Barrow v. Jack's Catfish Inn

• Decision Date: 26 August 1982
• Docket Number: No. 2369,2369
• Citation: 641 S.W.2d 624
• Parties: Lois BARROW, Appellant, v. JACK'S CATFISH INN, Appellee.
• Court: Texas Court of Appeals

Page 624

641 S.W.2d 624

Lois BARROW, Appellant, v. JACK'S CATFISH INN, Appellee.

No. 2369.

Court of Appeals of Texas Corpus Christi.

Aug. 26, 1982.

Richard Y. Ferguson, Benckenstein, McNicholas, Oxford, Radford, Johnson & Nathan, Beaumont, for appellant.

Sherry White Ramey, Tekell, Book & Matthews, Houston, for appellee.

Before BISSETT, UTTER and KENNEDY, JJ.

OPINION

BISSETT, Justice.

This is an appeal from a summary judgment granted in favor of Jack's Catfish Inn, the defendant. Lois Barrow, the plaintiff, filed this action to recover damages for personal injuries sustained when she fell in the defendant's parking lot.

The record reflects that the plaintiff, her husband, and two granddaughters were customers of the defendant's restaurant in the evening of February 25, 1977. As the plaintiff and her family were returning to their automobile in the defendant's parking lot, the plaintiff fell and broke her right ankle. This suit followed.

The defendant filed a motion for summary judgment in which it stated:

"Defendant would show by way of the deposition of Plaintiff taken on October 29, 1979 that Plaintiff does not know what it was that caused her to lose her balance and fall .... Therefore, since Plaintiff has totally failed to raise any issue of material fact as to liability of Defendant Jack's Catfish Inn, Defendant is entitled to a summary judgment as a matter of law."

The trial court granted the defendant's motion and rendered a take nothing judgment against the plaintiff, who has duly and timely appealed. In a single point of error, she contends that the trial court erred in granting the defendant's motion for summary judgment "in that material issues of fact have been raised which have not been disproved by defendant."

The plaintiff contends that material issues of fact exist as to the adequacy of the lighting in the parking lot and the dangerousness of the parking area. In response, the defendant states that the plaintiff "has no idea why she lost her balance and fell and is simply asking the court to speculate or guess as to the reason therefore (sic.)."

We note that the motion for summary judgment was filed on February 23, 1981. The order granting the motion was rendered on April 29, 1981. The deposition of the plaintiff, referred to by the defendant in its motion for summary judgment, was not filed until July 7, 1981. As a general rule, a deposition which was not on file on the date the motion for summary judgment was granted cannot be considered as summary judgment evidence. Central Texas Decorating Center v. Mutual Savings Institution, 607 S.W.2d 314, 316 (Tex.Civ.App.--Austin 1980, no writ); Superior Stationers Corporation v. Berol Corporation, 483 S.W.2d 857, 860-861 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ); Rule 166-A(c), T.R.C.P. The plaintiff's deposition was therefore not properly before the trial court.

A motion for summary judgment is a pleading. United Parcel Service v. Helen of Troy Corporation, 536 S.W.2d 415, 417 (Tex.Civ.App.--El Paso 1976, no writ); Perry v. Great Southern Life Insurance Company, 492 S.W.2d 352, 354 (Tex.Civ.App.--Houston [1st Dist.] 1972). Pleadings do not constitute summary judgment evidence. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). The same rule applied to a motion for summary judgment. State v. American Legion Post No. 58, 611 S.W.2d 720, 723 (Tex.Civ.App.--El Paso, 1981, no writ); Trinity Universal Insurance Co. v. Patterson, 570 S.W.2d 475 (Tex.Civ.App.--Tyler 1978, no writ). Thus, the references and statements made by the defendant in its motion for summary judgment relating to the plaintiff's testimony in her deposition do not constitute summary judgment proof.

The true purpose of summary judgments is to eliminate patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972); Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex.Civ.App.--Corpus Christi 1980, no writ). Thus, a summary judgment should be granted only if the summary judgment evidence establishes the absence of any genuine issue of fact and the movant's right to judgment as a matter of law. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972); Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970)- ; Espinoza v. Victoria Bank & Trust Co., 572 S.W.2d 816, 819 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). The party seeking the summary judgment has the burden of proof, and all doubts as to the existence of a genuine issue of fact are to be resolved against him. Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969...