IN RE PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN INCAPACITATED ADULT, Relator
Proceeding on Petition for Writ of Mandamus
consists of Chief Justice Radack and Justices Jennings and
OPINION ON REHEARING
parties in interest, Four J's Community Living Center,
Inc. ("Four J's) and Anthonia Uduma
("Uduma"), have filed motions for rehearing and for
en banc reconsideration of our April 27, 2017 opinion. We
deny the motion for rehearing, but withdraw our opinion and
issue the following opinion in its stead. Because we issue a
new opinion in connection with the denial of rehearing, the
motion for en banc reconsideration is rendered moot. See
Richardson–Eagle, Inc. v. William M. Mercer, Inc.,
213 S.W.3d 469, 472 (Tex. App.-Houston [1st Dist.] 2006, pet.
denied); Brookshire Bros., Inc. v. Smith, 176 S.W.3d
30, 33 (Tex. App.-Houston [1st Dist.] 2004, pet. denied).
Patti J. Wagner ("Wagner"), as guardian of Jenny
Wagner ("Jenny"), an incapacitated adult, has filed
a petition for a writ of mandamus, requesting that this Court
direct respondent to vacate his order granting the new-trial
motion of real parties in interest, Four J's Community
Living Center, Inc. ("Four J's) and Anthonia Uduma,
in Wagner's suit against them for negligence. In her sole
issue, Wagner contends that respondent clearly abused his
discretion in granting a new trial and she has no adequate
remedy by appeal.
conditionally grant Wagner's petition.
second amended petition, Wagner alleged that on September 4,
2008, Jenny was severely burned in a fire at a four-bedroom
residential care facility ("the
facility"), operated by Four J's and
Uduma, for disabled adults. At the time of the
fire, Jenny, a resident of the facility, was thirty-five
years old. She has been legally blind since infancy, and she
has cerebral palsy and "profound mental
retardation." Jenny shared the facility with two other
adult residents, Esperanza Arzola and Tanya James, who both
"had the mental capacity of small children."
further alleged that Four J's and Uduma had inadequately
supervised Arzola, who had obtained a cigarette lighter and
used it to start the fire in her bedroom. When the fire
spread to the rest of the facility, Jenny, who was
wheelchair-bound and physically incapable of escaping the
fire on her own, sustained smoke-inhalation injuries and
second- and third-degree burns to her face, neck, chest,
arms, and hands. She was hospitalized in a burn-trauma center
for one month and endured painful treatments. The burns have
permanently scarred and disfigured Jenny. James, who was also
severely burned in the fire, later died from her injuries.
asserted that Four J's and Uduma breached the standards
of care of a residential care facility by inadequately
supervising Arzola; failing to equip the facility with
properly functioning fire-detection and prevention systems,
such as smoke detectors and overhead sprinkler systems; and
failing to adequately train staff to respond to a fire at the
facility. Also, because it was reasonably foreseeable that if
a resident came into possession of a cigarette lighter, a
fire would likely result, they breached their duty to ensure
that Jenny was safe from foreseeable harm caused by other
residents who were unable to understand the dangers of
incendiary devices. Moreover, the sole staff member on duty
at the time of the fire, Amuche Chinelo Udemezue, had run
from the facility without attempting to assist Jenny.
further asserted that Four J's and Uduma's breaches
of the standards of care proximately caused Jenny to inhale
smoke and sustain second- and third-degree burns,
hospitalization for one month, painful debridement of wounds,
tube feeding due to inhalation injuries, and permanent
scarring and disfigurement. And, Uduma was jointly and
severally liable for the wrongful and negligent conduct of
Four J's because it is her alter ego.
J's and Uduma, in their answer, generally denied
Wagner's allegations, and they asserted various
affirmative defenses, including that their actions and
omissions did not constitute "a proximate or producing
cause" of Jenny's injuries. Rather, Jenny's
injuries were caused by "the intervening actions of an
independent, responsible third party," namely Arzola,
"who started the fire in question."
trial, Udemezue testified that she began working for Four
J's in 2007. Her training included watching a
"CD" and working with another staff member for two
days before being left to work alone at the facility. Four
J's did not give her keys to any of the doors at the
facility. Rather, a Four J's van driver would routinely
drive her to the facility, and he would unlock the front door
to let her inside. The back door was the only other outside
door at the facility; however, it had a deadbolt lock that
required a key to open it from the inside, and she did not
have a key. Udemezue noted that the garage door of the
facility did not properly function, and it would fall down if
used. Thus, each week, the facility trash was gathered from
the garage and removed through the living room and front
explained that, initially, the facility had three residents:
Jenny, James, and Arzola. Later, a fourth resident, Elisha
Campbell, moved in. Udemezue routinely supervised the four
residents on her own. She had to "do virtually
everything" for Jenny, who needed "total
care." They had a good relationship, and Jenny used to
sing for Udemezue. James also needed "total care,"
including assistance with bathing and brushing her teeth.
