Nicholson v. Smith, 04-98-00450-CV

• Decision Date: 27 January 1999
• Docket Number: No. 04-98-00450-CV,04-98-00450-CV
• Citation: 986 S.W.2d 54
• Parties: Carlyn NICHOLSON, Individually and as the Representative of the Estate of Thomas Nicholson et al., Appellant, v. Herman and Mary SMITH, Individually and d/b/a Choke Canyon RV Park, Appellees.
• Court: Texas Court of Appeals

Page 54

986 S.W.2d 54

Carlyn NICHOLSON, Individually and as the Representative of

the Estate of Thomas Nicholson et al., Appellant, v. Herman and Mary SMITH, Individually and d/b/a Choke Canyon

RV Park, Appellees.

No. 04-98-00450-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 27, 1999.

J. Ronald Tucker, Ronald C. Muller, Houston, for Appellant.

Frank E. Weathered, Dunn & Weathered, P.C., Corpus Christi, for Appellee.

Before PHIL HARDBERGER, Chief Justice, ALMA L. LOPEZ, Justice and CATHERINE STONE, Justice.

PHIL HARDBERGER, Chief Justice.

Carlyn Nicholson appeals from the trial court's grant of summary judgment in favor of Herman and Mary Smith in this premises liability action. In two points of error, Nicholson complains that the trial court erred in not striking certain summary judgment evidence and also erred by granting the Smiths' motion for summary judgment. We affirm the trial court's grant of summary judgment.

I.

In early to mid-December of 1994, Thomas and Carlyn Nicholson rented a space at Choke Canyon RV Park, a recreational park owned by the Smiths, with the intent to spend the winter months in rural Texas. Nicholson had previously stayed at Choke Canyon RV Park throughout the winter months of 1990-91. At least one week after they had set up camp, on December 29, 1994, Thomas Nicholson was stung more than 1,000 times by fire ants while correcting the stabilizer on the underside of his house trailer. He was taken to a local hospital for treatment, and then was transferred to a hospital closer to his Illinois home. Following intermittent periods of hospitalization, Nicholson died on March 26, 1995. Nicholson suffered from leukemia, but there was some evidence that the fire ants were at least a contributing cause of his death.

His widow brought suit against the park and its owners, Herman and Mary Smith, alleging negligence, gross negligence, and violation of the implied warranties of merchantability and of fitness for a particular purpose contained in Article 2 of the Uniform Commercial Code. See TEX. BUS. & COMM.CODE ANN. §§ 2.314 and 2.315 (Vernon 1994). Only the premises liability theory is at issue in this appeal.

After discovery, the Smiths moved for summary judgment on grounds they did not owe a duty to Nicholson with respect to the fire ants; that the presence of fire ants did not create an unreasonably dangerous condition; and that the deceased was warned about the fire ants. They also moved for summary judgment on grounds that there was no evidence of either an unreasonably dangerous condition or a failure to warn under the new "no-evidence" summary judgment rule. See TEX.R. CIV. P. 166a(i). Summary judgment was at first denied; it was later granted on motion for rehearing, without specifying a reason. ¹

II.

A. RULE 166A(I)

--NO EVIDENCE MOTION

In two issues Nicholson argues the trial court erred in not striking certain summary judgment evidence, and argues the trial court erred in granting the summary judgment. Effective September 1, 1997, Rule 166a(i) allows a litigant to move for summary judgment as to all or part of a lawsuit on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX.R. CIV. P. 166a(i); W. Wendell Hall, Standards of Review in Texas, 29 ST. MARY'S L.J. 351, 418 (1998). A party may move for a "no-evidence" summary judgment only after an adequate opportunity for discovery. TEX.R. CIV. P. 166a(i). Rule 166a(i) requires the moving party to state the element(s) as to which there is no evidence, but it does not require the moving party to present summary judgment evidence.

"A no-evidence summary judgment is essentially a pretrial directed verdict," so we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Graves v. Komet, 982 S.W.2d 551 553(Tex.App.--San Antonio 1998); Taylor-Made Hose, Inc. v. Wilkerson, No. 04-97-01025-CV, 1999 WL 90021 at * 2 (Tex.App.--San Antonio Feb. 24, 1999, n. pet. h.) (quoting Judge David Hittner and Lynne Liberto, No-Evidence Summary Judgments Under the New Rule, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 20 ADVANCED CIVIL TRIAL COURSE D, D-5 (1997)); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.--San Antonio 1998, pet. denied).

We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Graves, 982 S.W.2d at 553. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX .R. CIV. P. 166a(i); see also Merrell Dow, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Graves, 982 S.W.2d at 553. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow, 953 S.W.2d at 711.

When viewed in the light most favorable to her, Nicholson has brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact, so the summary judgment cannot stand under a no-evidence Rule 166a(i) motion.

B. RULE 166A(B)

--DEFENDING PARTY'S MOTION

Rule 166a(b) permits a defending party to seek dismissal of a claim at any time. TEX.R. CIV. P. 166a(b). When reviewing the grant of a summary judgment, we follow these well-established rules: (1) the movant 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; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's claims, or establishes all elements of an affirmative defense to each claim. Id.

When the trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A defendant may also show entitlement to summary judgment by conclusively proving all elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

C. SUMMARY JUDGMENT EVIDENCE

In her first point of error, Nicholson argues the trial court erred in not striking the Smiths' summary judgment evidence because it was the testimony of interested witnesses and did not meet the requirements of Rule 166a(c). See TEX.R. CIV. P.166a(c). The evidence complained of includes: 1) Herman Smith's affidavit; 2) excerpts from Herman Smith's deposition testimony; and 3) deposition testimony from Dan Head, who was a former manager of the RV park. The Smiths respond by contending that none of these issues were presented to the trial court and therefore none are preserved for our review.

Summary judgment may be based on the testimony of an interested witness if that evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. TEX.R. CIV. P.166a(c). 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. Id.; see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).

1. Testimony of Dan Head

Nicholson first contends that the trial court erred in not striking Dan Head's deposition testimony because Head was an interested witness and his testimony did not meet the standards of Rule 166a(c). However, in her motion opposing the Smiths' motion for summary judgment, Nicholson does not argue that Head is an interested witness. She questions Head's credibility, because Head was a "decade-long friend of the Smiths" and was a former on-site manager of the park. She also asserted that any testimony by Head would merely raise a fact issue.

Head is not an interested witness because he did not have a stake in the litigation or a material interest in its outcome. See, e.g., Brooks v. Sherry Lane Nat'l Bank, 788 S.W.2d 874, 877(Tex.App.--Dallas 1990, no writ) (interested witness is one with some stake in outcome); Hayes v. E.T.S. Enter. Inc., 809 S.W.2d 652, 656 (Tex.App.--Amarillo 1991, writ denied) (interested witness when company has stake in other litigation involving subject matter of lawsuit in question); Kazmir v. Suburban Homes Realty, 824 S.W.2d 239, 244 (Tex.App.--Texarkana 1992, writ denied)(named defendant is interested witness). The trial court did not err by not striking Head's testimony. Nicholson's complaint about Head's testimony under this point of error is overruled.

2. Testimony of Herman Smith

Nicholson also contends the trial court should have stricken Herman Smith's testimony because it came from an interested witness. She argues, specifically, that Herman Smith's affidavit pertained to matters not capable of...