Judy Squier, Ind. and as Representative of the Estate of Marc Squire v. Shepherd Emergency Medical Services, Inc.

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-470 CV ____________________ JUDY SQUIER, individually and as representative of THE ESTATE OF MARC SQUIER, Appellant V. SHEPHERD EMERGENCY MEDICAL SERVICES, INC., Appellee On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. 9763 O P I N I O N Judy Squier, individually and as representative of the estate of Marc Squire, deceased, filed a wrongful death suit against Shepherd Emergency Medical Services, Inc. Shepherd moved for summary judgment claiming sovereign immunity. The trial court granted the motion. Shepherd's motion raised two grounds for summary judgment: (1) the members of Shepherd EMS are not employees within the meaning of the Texas Tort Claims Act; and (2) Shepherd EMS has not waived its immunity. The trial court did not specify upon which ground summary judgment was granted. Thus, Squier must argue that every ground in the summary judgment motion is erroneous. See Simmons v. Healthcare Centers of Texas, Inc., 55 S.W.3d 674, 680 (Tex. App.--Texarkana 2001, no pet.)(citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)). Squier appeals claiming "the trial court erred in granting [Shepherd's] motion for summary judgment because [Shepherd] waived its sovereign immunity in that there is evidence that Marc Squier's death arose from [Shepherd's] use or misuse of tangible personal property and in violation of ordinances and statutes while responding to a 911 emergency call or when reacting to an emergency situation." Squier's brief makes no arguments other than those related to the issue recited above. Since Squier challenged the summary judgment by a specific point, rather than assigning a general "Malooly" point of error, Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970), the judgment must be affirmed if there is another possible ground on which the trial court could have based the summary judgment. See Warner v. Orange County, 984 S.W.2d 357 (Tex. App.--Beaumont 1999, no pet.). In the present case, we must conclude the trial court could have granted summary judgment based on Shepherd's contention that it cannot be held liable for the actions of volunteers. See Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994). Squire failed to challenge a ground upon which summary judgment may have been granted. Thus, the judgment must stand. See Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 199 (Tex. App.--Houston [14th Dist.] 2001, no pet.). The judgment is AFFIRMED. PER CURIAM Submitted on March 8, 2002 Opinion Delivered March 14, 2002 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ.