Granado v. Dillard Department Stores, Inc., No. 13-04-030-CV (TX 8/31/2005)

• Court: Texas Supreme Court
• Writing for the Court: Castillo
• Decision Date: 31 August 2005
• Docket Number: No. 13-04-030-CV.,13-04-030-CV.
• Citation: Granado v. Dillard Department Stores, Inc., No. 13-04-030-CV (TX 8/31/2005), No. 13-04-030-CV. (Tex. Aug 31, 2005)
• Parties: ESMERALDA GRANADO, Appellant, v. DILLARD DEPARTMENT STORES, INC., Appellees.

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ESMERALDA GRANADO, Appellant, v. DILLARD DEPARTMENT STORES, INC., Appellees.

No. 13-04-030-CV.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion delivered and filed August 31, 2005.

On Appeal from the 138th District Court of Cameron County, Texas.

Before Justices RODRIGUEZ, CASTILLO and GARZA.

MEMORANDUM OPINION¹

Memorandum Opinion by Justice CASTILLO.

After allegedly sustaining an injury inside a local mall, appellant Esmeralda Granado brought general negligence and vicarious liability claims against appellant Dillard's, Inc. ("Dillard's"). Granado alleged that Heather Herring, a mall employee who ran into her with a supply cart, was employed by or under the control of Dillard's. Dillard's moved for traditional summary judgment, which the trial court granted on all claims. It is from that judgment that Granado appeals. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 4, 2000, while Granado shopped in the mall, a cart reportedly containing plywood Christmas decorations struck the side of Granado's lower leg. Herring, the assistant marketing director of the mall and employee of a co-owner of the mall, the M.G. Herring Group, ("the Group"), pushed the cart in question. The incident occurred in a common area of the mall, not within a particular store.

A. Dillard's Motion

Granado brought suit against Dillard's as co-owner of the mall for the negligence of its alleged employee, Herring. In its traditional summary-judgment motion, Dillard's asserted it owed no duty to Granado because it had no control over or any employment relationship with Herring. Dillard's summary-judgment evidence included an excerpt from Herring's deposition. Herring testified she was the assistant marketing director for the mall and worked for the Group, a shopping center developer. She further testified, in part:

Q: [W]ho was your employer?

A: The M.G. Herring Group.

Q: Was Dillard's, Inc. or Dillard's Department Stores in any way your employer on that day?

A: Not to my knowledge.

Q: Did Dillard's, Inc. or Dillard's Department Stores ever on that day control your work detail?

A: No.

Q: Were they-would Dillard's in any way ever tell you how to push the cart or to push the cart or specifically what to do that day?

A: No.

Q: This impact that occurred between the cart and Ms. Granado's leg, how would you describe it?

A: A tap, very light, very light impact.

. . . .

Q: Ms. Herring, just to clarify, then, on the particular day in question did you have any kind of an employment relationship with Dillard's?

A: No.

Q: The decorations that you were preparing and carting, were they-at whose request or direction were they being carted? In other words, who was doing the decoration for the mall?

A: I was doing the decoration.

Q: And you were doing that on behalf of who? Your employer?

A: My employer, yes.

Q: And who was that?

A: The M.G. Herring Group.

B. Granado's Response

Granado stated in her summary-judgment response that Dillard's failed to prove the essential elements of its defense, in particular, that (1) Herring was an independent contractor or (2) Herring and the Group were not involved in a joint enterprise with Dillard's. In her summary-judgment affidavit, Granado attested that Herring pushed the cart that struck Granado's leg. Through communications involving her claim, she determined that Dillard's, and not the M.G. Herring Group, was the responsible party.² As summary-judgment evidence, Granado also attached Herring's complete deposition. Herring testified that before the incident, she was exiting the decor room and heading toward the area directly in front of Dillard's to set up Christmas decorations during normal business hours. Granado exited a store and, without looking, stepped in front of the cart. Stating the fault was Granado's, Herring testified, "I believe she should have looked where she was going, just as if you would when you walked out of a store to make sure you didn't run into someone." Herring described the incident as a "slight tap," stating, "I did impact her but very slightly." Herring testified two mall employees accompanied her. One walked in front of the cart to clear the path of customers. Herring testified, "One of the people was more to the front but we were making a lot of noise. The carts were very loud and made a lot of noise on the tile floors and echoing through the mall very loud. . . . We were making a lot of noise. It would be very difficult to not know that we were there." The number of customers "definitely kept me from going very fast," she added.

Herring further testified that the president of the Group, her employer, is her father and that the Group was "involved in ownership" of the mall with Brownsville Mall Developers and Dillard's. She testified that she took direction from the mall's general manager, Cesar Briseno, and explained that she and the mall manager "didn't answer to Dillard's."

Granado also attached Briseno's deposition testimony. Briseno testified that, on the date of the incident, he was not affiliated with the mall; rather, he began work with the mall two days after the incident. His understanding was that the Group and Dillard's were co-owners of the mall, with the Group's role being the "landlord." He testified as follows:

Q: Do you have any idea what the arrangements were between Mr. Herring and Dillard's company with regard to the management?

A: No, sir. I was not privy to that information.

Briseno testified that the Group directed him to report incidents to Dillard's risk management office; however, the Group, and not Dillard's, provided the claim forms. Briseno further testified:

Q: Okay. And so in terms of these instructions of the details of your work you never got any instructions from Dillard's, it was always M.G. Herring Group, correct?

A: That is correct.

Q: And so the jury gets a real good sense of it, you were never an employee of Dillard's, right?

A: No, sir.

Q: And neither was anybody else that was managing the mall for M.G. Herring Group, correct?

A: That's correct.

Briseno admitted he was not privy to the business relationship between the Group and Dillard's. He received his information solely from the Group, which was his employer. He further testified that Dillard's (1) was neither Heather Herring's nor his employer, (2) did not provide him instructions on the details of his work, (3) did not control the details of his work or of any other mall employees, and (4) did not control the details of Heather Herring's work on the date in question. Briseno testified that Herring and he did not have any employment relationship with Dillard's.

C. Dillard's Reply

After Dillard's filed its summary-judgment motion, but before submission, Granado amended her petition to allege liability based on a joint enterprise theory. Dillard's filed a reply challenging the joint enterprise theory raised in Granado's response and the amended pleading. Dillard's asserted that Granado could not prove the essential element of equal right to control in that cause of action. Without stating the grounds, the trial court granted Dillard's summary-judgment motion as to all claims. Granado timely filed a motion for new trial which the trial court denied. This appeal ensued.

II. ISSUES ON APPEAL

By one issue, Granado asserts generally that Dillard's did not establish as a matter of law that it was not Herring's employer.³ In sub-issues, Granado asserts: (1) even if Dillard's was not Herring's employer, Dillard's was involved in a joint enterprise with any co-owner of the mall and, thus, was liable for Herring's acts on that theory; and (2) summary judgment is improper due to a pleading defect.

III. STANDARD OF REVIEW

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.-Corpus Christi 2003, no pet.); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). The propriety of a summary judgment is a question of law. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). We review de novo a trial court's grant or denial of a traditional motion for summary judgment. TEX. R. CIV. P. 166a(c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.).

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor, while any evidence not in the favor of the non-movant must be discarded.

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); see also KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.). A defendant seeking a traditional summary judgment must prove that no genuine issue of material fact exists concerning plaintiff's claim, therefore entitling defendant to a judgment as a matter of law. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). "A defendant who conclusively negates at least one of the essential elements of each of plaintiffs' causes of action or who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment." Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). If the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact to preclude summary judgment. City of Houston, 589 S.W.2d at 678...