Philip Boerjan, Mestena Operating, LLC v. Rodriguez

• Decision Date: 27 June 2014
• Docket Number: No. 12–0838.,12–0838.
• Citation: 436 S.W.3d 307,57 Tex. Sup. Ct. J. 902
• Parties: Philip BOERJAN, Mestena Operating, LLC, formerly known as Mestena Operating, Ltd., Mestena Inc., and Mestena Uranium, LLC, Petitioners, v. J. Jesus RODRIGUEZ and M. Carmen Negrete, Individually, and as Co–Representatives of the Estates of Nicolas Landeros–Anguiano, Angelina Rodriguez–Negrete, and Claudia Laura Landeros Rodriguez, and as next friend s of A.L.R., a minor, Respondents.
• Court: Texas Supreme Court

436 S.W.3d 307

57 Tex. Sup. Ct. J. 902

Philip BOERJAN, Mestena Operating, LLC, formerly known as Mestena Operating, Ltd., Mestena Inc., and Mestena Uranium, LLC, Petitioners,

v.J. Jesus RODRIGUEZ and M. Carmen Negrete, Individually, and as Co–Representatives of the Estates of Nicolas Landeros–Anguiano, Angelina Rodriguez–Negrete, and Claudia Laura Landeros Rodriguez, and as next friend s of A.L.R., a minor, Respondents.

No. 12–0838.

Supreme Court of Texas.

June 27, 2014.

Marisa Bono, Mexican American Legal Defense & Education Fund, San Antonio, TX, for Amicus Curiae Mexican American Legal Defense and Educational Fund.

James C. Harrington, Texas Civil Rights Project, Austin, TX, for Amicus Curiae Texas Civil Rights Project.

Dolores Alvarado Hibbs, Texas Department of Agriculture, Austin, TX, for Amicus Curiae Texas Department of Agriculture.

Chesley N. Blevins, Jackson Walker LLP, Austin, TX, for Amicus Curiae Texas Mining & Reclamation Association.

James F. Buchanan, Welder Leshin LLP, Corpus Christi, TX, for Amicus Curiae The John G. and Marie Stella Kenedy Memorial Foundation.

Jack C. Partridge, Royston Rayzor Vickery & Williams, Corpus Christi, TX, Richard Russell Hollenbeck, Thomas C. Wright, Jessica A. Zavadil, Wright & Close LLP, Houston, TX, for Petitioner Philip Boerjan.

John R. Griffith, Jose Oscar Lopez, Griffith Law Group, McAllen, TX, for Petitioner Mestena Operating, L.L.C.

James D. Bradbury, James D. Bradbury, PLLC, Austin, TX, for Petitioner South Texans' Property Rights Association.

Blaire Knox, April E. Lucas, Carlos Ramon Soltero, McGinnis, Lochridge & Kilgore, L.L.P., Austin, TX, Baldemar Gutierrez, The Gutierrez Law Firm, Inc., Alice, TX, Manuel R. Flores, Attorney at Law, Laredo, TX, Rene R. Barrientos, Law Offices of Rene R. Barrientos, P.C., San Antonio,TX, William W. Pierson, Jack C. Partridge, Royston Rayzor Vickery & Williams, Corpus Christi, TX, for Respondent J. Jesus Rodriguez.

PER CURIAM.

In this case, we address the duty a landowner or occupier owes to a trespasser. Here, a driver trespassed on a ranch while transporting a family. After being confronted by a ranch employee, the trespassing driver fled at high speed, and the vehicle rolled over, killing the family. The decedents' family (the Rodriguezes) filed wrongful death claims, including negligence and gross negligence. Because our case law makes clear that a land occupier owes only a duty to avoid injuring a trespasser wilfully, wantonly, or through gross negligence, a claim for simple negligence must fail. See Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997) (citing Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954)). As to gross negligence, we hold that the trial court properly granted a no-evidence summary judgment motion because the Rodriguezes failed to raise a genuine issue of material fact.

A mother, father, and child from Mexico hired Jose Maciel, a “coyote,” to provide transport to either Houston or New Orleans. Maciel collected the family, along with another immigrant named Oscar Vasquez–Lara, from a house in Texas. Maciel arrived at the private Jones Ranch before dawn, told the family and Vasquez–Lara to move from the back seat to the floor, and used keys to open a locked gate to enter the ranch.

