Lillian Thomas, John Ellard and Chris Ortiz v. Centerpoint Energy, Inc., and Centerpoint Energy Houston Electric, LLC

Opinion issued February 7, 2008 Opinion issued February 7, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00318-CV LILLIAN THOMAS, JOHN ELLARD, AND CHRIS ORTIZ, Appellants V. CENTERPOINT ENERGY, INC. AND CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellees On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 33167 MEMORANDUM OPINION In this case involving the collision of a car and a horse, Lillian Thomas, John Ellard, and Chris Ortiz (collectively, “appellants”) appeal the traditional and no-evidence summary judgment rendered in favor of Centerpoint Energy, Inc. and Centerpoint Energy Houston Electric, LLC (collectively, “Centerpoint”). Appellants contend that: (1) Centerpoint’s traditional motion for summary judgment fails to expressly state grounds for summary judgment; (2) the trial court improperly struck certain summary judgment evidence from the record; and (3) a genuine issue of material fact exists, precluding summary judgment as a matter of law. We conclude that the trial court properly granted summary judgment and therefore affirm. Background On a February night in 2005, while driving on a rural stretch of road, Thomas and Ellard struck a horse in the roadway. Ortiz owned the horse, and the pasture in which it generally had been penned. Thomas and Ellard allege that they sustained personal injuries from the collision, and the horse was euthanized. Ortiz later intervened as a plaintiff. On the day of the accident, Centerpoint personnel were in the area to investigate a power outage. Appellants allege that Centerpoint unlocked and opened the gate to Ortiz’s horse pasture, purportedly to turn around their bucket truck, and failed to shut the gate before departing. In his summary judgment affidavit, Scott Goodman, an employee of Centerpoint, acknowledges that he drove along County Road 601, the road upon which Ortiz’s pasture is located, on the appointed day, while en route to restore electricity for a customer. Goodman also acknowledges that he turned the Centerpoint truck around on County Road 601, but denies ever opening a pasture gate. Centerpoint moved for both a traditional and no-evidence motion for summary judgment. In response, Ortiz offered an affidavit, but it was untimely filed. The trial court granted a continuance so that the parties could depose Ortiz. Thereafter, appellants filed a supplemental response, in which they attached Ortiz’s 158-page deposition, without referring the trial court to particular testimony. At the summary judgment hearing, the trial court declined to consider appellants’ general references to the deposition. The court requested that appellants draft a letter brief citing authorities that supported appellants’ contention that the entire deposition should be considered without such references. After the hearing, appellants submitted an index referencing specific page and line numbers and a letter brief supporting their position that references were not required. The court granted summary judgment on both traditional and no-evidence grounds. The court declined to consider the Ortiz deposition as too voluminous and further declined to consider the index because of its untimely submission. The court granted Centerpoint’s hearsay objection to Ortiz’s statements that another individual named Sam Hahn had stated that the Centerpoint employees had opened the gate. Additionally, the court granted Centerpoint’s objection to Ortiz’s affidavit opinion that the Centerpoint truck was too wide to turn around on County Road 601 without entering a pasture because the statement was conclusory, self-serving, and contradicted by Ortiz’s deposition testimony. Standard of Review We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant a judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Traditional summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc., 941 S.W.2d at 911. After adequate time for discovery, a party may move for a no-evidence summary judgment on the ground that no evidence exists to support one or more essential elements of a claim or defense on which the opposing party has the burden of proof. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. More than a scintilla of evidence exists if the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosci., Inc., 124 S.W.3d 167, 172 (Tex. 2003). Discussion Adequacy of the Motion In their first point of error, appellants assert that the court did not adhere to the proper “standard of decision” for summary judgment. Specifically, appellants argue that summary judgment cannot be based on grounds that are not expressly presented in the motion for summary judgment. According to appellants, the court devoted “considerable discussion” to various hypotheticals favorable to Centerpoint at the hearing on motion for summary judgment, such as the possibility of the horse jumping over the fence rather than escaping through an open gate. Appellants argue that such hypotheticals were not expressly presented in Centerpoint’s motion for summary judgment. Appellants acknowledge, however, that Centerpoint expressly presented their contention, supported by Goodman’s affidavit, that Centerpoint’s employees did not open any gate and thus did not breach any duty or cause any injury. Rule 166a(c) of the Texas Rules of Civil Procedure establishes that a motion for summary judgment must “state the specific grounds therefor,” and the trial court is to render judgment if “the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c); Stiles v. Resolution Trust Corp., 867 S.W.2d 24 (Tex. 1993). Centerpoint expressly set forth the specific grounds for summary judgment. Goodman’s affidavit also expressly negates the breach of duty and causation components of a negligence claim. Western Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (describing elements of a negligence action). Consequently, we hold that Centerpoint expressly presented grounds for summary judgment in its motion. Admissibility of Summary Judgment Evidence Appellants assert that the trial court improperly struck evidence from the record before determining whether summary judgment should be granted. We review a trial court’s decision to admit or deny summary judgment evidence under an abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). The