Arellano v. Americanos U.S. Llc

• Decision Date: 29 November 2010
• Docket Number: No. 08–08–00305–CV.,08–08–00305–CV.
• Citation: 334 S.W.3d 326
• Parties: Rosalio ARELLANO, Appellant,v.AMERICANOS USA, LLC, Appellee.
• Court: Texas Court of Appeals

334 S.W.3d 326

Rosalio ARELLANO, Appellant,

v.AMERICANOS USA, LLC, Appellee.

No. 08–08–00305–CV.

Court of Appeals of Texas, El Paso.

Nov. 29, 2010.Rehearing Overruled Jan. 26, 2011.

Byron Calderon, El Paso, TX, for Appellant.Darryl J. Silvera, Silvera & Associates, Dallas, TX, for Appellee.Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Appellant, Rosalio Arellano (“Mr. Arellano”), brought action against Appellee, Americanos USA, LLC (“Americanos” or “the company”), alleging the company retaliated against him after he filed a workers' compensation claim. He now appeals the trial court's order granting Americanos' motion for summary judgment. We reverse the trial court's judgment and remand the case to the trial court for further proceedings.

Mr. Arellano worked primarily as a bus driver for Americanos for more than two and a half years. In October 2005, he injured his back while stepping off of a bus he was driving from El Paso, Texas to California. He filed a workers' compensation claim, and Americanos sent him to Concentra in California for medical treatment.¹ Mr. Arellano continued treatment at Concentra once back in El Paso, and was put on light duty at work per the doctor's orders. Later, a non-Concentra physician treated Mr. Arellano and took him off of work from November 2005 through the end of 2006 for medical reasons. He resumed working as a bus driver for Americanos in January 2007, and his last day at the company was on December 24, 2007.

In August 2007, Mr. Arellano filed suit against Americanos, asserting wrongful termination and discrimination in violation of Section 451.001 of the Texas Workers' Compensation Act. In February 2008, the trial court entered a discovery control plan and scheduling order. In August 2008, Americanos filed a traditional motion for summary judgment and a no-evidence motion for summary judgment.² Mr. Arellano filed his response to Americanos' motions for summary judgment about a month later, and he also filed an objection to the hearing on these motions on the grounds that the summary judgment deadline had passed based on the parties' agreed deadline in their discovery control plan. Americanos then filed its objections to and a motion to strike Mr. Arellano's summary judgment evidence, specifically the affidavit in his response to the company's motions for summary judgment.

The trial court held a hearing on Americanos' motions for summary judgment on September 23, 2008. At the hearing, the court overruled Mr. Arellano's objection that the summary judgment deadline had passed. At the conclusion of the hearing, the court entered an order granting Americanos' motion for summary judgment. In October 2008, Mr. Arellano filed a notice of appeal.

As an initial matter, we have found Mr. Arrellano's brief to be seriously lacking in substantive discussion of facts and authorities to be relied upon which brings it very close to waiving his complaints. See Jimenez v. Citifinancial Mortg. Co., Inc., 169 S.W.3d 423, 426 (Tex.App.-El Paso 2005, no pet.). Nevertheless, we have looked past those failings and find that the record before us is sufficient to reach the merits of his appeal.

In Issue One, Mr. Arellano argues Americanos' motions for summary judgment violated the parties' discovery control plan and scheduling order. Mr. Arellano contends Americanos should have applied for a leave of court to modify the summary judgment deadline, and the trial court erred in allowing the summary judgment hearing to proceed thirteen days before trial when the parties had expressly agreed that the summary judgment deadline was thirty days before trial.

The trial court's discovery control plan indicated the “summary judgment deadline” as thirty days before trial, and it set the trial date as October 6, 2008. Americanos filed its motions for summary judgment on August 20, 2008, which was more than thirty days before trial. The court held a hearing on the motions on September 23, 2008. Because Americanos filed its motions for summary judgment at least thirty days before trial, it did not violate the summary judgment deadline in the discovery control plan and scheduling order. Issue One is overruled.