Although James was able to feed herself, she had to be
prompted to complete basic tasks. She was also "fond of
hitting herself," and she would "hurt herself most
of the time" if her hands were not kept separated.
Udemezue noted that Arzola was "something else."
She was aggressive and "acted up all the time."
Arzola often damaged property and ran away from the facility.
And Udemezue was "very scared" of Arzola. Campbell
was also aggressive and difficult for Udemezue to manage.
day of the fire, while Udemezue was working in Jenny's
room, Arzola came in and tried to assist with Jenny.
Udemezue, concerned about Arzola's handling Jenny,
directed her to return to her bedroom. Arzola became angry,
but complied. Udemezue then heard a "big bang,"
went to Arzola's bedroom, and saw that Arzola had broken
a window. Udemezue telephoned a case manager to report
Arzola's conduct, but she was unable to reach him. She
also telephoned a nurse, who told her how to treat the cuts
that Arzola had sustained in breaking the window. Arzola then
calmed down and apologized to Udemezue. While they were
talking, Udemezue heard sirens and looked outside. She told
Arzola that it appeared that a house at the end of the road
was on fire.
while Udemezue was washing clothes, she heard another
"big bang." Thinking that something had occurred
outside, she rushed to investigate. Once outside, however,
she saw through a window into Arzola's bedroom, which was
situated next to the front door, that her room was on fire.
Udemezue rushed back inside, pulled Campbell from her
bedroom, and led her outside. Udemezue then went back inside
the facility toward Jenny's and James's rooms.
However, she panicked when she realized that the fire was
very close to the front door and she did not have a key to
the back door. She also knew that the garage door did not
function. Thus, with access to only one door to the outside,
Udemezue knew that "[i]f the fire g[ot] to that front
door, that's it." They were "finished."
She yelled to Arzola, and together they ran from the house.
After Udemezue telephoned for emergency assistance and
shouted for help from neighbors, she "passed out."
She later awoke inside an ambulance.
further testified that she had panicked during the fire
because she had only "one exit." And she
"would have tried [her] best if [she had] had another
door in that house." She also noted that she was alone
and there would have been a better outcome had she had the
assistance of at least one other staff member. Although Four
J's did provide Udemezue with fire-emergency training on
two occasions, she, in both drills, was trained to exit
through the front door. And neither drill involved the use of
a fire extinguisher or placing Jenny in a blanket to evacuate
her from the facility.
Irondi testified that from 2006 to February 2008, she worked
for Four J's at the facility. She noted that the back
door of the facility could not be operated without a key.
Although the back-door key, at some point before Irondi left,
had been lost, she had reported it to Four J's. And the
garage door, which was inoperative, had to be physically held
up in order for one to pass underneath it. Moreover, although
Four J's did not provide Irondi with any fire-emergency
training, Four J's did require her to sign a statement
that she had received such training.
Kern, the Director of Residential Services for The Center in
Houston, testified as an expert about the standards of care
applicable to facilities that provide residential services to
persons with intellectual and developmental disabilities.
Prior to his testimony, Kern reviewed the Four J's
evacuation plans, Udemezue's deposition, the Houston Fire
Department ("HFD") arson report, and documents
concerning the other residents at the facility. Based on his
review, he opined that the applicable standards of care
required that a residential care provider prohibit a resident
with Arzola's history of physical and verbal aggression
and self-injurious behavior any access to an incendiary
device, such as a cigarette lighter. Further, such a facility
must provide adequate supervision and room inspections by
staff. Kern explained that persons like Arzola are unable to
"realize the consequences of their actions at the time
that they are upset."
on the individual needs of the residents at the facility, the
applicable standards of care required that "the house
most definitely needed to be double staffed."
Specifically, Kern noted that one of Four J's residents
required total care and several of them had behavioral issues
or concerns. He explained that it "would be impossible
to be bathing a client in the bathroom when you may have
another client that's trying to leave the home or have a
physical altercation with another resident."
further explained that the applicable standards of care for a
four-bedroom residential care facility, such as here,
required that it have a fire-sprinkler system, unless each of
the residents was able to evacuate within three minutes,
which is a "prompt evacuation score." Because this
training must "be consistent across various shifts and
different times of the day and night," such a facility
must perform "third shift [fire] drill[s]." The
standards of care also dictated that facility staff be
trained in the use of a fire extinguisher. Kern, based on the
reviewed HFD photographs, noted that Udemezue, while inside
the facility during the early stages of the fire, did not use
the facility's fire extinguisher. He also noted that the
only way that the keyed deadbolt lock on the back door could
have met the applicable standards of care was if all of the
residents had had access to a key and were mentally and
physically capable of opening the door with the key. Based on
her condition, Jenny could have "never met that
criteria." Moreover, it was apparent that a key to the
deadbolt was not available, even for the staff. Kern further
testified that Four J's, in his opinion, had breached the
standards of care in each of the areas that he had outlined.
