trial, which included a list of 13 cancelled checks that Baeza allegedly wrote to Hector’s in 2010 and 2011, totaling $42,998.26.7 Using that figure, the amount owed would be $6,694.24.
7 Although Hector’s and its attorney indicated during trial that they were relying on this figure in revising their calculations of damages owed, we do not believe that their statements amount to either a judicial admission or a quasi-admission that would preclude Hector’s from asserting that Baeza paid it a different amount. Hector Garcia never expressly testified that he was embracing Baeza’s calculations as being true; instead his attorney asked him leading questions during trial that led him down the path of relying on this exhibit in making his (mathematically incorrect) argument that Baeza actually owed Hector’s over $14,000. As Hector Garcia’s testimony did not amount to a “deliberate, clear, and unequivocal” [*32] adoption of the figures set forth in Baeza’s exhibit, we cannot conclude that his testimony on this point would be binding on Hector’s. See Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980) ([HN11] quasi-admissions must be “deliberate, clear, and unequivocal”); see also Duncan v. F-Star Mgmt., L.L.C., 281 S.W.3d 474, 481 (Tex.App. — El Paso 2008, pet. denied); Phillips v. Phillips, 296 S.W.3d 656, 668 (Tex.App. — El Paso 2009, pet. denied).
All three of these scenarios leave a balance owed that is less than the $9,900.25 judgment awarded by the trial court, and we therefore conclude that the evidence presented at trial, even when viewed in the light most favorable to the trial court’s judgment, was both factually and legally insufficient to support the trial court’s judgment in the amount of $9,900.25.
Nevertheless, while there is insufficient evidence to support the entire amount of the trial court’s award, there is sufficient evidence to demonstrate that Hector’s suffered some amount of damages as the result of Baeza’s breach of contract. However, because we cannot discern the correct amount of those damages given the conflict in the evidence, we are unable to render judgment in favor of Hector’s in a lesser dollar amount. We therefore reverse the judgment of the trial court and remand the cause for a new trial on the issue of [*33] the amount of damages to be awarded to Hector’s.8 See, e.g., Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 51 (Tex. 1998) (reversing and remanding case to the trial court for a new trial where there was “no legally sufficient evidence to support the entire amount of damages, but there [was] some evidence of the correct measure of damages”); see also Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014) (because the evidence was legally insufficient to support the amount of the trial court’s attorney’s fee award, the Court remanded the case to allow the trial court to redetermine the amount of the award).
8 We note that TEX.R.APP.P. 44.1(b) allows this Court to order a new trial on a limited issue if the trial court committed an error that “affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties”; however, the Rule does not allow us to “order a separate trial solely on unliquidated damages if liability is contested.” In the present case, although Baeza contested liability, we conclude that a new trial on the limited issue of damages is nevertheless appropriate; in particular, we conclude that the damages requested by Hector’s were liquidated in nature, as they were based on Hector’s sworn account and were documented by the written invoices that [*34] Hector’s attached to its petition. See, e.g., Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 845-46 (Tex.App. — Dallas 2014, no pet.) ([HN12] a claim is liquidated if the amount of damages may be accurately calculated by the trial court from the factual, as opposed to the conclusory, allegations in plaintiff’s petition and the instrument in writing); Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex.App. — Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was a liquidated claim proven by written invoices attached to original petition); Mantis v. Resz, 5 S.W.3d 388, 392 (Tex.App. — Fort Worth 1999, pet. denied) (in a suit on a sworn account, the petition with an attached sworn account and verified affidavit of the account was a liquidated claim proved by written instruments).
As an alternative to a new trial, we believe it is appropriate to suggest a remitter to Hector’s pursuant to TEX.R.APP.P. 46.3. [HN13] Rule 46.3 permits this Court to suggest a remittitur when an “appellant complains there is insufficient evidence to support an award and the court of appeals agrees, but concludes there is sufficient evidence to support a lesser award.” Samuels v. Nasir, 445 S.W.3d 886, 894 (Tex.App. — El Paso 2014, no pet.); see also Corral-Lerma v. Border Demolition & Envtl. Inc., S.W.3d , 2015 Tex. App. LEXIS 4843, 2015 WL 2265082, at *11 (Tex.App. — El Paso May 13, 2015, no pet. h.). As set forth by the Texas Supreme Court in Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987), if part of a [*35] damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict, giving the party prevailing in the trial court the option of accepting the remittitur or having the case remanded for a new trial. Id.
Although we believe the amount of the trial court’s award of damages was not supported by the evidence presented at trial, we nevertheless conclude there is sufficient evidence in the record to support a lesser award. We therefore believe it is appropriate to offer Hector’s a choice of accepting a remittitur if it believes that a new trial on damages is not the most expeditious way to resolve the mathematical discrepancies in the record.
In determining the proper amount of a suggested remittitur in this instance, we must determine the maximum possible award that is supported by the evidence and subtract that amount from the damages award actually entered by the trial court. The calculation of damages in this case turns primarily on what figure is used to calculate the amount of payments that Baeza made to Hector’s under the terms of the parties’ 2010 contract. During trial, the parties submitted evidence of three different dollar amounts [*36] that Baeza allegedly paid to Hector’s under the terms of their contract: $40,447.19; $42,407.64; and $42,998.26. However, we believe that the first dollar figure of $40,447.19 was not supported by factually sufficient evidence; although Hector Garcia testified during trial that Baeza had only paid him this amount, his testimony was not supported by any documentary evidence, and in fact, the documentary evidence that he supplied at trial, including the sworn account and attached invoices, actually indicated that Baeza had paid Hector’s almost $2,000 more than that amount. As such, we decline to use that figure in calculating the maximum possible damages award that could have been made to Hector’s.
