Rodriguez v. Moerbe

• Decision Date: 30 January 1998
• Docket Number: No. 04-96-00384-CV,04-96-00384-CV
• Citation: 963 S.W.2d 808
• Parties: Jerry RODRIGUEZ; JoAnna Rodriguez; MariLou Quintanilla; and Jose Rodriguez and Genoveva Rodriguez, Individually and As Next Friend of Veronica Rodriguez, Appellants, v. Stan MOERBE, Appellee.
• Court: Texas Court of Appeals

Page 808

963 S.W.2d 808

Jerry RODRIGUEZ; JoAnna Rodriguez; MariLou Quintanilla and Jose Rodriguez and Genoveva Rodriguez Individually and As Next Friend of Veronica Rodriguez, Appellants, v. Stan MOERBE, Appellee.

No. 04-96-00384-CV.

Court of Appeals of Texas San Antonio.

Jan. 30, 1998.

Carlos A. Muniz, Carrizo Springs, for Appellant.

Pat Mullen, Daniel B. Ross, Mullen, MacInnes & Redding Ltd., Austin, for Appellee.

Before HARDBERGER, C.J., and STONE and ANTONIO G. CANTU, ¹ JJ.

OPINION

ANTONIO G. CANTU, Justice (Assigned).

This is an appeal from an order of the trial court granting a summary judgment in favor of Stan Moerbe (Moerbe), defendant below, in a personal injury case brought by Jerry Rodriguez, JoAnna Rodriguez, MariLou Quintanilla and Jose Rodriguez and Genoveva Rodriguez, individually and as next friend of Veronica Rodriguez (Rodriguezes) for injuries sustained in an automobile accident when their 1983 Ford pickup truck collided with a 1983 GMC Jimmy being driven by Hector Sepulveda (Sepulveda).

In a single point of error, the Rodriguezes assert that the trial court erred in granting the motion for summary judgment because there are genuine issues of material fact regarding their cause of action.

The uncontroverted summary judgment evidence reflects that on April 3, 1994, Easter Sunday, Moerbe and members of his family were on a recreational outing along the Frio River. ² Moerbe's 1989 Chevrolet Suburban was parked along the Old Uvalde Highway and was broken into and burglarized by persons unknown. When Moerbe discovered that the windows to his vehicle had been broken and some possessions removed, he got into his Suburban and drove down the Old Uvalde Highway, ³ hoping to find the person or persons who had burglarized his vehicle. As he approached the intersection of the Old Uvalde Highway and U.S. Highway 83, approximately seven miles north of LaPryor, Moerbe noticed a GMC Jimmy vehicle approaching the same intersection immediately ahead of him.

Moerbe, desiring to look inside the Jimmy to see if the occupants acted suspiciously, passed the GMC Jimmy before either vehicle reached the intersection and an impending stop sign. Moerbe then pulled back into the path of the GMC Jimmy and coasted past the stop sign onto the shoulder of U.S. Highway 83. The GMC Jimmy whipped around Moerbe's Suburban, ran the stop sign, entered the southbound lane of U.S. Highway 83, and collided with the Ford pickup occupied by the Rodriguez family, which was also traveling south on U.S. Highway 83, thereby inflicting injuries upon various members of the Rodriguez family.

On June 16, 1995, the Rodriguezes filed suit against Moerbe alone, alleging that Moerbe's action in chasing the GMC Jimmy and in crossing in front of the vehicle forced the GMC Jimmy to move onto the left lane and onto the southbound lane of U.S. Highway 83 causing a collision with their vehicle.

The Rodriguezes' Second Amended Original Petition alleged negligence on the part of Moerbe in the following respects:

1. Failing to maintain proper control of the vehicle he was driving at the time of the incident at issue;

2. Driving in an unskilled and incompetent manner and with disregard for the safety of others;

3. Failing to exercise ordinary care while operating a vehicle so as not to endanger the safety of others;

4. Passing unsafely and in a manner that endangered the safety of others;

5. Failing to stop at a STOP sign at the intersection of Old Uvalde Highway and Highway 83;

6. Failing to yield right of way to oncoming traffic at the intersection of Old Uvalde Highway and Highway 83;

7. Driving at an excessive rate of speed under the circumstances;

8. Using his vehicle to attempt to stop another moving motor vehicle.

On February 9, 1996, Moerbe filed his Motion for Summary Judgment ⁴ alleging Moerbe's summary judgment evidence consists of his own affidavit, excerpts from the depositions of two of the plaintiffs, Jerry and Jose Rodriguez, the investigating officer's accident report, deposition exhibits consisting of photographs showing damage to the GMC Jimmy and Ford pickup truck, and a diagram of the incident prepared during the taking of depositions.

that he was entitled to judgment as a matter of law because there is no genuine issue of material fact regarding elements of the Rodriguezes' cause of action. Specifically, Moerbe alleged that there was no duty owing to the Rodriguezes under the circumstances of the case, that he could not, as a matter of law, have foreseen the negligent acts of a third party who caused the accident, and that, in any event, the acts of a third party were a new and independent cause of the collision. The summary judgment was not granted on specific grounds.

