McNeal v. Thomas, No. 13-03-347-CV (TX 2/17/2005)
| Decision Date | 17 February 2005 |
| Docket Number | No. 13-03-347-CV.,13-03-347-CV. |
| Parties | PHYLLIS McNEAL AND MARK WRIGHT, Appellants, v. HUGHES THOMAS, Appellee. |
| Court | Texas Supreme Court |
On appeal from the 156th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Appellee Hughes Thomas filed a motion for rehearing, asserting that we made a dispositive error by: (1) applying Tuloma Gas Prods. Co. v. Lehmberg, 430 S.W.2d 281 (Tex. Civ. App.-San Antonio 1968, writ ref'd n.r.e.); and, (2) holding that the duty to warn attached to a person at the scene who did not own livestock that had roamed onto the highway. We requested a response to the motion, and one was filed. TEX. R. APP. P. 49.2. We grant Thomas's motion for rehearing. TEX. R. APP. P. 49.3. We withdraw our opinion and, in its place, substitute this opinion.
This is an appeal from a summary judgment. Appellants Phyliss McNeal and Mark Wright sued appellee Hughes Thomas for personal injuries and property damage after Wright's pickup truck ran into a cow on U.S. Highway 181 in San Patricio County. The trial court granted Thomas's motion for summary judgment. We affirm.
About 8:30 the evening of March 13, 2000, Wright was driving his truck northbound on U.S. Highway 181, less than a mile from county road 22 in San Patricio County. McNeal was his passenger. A cow started to cross the highway. The truck hit the cow. McNeal and Wright sued Thomas, alleging that his negligence caused the accident.1 Thomas filed both traditional and no-evidence motions for summary judgment. See Tex. R. Civ. P. 166a(b), (i). The trial court granted summary judgment without specifying the grounds on which it did so. This appeal ensued.
By seven issues, McNeal and Wright assert that the trial court erred in granting: (1) Thomas's traditional summary-judgment motion because there are genuine issues of material fact; (2) the traditional motion because it was legally insufficient; (3) the traditional motion because the asserted deficiencies in the pleadings can be cured by amendment; (4) the no-evidence motion because the evidence brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact; (5) the no-evidence motion because it was legally insufficient; (6) the no-evidence motion because the asserted deficiencies in the pleadings can be cured by amendment; and (7) the no-evidence motion because there had not been adequate opportunity for discovery.
In his traditional motion, Thomas asserted: (1) absent a common-law rule of restraining cattle, he cannot be held to a common-law duty; (2) even if McNeal and Wright pleaded a statutory cause of action under section 143.102 of the Texas Agriculture Code,2 there is no evidence Thomas owned the cow; (3) the owner of the livestock, not the owner of the land, has the statutory duty to prevent livestock from roaming onto a state or federal highway; and, (4) even if Thomas owned the cow, there was no evidence he knew or should have known that the cow was roaming at large on U.S. Highway 181. Thomas's traditional summary-judgment evidence included his affidavit:
I am not the owner of the cow hit by Mark Wright on March 13, 2000. I saw the dead cow and the brand was not mine. I have not owned cattle for 20 years. Prior to the accident there was a strong, windy storm. The wind was sufficient to blow down a tree which damaged part of the fence sufficient to allow the cow to escape. I have no knowledge of any prior incidents involving that tree. I had no reason to believe it would fall down. I am a part-owner of the land and I lease the land to another. I do not have right of control over the land. The brad [sic] recorded in San Patricio County in 1972 is still my brand. I have used no other brand. The brand on the cow is EH."
In his no-evidence motion, Thomas asserted that there was no evidence to raise a genuine issue of material fact regarding duty. In his factual overview, he characterized McNeal and Wright's suit as claiming he had a duty to prevent the cow from wandering or escaping onto the highway.
In their summary-judgment response, McNeal and Wright argued that disputed issues of material fact precluded summary judgment, including: (1) ownership of the cow; and (2) ownership or lease of the land from which the cow roamed. In their summary-judgment affidavits, McNeal and Wright stated that they spoke to a deputy sheriff and a Texas Department of Public Safety ("DPS") trooper at the scene. Both affidavits stated: (1) each heard Thomas tell the trooper to bury the cow after the trooper stated that only the owner of the cow could direct how to dispose of it; (2) each verified that the brand on the cow matched Thomas's brand on file in the county clerk's records and on the gate to his property; (3) each heard Thomas admit after the accident that he called the cow from across the highway immediately before the collision; (4) Thomas did not tell the trooper he leased the land to anyone; (5) Thomas did not tell the trooper that someone else owned the cow; (6) Thomas gave his address on the accident report as owner of the cow; (7) each heard Thomas say "it was one cow down and four to go"; and (8) each had been in the area several days and did not experience any storms.
On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. TEX. R. CIV. P. 166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.). The difference in relative burdens between the parties in the two types of summary-judgment motions is significant. Ortega, 97 S.W.3d at 771. Determination of the nature of the motion for summary judgment under analysis is critical. Id. Accordingly, we first address how we will review Thomas's motions.
We note that the mere existence of evidence attached to a no-evidence summary-judgment motion is not sufficient to allow the court to disregard the no-evidence motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (); see also Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex. App.-Corpus Christi 2001, pet. denied). The no-evidence portion of Thomas's motion contained no argument, analysis, or case law. Even so, "[i]f a motion clearly sets forth its grounds and otherwise meets Rule 166a's requirements, it is sufficient." Jacobo, 135 S.W.3d at 651. Accordingly, we separately analyze Thomas's traditional and no-evidence motions.
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.). In both traditional and no-evidence summary-judgment motions, we review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." See 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.). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Hoyt, 105 S.W.3d at 345. We affirm a trial court's ruling on a summary-judgment motion if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.-Corpus Christi 1998, no pet.). We review a summary judgment de novo to determine whether a party established its right to prevail as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Ortega, 97 S.W.3d at 771.
The non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense. Hoyt, 105 S.W.3d at 345. Thus, summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id.
We review a no-evidence motion for summary judgment under the same legal-sufficiency standard as a directed verdict. See TEX. R. CIV. P. 166a(i); see also Branton, 100 S.W.3d at 646. The movant must assert that there is no evidence of an essential element of a particular claim or defense which the nonmovant would have the burden of proving at trial. Branton, 100 S.W.3d at 647. By definition, the movant does not produce any evidence. See TEX. R. CIV. P. 166a(i). Rather, the nonmovant must produce sufficient evidence to raise a genuine issue of material fact as to the challenged elements. Id.; Branton, 100 S.W.3d at 647. We consider any quantum of evidence greater than a scintilla sufficient to raise a genuine issue of material fact. Branton, 100 S.W.3d at 647. More than a scintilla of evidence exists when the proffered evidence "would enable reasonable and fair-minded people to differ in their conclusions." Id. Conversely, less than a scintilla of evidence exists when the proffered evidence merely "creates a . . . surmise or suspicion of a fact" as to the material elements. Id.
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