An employee of the ranch operator—the parties dispute whether it was Philip Boerjan or non-party Ray Dubose—stopped Maciel and asked him why he had entered the property. The employee, who could see only Maciel and an unidentified front-seat passenger, wrote down the truck's license-plate number. Maciel then fled at high speed over the unlit caliche road. Again, the parties dispute the facts. The ranch operators, who claim Dubose stopped Maciel, also claim Dubose merely followed Maciel's caliche dust trail to find the truck, and then waited for Boerjan to arrive. The Rodriguezes claim Boerjan pursued Maciel at high speed. For support, the Rodriguezes rely on the testimony of Vasquez–Lara, who was kneeling on the floor in the back of the truck's cab while the family sat next to him.¹ Vasquez–Lara testified that the speedometer reached “about 80, 90.” Maciel fled for approximately five miles before his truck rolled over, ejecting and killing all three family members and injuring Vasquez–Lara. After the accident, Maciel and the unidentified passenger fled.

The Rodriguezes, the deceased mother's parents, sued the ranch's operators (Mestena Operating, Ltd.; Mestena Inc.; and Mestena Uranium, LLC) and employee Philip Boerjan (collectively, Ranch Petitioners), bringing claims for wrongful death; negligence; gross negligence; assault; and negligent entrustment, retention, and supervision. The Ranch Petitioners filed traditional summary judgment motions asserting that the unlawful acts doctrine barred all claims. Boerjan and Mestena Uranium also jointly filed a no-evidence summary judgment motion on all claims. The trial court granted all the motions and rendered final judgment dismissing all the Rodriguezes' claims.

The court of appeals applied the unlawful acts doctrine, but concluded that the decedents' acts were not “inextricably intertwined” with their claims against the Ranch Petitioners; thus, it held that the trial court erred by granting the traditional motion for summary judgment on wrongful death, negligence, gross negligence, and assault. 399 S.W.3d 223, 229–30. On the no-evidence motion, the court found that fact issues remained and reversed the trial court on the wrongful death, negligence, and gross negligence claims. Id. at 232–34. The court affirmed the no-evidence dismissal of the assault and negligent entrustment, retention, and supervision claims because the Rodriguezes waived any complaint by failing to present any argument or authority demonstrating error. Id. at 233 (citing Tex.R.App. P. 38.1(i)). The Rodriguezes do not challenge that ruling here.

We address whether the court of appeals erred by reversing: (1) the traditional summary judgment based on the unlawful acts doctrine; (2) the no-evidence summary judgment on negligence; and (3) the no-evidence summary judgment on gross negligence.

We review a grant of summary judgment de novo. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.2013) (per curiam). In a traditional motion for summary judgment, a movant must state specific grounds, and a defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment. Id. (citing Tex.R. Civ. P. 166a(c)). In a no-evidence motion for summary judgment, the movant contends that no evidence supports one or more essential elements of a claim for which the nonmovant would bear the burden of proof at trial. Tex.R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant raises a genuine issue of material fact on each challenged element. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (per curiam) (citing Tex.R. Civ. P. 166a(i)).

All the Ranch Petitioners moved for traditional summary judgment, arguing that the unlawful acts doctrine barred the Rodriguezes' claims. Under the doctrine, “no action will lie to recover a claim for damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party.” Gulf, C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 603 (1888). In our recent opinion in Dugger v. Arredondo, 408 S.W.3d 825 (Tex.2013), we held that the comparative responsibility scheme under Chapter 33 of the Texas Civil Practice and Remedies Code abrogated the unlawful acts doctrine. Id. at 832. Applying Dugger to this case, the unlawful acts doctrine cannot provide the basis for summary judgment. We therefore affirm that part of the court of appeals' judgment.

Next, we address Mestena Uranium and Boerjan's no-evidence motion for summary judgment on the negligence claim. The court of appeals performed a foreseeability analysis to conclude that Boerjan owed a duty of reasonable care to not injure the family by “allegedly initiating and maintaining a high speed chase over a caliche road.” 399 S.W.3d at 231–32. The Ranch Petitioners argue that this imposes a new duty on landowners to protect trespassers from the actions of other trespassers.

In a negligence case, the threshold inquiry is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Duty presents a legal question. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.2009). As we stated in Texas Utilities Electric Co. v. Timmons, the “only duty the premises owner or occupier owes a trespasser is not to injure him wilfully, wantonly, or through gross negligence.” 947 S.W.2d at 193 (citing Broussard, 273 S.W.2d at 603).² The court of appeals' foreseeability analysis ignored this well-established rule, under which the Ranch Petitioners owed the decedents only a duty to avoid injuring them wilfully or wantonly, or through gross negligence. See id.³ By its plain language, this duty does not support a simple negligence claim. See alsoRestatement (Second) of Torts § 333 cmt. b (1965). Because the Ranch Petitioners did not owe the decedents an ordinary negligence duty, the Rodriguezes' claim must fail as a matter of law. The court of appeals erred when it held otherwise. We reverse that part of the court of appeals' judgment.

Finally, we address the no-evidence summary judgment on gross negligence. Again, only Boerjan and Mestena Uranium joined this motion. Gross negligence requires a showing of two elements:

(1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed[s] in conscious indifference to...