Instead, we conclude that the evidence presented to the trial court only supported an award of damages in the following two amounts: (1) $7,284.86, using the payment figure of $42,407.64, as set forth in Hector’s sworn account and attached invoices; and (2) $6,694.25, using the payment figures of $42,998.26, as set forth in Baeza’s trial exhibit. As $7,284.86 is the maximum damages award supportable by the evidence presented at trial, we conclude that the appropriate amount of a suggested remittitur [*37] would be $2,615.39 — the difference between the trial court’s award of $9,900.25 and the maximum award supportable by the evidence. If within 15 days of this opinion’s issuance, Hector’s accepts this suggested remittitur of $2,615.39, we will reform the trial court’s judgment and affirm as modified. If not, the judgment of the trial court will be reversed and this cause will be remanded for a new trial on the limited issue of the proper amount of damages to be awarded to Hector’s.
Because we conclude that there was insufficient evidence to support the amount of the trial court’s award of damages, we reverse the trial court’s judgment, and order a new trial on the issue of the proper amount of damages to be awarded to Hector’s. If, however, Hector’s timely files a remittitur of $2,615.39 within 15 days of the issuance of this opinion, the judgment will be reformed to reflect a damages award of $7,284.86, and affirmed in all other respects.
BRIDGET PULIDO, Plaintiff and Respondent, v. CEMAK TRUCKING, INC., Defendant and Appellant.
COUNSEL: Cholakian & Associates, Kevin K. Cholakian and David L. Barch for Defendant and Appellant.
Perona, Langer, Beck, Serbin, Mendoza & Harrison, Ellen R. Serbin; Law Office of Scott E. Spell, Scott E. Spell; Sekin, Begakis & Bish and Mindy S. Bish for Plaintiff and Respondent.
JUDGES: IRION, J.; McINTYRE, Acting P. J., O’ROURKE, J. concurred.
Cemak Trucking, Inc. (Cemak) appeals from a judgment of $1,978,794.69 against it following a jury’s finding that Cemak’s negligence caused Bridget Pulido to be hit and injured by a truck driven by a Cemak employee.
Cemak contends that (1) the trial court prejudicially erred in striking Cemak’s supplemental expert designation; (2) the trial court should not have admitted the testimony of Pulido’s expert witness regarding certain items of future economic damages; (3) the trial court should have granted Cemak’s motion for a new trial based on insufficient evidence to support the verdict and based on excessive damages; and (4) counsel for Pulido improperly made inflammatory statements during closing argument. As we will explain, we [*2] conclude that Cemak’s appeal lacks merit, and we accordingly affirm the judgment.
We also consider and deny Pulido’s motion for sanctions and motion to strike portions of Cemak’s appellate brief.
At approximately 2:00 a.m. on July 27, 2010, Pulido was walking southbound on the shoulder of National Trails Highway toward Victorville, facing oncoming traffic. Her friend, Michael Contreras, was walking southbound on the other side of the highway. Responding to a report of a pedestrian in the roadway, California Highway Patrol officers Fernando Contreras and Jerry Dean Martin stopped their patrol car on the shoulder behind Michael Contreras and activated their spotlight on him. Pulido stopped walking on the other side of the highway shoulder and turned to watch the officers. Officer Martin illuminated Pulido with his flashlight and saw that she was standing where the asphalt shoulder met the dirt at the side of the highway.
Four or five seconds later, a truck driven by a Cemak employee, Darryl Black, drove past Pulido going northbound. As the truck passed Pulido, both Officer Martin and Officer Contreras saw Pulido being thrown into the air and hitting the [*3] ground. Pulido had been hit by Black’s truck, with the most immediately obvious injury to her arm, on which the skin and muscle were peeled back. During later medical treatment it was determined that Pulido had suffered a broken collarbone, a broken scapula, multiple rib fractures, two fractures to her arm bones, skin and nerve damage to her arm, a collapsed lung, a torn liver, and facial bruising.
Black did not stop his truck after hitting Pulido, but Officer Contreras pursued Black and brought him back to the scene of the accident. A subsequent examination of Black’s truck revealed that it was 62-feet-long, composed of a tractor and two trailers, and Pulido’s body tissue was on the inside of the rear fender tire on the second trailer. Black claimed that he did not see Pulido on the side of the road and did not know that he hit her. According to Black, he was blinded from the glare of the patrol car’s spotlight and maneuvered his truck in response as he passed the patrol car.
Pulido filed this lawsuit against Black and Cemak, and it proceeded to trial. Pulido’s accident reconstruction expert testified that Black’s truck struck Pulido while she was standing on the shoulder due to a phenomenon [*4] known as rearward amplification or “crack the whip,” in which a back and forth steering maneuver that has a small effect at the front of the truck will have an amplified effect at the rear of the truck, causing the rear trailer to swing out beyond the roadway. Further, a trucking safety expert called by Pulido testified that Cemak did not have an established safety program that might have educated its employees to avoid maneuvers leading to rearward amplification, and opined that Black violated the standard of care in several ways when passing Pulido, including going too fast and being distracted by the patrol car on the other side of the road. An orthopedic surgeon, Dr. Stuart Miles Gold, and a plastic surgeon, Dr. Robert Applebaum, testified about Pulido’s injuries and her future surgical needs. A registered nurse, Jan Roughan, with a specialty in long-term treatment planning (also referred to as “life care” planning), testified to the costs associated with Pulido’s future medical needs based on her consultation with Pulido’s doctors. An economist, Tamorah Hunt, testified to the present value of those future medical costs. Cemak did not present the testimony of any expert witness, [*5] in part because the trial court struck Cemak’s supplemental expert designation prior to trial.
The jury returned a special verdict finding that Cemak was negligent and that Cemak’s negligence was a substantial factor in causing Pulido’s injuries.1 The jury found that Pulido’s total damages were $1,978,794.69, composed of: $162,229.69 in past economic damages; $666,565 in future economic damages; $350,000 in past noneconomic damages; and $800,000 in future noneconomic damages. The trial court entered judgment against Cemak in the amount of $1,978,794.69.
1 Although both Black and Cemak were defendants at trial, after the verdict, the trial court ordered the case dismissed as to Black, and it entered judgment only against Cemak.
Cemak’s first contention is that the trial court prejudicially erred in striking Cemak’s supplemental expert designation.
Here, Cemak and Pulido both served initial expert designations on October 21, 2013. Pulido identified seven retained experts and 12 nonretained experts. The retained experts included Joseph G. Yates, an expert on accident reconstruction, and V. Paul Herbert, an expert on trucking issues. Cemak did not identify any retained experts in its designation, and identified only a single surgeon as a nonretained expert.
In its opposition to the ex parte application, Cemak conceded that Grant should be “de-designated” as an expert, as Cemak should have foreseen that it would need expert testimony on “the standard of care for a trucking company and its drivers.” However, Cemak contended that it could not [*9] have reasonably foreseen that it would need to designate an expert on accident reconstruction, as it was planning to rely solely on percipient witness testimony as to how the accident occurred.
2 Cemak has not included a transcript of the hearing on the ex parte application as part of the appellate record. Pulido argues that we should decline to consider Cemak’s challenge to the ruling striking the supplemental expert designation, as Cemak has not provided the reporter’s transcript from the hearing. (See Hotels Nevada v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 (Hotels Nevada) [the appellant’s failure to provide an adequate record on an issue requires that the issue be resolved against appellant].) We will exercise our discretion to consider the issue on the merits, as we are able to evaluate whether the trial court abused its discretion based on the briefing for the ex parte application and the trial court’s minute order.
As we have explained, Cemak conceded in the trial court that the supplemental designation of Grant as an expert witness on trucking safety should be stricken. Thus, any error by the trial court in striking the designation of Grant was invited error and not cognizable on appeal. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 [“[W]hen a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.”].) The only issue properly before us on appeal, therefore, is whether the trial court abused its discretion in striking the supplemental designation of Varat as an accident reconstruction expert.
This case falls squarely within the situation described in Fairfax. As the parties agree, the main disputed issue to be resolved at trial was how the accident occurred. Did Black’s truck move onto the shoulder and strike Pulido, or did Pulido step onto the highway into the path of the truck? Moreover, as established by the uncontradicted declaration filed by counsel for Pulido, Cemak was told prior to the initial expert exchange that Pulido had retained an accident reconstruction expert. Thus, as in Fairfax, the trial court had ample reason to conclude that this was “not a situation in which [Cemak] was somehow surprised by the content of [Pulido’s] expert designation.” (Fairfax, supra, 138 Cal.App.4th at p. 1027.) The trial court accordingly did not abuse its discretion in concluding that Cemak’s supplemental expert designation of Varat should be stricken on the ground that Cemak [*13] unreasonably failed to identify Varat in its initial expert designation.
This case is nothing like Barboni. Here, unlike the plaintiff in Barboni, Pulido followed the rules for simultaneous exchange of expert information by timely serving an initial [*14] expert designation listing numerous experts, but Cemak waited to until after seeing Pulido’s designation to identify its own experts on the same issues, putting Pulido at a disadvantage. Further, unlike in Barboni, where the court accepted counsel’s explanation that he miscalendared the date, the trial court here was well within its discretion to conclude that Cemak’s failure to initially designate an accident reconstruction expert was not a mistake, but rather a tactical ploy. Thus, the relevant case here is Fairfax, not Barboni.
Here, the record contains no offer of proof as to (1) what the substance of Varat’s expert opinion would have been had he been permitted to testify at trial as an expert on accident reconstruction, and (2) whether he would have reached an opinion any different from Pulido’s expert regarding how the accident occurred. Therefore, we are unable to conclude that a reasonable probability exists that the jury would have reached a result more favorable to Cemak had Varat’s expert testimony on accident reconstruction been introduced at trial.
3 This amount contained $716 in contingent expenses related to one of the surgical procedures.
4 According to Roughan, physiatry is a specialty involving physical medicine and rehabilitation, but not including surgery.
5 As the economist Hunt testified, at present value the expected cost of the Cymbalta is $117,090, the expected cost of the physiatry or pain management care is $5,881, and the cost of special needs trust is $87,502. Cemak contends that Hunt’s testimony on those issues compounded the purported error in allowing Roughan to testify about [*17] them. To the extent Cemak is making a separate argument that portions of Hunt’s testimony should have been excluded, we reject the argument for two reasons. First, Cemak made no objection at trial to the admission of Hunt’s testimony on the issues she now focuses on in her appeal, and she accordingly may not raise a challenge to the admission of that evidence on appeal. (Evid. Code, § 353.) Second, the premise for Cemak’s challenge to Hunt’s testimony fails, because, as we will explain, Cemak has not established any error in admitting Roughan’s testimony.
As an initial matter, we note that Cemak made no objection at trial to Roughan’s testimony about the costs associated with the special needs trust. A party may not seek reversal on appeal based on the erroneous admission of evidence unless it made a specific objection to the evidence in the trial court. (Evid. Code, § 353.) Accordingly, we conclude that Cemak has not preserved its appellate challenge to the admission of the evidence concerning the costs associated with the special needs trust, and we do not consider it further.