In Issue Two, Mr. Arellano argues Americanos waived its objections to the evidence in support of his summary judgment response, and that even if the trial court made an implicit ruling granting the company's motion to strike his affidavit, the court erred in doing so. Specifically, Mr. Arellano asserts Americanos waived its objections to his affidavit by failing to obtain rulings from the trial court on its objections and motion to strike, and that in any case, his affidavit was not a sham affidavit, as the company claimed.

Failure to obtain written rulings on objections to summary judgment evidence waives the issue, unless the record reflects an implicit ruling by the trial court. Tex.R.App.P. 33.1(a)(2)(A) (trial court must either expressly or implicitly rule on an objection for a complaint to be preserved for review); Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 560 (Tex.App.-El Paso 2007, no pet.); Strunk v. Belt Line Road Realty, Co., 225 S.W.3d 91, 99 (Tex.App.-El Paso 2005, no pet.). For there to be an implicit ruling, the record must contain something indicating that the trial court ruled on the objections, other than the mere granting of a motion for summary judgment. Torres, 242 S.W.3d at 560; Strunk, 225 S.W.3d at 99. In this case, there is no indication that Americanos' objection to Mr. Arellano's affidavit was ruled upon either explicitly or implicitly.³ As such, the company's objection is waived, and the objected-to summary judgment evidence remains a part of the summary judgment record. Accordingly, we may consider Mr. Arellano's affidavit in our review of the merits of this appeal.

In Issues Three and Four, Mr. Arellano argues the trial court erred in granting summary judgment on either traditional or no-evidence grounds. Because the trial court did not specify the grounds upon which it granted the motion, we will affirm, if any ground asserted has merit. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).

As with any summary judgment ruling, a traditional summary judgment is subject to de novo review. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To succeed on a traditional motion for summary judgment, the movant must establish that there is no genuine issue of material fact so that judgment should be granted as a matter of law. Tex.R.Civ.P. 166a(c); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). Summary judgment is therefore properly granted if the defendant disproves at least one essential element of the plaintiff's cause of action, or establishes all essential elements of an affirmative defense. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). If the movant is successful in establishing its right to judgment as a matter of law, the burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979). As in a review under the no-evidence standard, the reviewing court will take as true all competent evidence favorable to the non-movant, indulge every reasonable inference, and resolve any doubts in the non-movant's favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Unlike a no-evidence motion however, a traditional motion for summary judgment must stand or fall on its own merit; there is no right to a traditional summary judgment by default. See City of Houston, 589 S.W.2d at 678.

A no-evidence motion for summary judgment is essentially a pretrial motion for directed verdict. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.-El Paso 2006, pet. denied). A no-evidence summary judgment movant must specify which essential elements are devoid of evidentiary support. Tex.R.Civ.P. 166a(i); see also Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each challenged element. Aguilar, 162 S.W.3d at 834. The non-movant meets this burden, thereby defeating the no-evidence motion, by producing more than a mere scintilla of evidence in support of each challenged element. See Gray, 225 S.W.3d at 616. A “scintilla” of evidence rises to the level that enables reasonable minds to differ in the conclusions to be drawn therefrom. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).

A no-evidence motion is properly granted when the non-movant fails to produce proper summary judgment evidence, or the evidence produced is so weak as to create no more than a mere surmise or suspicion. See King Ranch, Inc., 118 S.W.3d at 751. On appeal, we conduct a de novo review of the trial court's ruling to determine whether or not the non-movant's evidence demonstrated that a material fact issue exists on each of the challenged elements. See id. When conducting such a review, the appellate court must view the evidence in the light most favorable to the non-movant. See Gray, 225 S.W.3d at 616. When, as here, the trial court fails to specify which no-evidence ground served as the basis for its ruling, we must review each ground raised in the motion, and the judgment will be affirmed if any of the theories prove meritorious. Id. at 617.

Here, Americanos' grounds for traditional summary judgment were: (1) the company did not terminate Mr. Arellano; and (2) Mr. Arellano failed to show that there was a causal connection between the alleged discharge or discriminatory acts and a protected activity under Chapter 451. First, Americanos contends it never terminated Mr. Arellano, and that according to Mr....