standards for the admissibility of evidence in a summary judgment proceeding are the same as those of a regular trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). When reviewing abuse of discretion, we consider whether the trial court acted arbitrarily or unreasonably, or without reference to guiding rules and principles. Owens-Corning, 972 S.W.2d at 43. First, appellants contend that the hearsay statements allegedly made by Hahn that were contained in Ortiz’s affidavit and deposition should not have been stricken from the record. According to the stricken evidence, Ortiz overheard Hahn, an acquaintance, telling a police officer on the night of the accident that he had seen a Centerpoint truck turn around in Ortiz’s pasture several hours earlier that day. Appellants contend that Hahn’s statement is an excited utterance or a present sense impression, and qualifies as an exception to the hearsay rule. Out-of-court statements offered for their truth are inadmissible. Tex R. Evid. 802. However, a hearsay exception exists for statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex R. Evid. 803(2). A simple narrative of past events is disqualified from consideration as an excited utterance regardless of how soon after the event it is made. First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954, 959 (Tex. App.—Texarkana 1989, writ denied) citing Gulf, C. & S.F.R. Co. v. Moore, 69 Tex. 157, 6 S.W. 631 (1887). Based on Ortiz’s affidavit and deposition, there is no evidence that Hahn’s testimony to the police qualifies as an excited utterance. Hahn was not a witness to the car accident, and nowhere in the record does it indicate that he was under stress or spoke with excitement. In the absence of more specific information, the trial court reasonably could have concluded that Hahn’s statements to the police officer were presented in the narrative format determined by MacDowell to be preclusive of the excited utterance exception. The “present sense impression” hearsay exception is similarly inapplicable. A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Tex. R. Evid. 803(1). Contemporaneity between the event and the statement is the lynchpin of this exception. Fischer v. State, 207 S.W.3d 846, 855 (Tex. App.—Houston [14th Dist.] 2006, pet. granted). The record contains no evidence to indicate that Hahn’s statement was contemporaneous with his alleged observation of the Centerpoint truck turning around in Ortiz’s pasture. The trial court thus did not abuse its discretion in concluding that Hahn’s hearsay statement does not qualify as a present sense impression. Second, appellants assert that the trial court erred by striking the portion of Ortiz’s affidavit in which he testifies that Centerpoint’s “trucks are too wide to turn around on the single laned road on CR 601 . . . without getting off the road in some manner . . .” The trial court reasoned that the statement was self-serving, without a factual basis, and contradicted by Mr. Ortiz’s deposition testimony. Statements made without a factual basis, otherwise known as conclusory statements, cannot support or defeat summary judgment. Marshall v. Sackett, 907 S.W.2d 925 (Tex. App.—Houston [1st Dist.] 1995, no writ). Here, Ortiz offers no factual basis for his statement. He did not see the Centerpoint truck that day, and demonstrated no personal knowledge regarding its turning radius. Third, appellants contend that the court improperly removed Ortiz’s deposition from the record, and then improperly refused to consider the untimely filed index. A trial court is not required to search the record for evidence raising a material fact issue without specific guidance from the non-movant. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no writ). Here, appellants filed deposition references in response to the trial court’s concern that the deposition was too lengthy. We have reviewed the deposition and its references, and conclude that, other than the statements previously discussed, none of the references attempt to controvert Goodman’s statement that he did not open the gate. Rather, the references describe the scene and the weather that day. Thus, even reviewing the deposition with its references, we conclude that it does not raise a fact issue. Finally, appellants contend that the trial court, having refused to consider Ortiz’s deposition, should not have permitted Centerpoint to cite to the deposition to substantiate its claim of contradictory language in Ortiz’s affidavit and deposition. As we have considered both parties’ references in evaluating this appeal, appellants’ contention does not warrant reversal. Question of Fact In their last issue, appellants contend that circumstantial evidence supports the claim that Centerpoint employees opened the gate, raising a fact issue. Appellants reason that because “evidence provided by the non-movant will be taken as true,” and that circumstantial evidence “points strongly to Centerpoint entering the pasture,” the trial court should have denied summary judgment. They note that circumstantial evidence can defeat a no-evidence summary judgment. See Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 226 (Tex. App.—Beaumont 2004, no pet.). Material facts can be established with direct evidence, circumstantial evidence, or a combination of both. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrel Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Circumstantial evidence, however, does not amount to a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of the fact’s existence. Ford Motor, 135 S.W.3d at 601. The only possible fact that would create more than a mere suspicion that the Centerpoint employees turned around in Ortiz’s pasture is Hahn’s alleged hearsay statement that Centerpoint employees opened the gate to turn around their truck. But Hahn did not offer an affidavit or testify, and we have held that the trial court did not abuse its discretion in excluding Ortiz’s statement about what Hahn said. The mere fact that a Centerpoint truck traveled down the country road on the day of the accident, without more, does not raise a fact issue that Centerpoint’s negligence caused the accident. Conclusion We conclude that the trial court correctly granted summary judgment in favor of Centerpoint. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland.