Matbon, Inc. v. Gries

• Decision Date: 15 January 2009
• Docket Number: No. 11-06-00258-CV.,11-06-00258-CV.
• Citation: 288 S.W.3d 471
• Parties: MATBON, INC. and William Edgar Hutton, Appellants, v. Dennis and Debra GRIES, Appellees.
• Court: Texas Court of Appeals

288 S.W.3d 471

MATBON, INC. and William Edgar Hutton, Appellants, v. Dennis and Debra GRIES, Appellees.

No. 11-06-00258-CV.

Court of Appeals of Texas, Eastland.

January 15, 2009.

Raul A. Gonzalez, Law Office of Raul A. Gonzalez, Austin, D. Patrick Long, Robert A. Hawkins, Shana L. Burleson, Patton Boggs, L.L.P., Dallas, Kenneth N. Tarlton, Mineral Wells, for appellants.

James V. Jay, Thomas M. Michel, Griffith, Jay & Michel, LLP, Brandon L. Boehme, Boehme & Moore, LLP, Randall D. Moore, Fort Worth, for appellees.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

TERRY McCALL, Justice.

This appeal arises from an automobile accident. Dennis and Debra Gries filed suit against Matbon, Inc. and William Edgar Hutton for injuries they received in a collision that occurred on May 11, 2005, on U.S. Highway 281 in Palo Pinto County. Based upon the jury's answers, the trial court entered a judgment awarding appellees damages in excess of three million dollars. Appellants challenge the trial court's judgment in thirteen issues. We affirm in part, modify and affirm in part, reverse and remand in part, and reverse and render in part.

Background Facts

Hutton was employed by Matbon as a truck driver. He and Tarence Ray Willhite, another Matbon truck driver, were driving their trucks north from Dublin to Chico on U.S. Highway 281. Willhite was following Hutton in his truck. Appellees were following Willhite's truck in their vehicle. Immediately prior to the time that the accident occurred, Willhite observed Hutton's truck cross the centerline of the highway into the oncoming southbound lane of U.S. Highway 281. Hutton testified that he was reaching to his right to retrieve some crackers inside the cab of his truck at the time. He was unaware that he had crossed the centerline until Willhite advised him of it by radio.

Beverlea Christian was traveling south on U.S. Highway 281 followed by Robert Samuel Howard. Howard testified that he observed Hutton's truck cross three or four feet over the centerline into the southbound lane for three or four seconds. Christian reacted by initially moving to the right onto the shoulder of the southbound lane. She then "overcorrected" her vehicle by moving back to the left across the centerline of the highway into the northbound lane. Christian's vehicle collided head-on with appellees' vehicle. Christian and her occupant died at the scene. Appellees suffered severe injuries as a result of the collision. Specifically, Dennis Gries suffered severe fractures of both lower extremities and an open fracture of his left forearm. At the time of trial, Dennis Gries faced the possibility of his leg being amputated. Debra Gries suffered fractures of her heel, great toe, thumb, and cervical vertebrae.

The independent executor and statutory wrongful death beneficiaries of Christian and her occupant initiated the underlying action against appellants on July 14, 2005. Appellees intervened in the lawsuit as claimants against appellants on August 29, 2005. The claims asserted on behalf of Christian and her occupant were subsequently settled prior to trial.

Appellees' claims proceeded to a jury trial that began on May 15, 2006. Appellants filed a "Joint Stipulation and Confession of Liability for Negligence" at the outset of the trial that provided as follows:

The negligence of William Hutton and Matbon, Inc., the Defendants in this case, was a proximate cause of the May 11, 2005 vehicular accident and resulting injuries to Plaintiffs Dennis Gries and Debra Gries.

. . . .

Matbon, Inc. additionally confesses and stipulates that at the time of the subject accident, William Hutton was its employee acting within the scope and course of his employment.

The jury apportioned 70% of the responsibility for the accident to Matbon and 30% to Hutton. The jury determined that Dennis Gries sustained damages of $2,717,477.34 and that Debra Gries suffered damages of $622,258.83. The jury additionally determined that Hutton was grossly negligent and awarded $500,000 in exemplary damages.

Submission of Christian's Negligence

In their first two issues, appellants contend that the trial court made erroneous pretrial rulings that precluded the submission of Christian's alleged negligence to the jury. They assert in Issue No. 1A that the trial court erred in denying Matbon's motion to designate Christian as a responsible third party. See TEX. CIV. PRAC. & REM.CODE ANN. § 33.004 (Vernon 2008). In Issue No. 1B, appellants contend that the trial court erred in granting appellees' no-evidence motion for summary judgment regarding Christian's negligence. The trial court granted appellees' no-evidence motion for summary judgment prior to addressing Matbon's motion to designate.¹ Accordingly, we begin our analysis by addressing the trial court's ruling on the no-evidence motion for summary judgment.

Appellees sought summary judgment on the issue of Christian's negligence solely on no-evidence grounds under TEX.R. CIV. P. 166a(i). A trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Rule 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)).

Prior to addressing the merits of the no-evidence summary judgment, we note that this issue only applies to Matbon. Matbon and Hutton initially filed a joint answer in response to appellees' petition in intervention. Their original answer only contained a general denial and jury demand. Matbon subsequently filed amended answers that Hutton did not join. In its first amended original answer filed on March 7, 2006, Matbon alleged that "[p]laintiffs' injuries, if any, were caused by [p]laintiffs' own negligence, which bars, in whole or in part, any recovery from [d]efendants."² Appellees filed their no-evidence motion for summary judgment on April 10, 2006, in response to Matbon's allegation of contributory negligence. Only Matbon filed a response to the no-evidence motion for summary judgment. The trial court granted the motion for no-evidence summary judgment on April 28, 2006. Hutton never filed a pleading alleging that Christian was negligent or a response to the no-evidence motion for summary judgment. Accordingly, Hutton cannot complain on appeal that the trial court erred in entering a no-evidence summary judgment that precluded the submission of Christian's negligence to the jury. See TEX.R.APP. P. 33.1.

Appellees attached evidence to their motion for no-evidence summary judgment in an attempt to preemptively negate the claim that Christian was negligent. We do not consider this evidence however, because we may not consider any evidence presented by a movant solely seeking a no-evidence summary judgment under Rule 166a(i) unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). Under Rule 166a(i), we direct our attention to the summary judgment evidence that accompanied Matbon's response. Matbon attached three items of summary judgment evidence to its response: (1) an unauthenticated expert report from an accident reconstructionist; (2) excerpts from the deposition of DPS Trooper Hank Beverage, the trooper who investigated the accident; and (3) an unauthenticated witness statement from Howard, the driver who was following Christian in the southbound lane. The trial court disallowed the expert report and witness statement by sustaining appellees' objections to them. Matbon has not challenged the trial court's evidentiary rulings. Accordingly, we limit our review to Trooper Beverage's deposition excerpts.

The deposition excerpts contain statements from Trooper Beverage wherein he agreed that "[Christian] overcorrected and went across the roadway in the northbound lane of traffic." Trooper Beverage additionally agreed with a statement that the paved shoulder of the southbound lane where the accident occurred was wide enough for Christian to have remained on the paved portion of the roadway. We conclude that these statements, standing alone, are insufficient to raise a fact question regarding Christian's contributory negligence.

Matbon is correct in its assertion that Trooper Beverage's deposition excerpts support the contention that Christian overcorrected her vehicle. However, there is no evidence that Christian failed to do what an ordinary driver would have done in the same or similar situation. In this regard, the allegations in this suit suggest that the encroachment of Hutton's truck into the southbound lane presented Christian with a sudden emergency. Under the sudden emergency doctrine, if a person is confronted by an emergency arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances. See Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex.1995).³ There is no summary judgment evidence that persons of ordinary prudence would not have overcorrected their vehicles under the same or similar circumstances in trying to avoid a truck encroaching into his or her lane of travel. Appellants' Issue No. 1B is overruled.

Our disposition of Issue No. 1B regarding the no-evidence summary judgment is dispositive of appellants' Issue No. 1A regarding the trial court's denial of the motion to designate Christian as a responsible third party with regard to Matbon. Furthermore, Hutton did not join in the...