Moeller v. Fort Worth Capital Corp.

• Decision Date: 31 December 1980
• Docket Number: No. 18297,18297
• Citation: 610 S.W.2d 857
• Parties: Theodore Olin MOELLER, Appellant, v. FORT WORTH CAPITAL CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 857

610 S.W.2d 857

Theodore Olin MOELLER, Appellant, v. FORT WORTH CAPITAL CORPORATION, Appellee.

No. 18297.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 31, 1980.

Rehearing Denied Jan. 29, 1981.

Thorne, Thorne & Robertson, Inc. and Michael A. Robertson, Grand Prairie, for appellant.

McBryde, Bogle & Green and John H. McBryde, Fort Worth, for appellee.

OPINION ON MOTION FOR REHEARING

SPURLOCK, Justice.

Motion for rehearing is granted. Since oral submission and handing down of our opinion dated October 16, 1980, the parties have filed a stipulation dated October 22, 1980, stating that their stipulation of September 29, 1980, regarding this court's consideration of the deposition of Ernest John Jezek, was in error. The parties have now stipulated that they were in error and withdraw their stipulation as to the deposition of Jezek and state the same cannot be considered by this court. Therefore, we withdraw our original opinion and substitute therefor the following:

Appellant, Theodore Olin Moeller, was employed by Dover Elevator Company when he was struck by a falling elevator. Moeller, now permanently injured, sued multiple defendants, including his employer, the prior and present building owners, manufacturers of various elevator parts, and others involved in the design and construction of the building and the installation of the elevator. After severance from the remaining defendants, summary judgment was granted to Fort Worth Capital Corporation (FW Capital), appellee in this case, a prior owner of the building. Moeller appeals the granting of FW Capital's motion for severance and for summary judgment.

We reverse the trial court's judgment and remand this defendant's case for trial on the merits.

Moeller was employed by Dover Elevator Company (Dover) as a mechanic's helper. His duties were to assist another Dover employee, Hayden Sralla, in inspection, repair, maintenance and testing of elevators. Their duties depended on provisions of the contracts between the specific building owners and Dover. In May of 1975 Moeller and Sralla were performing a safety test on a hydraulic elevator in a building located at 1200 West Freeway, Fort Worth, Texas, which is now owned by Fort Worth Title Company. At the conclusion of that test, Moeller entered the bottom of the elevator shaft to turn a "pit shut-off valve" so that the elevator could be returned to normal operation. The valve controlled the oil flow to the hydraulic jacking mechanism which supported the elevator in the shaft. It was located underneath a pipe near the bottom of the elevator shaft.

Because it was underneath the oil supply pipe and close to the floor, the only way it would be clearly visible would be with the use of a mirror. The valve was composed of four pieces: a brass plug, body, washer, and nut. In addition, the threads on the nut and on the plug were evenly drilled to make room for a fifth part, a steel lock-pin. This pin was inserted between the plug and nut so that instead of permitting the valve to be loosened, pressure on the nut (a common practice to make the valve plug easier to turn) would result in the valve becoming completely loose and permit the uncontrolled flow of oil from the elevator jack into the pit. The oil supply pipe was so close to the floor that the valve either had to be installed with the hole for the pin already in it or it had to be removed from the pipe (an unusual occurrence) so that the hole could be drilled in it. Summary judgment evidence indicates that the valve failure was due to this pin having been deliberately inserted into the valve, causing both the possibility and the arguable probability that the valve would become unassembled when operated and cause the elevator to fall.

Because this valve did come apart when Moeller attempted to turn it, the elevator fell and Moeller was hit. The resulting injuries have left him permanently paralyzed from the neck down.

The elevator was installed by Hunter-Hayes Elevator Company when the building was originally built by Fort Worth Freeways Investment Corporation. Both the building and the elevator installation company have been subsequently sold. Hunter-Hayes was bought by Dover and underwent some corporate reorganizations after the sale. Title to the building has been held by Fort Worth Freeways Investment Corporation, Fort Worth Title Company, Fort Worth Capital Corporation, US Life Title Insurance and (currently) a second Fort Worth Title Company. The elevator in this case has been covered by some form of inspection or service contract with Hunter-Hayes or Dover throughout all the changes.

FW Capital's grounds for its motion for summary judgment can be grouped into four general areas: 1) as a prior owner, FW Capital had no legal duty to Moeller; 2) Even if a prior owner could have a duty, the elevator was always handled by independent contractors; Moeller and his employer had specifically been hired to discover and correct any defect in the elevator and thus Moeller had assumed the risks inherent in elevator servicing; furthermore, knowledge of the conditions in this particular elevator could be imputed to him because his employer and his employer's predecessors, independent contractors, had been the only persons authorized to work on this elevator; 3) Moeller was contributorily negligent, and this negligence was of such magnitude that it constitutes the sole proximate cause of his injuries; and 4) FW Capital alleges that Moeller's presence on the premises on the day of his accident had been obtained by a misrepresentation of his employer, which amounted to fraudulent conduct.

FW Capital complains on appeal that some deposition evidence cannot be considered because it was taken prior to the time that FW Capital was made a defendant. No objection was made prior to appeal. Such depositions could not have been used if FW Capital had objected at the time of the summary judgment hearing. Tex.R.Civ.P. 166-A(c), permits the use of "pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, ...."

The Supreme Court in City of Houston v. Clear Creek Basin Authority, 589

S.W.2d 671 (Tex.1979), discussed the history of summary judgment, the 1978 revision of the rules, and the requirements now placed on both movant and non-movant to insure presentation to the trial court of all controverted issues. The basic requirement that a movant for summary judgment "must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law" remains unchanged. 589 S.W.2d at 678. At the summary judgment hearing, the question before the court is whether FW Capital met its burden of proving that Moeller cannot prevail against it. If a material fact issue is raised, summary judgment is not appropriate. When the movant raises an affirmative defense by which it could legally prevail, in general the law and the 1978 revision of the rules expect that the non-movant will come forward with evidence showing that a genuine dispute as to a factual issue does exist. See 4 McDonald, Texas Civil Practice secs. 17.26.2, 17.26.12 (1971) and cases cited therein.

Revised Tex.R.Civ.P. 166-A states: "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." The discussion on this part of the rule in City of Houston v. Clear Creek Basin Authority, supra, appears to interpret this language very restrictively. There the Supreme Court stated:

"(B)oth the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing....

"If the issues are to be further restricted or expanded ... beyond those 'expressly presented' by the written motion, the answer to the motion, or any other written response, the change must meet the requirements of rule 11 ...." 589 S.W.2d at 677.

In this case, Moeller's response to the motion for summary judgment referred to some deposition testimony presumably then on file with the court. The deposition of Ernest John Jezek was taken prior to FW Capital's being named a defendant and the parties after submission on appeal have stipulated that Jezek's deposition was not filed. No reference was made in the response to the motion for summary judgment to other deposition evidence then properly filed on which Moeller now relies on appeal to show that a fact issue does exist. Moeller's response...