Overholt, general manager of Omni Fire and Security Systems,
LP, testified that he had installed a fire alarm at the
facility. He installed a local alarm, however, that was not
designed to automatically notify HFD in the event of a fire.
Gollaher testified that in March 2009, she performed a
court-ordered evaluation of Arzola's competency to stand
trial for the offense of arson in a separate criminal
proceeding. She deemed Arzola incompetent to stand trial.
Gollaher explained that Arzola had experienced auditory
hallucinations, had tremendous difficulty answering questions
and understanding terms, and did not understand that a death
had resulted from the fire.
testified that she is the president, chief executive officer,
and sole shareholder of Four J's. She is also the sole
owner of the facility, which she leases to Four J's.
Although Four J's staff were "never supposed to
leave" residents unattended, there were, at the time of
the fire, four clients residing at the facility and only one
staff member on duty. Uduma admitted that the back door of
the house had a deadbolt lock that required a key to open it
from the inside, and staff members usually did not have keys
to the back door.
and Four J's, prior to the fire, were aware that Arzola
had been diagnosed with bipolar disorder, had tried to commit
suicide, and had a history of violence toward the staff.
Uduma was also familiar with Arzola's psychological
evaluation and "Annual Individual Service Plan,"
which Four J's had completed the month before the fire.
Arzola, who was then twenty-five years old, had, as a child,
been emotionally, physically, and sexually abused, which
included her being compelled into prostitution, by her
biological parents. After their parental rights had been
terminated, Arzola's parents facilitated her unauthorized
departure from Richmond State School and took her to the
Dallas area, where she "became infected with herpes as a
result of . . . sexual activity between her and her
father." She also had a history of alcohol and narcotics
abuse; numerous placements in residential treatment centers;
and "multiple contacts" with the Dallas Juvenile
Justice Department for running away, evading arrest,
prostitution, probation violations, and assault. Further,
Arzola had a long history of behavioral issues, including
breaking windows and light fixtures; attempting to leap from
moving vehicles; swallowing objects; wrapping ligatures
around her throat; biting herself and others; and
"headbanging," choking, stabbing, and bludgeoning
on a "complete diagnostic evaluation," Four J's
concluded that Arzola was functioning "within the mild
range of mental retardation" and her behavior was
"non-compliant most of the time." Although she had
not been adjudicated incompetent by a court and was acting as
her own legal guardian, her behavioral problems were
"severe" and required multiple psychotropic
medications to manage. And they were "typically
occasioned by staff making requests of her, delaying or
denying her tangibles or services," or "dividing
their time" between Arzola and others. Because
Arzola's aggression might result in injury to herself and
others, Four J's directed that staff "[k]eep all
sharps, medications, and poisons" in locked storage.
further testified that although Four J's allowed Arzola
to smoke cigarettes, it did not allow her to keep a cigarette
lighter. Uduma did not know how Arzola had obtained the
cigarette lighter that she had used to start the fire.
However, she conceded that Four J's did not ever search
Arzola's room for contraband because the room
"belong[ed] to her." She opined that Arzola was
solely responsible for the injuries that had resulted from
the fire because Arzola was "a competent adult who was
only mild[ly] mental[ly] retarded," she had set the
fire, and law-enforcement authorities had arrested her for
arson. Uduma asserted that had Udemezue followed her
training, she would have been able to timely evacuate all of
the residents without injury. And she noted that a key to the
back door was located in a drawer at the facility.
Obichuku, a care coordinator at Four J's, testified that
that Jenny was the only client at the facility who needed
physical assistance to evacuate. And, on May 13 and June 6,
2008, Obichuku had trained Udemezue about Jenny's
individual evacuation plan. She asserted that Udemezue simply
did not follow her training during the fire. Obichuku further
explained that the residents of the facility were allowed to
take "smoking breaks," during which the staff
"issue[d] out the lighters." And the staff were
responsible for collecting the lighters "after the
clients [we]re done."
Question One of his charge, respondent asked the jury:
"Did the negligence, if any, of those named below [Four
J's, Uduma, and Arzola] proximately cause the injuries in
question?" In regard to both Four J's and Uduma, the
jury answered, "Yes." In regard to Arzola, the jury
answered, "No." In answer to Question Two of the
charge, the jury apportioned the responsibility of Four
J's at 60 percent and Uduma at 40 percent. And it awarded
Wagner damages in the amount of $8,071,600.00.
respondent entered a judgment on the verdict, Four J's
and Uduma filed a motion for new trial. They argued, in part,
that there is "no evidence, legally insufficient
evidence, or factually insufficient evidence" to support
the jury's findings in Questions One and Two of the
charge because "the evidence established that the fire
that caused the injuries to [Wagner] and the death of [James]
was caused by the intentional arson of [Arzola]." And,
because "the evidence shows that the risk of
Arzola's arson was unforeseeable to Four J's and
[Uduma], . . . neither Four J's nor [Uduma] had a duty,
as a matter of law, to protect [Wagner] and [James] from the
criminal act of Arzola." Four J's and Uduma argued
that the jury's "finding of no negligence against
Arzola was against the great weight and preponderance of the
evidence" because the "undisputed evidence revealed
that the fire that caused the injuries to [Wagner] and the
death of [James] was solely caused by [Arzola], who
intentionally used a lighter to start the fire."
granted Four J's and Uduma's new-trial motion,
The reason for the Court's grant of new trial is that the
jury's failure to find negligence on [Arzola], who
started the fire that was the cause-in-fact of the injuries
to [Wagner] and the death of [James], is so against the great
weight of the evidence as to be clearly wrong and manifestly
unjust. See Cropper v. Caterpillar Tractor Co., 754
S.W.2d 646. 651 (Tex. 1988).
moved for reconsideration, asserting that even if the
evidence establishes causation-in-fact regarding Arzola, the
jury could have reasonably concluded that Arzola did not
proximately cause Jenny's injuries. Respondent denied
Wagner's motion for reconsideration.
subsequently filed a motion to dismiss Wagner's claims
against her on the ground that she is a health-care provider
and Wagner had failed to timely serve her with an expert
report. This Court affirmed respondent's order
denying Uduma's motion to dismiss. Wagner then filed
her petition for a writ of mandamus.
preliminary matter, Four J's and Uduma argue that Wagner
has "waived the right to seek review via mandamus"
because she "can offer no justifiable excuse for a
three-year delay in seeking relief."
mandamus is not an equitable remedy, its issuance is
controlled largely by equitable principles. In re
Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676
(Tex. 2009). "One such principle is that 'equity
aids the diligent and not those who slumber on their
rights.'" Id. (quoting Rivercenter
Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)).
Delay in the filing of a petition for mandamus relief may
waive the right to relief unless the relator can justify the
delay. Id. To invoke the equitable doctrine of
laches, the moving party ordinarily must show that (1) the
opposing party unreasonably delayed in asserting its rights
and (2) a good faith and detrimental change in the moving
party's position because of the delay. In re Laibe
Corp., 307 S.W.3d 314, 318 (Tex. 2010).
asserts, and the record shows, that respondent signed his
order granting a new trial on March 27, 2012. On August 24,
2012, Uduma moved to dismiss the claims against her on the
ground that Wagner did not timely serve her with an expert
report. On August 30, 2013, the Texas Supreme Court held for
the first time that a trial court's reasons articulated
in a new-trial order are subject to merits-based mandamus
review. See In re Toyota Motor Sales, U.S.A., Inc.,
407 S.W.3d 746, 749 (Tex. 2013). On August 27, 2014, this
Court issued its opinion in Uduma's interlocutory appeal.
Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL
4259886, at *8 (Tex. App.-Houston [1st Dist.] 2014, pet.
denied). Uduma then petitioned for review in the Texas
Supreme Court. After the supreme court denied her petition
for review, we issued our mandate in the interlocutory appeal
on September 4, 2015. Wagner then filed her petition for a
writ of mandamus on September 8, 2015.
the applicable time period from March 27, 2012, when
respondent ordered a new trial, to August 24, 2012, when
Uduma filed her motion to dismiss, no Texas Court had
recognized a right to merits-based mandamus review of a trial
court's new-trial order. When Uduma moved to dismiss the
claims against her on the ground that she had not been served
with an expert report, her motion stayed certain proceedings
in the trial court. See Tex. Civ. Prac. & Rem.
Code § 74.351(s) (Vernon 2017). Further, Uduma's
interlocutory appeal from respondent's order denying her
motion to dismiss stayed the commencement of a trial pending
resolution of the appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(9), (b) (Vernon Supp. 2016);
see also In re Oceanografia, S.A. de C.V., 494
S.W.3d 728, 730 (Tex. 2016) (delay in seeking mandamus relief
attributable, in part, to pendency of interlocutory appeal).
After we resolved the appeal, by issuing our mandate on
September 4, 2015, Wagner filed her petition for mandamus
relief on the next business day. Thus, Wagner has provided an