The Rodriguezes' summary judgment evidence, in response to Moerbe's Motion for Summary Judgment, consists of the depositions of Jerry and Jose Rodriguez, the deposition of Genoveva Rodriguez, a diagram prepared during the depositions, and the affidavit of Hector Sepulveda.

Essentially, the evidence submitted by the parties is identical with a few, but important, exceptions.

STANDARD OF REVIEW

The standards for reviewing a summary judgment are well-established:

1. The movant for summary judgment 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 non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-9 (Tex.1985); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986); Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Roskey v. Texas Health Facilities Comm., 639 S.W.2d 302, 303 (Tex.1982). Moreover, the reviewing court will not consider evidence that favors the movant's position unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

In order for a defendant to be entitled to summary judgment, he must conclusively establish that there is no genuine issue of fact as to at least one essential element of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). That is, he must show, as a matter of law, that the plaintiff has no cause of action against him. Citizens First Nat'l Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976). In the alternative, the defendant may prove conclusively all elements of an affirmative defense. Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex.App.--Austin 1987, writ ref'd n.r.e.). A matter is conclusively established only if ordinary minds cannot differ about the conclusions to be drawn from the evidence. Harris v. Varo, Inc., 814 S.W.2d 520, 522 (Tex.App.--Dallas 1991, no writ).

Once a movant has established a right to summary judgment, the burden shifts to the non-movant to present the trial court with evidence of any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The reviewing court will then examine the response of the non-movant to see if specific facts at issue are brought to the attention of the trial court. See University of Texas Health Science Ctr. v. Big Train Carpet of El Campo, Inc., 739 S.W.2d 792, 792 (Tex.1987).

If the non-movant has not brought forth a material issue of genuine fact, the appellate court must look to the evidence before the trial court to see that each ground specifically

                presented to the trial court is proved as a matter of law.  Clear Creek Basin Auth., 589 S.W.2d at 677.   In the context of cases in which a determination of negligence is required to reach a decision, disposition by summary judgment is the exception, not the rule.  Hennessy v. Estate of Perez, 725 S.W.2d 507, 509 (Tex.App.--Houston [1st Dist.] 1987, no writ).  When the trial court's order granting summary judgment does not state the particular ground on which summary judgment was granted, the judgment will be affirmed if any of the grounds under which it was sought are established as a matter of law.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).  Accordingly, the burden is on the party appealing from such order to show that each of the independent arguments alleged in the motion is insufficient to support the order.  Rogers v. Ricane Ent., Inc., 772 S.W.2d 76, 79 (Tex.1989)
                

THE SUMMARY JUDGMENT EVIDENCE

The Deposition Testimony of Jerry Rodriguez

Jerry Rodriguez, the nineteen-year-old son of Jose and Genoveva Rodriguez, testified that on the second and third day of April 1994, the Rodriguez family was spending the Easter weekend camping at Garner State Park near Uvalde. On Easter Sunday, the family, along with other relatives traveling in a separate vehicle, was returning to their home in Carrizo Springs driving south on U.S. Highway 83. Jose was driving, Jerry was sitting in the passenger side and his mother, Genoveva, was in the middle. Other siblings were in the jump seats behind the front occupants while still other children were riding in the bed of the truck under a camper cover.

As the Rodriguezes' vehicle approached within 200 yards of a point where the Old Uvalde Highway intersects with U.S. Highway 83, Jerry's attention was drawn to a GMC Jimmy in the distance being followed by a Suburban at a high rate of speed down the Old Uvalde Highway. According to Jerry, the vehicles appeared to be racing in excess of 55 miles per hour. Jerry's father, Jose, immediately began to slow down as his vehicle approached the intersection. The GMC Jimmy appeared to be stopping at the stop sign, according to Jerry, when the Suburban whipped around the GMC Jimmy and pulled in front of...