Lawler v. Dallas Statler-Hilton Joint Venture

• Decision Date: 17 May 1990
• Docket Number: No. 05-89-01107-CV,STATLER-HILTON,05-89-01107-CV
• Citation: 793 S.W.2d 27
• Parties: Dalia H. LAWLER, Appellant, v. DALLASJOINT VENTURE, et al., Appellees.
• Court: Texas Court of Appeals

Page 27

793 S.W.2d 27

Dalia H. LAWLER, Appellant, v. DALLAS STATLER-HILTON JOINT VENTURE, et al., Appellees.

No. 05-89-01107-CV.

Court of Appeals of Texas Dallas.

May 17, 1990.

Rehearing Denied June 20, 1990.

Raymond J. Elliott, John C. Wren, Dallas, for appellant.

Byron L. Falk, Mark J. Hansen, Dallas, for appellees.

Before WHITHAM, ROWE and BAKER, JJ.

OPINION

ROWE, Justice.

Dalia H. Lawler sued Dallas Statler-Hilton Joint Venture, Hilton Hotels Corporation the Prudential Insurance Company of America, and Commerce Garage Joint Venture for negligence on the basis of premises liability. Dallas Statler-Hilton, Commerce Garage, Prudential, and HHC moved for summary judgment. The trial court granted their motion. Lawler appeals, urging six points of error. We overrule all six points and affirm the judgment of the trial court.

This case arose out of an injury to Lawler when she was working at the downtown "Dallas Hilton" Hotel as a maid supervisor. A portion of the hotel ceiling fell on her. She filed a claim for workers' compensation benefits against Texas Employers' Insurance Association and received an award of $10,800 and reasonable and necessary medical expenses. The TEIA policy named HHC and "Dallas Hilton" as the insureds. The hotel was owned by the Dallas Statler-Hilton Joint Venture at the time of Lawler's injury. Prudential and HHC were the individual members of the Dallas Statler-Hilton joint venture. Under a Lease and Management Agreement, HHC managed the hotel on behalf of the joint venture.

Lawler then sued Dallas Statler-Hilton, Commerce Garage, Prudential, HHC, and Willie Lee Williams ¹ for negligence. Hilton denied Lawler's allegations on two grounds: (1) Lawler was precluded, pursuant to the exclusive remedy provision of the Texas Workers' Compensation Act, from suing the joint venture or its individual members, HHC and Prudential, and (2) Commerce Garage had no connection with the hotel premises, and therefore there was no causal link between Lawler's accident and Commerce Garage. In response, Lawler attacked the sufficiency of Hilton's summary judgment proof alleging, inter alia, that the affidavits of David Carnley, a Senior Claims Administrator for HHC, and Jean Pool, hotel paymaster, were conclusory, speculative, not based on personal knowledge, and violative of the best evidence rule, that the original petition in Lawler's workers' compensation claim was not attached, and, consequently, the final judgment thereon was inadequate proof of the circumstances surrounding her prior recovery, and that there was no showing that the attached copy of the Lease and Management Agreement was true and correct. Two days before the hearing on the summary judgment motion, Hilton moved for leave to file two additional affidavits, purporting to cure Lawler's objections. The trial court heard and granted both the summary judgment motion and the motion for leave to file the additional affidavits. On appeal, Lawler contests the granting of both motions.

In her first point of error, Lawler contends that the trial court erred in granting Hilton's motion for leave to file affidavits in support of its motion for summary judgment less than twenty-one days before the summary judgment hearing. We disagree and overrule Lawler's point of error.

Texas Rule of Civil Procedure 166a(c) allows a movant for summary judgment to file the motion and any supporting affidavits less than twenty-one days before the hearing with leave of court and notice to opposing counsel. TEX.R.CIV.P. 166a(c). Rule 166a(e) states, in part, that "[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." TEX.R.CIV.P. 166a(e) (emphasis added).

Hilton filed its motion for summary judgment on March 21, 1989. The hearing was scheduled for April 13, 1989. On March 30, 1989, Lawler filed a response to Hilton's motion in which she raised objections to Hilton's summary judgment evidence. In an attempt to cure Lawler's objections, Hilton moved for leave to file supplemental affidavits two days before the hearing. The trial court granted Hilton leave to file the late affidavits.

