Ramirez ex rel. T.C.J. v. Garcia

• Decision Date: 29 August 2013
• Docket Number: No. 07–11–00385–CV.,07–11–00385–CV.
• Citation: 413 S.W.3d 134
• Parties: Erma Gonzales RAMIREZ, Individually, and as Representative of the Estate of Raymond Ramirez, Deceased, and as Next Friend of L.R., J.R., M.R., and R.R., Minor Children, Janie Crosby, Samuel Lee Jackson, Individually, and Next Friend of T.C.J., A Minor Child, and as Personal Representative of the Estate of Rexee Jo Jackson, Deceased, Appellants v. Robert GARCIA and Cuahutemoc (“Tim”) Gonzalez, Appellees.
• Court: Texas Court of Appeals

413 S.W.3d 134

Erma Gonzales RAMIREZ, Individually, and as Representative of the Estate of Raymond Ramirez, Deceased, and as Next Friend of L.R., J.R., M.R., and R.R., Minor Children, Janie Crosby, Samuel Lee Jackson, Individually, and Next Friend of T.C.J., A Minor Child, and as Personal Representative of the Estate of Rexee Jo Jackson, Deceased, Appellants

v.Robert GARCIA and Cuahutemoc (“Tim”) Gonzalez, Appellees.

No. 07–11–00385–CV.

Court of Appeals of Texas, Amarillo.

Aug. 29, 2013.

Douglas A. Allison, Corpus Christi, Beth Watkins, San Antonio, Lupita Aguilar, for Appellants.

Michael L. Byrd, Lubbock, Liberty D. Lay, for Appellees.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

Samuel Lee Jackson, individually, as next friend of his minor son, and as personal representative of the estate of Rexee Jo Jackson, appeals the trial court's summary judgment in favor of defendant, Cuahutemoc “Tim” Gonzalez. Erma Ramirez, individually and as next friend of five minor children, and Janie Crosby, individually, also appeal the trial court's summary judgment in favor of Gonzalez on their claims against him. Appellants bring to the Court a variety of issues relating to Gonzalez's liability for a fatal traffic collision resulting in the death of three people. We will affirm in part and reverse and remand in part.

Factual and Procedural History

In addition to his several other duties associated with the farming business, Gonzalez is the owner and sole proprietor of Gonzalez Farms, an entity engaged in the custom harvesting business. In this particular instance, Gonzalez contracted with Chester Farms to harvest silage. The verbal agreement between Chester Farms and Gonzalez included the task of hauling the harvested silage from the Chester Farms field to the Littlefield Feedyard. Chester Farms agreed to pay Gonzalez $6.00 for each ton harvested and delivered to the feedyard and eighteen cents per mile for the hauling.

As was typical, Gonzalez utilized his own equipment, including harvesters, a combine, grain carts, plows, rakes, and three eighteen-wheeler trucks. However, his own trucks were insufficient to efficiently haul the volume of harvested silage and, after Gonzalez was contacted by a number of other drivers looking for this type of work, he utilized them as well. One such driver was Robert Garcia, owner of 3R/Garcia Trucking and with whom Gonzalez had not previously done business. When Garcia first contacted Gonzalez, Gonzalez informed Garcia that there was no need for extra trucks and, therefore, no work available at that time. Garcia called Gonzalez back about a week later and learned that Gonzalez did have a need for extra trucks and extra drivers at that time. Garcia and two drivers arrived at the designated location with a total of three seemingly well-maintained eighteen-wheeler trucks and carried on the business of hauling silage from field to feedyard. Beginning in mid-September 2009, Garcia and the other 3R/Garcia Trucking drivers apparently hauled loads for Gonzalez without incident.

Gonzalez agreed to pay to the truck drivers $2.75 per ton delivered to the feedyard and eighteen cents per mile, meaning that Gonzalez kept $3.25 of the $6.00 Chester Farms agreed to pay for each ton harvested and delivered. Gonzalez Farms employed two harvester operators, one of them being Gonzalez's brother, Javier Gonzalez. In the field, Javier operated one of the harvesters, which would empty the harvested silage through a spout into the bed of a trailer. This process called for a coordinated effort between the harvester operator and the truck driver. When the silage reached the top of the trailer walls or very nearly so, Javier would signal to the truck driver that the trailer was full, and the truck would then deliver the load to the feedyard.

Due to weather conditions, harvesting was halted over the weekend of October 3–4, 2009, and delayed throughout the misty and foggy morning of Monday, October 5. When the weather conditions and moisture content of the silage were acceptable, harvesting resumed sometime in the afternoon of Monday, October 5. When harvesting resumed, Garcia brought the usual three eighteen-wheelers belonging to 3R/Garcia but also brought along a fourth truck, a smaller 1980 International tandem truck belonging to Garcia, along with a fourth driver, Raymond Ramirez.

Without incident, apparently, the tandem truck lined up along with the other trucks and was loaded with silage. After it was loaded, it started en route to the feedyard. But along the relatively short route, tragedy stuck when a tire blew out on the tandem truck, causing Ramirez to lose control of the loaded truck and careen headlong into oncoming traffic where the SUV driven by Tammy Jackson and carrying her teenaged daughter, Rexee Jo, was travelling. The head-on impact killed Tammy and Rexee Jo instantly, and Ramirez also died a short time later at the hospital.

Jackson, father of Rexee Jo and former husband of Tammy, sued Garcia and Gonzalez; Ramirez and Crosby intervened. Gonzalez moved for traditional and no-evidence summary judgment against Ramirez and Crosby, and the trial court granted both motions in May 2011. Their claims against Garcia remained. On August 22, 2011, the trial court signed a default judgment against Garcia in favor of Jackson, awarding over $4.5 million and severing Jackson's claims against Garcia. Jackson's claims against Gonzalez remained, as did, it seems, Ramirez and Crosby's claims against Garcia, not having been specifically identified in the severance language. Jackson and Gonzalez filed competing hybrid motions for summary judgment. The trial court granted Gonzalez's no-evidence motion, denied Jackson's, and found it unnecessary to rule on Gonzalez's traditional motion for summary judgment.

As noted, when it signed the default judgment against Garcia in favor of Jackson, the trial court severed Jackson's claims against Garcia, leaving Ramirez and Crosby's claims against Garcia. In its final order, the trial court specifically severed both Jackson's and Ramirez and Crosby's claims against Garcia so as to make final both summary judgments in favor of Gonzalez. The default judgment in favor of Jackson against Garcia had already been severed, not appealed, and appears to be final as to Jackson's claims against Garcia. Ramirez and Crosby nonsuited their claims against Garcia, and those claims are not before us; Garcia is not a party to this appeal.¹

At issue are two summary judgments granted in favor of Gonzalez against two separate sets of appellants, meaning that there are, in essence, two appeals. Though some of the issues raised by appellants are similar, each seems to raise slightly different claims below and issues on appeal. What both sets of appellants do have in common is that both sets are trying to impose liability on Gonzalez.

Standard and Scope of Review

A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. SeeTex.R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.2003). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the non-movant's claim or defense. Tex.R. Civ. P. 166a(i).

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Chapman, 118 S.W.3d at 750–51. So, when called on to review a no-evidence summary judgment, we review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005), and Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002)).

A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on a challenged element. Tex.R. Civ. P. 166a(i); see Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003); Chapman, 118 S.W.3d at 751. “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.2010) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). Put another way, a no-evidence point will be sustained when “(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Chapman, 118 S.W.3d at 751 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Forbes Inc., 124 S.W.3d at 172 (citing Chapman, 118 S.W.3d at 751, and Havner, 953 S.W.2d at 711).

Negligent Loading or Overloading

In his first point of error, Jackson contends that the trial court erred by granting Gonzalez's no evidence motion for summary judgment on Jackson's allegation of negligent loading of the tandem truck Ramirez was driving. Gonzalez contends that the evidence of breach on which Jackson relies is...