Doe v. Franklin
| Decision Date | 19 September 1996 |
| Docket Number | No. 08-95-00358-CV,08-95-00358-CV |
| Citation | 930 S.W.2d 921 |
| Parties | Pat DOE (A Pseudonym), Appellant, v. Inez FRANKLIN, Appellee. |
| Court | Texas Court of Appeals |
Appellant, Pat Doe, sued her paternal grandparents, James and Inez Franklin, on negligence theories arising from the childhood sexual molestation Doe suffered at the hands of her grandfather. 1 Doe alleged that Inez negligently failed to warn her of and to protect her from this victimization. Inez moved for summary judgment, asserting that she owed no duty to Doe and that her husband's acts were unforeseeable intervening causes. Summary judgment was granted in favor of Inez and all claims by Doe against James were severed. The specific grounds upon which judgment was granted were not reflected in the order.
Pat Doe was born May 15, 1974. When she was approximately four years old, sometime during 1978 or 1979, James began to sexually molest her. Doe testified on deposition that her grandfather would kiss her with his tongue and touch her vagina. This activity occurred over a four or five year period until she was nine years old, although she could not remember exactly how many times or the exact frequency with which it occurred. James admitted that he molested Doe approximately once every other month, usually while he and Doe were sitting on a couch beneath a blanket. In a statement given to the Ector County Sheriff's Department, he confessed to touching another of his granddaughters in the vaginal area, to kissing Doe on her bare buttocks, and to reaching under his daughter's shirt and fondling her breast.
During her deposition, Doe related in specific detail one of the episodes with her grandfather that occurred during the summer between her second and third grade years of school. She was wearing tight fitting pants with ornate stitching on the pockets 2 which she had somewhat outgrown. James chased her around the coffee table and tried to unfasten her pants, but they were too tight. As he tried to unbutton the pants, he pinched her. Eventually, he loosened them and fondled her. When her grandmother returned to the house, Doe tried to tell her what her grandfather had been doing. She testified that she told Inez that James had been sexually molesting her, though she could not remember the exact words that she used. She did remember standing in front of the pantry just outside of the bathroom and telling Inez about the incident while Inez was putting something away. She also remembered how Inez responded to the outcry:
She reacted violently, told me not to tell anybody, she grabbed my arm and shook me, I remember her saying that. And then I remember she didn't tell anybody and that she glowered at me all the rest of the time I was there.
About a year later, Doe's mother read a passage from Doe's diary. In it, Doe had written "something to the effect that [her grandfather] was always trying to get something from me for nothing." Doe's parents confronted her that evening and learned for the first time that Doe was being molested by her grandfather. Doe testified that she had not told anyone other than her grandmother because she felt that she was in some way at fault and that she was the one in the wrong. Doe's father confronted James, who denied any wrongdoing. Inez claimed that this was the first time she ever heard these accusations and that she did not then believe them to be true. Only years later, when her husband confessed to sexually molesting his other granddaughter, did Inez believe the allegations. Once Doe's parents learned of the sexual abuse, Doe was never again alone with James.
The standard of review on appeal of a summary judgment is whether the successful movant at the trial level carried the burden of showing that no genuine issue of material fact existed and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.--El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to the required elements of the plaintiff's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that no genuine issue of material fact as to one or more elements of plaintiff's cause or claim exists. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co. of Texas, Inc., 884 S.W.2d 206, 208 (Tex.App.--El Paso 1994, writ denied). When the defendant is the movant and when summary judgment evidence disproving at least one essential element of each of the plaintiff's causes of action is submitted, summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. When the summary judgment does not state the grounds upon which it was granted, the judgment will be affirmed if any of the theories advanced in the summary judgment motion are meritorious. State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989); Hernandez v. Kasco Ventures, Inc., 832 S.W.2d 629, 632 (Tex.App.--El Paso 1992, no writ). However, a summary judgment will be affirmed only upon the grounds specifically stated in the motion. McConnell v. Southside Independent School District, 858 S.W.2d 337, 339 (Tex.1993).
This appeal involves two questions. We must first determine whether a material fact issue exists as to whether Inez had notice of her husband's criminal behavior. Next, we must determine whether, given such notice, Inez owed a duty to Doe. We also necessarily address the closely related issue of proximate cause.
Doe's response to the motion for summary judgment was supported by her affidavit, her deposition, and the depositions of Inez and James. Inez objected to Doe's affidavit, arguing that it was not competent summary judgment proof because it was composed of opinions and conclusions. After summary judgment was granted, Inez moved that the order be amended to sustain her objections, and the trial court obliged. In her first two points of error, Doe complains that the trial court erred in sustaining the objections. In her third point of error, she alleges that notwithstanding the sufficiency of the affidavit, her deposition testimony was sufficient to raise a fact issue as to whether Inez had notice of the sexual molestation. In her brief, Inez suggests that Doe's "affidavit differs considerably from her sworn deposition testimony." Our inquiry thus begins with a comparison of Doe's deposition testimony and her affidavit.
The affidavit contains the following statements concerning the notice issue:
When I was eight (8) years old during the summer between my second and third grade school years, I told my grandmother that my grandfather was sexually molesting me. I do not remember the exact words I used, because it was many years ago and I was only eight (8) years old at the time that I told my grandmother. However, I clearly remember the event of telling my grandmother about what my grandfather had done. My grandmother and I were standing in front of the pantry that is located in front of the bathroom in my grandparents' old residence on Bagley Street in Odessa.
When I told her what my grandfather had done, she reacted violently by grabbing my arm and shaking me and saying
By contrast, Doe's testimony on deposition stated the following:
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