Broadnax v. Kroger Texas, L.P., No. 05-04-01306-CV (TX 8/24/2005)
| Decision Date | 24 August 2005 |
| Docket Number | No. 05-04-01306-CV.,05-04-01306-CV. |
| Parties | PASTOR BOBBY BROADNAX, Appellant, v. KROGER TEXAS, L.P. AND SECURITAS SECURITY SYSTEMS U.S.A., INC., Appellee. |
| Court | Texas Supreme Court |
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-03-10763-A.
Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
Appellant, Pastor Bobby Broadnax,1 appeals the trial court's final summary judgment in favor of appellees, Kroger Texas, L.P. (Kroger) and Securitas Security Systems U.S.A., Inc. (Securitas),2 for matters arising from his false imprisonment claim.
In ten issues, Broadnax argues the trial court erred when it granted traditional summary judgment in favor of Securitas, and traditional and no-evidence summary judgment in favor of Kroger. Broadnax complains the trial court erred because: (1) he is a consumer under the Texas Deceptive Trade Practices Act (DTPA) as it applies to his claims; (2) there is an issue of fact regarding the terms of the contract between Securitas and Kroger; (3) he was a third-party beneficiary under the contract between Securitas and Kroger; and (4) Texas law does not require the establishment of an agency relationship to affix vicarious liability for his DTPA and false imprisonment claims.
For the reasons set out below, we decide Broadnax's ten issues against him. We affirm the trial court's final summary judgment. Because the issues in this appeal are well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
In 1994, Securitas contracted with Kroger to provide security services at Kroger's store in Bellaire, Texas. That contract provided for "general security services," including uniformed guards on the premises, but not for the protection of customers. No third parties were mentioned in the contract.
On April 23, 2003, Broadnax entered the Kroger store, paid for items at the pharmacy, then proceeded toward the exit doors. Before reaching the exit, Broadnax was approached by a male security guard. Broadnax was 6'2" tall and weighed 250 pounds. The male security guard was between 5'5" and 5'8" tall, and weighed approximately 150 pounds. The record does not reflect that the security guard was armed.
The security guard asked to see Broadnax's bags. Broadnax asked whether such a search was "normal store policy." The security guard said that it was not, and again, in a "louder" voice, asked to search the bags. Broadnax held up his bags and allowed the security guard to check their contents against his receipt. The security guard patted Broadnax down and then, he walked away.
The encounter between Broadnax and the security guard lasted less than five minutes. During this encounter, the security guard did not: (1) put his hands on Broadnax to move or confine him; (2) ask Broadnax to go to some other part of the store; or (3) tell Broadnax he could not leave the store.
Broadnax sued Kroger and Securitas for false imprisonment, breach of contract, and violation of the DTPA. Securitas filed a motion for traditional summary judgment seeking judgment, as a matter of law, on Broadnax's causes of action. Broadnax responded with his two page, two paragraph affidavit and excerpts from his deposition. Securitas generally objected to Broadnax's affidavit claiming: (1) it makes conclusory statements of fact and law without offering legal or factual support; and (2) it is a sham affidavit because it contradicts Broadnax's deposition testimony. Also, Securitas specifically objected to paragraph two of Broadnax's affidavit claiming: (1) it presents improper legal conclusions; (2) it gives opinions that are not within Broadnax's personal knowledge; (3) it constitutes hearsay; and (4) it contradicts Broadnax's earlier deposition testimony. The trial court overruled Securitas's general objections and sustained its specific objections to paragraph two of the affidavit. Also, the trial court granted Securitas's motion for traditional summary judgment without stating the grounds for its decision.
Approximately one month after Securitas filed its motion for traditional summary judgment, Kroger filed its own motion for traditional and no-evidence summary judgment. Broadnax responded with the same affidavit and deposition testimony he offered in opposition to Securitas's motion for traditional summary judgment. Kroger objected to Broadnax's affidavit. Kroger's objections were identical to Securitas's objections. The record does not contain a ruling on Kroger's objections. The trial court granted Kroger's motion for summary judgment, which requested summary judgment on both traditional and no-evidence grounds, without stating the grounds for its decision and issued its final summary judgment ordering that Broadnax take nothing on any of his claims.
