Robert Polmounter v. Keystone Food Products, Inc.

Affirmed and Memorandum Opinion filed September 5, 2006 Affirmed and Memorandum Opinion filed September 5, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00560-CV ____________ ROBERT POLMOUNTER, Appellant V. KEYSTONE FOOD PRODUCTS, INC., Appellee On Appeal from the 278th District Grimes County, Texas Trial Court Cause No. 29,797 M E M O R A N D U M  O P I N I O N Appellant, Robert Polmounter, challenges the granting of a no-evidence summary judgment in favor of appellee, Keystone Food Products. We affirm. On February 5, 2004, Polmounter, an inmate at the Pack Unit of the Texas Department of Criminal Justice, shared a bag of Keystone=s Aparty mix@ with two other inmates, John Clifton and Paul Long. Polmounter alleges finding a strip of chicken in the bottom of the bag and claims he became sick with food poisoning several hours later. Appellant attempted to receive emergency medical care at the prison facility but was instructed to follow an internal policy for non-life threatening injuries. Appellant filed the request form, but by the time the nurse responded to his request, Polmounter was no longer sick. Polmounter was never seen by a physician. On July 20, 2004, Polmounter filed a negligence action against Keystone. Keystone filed a no-evidence summary judgment motion, which the trial court granted. Polmounter appeals the granting of the motion in six issues. The first four issues pertain to whether Polmounter presented a fact issue as to causation. In the fifth issue, Polmounter contends the trial court failed to consider purportedly deemed admissions against Keystone, and in the sixth issue, Polmounter alleges the trial court lacked jurisdiction to grant Keystone=s motion to dismiss. Discussion I. Trial Court=s Jurisdiction In his sixth issue, Polmounter contends the trial court lost jurisdiction over this cause of action under Texas Rules of Civil Procedure 329b(e) and (g), and therefore, could not hear Keystone=s motion to dismiss . See Tex. R. Civ. P. 329b(e), (g). A trial court retains plenary jurisdiction over a case for thirty days after its judgment becomes final. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 311B12 (Tex. 2000). The trial court granted Keystone=s motion for summary judgment on January 8. On March 17, Keystone filed with the trial court a motion to dismiss with prejudice under Texas Rule of Appellate Procedure 45. The trial court purported to grant Keystone=s motion on April 8, but it did not award Keystone damages. Because this order was signed after the trial court=s plenary power expired, it is void. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998). We sustain Polmounter=s sixth issue. However, because the April 8 order grants no more relief than the summary judgment, the sustaining of this issue yields no relief for Polmounter. Furthermore, if Keystone wanted to dismiss this appeal as frivolous and ask for sanctions, it should have filed such a request with this court.[1] Because it did not file any such motion with this court, Polmounter=s appeal to this court was not hindered. II. Admissions In his fifth issue, Polmounter contends the trial court erred in granting summary judgment because he claims his requests for admissions to Keystone were deemed against Keystone, and therefore, summary judgment should have been precluded. Requests for admissions and answers are considered part of the record if they are filed with the clerk of the court. Newman v. Utica Nat=l Ins. Co. of Tex., 868 S.W.2d 5, 7 (Tex. App.CHouston [1st Dist.] 1993, writ denied). Admissions, whether admitted or deemed, may resolve a fact issue if they conclusively establish the facts stated therein. See Tex. R. Civ. P. 198.3; CEBI Metal Sanayi Ve Ticaret A.S. v. Garcia, 108 S.W.3d 464, 466 (Tex. App.CHouston [14th Dist.] 2003, no pet.). If a party does not respond to a request for admissions, the request is considered admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c). A responding party is required to serve a written response within thirty days after service of the request, except a defendant served with a request before the answer is due need not respond until fifty days after service. Tex. R. Civ. P. 198.2(a). Before untimely answered requests for admissions are automatically deemed admitted and considered as summary judgment proof, proper service must be shown. Sosa v. Williams, 936 S.W.2d 708, 710 (Tex. App.CWaco 1996, writ denied). The certificate of service on Polmounter=s request for admissions shows the request was served on Keystone on September 2, 2004 by U.S. mail; therefore, Keystone=s response was due no more than thirty-three days later on October 5. See Tex. R. Civ. P. 21a; 198.2(a). Polmounter contends Keystone submitted its responses past the deadline on October 13. Polmounter filed a motion for sanctions and order compelling discovery on October 13, the same day he contends Keystone answered his requests for admissions, requesting the trial court to order Keystone to respond to his discovery requests, but neither this pleading nor Polmounter=s brief to this court constitute evidence of Keystone=s failure to respond to Polmounter=s request for admissions. Thus, there is no evidence in the record to support Polmounter=s contention that his requests for admissions are considered admitted against Keystone. Accordingly, we do not consider the purported admissions as summary judgment proof and overrule Polmounter=s fifth issue. III. No Fact Issue as to Causation Polmounter=s first through fourth issues address whether he raised a fact issue in response to Keystone=s no-evidence motion for summary judgment. We review the granting of summary judgment de novo to determine whether summary judgment proof establishes as a matter of law there is no genuine issue of material fact. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215B16 (Tex. 2003); Nixon v. Mr. Prop. Mgmt. Co. Inc., 690 S.W.2d 546, 548B49 (Tex. 1985). A defendant moving for a no-evidence summary judgment must specifically state the elements of a claim to which there is no evidence.[2] Tex. R. Civ. P. 166a(i); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 500 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). Once a no-evidence summary judgment has been filed, the non-movant must bring forth more than a scintilla of evidence to raise a fact issue on the challenged elements on which the non-movant would have the burden of proof. See Tex. R. Civ. P. 166a(i) Cruikshank, 138 S.W.3d at 500; Russo v. Smith Int=l, Inc., 93 S.W.3d 428, 433 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). A movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. Russo, 93 S.W.3d at 433. The evidence amounts to more than a scintilla when it Arises to a level that would enable reasonable and fair-minded people to differ in their conclusions.@ King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We review the granting of a no-evidence summary judgment in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.CHouston [1st Dist.] 1999, no pet.). The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Keystone moved for summary judgment on the grounds of breach and proximate cause. Proximate cause requires proof of cause in fact and foreseeability. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003). Cause in fact and foreseeability cannot be satisfied by mere conjecture, guess, or speculation. Id. at 798B99. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, harm would not have occurred. Id. at 799. Keystone contends Polmounter did not raise a fact issue in his response to the no-evidence motion for summary judgment because he did not attach any summary judgment evidence to his response. It is well settled that neither the motion for summary judgment, nor the response, even if sworn, is ever proper summary judgment proof. Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Polmounter filed three pleadings in response to Keystone=s motion for summary judgment: (1) Plaintiff=s Response to Defendant=s No Evidence Motion for Summary Judgment; (2) Addendum to Plaintiff=s Response to Defendant=s No Evidence Motion for Summary Judgment; and (3) Plaintiff=s Motion Objecting to Defendant=s No Evidence Motion for Summary Judgment. Polmounter did not attach any summary judgment evidence to any of those pleadings. A review of the entire record shows Polmounter submitted three purported affidavits and a prison medical form to the court with his original petition and in response to discovery requests from Keystone. He also filed, in one of his many responses to Keystone=s request for disclosure, interviews he conducted with two prison food service personnel. As a threshhold issue, we note that none of the evidence in the record, which could amount to summary judgment proof, states Polmounter ate the allegedly contaminated chicken strip or that eating the chips caused Polmounter=s illness. Assuming, without deciding, the affidavits in the record are sufficient summary judgment proof, the facts set forth therein do not show the chicken strip caused Polmounter=s illness. The allegations in the affidavits show the other inmates saw Polmounter eat from the bag of chips and later saw Polmounter vomit over the course of the next two days. They also admit eating chips from the bag, but they did not become sick. Polmounter argues the other inmates did not become sick because he consumed the most chips. Polmounter also did not see a doctor about his illness. The only evidence in the record that he attempted to see a doctor is from a prison medical form, which indicates he attempted to see a doctor but was denied access. Polmounter attached this form to his response to Keystone=s request for production. The form, however, is not attached to an affidavit and contains the following handwritten note at the top of the form: AThis is a handmade copy of the I-60 request to medical.@ A party cannot authenticate a document for use in its own favor by merely producing it in response to a discovery request. Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 452 (Tex. App.CDallas 2002, no pet.). Even if we were to consider this form as competent summary judgment proof as to causation, which we do not, the form does not indicate how the alleged contaminated food may have made Polmounter sick, or that he ever had food poisoning. Polmounter next attempts to provide evidence of causation through two interviews with prison food service personnel. Purported transcriptions of these interviews were attached to Polmounter=s third response to Keystone=s request for disclosure. These interview transcripts are typed and not sworn to by either the interviewer (allegedly Polmounter) or the interviewees. See id. Furthermore, the questions and answers in the interview make allegations of medical diagnosis for which neither interviewee has offered any expertise or experience to support such a conclusion. In his pleadings, Polmounter argued that he did not have to provide expert testimony in this lawsuit because such evidence is not required in a negligence action. In his brief to this court, he argues documented medical proof is not the only evidence that can prove Keystone=s food product caused his illness because the connection between food and illness may be inferred by a balancing of probabilities. See Rehabilitative Care Sys. of Am. v. Davis, 43 S.W.3d 649, 657 (Tex. App.CTexarkana 2001), pet. denied, 73 S.W.3d 233 (Tex. 2002) (per curiam) (holding expert testimony is not needed when underlying negligence involves standard of non-medical, administrative, ministerial, or routine care at a hospital);[3] Coca-Cola Bottling Co. of Plainview v. White, 545 S.W.2d 279, 280 (Tex. Civ. App.CWaco 1976, no writ) (holding lay testimony was sufficient to prove causation for injury from drinking beverage that contained remains of a mouse); Herbert v. Loveless, 474 S.W.2d 732, 738 (Tex. Civ. App.CBeaumont 1971, writ ref=d n.r.e.) (holding in strict liability action that a causal connection between food and illness may be inferred by a balancing of probabilities when a large number of restaurant patrons became sick ). The cases cited by Polmounter discuss the rule of law pursuant to which lay testimony may be used to prove causation when general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event sued upon and the illness. See Morgan v. Compugraphic Corp, 675 S.W.2d 729, 733 (Tex. 1984). However, the issue in this case is not whether lay testimony can show whether the alleged chicken strip caused Polmounter=s injuries. The issue is whether the proof put forth here by Polmounter regarding proximate cause was adequate to raise a genuine issue of material fact on that element of his negligence claim. It was not. Polmounter did not include any summary judgment evidence with his response to Keystone=s motion for summary judgment, and a review of the other record evidence he produced during discovery does not demonstrate the severity of Polmounter=s illness, other than general malaise for two days after eating the chips, nor does it show whether the alleged chicken strip caused his illness. See, e.g., Duffy v. Denny=s Rest., No. 05-96-01929-CV, 1999 WL 23215, at *2 (Tex. App.CDallas Jan. 22, 1999, no pet.) (not designated for publication) (reversing trial court=s granting of summary judgment because a fact issue was raised as to causation when plaintiff=s summary judgment proof included physician=s affidavit that plaintiff suffered from salmonella gastroenteritis from raw meat eaten the previous evening). We hold Polmounter presented no evidence the alleged contaminated chips proximately caused his illness. Accordingly, we overrule Polmounter=s first through fourth issues. Conclusion Having considered each of Polmounter=s issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed September 5, 2006. Panel consists of Justices Anderson, Edelman, and Frost. [1] Appellate courts, not trial courts, are permitted to dismiss appeals or grant sanctions for frivolous appeals. See, e.g., Scott-Richter v. Taffarello, 186 S.W.3d 182, 186B87 (Tex. App.CFort Worth 2006, pet. denied) (analyzing under Rule of Appellate Procedure 42.3 whether appellate court should dismiss appeal because the appellant=s notice of appeal was filed late); Conseco Finance Serv. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (appellate court declining to grant sanctions under Rule of Appellate Procedure 45 because appeal had a reasonable basis in law and constituted an informed, good-faith challenge to the trial court=s judgment). [2] In his second issue, Polmounter contends the trial court erroneously ruled on Keystone=s no-evidence motion for summary judgment because the motion was a conclusory or general challenge to Polmounter=s case. See Tex. R. Civ. P. 166a(i). We disagree. Keystone=s no-evidence motion for summary judgment specifically challenged the breach and causation elements of Polmounter=s negligence cause of action. Explicit assertions that there is no evidence to one or more specifically identified elements of the opponent=s claim are not conclusory or general as prohibited by Rule 166a(i). See Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). Therefore, the trial court=s ruling was not an abuse of discretion and did not prove Ait did not know or understand the rules of summary judgment,@ as argued by Polmounter. [3] Polmounter cites Rehabilitative Care Systems of America v. Davis for the proposition recited here, but he fails to acknowledge the Texas Supreme Court=s explicit disapproval of this holding when it denied review of the case. See 73 S.W.3d 233, 234 (Tex. 2002) (per curiam).