H. Ray Johnson, Jr. and Denise Johnson and Richard and Ofelia Hull v. Corpus Christi Caller-Times Publishing Company D/B/A Corpus Christi Caller-Times

NUMBER 13-97-307-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ H. RAY JOHNSON, JR., DENISE JOHNSON, AND RICHARD AND OFELIA HULL , Appellants, v. CORPUS CHRISTI CALLER-TIMES PUBLISHING COMPANY, D/B/A CORPUS CHRISTI CALLER-TIMES , Appellee. ___________________________________________________________________ On appeal from the 214th District Court of Nueces County, Texas. ___________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Justice Dorsey The issue in this case is whether a newspaper can be held liable for the off-duty criminal conduct of its paper delivery persons. We hold that, in this case, it cannot. This is an appeal from a summary judgment. The Johnsons and the Hulls, plaintiffs, are two couples who subscribed to the Corpus Christi Caller-Times newspaper. They both attempted to participate in a "vacation" program offered by the Caller-Times. Under that program, Caller-Times subscribers could contact the paper and notify the paper they would be vacationing on certain dates. The paper would then make arrangements to stop delivery of the paper at the vacationing subscriber's house for the duration of the vacation. In June of 1990, both couples went on vacation. Both intended to take advantage of the vacation program and stop delivery of the paper at their homes while they were gone. The Hulls contacted the paper as required by the program, and the Johnsons--having forgotten about it until after they left on vacation--had their mother contact Mack Taylor, their paper delivery person, directly. (Taylor was the delivery person for both couples.) While both couples were vacationing, Mack Taylor burglarized their homes. They sued the Caller-Times for violations of the DTPA, negligence and breach of warranty. The Caller-Times moved for summary judgment, which the trial court granted, and plaintiffs here appeal that judgment. We hold that the Caller-Times conclusively established that its actions were not the cause in fact of the plaintiffs' injuries, and accordingly, proved its entitlement to judgment as a matter of law on all causes of action. Standard of Review We follow the well-established standards for reviewing a summary judgment. 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. Tex. R. Civ. P. 166a(c);Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999);Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in its favor. Id. A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 678. When multiple grounds are asserted for summary judgment and the order is silent as to the ground upon which summary judgment was granted, the appealing party must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Issues that are not expressly presented to the trial court in writing cannot be urged on appeal. Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex. 1988); Nixon, 690 S.W.2d at 548-49; Clear Creek Basin Auth., 589 S.W.2d at 675-77. The nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. However, if the movant does not show its entitlement to judgment as a matter of law, the appellate court must remand the case to the trial court for further proceedings. Gibbs v. General Motors Corp., 450 S.W.2d at 828. Deceptive Trade Practices The elements of a DTPA cause of action are: (1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; (or breach of an express or implied warranty); and (3) these acts constituted a producing cause of the consumer's damages. Tex. Bus. & Com. Code § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); Bradford v. Vento, 997 S.W.2d 713, 736 (Tex. App.--Corpus Christi 1999, no pet.). The Caller-Times argued that plaintiffs could not establish two elements: (1) that any act committed by the Caller-Times was a producing cause of plaintiffs' injuries, and (2) that the Caller-Times engaged in false, misleading, or deceptive acts. We hold that the Caller-Times has conclusively established that its acts were not a producing cause of plaintiffs' injuries. A producing cause is a substantial factor which brings about the injury and without which the injury would not have occurred. Boys Clubs, 907 S.W.2d at 481. It has been defined as "an efficient, exciting, contributing cause which, in a natural sequence, produced the injuries complained of." Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995); Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 783 (Tex. App.--Corpus Christi 1997, writ denied). In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. . . . The negligence must also be a substantial factor in bringing about the plaintiff's harm. The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (quoting Restatement (Second) of Torts § 431 cmt. a (1965)). Put another way, the mere fact of existence of both a guilty act and an injury does not necessarily mean that the two must be causally connected. Boys Clubs, 907 S.W.2d at 481. "The plaintiff must show an 'unbroken causal connection' between the misrepresentation and the injury." Cianfichi v. White House Motor Hotel, 921 S.W.2d 441, 443 (Tex. App.--Houston [1st Dist.] 1996, writ denied). Moreover, while reliance on the alleged misrepresentation is not an element of a DTPA cause of action, it may be a factor in deciding whether the defendant's conduct was a producing cause of damages to the plaintiff. In this case, the plaintiffs allege that the Caller-Times misrepresented the way it would operate its vacation program. That is, Caller-Times told plaintiffs it would stop delivery of newspapers to their homes while they were on vacation and the Caller-Times failed to notify the carrier as it had agreed. The plaintiffs' damages, however, are the losses that resulted from being burglarized while they were gone. If the Caller-Times had done what it represented it would do--i.e., told plaintiffs' newspaper delivery person to stop delivery--the result would have been the same. Mack Taylor, the person who burglarized the plaintiffs' houses, would have known that the plaintiffs were out of town whether the Caller-Times advised him of that fact or whether he discovered it himself by noticing the accumulation of newspapers in the plaintiffs' yards. Neither the performance nor breach of the duty tended to affect the likelihood that plaintiffs' houses would be burglarized by the paperboy. We hold as a matter of law under the unusual facts of this case that defendant has conclusively established that its conduct was not a producing cause of the plaintiffs' injuries. We affirm the summary judgment as it relates to plaintiffs' DTPA causes of action. Negligence Because Caller-Times has conclusively negated that its acts were the cause in fact of plaintiffs' damages, it negated the proximate cause element of plaintiffs' negligence claims. The elements of a negligence cause of action require a plaintiff to show that (1) the defendant breached (2) a legal duty owed by the defendant to the plaintiff, and (3) that the breach proximately caused actual injury to the plaintiff. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998). In its motion, the Caller-Times argued that it had no duty to plaintiffs under these facts because Mack Taylor, the paper boy burglar, was not its employee, but was an independent contractor. We do not agree that it conclusively established a lack of duty. See e.g. Read v. Scott Fetzer Co., 990 S.W.2d 737, 735 (Tex. 1998) (holding that where a company retains control over a portion of an independent contractor's work, a duty is imposed to "exercise this retained control reasonably"); but see Arlen v. Hearst Corp., 4 S.W.3d 326, 327-28 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (holding that requiring the delivery persons to pick up the papers around midnight and deliver them by 6:30 a.m. was not sufficient amount of retained control to make newspaper liable for delivery person who fell asleep at the wheel while delivering the papers). We hold that the newspaper did not establish its entitlement to summary judgment because of the independent contractor relationship with the burglar. We have held that the Caller-Times conclusively negated producing cause, a necessary component of the proximate cause element of a negligence claim. Union Pump Co., 898 S.W.2d at 775. Proximate and producing cause differ in that foreseeability is an element of proximate cause, but not of producing cause. Proximate cause consists of both cause in fact and foreseeability. . . . Common to both proximate and producing cause is causation in fact, including the requirement that the defendant's conduct or product be a substantial factor in bringing about the plaintiff's injuries. Union Pump Co. v. Allbritton, 898 S.W.2d at 775 (internal citations omitted); see also Stewart v. Transit Mix Concrete & Materials Co., 988 S.W.2d at 255 ("The difference is that proof of proximate cause entails a showing that the incident was foreseeable, while proof of producing cause does not. The element common to both proximate cause and producing cause is actual causation-in-fact."); Rodriguez v. Hyundai Motor Co., 944 S.W.2d 757, (Tex. App.--Corpus Christi 1997) (Seerden, C.J., dissent) rev'd on other grounds Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661 (Tex. 1999) ("Proximate and producing cause differ in that, while both require a showing of causation in fact, foreseeability is an element of proximate cause, but not of producing cause.") Accordingly, because we conclude that the Caller-Times proved as a matter of law that its conduct was not the cause in fact of the plaintiffs' injuries, we hold that summary judgment on the plaintiffs' negligence claim was proper. See also Boys Clubs, 907 S.W.2d at 477. Warranty Claims Liability for breach of warranty also requires a showing of proximate cause. Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999). As we have previously explained, because we have held that defendant conclusively negated cause in fact, proximate cause was necessarily negated at the same time. We affirm the trial court's grant of summary judgment on the plaintiff's warranty claims. Accordingly, we affirm the trial court's grant of summary judgment in all respects. J. BONNER DORSEY, Justice Do not publish . Tex. R. App. P. 47.3(b). Opinion delivered and filed this 13th day of July, 2000.