As to Roughan’s testimony about Pulido’s future need for Cymbalta and physiatry/pain management care, Cemak’s objection at trial was that because [*18] Roughan is a registered nurse, not a doctor, she was not qualified to testify to Pulido’s expected costs for Cymbalta medication and physiatry/pain management care, and thus there was no foundation for the admission of the evidence on those subjects. Further, Cemak argued that as to those two items, there was no testimony at trial from any other qualified witness, such as Dr. Gold (the orthopedic surgeon) or Dr. Applebaum (the plastic surgeon), establishing that Pulido would require Cymbalta or physiatry/pain management care. Cemak pointed out that Roughan testified that she consulted with Dr. Lawrence S. Miller — who examined Pulido — about Pulido’s need for physiatry/pain management care and the prescription of Cymbalta, but Dr. Miller did not testify at trial.
The trial court overruled both objections. As to Roughan’s testimony about Pulido’s expected future expenses for Cymbalta, the trial court concluded that a sufficient foundation existed based on Dr. Gold’s testimony and Roughan’s own testimony about her reliance, as a long-term treatment planner, on her consultations with Pulido’s doctors. As to the physiatry/pain management care, the trial court ruled that Dr. Gold’s testimony [*19] about Pulido’s ongoing pain and nerve damage supplied a sufficient foundation for Roughan’s testimony about Pulido incurring future costs for physiatry/pain management.
Roughan testified that she is a registered nurse with a specialty in developing long-term treatment plans for patients, and that in doing so she regularly consults with the patient’s physicians regarding the particular medical care that is anticipated for the patient. Based on this testimony, the trial court reasonably could determine that Roughan [*20] was a qualified expert in the field of long-term treatment planning,6 and that the information given to Roughan by a patient’s doctors is the type of information that Roughan reasonably could rely upon in forming a long-term treatment plan even though she is not a doctor.
6 “[T]he trial court has broad discretion to determine whether a witness is competent and qualified as an expert; and its determination will not be disturbed on appeal unless ‘”a manifest abuse of discretion”‘ is shown.” (Mora v. Big Lots Stores, Inc. (2011) 194 Cal.App.4th 496, 513; see also Evid. Code, § 720, subd. (a) [“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”].) Cemak has not questioned Roughan’s qualifications to testify as an expert in the field of long-term treatment planning, and the trial court was within its discretion to conclude, based on Roughan’s description of her background, that Roughan was qualified to testify to her opinions in that area of expertise.
Here, Roughan specifically testified that she consulted with Drs. Miller, Gold and Applebaum in developing the long-term treatment plan for Pulido. As to the need for the Cymbalta and [*21] the physiatry/pain management care, Roughan explained that she specifically consulted with Drs. Gold and Miller about the need to prescribe Cymbalta to Pulido to manage her ongoing pain,7 and that she consulted with Dr. Miller, who is a physiatrist, about the long-term treatment plan. Further, all three doctors reviewed a draft of the long-term treatment plan and approved it, including the medication. As additional foundation for Pulido’s need for ongoing pain management care, Dr. Gold testified that based on her injuries, Pulido would have ongoing pain for the rest of her life.
7 Roughan specifically testified at trial that Dr. Gold prescribed Cymbalta to Pulido for pain. In its appellate brief, Cemak contends that Dr. Gold testified that he had not prescribed Cymbalta. In support of that statement, Cemak provides a citation to the whole of Dr. Gold’s testimony. We have reviewed that testimony and find no support in the record for Cemak’s assertion.
Based on this testimony, the trial court was well within its discretion to conclude that as an expert in preparing long-term treatment plans, Roughan had a sufficient foundation to opine that Pulido was expected to incur specific expenses in [*22] connection with the ongoing use of Cymbalta to manage pain and for ongoing physiatry/pain management care even though Roughan is not a doctor.
Cemak relies at length on Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860-861. However, Mosesian does not advance Cemak’s argument. Mosesian does nothing more than set forth the well-established principle, discussed in numerous subsequent opinions, that “[e]xperts may rely upon hearsay in forming opinions[,]” but “[t]hey may not relate an out-of-court opinion by another expert as independent proof of fact.” (Ibid.) Indeed, although “it generally is not appropriate for the testifying expert to recount the details of the other physician’s report or expression of opinion,” it is left to the “‘sound judgment'” of the trial court to decide how much of another expert’s hearsay opinion a testifying expert may describe in setting forth the basis for her own opinion. (Catlin, supra, 26 Cal.4th at p. 137.) Here, the trial court reasonably concluded, within its sound judgment, that in testifying about the long-term treatment plan she prepared for Pulido, Roughan did not relate excessive details of the out-of-court statements of Pulido’s treating doctors. Based on the testimony at trial, the trial court reasonably could conclude that Roughan explained only [*23] in a general manner that in formulating her expert opinion on specific cost items she relied on her consultations with Pulido’s doctors and included that information in her final cost estimate for Pulido’s long-term treatment.
8 Further, we note that Cemak has not even established that the jury awarded all of the cost of the Cymbalta and the physiatry/pain management care as part of its verdict on future noneconomic damages. The evidence at trial showed that the cost associated with the Cymbalta and the physiatry/pain management care was $122,971. The jury awarded only $665,565 in future economic damages, which was $122,000 less than the $787,565 that Roughan and Hunt testified to as the expected cost of Pulido’s future medical care.