Kroger argues we may not consider Broadnax's affidavit because it was excluded by the trial court and Broadnax has not properly challenged the trial court's ruling on appeal. As a result, before we may address the merits of Broadnax's issues, we must determine whether we may consider Broadnax's affidavit.
The record shows the trial court expressly overruled Securitas's general objections and sustained it's specific objections to paragraph two of Broadnax's affidavit. Broadnax does not appeal the trial court's ruling that sustained Securitas's objections to paragraph two of his affidavit. Accordingly, we do not consider any of the testimony in paragraph two of Broadnax's affidavit when evaluating whether the trial court erred when it granted traditional summary judgment in favor of Securitas.
Kroger generally objected to Broadnax's affidavit claiming: (1) it makes conclusory statements of fact and law without offering legal or factual support; and (2) it is a sham affidavit because it contradicts Broadnax's deposition testimony. Kroger's general objections state the following:
1. General Objections: Throughout his affidavit, Bobby Broadnax makes conclusory statements of fact and law without offering legal or factual support. These conclusory statements are improper summary judgment evidence. [citations omitted]. Since almost all of the statements made in the affidavit are conclusory, [Kroger] prays that the affidavit of Bobby Broadnax be stricken in its entirety.
Moreover, [Kroger] objects to this sham affidavit, in that it appears to be contradicted by [Broadnax's] earlier deposition testimony in an attempt to create a fact issue. A "sham" affidavit is one that contradicts the affiant's earlier testimony for the purpose of creating a fact issue to avoid summary judgment. [citation omitted]. A party cannot defeat a motion for summary judgment with an affidavit contradicting earlier testimony without explaining a reason for the change. [citations omitted].
Also, Kroger specifically objected to paragraph two of Broadnax's affidavit claiming: (1) it presents improper legal conclusions; (2) it gives opinions that are not within Broadnax's personal knowledge; (3) it constitutes hearsay; and (4) it contradicts Broadnax's earlier deposition testimony. Kroger's specific objections state the following:
2. Paragraph 2: [Kroger] objects to the improper legal conclusions and opinions presented herein that are not within [Broadnax's] personal knowledge, as well as hearsay contained herein.
[Kroger] further objects to this paragraph because it is in contradiction to [Broadnax's] earlier testimony. For example, in [Broadnax's] [affidavit, he states that the Securitas employee "intentionally blocked my path to the exit of the store." He further states that the Securitas employee" restricted my movement. . . ." In his deposition, [Broadnax] testified that the Securitas security guard merely stood in front of him and did not physically block the entire path of the aisle in which they were standing at the time of the encounter in question. [reference omitted].
Moreover, in his Affidavit [sic], [Broadnax] states that the Securitas employee "made it clear to me that I was not free to leave until he finished with whatever investigation he was going to do." However, in his deposition, [Broadnax] testified that the Securitas security guard never told him that he could not leave the store during the encounter in question. [reference omitted].
Paragraph two of Broadnax's affidavit states:
2. On April 23, 2003, I was detained by a Securitas employee in the Kroger store at 10677 East Northwest Highway in Dallas, Texas. All of the employee's actions were done without my consent. The employee intentionally blocked my path to the exit of the store. The employee interfered substantially with my liberty. The employee restricted my movement without my consent. The employee made it clear to me that I was not free to leave until he finished with whatever investigation he was going to do. The employee yelled at me in a loud and unprofessional tone, and demanded that I permit him to search my bags. This threat of detention inspired in me a just fear of injury to my person, reputation, or property. In my opinion, it was the employee's specific intent to confine and detain me in order to subject me to an unreasonable search.
Kroger contends we may not consider Broadnax's affidavit because the trial court orally sustained its objections to his affidavit, excluding it from evidence. In the alternative, Kroger contends it is implied that the trial court sustained its objections because the trial court sustained Securitas's objections.
There is nothing in the record showing the trial court ruled on any of Kroger's objections to Broadnax's affidavit. Kroger claims the trial court orally sustained its objections to Broadnax's affidavit. However, no reporter's...
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