In our view, Hilton's late filing is permissible under rule 166a(c). The trial court expressly granted leave, and the record further shows that notice was given to Lawler. Thus, the requirements of rule 166a(c) are met. Lawler, however, contends that the court's action gave Hilton an unfair advantage because it left her with only two days to respond and left her response dependent upon leave of court. Lawler relies on Extended Services Program, Inc. v. First Extended Service Corp., 601 S.W.2d 469 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.), in which this Court held that it was an unfair advantage to permit the movant to serve his summary judgment evidence on the nonmovant seven days before the hearing, thus requiring the nonmovant's response to depend upon leave of the court. Extended Services, 601 S.W.2d at 470.

We disagree with Lawler that Hilton was given an unfair advantage. In Extended Services, the Court found an unfair advantage where the requirements of rule 166a were not met and the movant had no summary judgment evidence on file twenty-one days before the hearing. The case at bar is distinguishable. For instance, the movant in Extended Services did not request leave for a late filing. Rule 166a(c) permits late filing with leave of the court. Hilton requested and received leave to file the supplemental affidavits. In addition, in Extended Services there was no summary judgment evidence on file twenty-one days before the hearing, and the nonmovant had no evidence to consider and refute until the movant filed the late summary judgment evidence. In the case at bar, Hilton filed summary judgment evidence twenty-one days before the hearing, thereby giving Lawler the required fourteen days to respond. Thus, Lawler, unlike the nonmovant in Extended Services, had an opportunity to consider and respond to the movant's summary judgment evidence without having to depend on leave of the court. Furthermore, the supplemental affidavits were an attempt to cure objections raised by Lawler to Hilton's original summary judgment evidence. Rule 166a(e) contemplates that an opportunity to amend be given. In the absence of an opportunity to amend, we could not consider Lawler's objections under rule 166a(e); consequently, Lawler cannot complain after making objections that Hilton took the opportunity to amend. Given the facts in this record, we conclude that the trial court did not err in granting Hilton leave to file supplemental affidavits. Lawler's first point of error is overruled.

In points of error three and four, Lawler contends that the trial court erred in granting summary judgment as to Dallas Statler-Hilton, Prudential, and HHC because the summary judgment proof did not establish conclusively that all the joint venturers were shielded from liability under the workers' compensation law. The principal argument made is that HHC's status with respect to Lawler's employment is discrete from HHC's status as a joint venturer. Undergirding this argument is the principle that in determining rights and liabilities of joint venturers, Texas follows the entity theory. We disagree with Lawler's argument and overrule the third and fourth points of error.

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Wilcox v. St. Mary's Univ., Inc., 531 S.W.2d 589, 592-93 (Tex.1975); TEX.R.CIV.P. 166a(c). In our review of the summary judgment evidence, we must follow the standards enunciated in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985):

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant must be taken as true.

(3) Every reasonable inference must be indulged in favor of the nonmovant and doubts resolved in its favor.

690 S.W.2d at 548-49. Also, the movant is confined to the specific grounds set forth in the motion. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); TEX.R.CIV.P. 166a(c).

In its motion for summary judgment, Hilton contends that the joint venture and its members, HHC and Prudential, were each Lawler's employers and, therefore, immune from liability beyond the workers' compensation award. In her third point of error, Lawler takes the position that she was employed solely by HHC and that only HHC was named as an insured on the workers' compensation policy; therefore, the award is exclusive only as to HHC in its individual capacity. Additionally, Lawler contends that these differences raise a fact issue as to who her employer was. In her fourth point of error, Lawler contends that even if the joint venture is an employer based on its right to control Lawler's actions through HHC, there still is no evidence that Prudential is an employer; therefore, Prudential is not protected by the exclusive remedy provision.

The Texas Workers' Compensation Act provides the exclusive remedy of an employee injured in the course of employment against a subscribing employer. "The employees of a subscriber ... shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries ..." TEX.REV.CIV.STAT.ANN. art. 8306, § 3(a) (Vernon Supp.1990). Under the Act an employee has a prompt and sure form of remuneration in lieu of common law liability based on negligence. In return, the employer is protected from having to defend numerous lawsuits by its employees, but the...