10 Moreover, were we to reach the merits of Cemak’s challenge to the order denying the motion for a new trial, it is clear based on our earlier analysis that Cemak’s argument lacks merit. As the centerpiece of its motion for a new trial, Cemak argued that the evidence was insufficient to support the jury’s award of future economic damages to Pulido based on the same challenge to Roughan’s testimony that we have already discussed and rejected above. Specifically, Cemak simply repeats its argument that Roughan’s [*26] testimony on Pulido’s future expenses for Cymbalta, physiatry/pain management care, and creating a special needs trust should have been excluded and argues that the testimony therefore does not support the verdict. For the reasons we have explained above, Cemak’s challenge to foundation for Roughan’s testimony is without merit.
Cemak contends that the trial court erred by improperly allowing counsel for Pulido to make statements during closing argument that purportedly inflamed the jury.
11 Cemak also contends that counsel for Pulido made the statements in violation of a ruling on a motion for limine. Specifically, Cemak is referring to its motion in limine, which is not included in the appellate record, which we infer from discussion in the reporter’s transcript sought a ruling preventing opposing counsel from violating the “golden rule,” under which counsel may not invite the jury to put itself in the victim’s position. (People v. Vance (2010) 188 Cal.App.4th 1182, 1188.) However, the trial court never ruled on the motion in limine, reserving its ruling until later.
Because Cemak did not object to the statements during closing argument, it has waived its ability to argue that the statement were improper. “Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. . . . The purpose of the rule requiring the making of timely objections is remedial in nature, [*28] and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeated improprieties, thus avoiding the necessity of a retrial. . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.” (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610, citations omitted.) Asserting misconduct for the first time in the context of a new trial motion, as Cemak did here, does not preserve the issue for appeal. The objection and the request for a curative instruction must be made during trial. (People v. Williams (1997) 16 Cal.4th 153, 254-255.) Because Cemak did not object to counsel’s comments during closing argument and did not request that the jury be admonished, it may not rely on the statements as a basis for seeking reversal of the judgment.
As a final matter, we consider two motions filed by Pulido in the appellate court: a motion for sanctions and a motion to strike, which we indicated by previous order that we would consider together with this appeal.
Pulido argues in her motion for sanctions that we should impose monetary sanctions on Cemak [*29] and its attorney. According to Pulido, sanctions are warranted pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 8.276 because the appeal is frivolous and was filed solely for the purpose of delay, and because Cemak violated appellate court rules in drafting its brief.
We deny the motion. Based on our review of the record and the relevant legal authority, as discussed above, the appeal is not wholly frivolous, and we do not perceive that Cemak has been motivated by an effort to harass or delay. Further, Cemak’s violation of appellate court rules consist mainly of failing to include record citations in its summary of the factual background, although record citations are present in the argument portion of its brief. Those violations are not so egregious that sanctions are warranted.
Pulido’s motion to strike seeks an order striking portions of Cemak’s opening brief. Specifically, Pulido requests that we strike (1) the opening brief’s mention of Pulido’s felony convictions and a probation violation, as only one felony conviction was entered into evidence at trial; and (2) the opening brief’s statement of facts, as it contains no citations to the record.
The judgment is affirmed. Pulido’s motion for sanctions and motion to strike are denied. As the prevailing party, Pulido is to recover her costs on appeal. Pursuant to the terms of the Court’s June 15, 2015 order conditionally granting Cemak’s request to vacate submission and hold a second oral argument, Pulido’s recoverable costs on appeal shall include the attorney fees and expenses incurred by Pulido as a result of her counsel’s appearance at the oral argument on August 11, 2015.


text:
Members of the parish pastoral council are to be members of the parish in full communion with the Catholic Church. All members will participate in a program of orientation for service on parish consultative bodies. §2 The suggested number of members is from six to twelve. §3 Of the total membership, two-thirds of the members are to be elected. §4 After appropriate consultation, one-third of the total membership is to be appointed by the pastor with special attention to the representation of the different aspects of pastoral work in the parish, and of the different states of life, and social and professional conditions of the parishioners. §5 The membership of the parish pastoral council shall be made known to all parishioners.
Term of Membership All members shall serve a two-year term which can be renewed twice. §2 In the case of a vacant pastorate, the members under the previous pastor will assist the Dean and the Diocesan Bishop during the interim. The new pastor is to reconvene a parish pastoral council as soon as possible after his appointment to the parish. §3 Any vacancy on the parish pastoral council is filled as soon as possible through appointment by the parish pastoral council and the pastor.
Membership: Members of the parish finance council are to be members of the parish in full communion with the Catholic Church, and known for their ability and integrity in the administration of temporal goods. All members will participate in a program of orientation for service on parish consultative bodies. §2 The suggested number of members is from two to six.
Appointment of Members: Because of the particular qualities required of the members of the parish finance council, the members are to be appointed by the pastor 24 after careful inquiry regarding who among the faithful are best qualified for appointment. The names of candidates for appointment, however, should be kept in confidence lest, if they are not appointed, any questions be raised publicly regarding their good character or competence in temporal matters. §2 All close relatives of the pastor are excluded from appointment to the parish finance council. §3 The membership of the parish finance council shall be made known to all parishioners.

matches: §2 §3 §4 §5 §2 §3 §2 §2 §3


You can download a PDF version of the Business Associate Agreement here.
This Business Associate Agreement (the “Agreement”) by and between Covered Entity and Business Associate (each a “Party” and collectively the “Parties”), is effective as of the date Business Associate first provides Services, as defined below, to Covered Entity.
WHEREAS, the purpose of this Agreement is to address the measures that Business Associate shall take to protect the confidentiality of certain individually identifiable health information that the Covered Entity may disclose to Business Associate or that the Business Associate may create, receive, maintain, or transmit on behalf of the Covered Entity or its Affiliates in connection with the service, repair, trouble shooting and maintenance activities associated with the products identified at http://medical.olympusamerica.com/baaproducts (the “Services”). This Agreement applies only if and to the extent Olympus is a “business associate” (as that term is defined in 45 C.F.R. § 160.103) of Covered Entity.
WHEREAS, the use and disclosure, electronic transmission and maintenance, and security of certain individually identifiable health information is regulated by the Administrative Simplification Provisions of the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, as amended by Health Information Technology for Economic and Clinical Health Act, Section 13400, et. seq. of the American Recovery and Reinvestment Act of 2009 (“HITECH”), and the regulations promulgated thereunder, all as may subsequently be amended (collectively referred to as “HIPAA”).
WHEREAS, the Covered Entity may from time to time disclose individually identifiable health information to the Business Associate, and the Business Associate may from time to time create, receive, maintain, and/or transmit such individually identifiable health information.
WHEREAS, both Parties are committed to complying with HIPAA, including without limitation, the HIPAA Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”), the HIPAA Security Standards (the “Security Rule”), and the HIPAA Standards for Notification in the Case of Breach of Unsecured Protected Health Information (the “Breach Notification Rule”) (all as set forth in 45 C.F.R. Parts 160, 162 and 164), and any applicable guidance from the Department of Health and Human Services (“HHS” or the “Secretary”).
1.1 Definitions. Except for the below, all terms used in this Agreement shall have the same meaning as set forth in HIPAA.
a. “Affiliate” shall mean any company directly or indirectly through one or more intermediate companies which now or hereafter may control, be controlled by or be under common control with the relevant party. “Control” of a company means the power to exercise 50 percent or more of the voting rights of such company.
b. “Covered Entity” shall have the meaning given to that term under 45 C.F.R. § 160.103 but shall be limited to entities receiving Services from the Business Associate pursuant to a written agreement.
c. “Protected Health Information” or “PHI” shall have the meaning given to that term under 45 C.F.R. § 160.103 but shall be limited to the information created, received or maintained by the Business Associate from or on behalf of the Covered Entity.
1.2 Use and Disclosure. The Business Associate shall not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law, as that term is defined in 45 C.F.R. § 164.103 (“Required by Law”). All other uses or disclosures not authorized by this Agreement are prohibited.
1.3 Disclosure to perform Services. Except as otherwise limited herein, the Business Associate may use or disclose PHI as necessary to perform the Services, provided that such use or disclosure would not violate the Privacy Rule if done by the Covered Entity.
a. Use PHI for the Business Associate’s proper management and administration and to carry out any of its legal responsibilities.
b. Disclose PHI to third parties for the purpose of the Business Associate’s proper management and administration and to carry out any of its legal responsibilities, if and only if (1) Required by Law, or (2) the Business Associate obtains reasonable assurances from the third party to whom the information is disclosed that it shall be held confidentially and be used or further disclosed only as Required by Law or the purpose for which it was disclosed to that third party. In addition, the third party will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
c. Provide data aggregation services to the Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
d. Report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. § 164.502(j)(1).
(i) The Business Associate shall not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law.
(ii) In carrying out an obligation of the Covered Entity under the Privacy Rule, the Business Associate shall comply with the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such obligation.
prevent use or disclosure of PHI other than as provided for by this Agreement and as Required by Law.
b. Mitigation. The Business Associate shall take reasonable measures requested by the Covered Entity to mitigate, to the extent practicable, any harmful effects to the individual who is the subject of the PHI of a use or disclosure of PHI by the Business Associate that violates this Agreement.
c. Agents and Subcontractors. The Business Associate shall, in accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) & 164.308(b)(2), as applicable, require all of its agents and subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate to agree, in a writing substantially the same as this Agreement, to the same (or more stringent) restrictions and conditions that apply to the Business Associate under this Agreement.
(ii) The Business Associate shall, without unreasonable delay, and in no event more than ten (10) business days, report to the Covered Entity’s Privacy Officer or other representative identified by Covered Entity, any Security Incident (as defined in 45 C.F.R. § 164.304) involving electronic PHI of which it becomes aware.
(iii) The Business Associate shall report to the Covered Entity, as required by the Breach Notification Rule, any Breach (as defined in 45 C.F.R. § 164.402) of Unsecured Protected Health Information (as defined in 45 C.F.R. § 164.402). Such report shall be made without unreasonable delay, and in no event longer than ten (10) business days after Business Associate discovers the Breach.
(iv) Any reports given to Covered Entity by Business Associate shall identify at a minimum: (i) the nature of the non-permitted use or disclosure, (ii) the PHI used or disclosed, (iii) party or parties who made the non-permitted use or received the non-permitted disclosure, (iv) what corrective actions the Business Associate took or will take to prevent further non-permitted use or disclosures, (v) what Business Associate did or will do to mitigate any harmful effect of the nonpermitted use or disclosure, (vi) and any such other information HHS may prescribe by regulation.
e. Access to Internal Practices. The Business Associate shall make its internal practices, books and records (including policies and procedures, and PHI) relating to the use and/or disclosure of PHI available to the Secretary for purposes of the Secretary’s determiningcompliance with HIPAA.
f. Access to PHI. The Business Associate shall make an individual’s PHI available for inspection and copying in accordance with 45 C.F.R. § 164.524. Further, at the Covered Entity’s request, and within fifteen (15) days of the Covered Entity’s request, the Business Associate shall provide the Covered Entity with the PHI requested by an individual pursuant to 45 C.F.R. § 164.524.
g. Amendments to PHI. The Business Associate shall make an individual’s PHI available for amendment and shall incorporate any amendments to the PHI in accordance with 45 C.F.R. § 164.526. Further, at the Covered Entity’s request, and within fifteen (15) days of the Covered Entity’s request, the Business Associate shall provide the Covered Entity with the PHI that an individual seeks to amend pursuant to 45 C.F.R. § 164.526.
h. Accounting of Disclosures. The Business Associate shall make available the information required to provide an accounting of disclosures to an individual pursuant to 45 C.F.R. § 164.528, and, as applicable, 42 U.S.C. § 17935(c) and any regulations promulgated thereunder. Further, at the Covered Entity’s request, and within fifteen (15) days of the Covered Entity’s request, the Business Associate shall provide the Covered Entity with such information. To fulfill this obligation, the Business Associate agrees to document those disclosures of PHI and related information that would be necessary for the Covered Entity to respond to an individual’s request for an accounting of disclosures.
i. Restrictions/Alternatives. The Business Associate shall abide by any arrangements that the Covered Entity has made with an individual regarding restricting the use or disclosure of the individual's PHI, or providing the individual with confidential communications of PHI by alternative means or at an alternative location pursuant to 45 C.F.R. § 164.522, provided that the Covered Entity has notified the Business Associate in writing of such restrictions or alternative means of communication.
j. Minimum Necessary. The Business Associate shall request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure in accordance with 45 C.F.R. § 164.502(b).
2.2 Responsibilities of the Covered Entity.
(i) Provide the Business Associate with its Notice of Privacy Practices (the “Notice”), which the Covered Entity provides to its participants in accordance with 45 C.F.R. § 164.520, as well as any changes to or limitations in such Notice to the extent that the changes or limitations affect the Business Associate’s use or disclosure of PHI.
(ii) Inform the Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, if such changes or revocation may affect the Business Associate’s uses or disclosures of the PHI.
(iii) Notify the Business Associate of any arrangements the Covered Entity has agreed to that restrict disclosures or provide individuals with confidential communications pursuant to 45 C.F.R. § 164.522 that may affect the Business Associate’s use or disclosure of PHI.
b. No Impermissible Requests. The Covered Entity shall not request that the Business Associate use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by the Covered Entity, except as permitted by Section 1.4(a), (b) and (c) above.
3.1 Term. This Agreement shall become effective as of the Effective Date, and shall continue unless terminated as provided below.
a. Provide the Business Associate with written notice of the material breach, and afford the Business Associate thirty (30) days to cure such breach. If the breach is not cured within the thirty (30)-day period, the Covered Entity may terminate this Agreement.
b. Immediately terminate this Agreement or any other agreement for Services if the Business Associate has breached a material term of this Agreement and cure is not possible.
d. Destroy the PHI retained by the Business Associate when it is no longer needed by the Business Associate for its proper management and administration or to carry out its legal responsibilities.
Business Associate agrees to indemnify and defend Covered Entity and their respective employees, officers and directors, (“Indemnified Parties”) from and against any and all losses or costs the Indemnified Parties may suffer, pay or incur as a result of third party claims, demands or actions (“Claim”) against any of the Indemnified Parties to the extent such losses are attributable to the actions of the Business Associate or the failure of the Business Associate to comply with this Agreement or applicable laws, rules and regulations. Notwithstanding the aforesaid, the indemnifying party shall not be liable to the Indemnified Parties to the extent that the Claim is based on or arises out of the negligence, omissions, or other misconduct of the Indemnified Party.
THE FOREGOING SETS FORTH THE PARTIES’ EXCLUSIVE REMEDY AND THE INDEMNIFYING PARTY’S SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS RELATING TO THE SUBJECT MATTER DESCRIBED HEREIN. IN NO EVENT SHALL THE INDEMNIFYING PARTY BE RESPONSIBLE, WHETHER UNDER THIS SECTION, IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER OR NOT THE INDEMNIFYING PARTY SHALL BE OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
5.1 Regulatory References. A reference in this Agreement to a provision in HIPAA means the provision as in effect or as amended, and for which compliance is required.
.2 Survival. The provisions of this Agreement shall survive the expiration or any termination of the term of this Agreement to the extent that the Business Associate continues to maintain PHI.
5.3 Interpretation. Any ambiguity in this Agreement shall be resolved to permit the Covered Entity and the Business Associate to comply with HIPAA.
5.4 Amendments; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Parties to comply with the requirements of, or conform to, any changes in HIPAA. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
5.5 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
5.6 Counterparts; Facsimiles. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. Facsimile copies hereof shall be deemed to be originals.
5.7 Disputes. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make goodfaithefforts to resolve such matters informally.
Covered Entity shall send its notification address, along with all other contact information to BAA@olympus.com.
Notification shall be made via U.S. mail or express courier to such Party’s provided address. Each Party named above may change its notification address and that of its representative by giving notice thereof in the manner herein provided.
5.9 Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties relating to the subject matter herein and supersedes all prior agreements, understandings, and representations relating to that subject matter.


Once more, Germany is confronted with compensation claims concerning wrongs committed in the past (see on this topic already the post by Andreas Buser). After unsuccessful previous cases against Germany by the Ovaherero and Nama people before the Permanent Court of Arbitration and U.S. federal courts in Washington, D.C., the pending class action complaint against the Federal Republic of Germany in the United States District Court Southern District of New York is the first one not to have been dismissed immediately upon filing. After Germany’s memorandum in support of its motion to dismiss was filed on May 8, 2018, a decision concerning the jurisdiction of the court can be expected soon. This contribution takes a closer look at the background of the case and the arguments of both parties.
The surviving Ovaherero were brought to “concentration camps” and subjected to forced labor. The same tactics were used against the Nama men, women, and children when they rebelled against the colonizers. During this time, approximately 65,000 Ovaherero and 10,000 Nama were murdered, decimating their people considerably.
Only in 2004, a member of the German government acknowledged Germany’s “historical-political and moral-ethical responsibility“ and conceded that the atrocities of 1904 to 1908 amounted to what would today be called a genocide. This statement, however, did not represent the official stance of the government at the time.
Nevertheless, since 2015 negotiations concerning reconciliation have been taking place between the German and Namibian government (mainly dominated by the Owambo people), but without representatives of the Nama and Ovaherero people.
In 2016, the German federal government finally confirmed that the killings of the Nama and Ovaherero between 1904 and 1909 constituted a genocide, but insisted that this classification did not entail any legal consequences.
The current proceedings in the U.S.
The plaintiffs, representatives of the Ovaherero and Nama people, seek reparation and compensation for damages resulting from the genocide and unlawful taking of property by the German colonial authorities from 1885 until 1909 in the former territory German South-West Africa and, based on the U.N. Declaration on the Rights of Indigenous Peoples, they want to enjoin and restrain Germany from excluding them from the negotiations between the German and Namibian governments concerning reconciliation and acknowledgement of the past atrocities.
Germany at first refused to participate in the proceedings, but appointed counsel and filed a motion to dismiss for lack of jurisdiction earlier this year upon the involvement of the U.S. State Department and the announcement of the judge in New York to decide the case without German participation.
The first part of the complaint of the Nama and Ovaherero is the genocide committed by the German colonial authorities. In principle, the prohibition of genocide fulfills the Supreme Court’s requirement of an international norm which is “specific, universal, and obligatory”. However, the German counsel argues that the term genocide has only been part of international law since 1948 and cannot be applied retroactively. This is not uncontested, arguments have been drawn from the Hague Convention of 1899, which already prohibited reprisals against civilians, the Martens clause as expression of customary international law and the UN Whitaker Report on Genocide of 1985, which in paragraph 24 unmistakably qualified “the German massacre of Hereros in 1904” as genocide.
In support of the second part of the complaint, the plaintiffs cite Art. 18 of the U.N. Declaration on the Rights of Indigenous People which guarantees the right of indigenous people to participate in decision-making affecting their rights. Namibia and Germany both voted in favor of the Declaration in the U.N. General Assembly. It is, however, a non-binding U.N. General Assembly Resolution and will most likely not be considered a “specific, universal, and obligatory” norm of international law.
Concerning the reach of the ATS, the Supreme Court decided in Kiobel v. Royal Dutch Petro. Co. that the ATS is presumed not to apply extra-territorially (569 U.S. 108, 118 (2013)) and that this presumption can only be rebutted when the claims “sufficiently touch and concern the territory of the United States”. (Id. at 124-125.) This sufficient link to the territory of the United States as required by Kiobel is questionable. The genocide took place in then German South-West Africa, the perpetrators were German nationals, and the victims were members of the Ovaherero and Nama peoples. However, some of the plaintiffs are permanently living in the U.S. now. It remains to be seen whether that will suffice.
The plaintiffs argue that Germany is not immune from their complaint in the New York court because an exception to foreign sovereign immunity applies in the case of violations of international law. The plaintiffs specifically rely on the exception in § 1605 (a)(3) of the 1976 Foreign Sovereign Immunities Act (FSIA) regarding property taken in violation of international law. However, the exception has an additional requirement, a link between the property and the U.S. (present in its territory or connected to a commercial activity in the U.S. by the foreign State or its agencies). The plaintiffs do not elaborate on this requirement.
Exceptions to foreign sovereign immunity in cases of violations of customary international law have been discussed in court decisions, for example in Princz v. Federal Republic of Germany (26 F3d 1166 (D.C. Cir. 1994)), and in the U.S. Congress, but attempts at codifying it have failed so far. In customary international law, exceptions to sovereign immunity exist for fiscal activities of states and an exception to state immunity is discussed in the case of gross violations of human rights. So far, however, these considerations have not achieved the status of customary international law. In 2012, the ICJ rejected in the Jurisdictional ImmunitiesCase both the territorial tort exception and exceptions due to gross violations of international law concerning the atrocities committed by Germany during the Nazi regime. Therefore, the prospects of succeeding in this regard are rather slim.
The case brought by representatives of the Nama and Ovaherero people against Germany faces several legal challenges and will most likely not succeed. It has, however, achieved worldwide media coverage and will at least raise sympathy for the cause. It might also increase pressure on the German government by NGOs and German parliamentary groups and might lead to an inclusion of Nama and Ovaherero representatives in the negotiation process concerning reconciliation between Germany and Namibia.
Felicia Stephan is a LL.M. student at The George Washington University Law School (International and Comparative Law Program).
Cite as: Felicia Stephan, “The first genocide of the 20th century before a domestic court. A New York Court about to decide on its jurisdiction in Rukoro et al. v. Germany”, Völkerrechtsblog, 28 May 2018, doi: 10.17176/20180528-162510-0.
This is a clear case of “forum shopping” and i don’t see any reason for “world sympathy”.
Third, this “association” never produced any claim before the german judiciary or the Namibian judiciary – since it is the exclusion from “dealings” between those two countries the main reason of the class suit. So they are bypassing those two jurisdictions.
At last, their claim is based on UN declarations, so it is up to the International Court of Justice to decide upon it, art.36 (1) Statute of the ICJ. Not the New York District Court. So, this association should have invoked the Namibian diplomatic protection to put the question under the ICJ – this is what INTERNATIONAL LAW dictates.
So, this matter is a Germany-Namibia (German South West Africa) issue and they are handling it.