Thomas Gonzales v. Services Lloyds Insurance Company

Affirmed and Memorandum Opinion filed May 21, 2009 Affirmed and Memorandum Opinion filed May 21, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00377-CV _______________ THOMAS GONZALES, Appellant v. SERVICES LLOYDS INSURANCE COMPANY, Appellee On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2007-39965 M E M O R A N D U M   O P I N I O N The Division of Workers= Compensation (Athe Division@) determined that appellant, Thomas Gonzales, was not entitled to workers= compensation benefits. That decision was affirmed by a Division appeals panel. Gonzales petitioned for judicial review in the Harris County District Court, and the trial court ultimately granted a no-evidence summary judgment in favor of appellee, Service Lloyds Insurance Company (Athe Carrier@) that Gonzales now appeals. We affirm. Background Gonzales filed a claim for workers= compensation benefits alleging that he injured his back when he tripped over extension cords while working for Watson Grinding and Manufacturing Company, Inc. (AWatson@) on August 23, 2006. At the time, Watson was insured for workers= compensation purposes by the Carrier. On February 27, 2007, the Division held a contested case hearing and determined that Gonzales Adid not have a compensable injury@ and Adid not have disability.@ An appeals panel of the Division affirmed. On July 3, 2007, Gonzales, acting pro se, filed a petition for judicial review of the administrative decision with the 152nd District Court of Harris County. On October 22, 2007, the Carrier[1] filed a no-evidence motion for summary judgment. Gonzales responded by filing four sets of documents with the trial court that, he contends, demonstrate he suffered a compensable injury. Following a hearing on April 4, 2008, the court granted the Carrier=s motion. On appeal, Gonzales argues the trial court erred in granting summary judgment. Analysis A. Standard of Review We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the non-movant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence motion for summary judgment must be granted if (1) the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial, and (2) the respondent produces no summary-judgment evidence raising a genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See id.; Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We cannot differentiate between pro se litigants and those represented by counsel with regard to compliance with procedural rules. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.CHouston [14th Dist.] 2008, no pet. h.). Thus, Gonzales was required, as any other litigant, to comply with Rule 166a by producing competent summary-judgment evidence sufficient to raise a genuine issue of material fact. See id. B. The Workers= Compensation Act Under the Workers= Compensation Act, only injuries occurring Ain the course and scope of employment@ are considered Acompensable injuries.@ Tex. Lab. Code Ann. ' 401.011(10)(Vernon Supp. 2008). The Act defines Acourse and scope of employment@ as Aan activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.@ Id. ' 401.011(12). It is the claimant=s burden to establish that an injury occurred in the course and scope of employment and that the injury produced a total or partial disability. Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 820 (Tex. App.CDallas 1993, no writ). C. Application In its motion for summary judgment, the Carrier asserted that there was no evidence of disability or compensable injury. In response, Gonzales had the burden of producing summary-judgment evidence sufficient to raise a genuine issue of fact as to the challenged elements.[2] See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex. App.CHouston [14th Dist.] 2007, no pet.). We hold that he failed to carry that burden. In determining whether Gonzales raised more than a scintilla of evidence in support of his claim, we are limited to the summary judgment proof produced in the response. See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 408 (Tex. App.CTyler 2008, no pet.). Further, when a non-movant presents summary judgment evidence in response to a no-evidence motion, that party must specifically identify the supporting proof it seeks to have considered by the trial court. See id.; San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 330 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Following the Carrier=s motion, Gonzales filed four sets of documents on four different dates.[3] However, Gonzales offered no specific explanation as to how these documents established the existence of a compensable injury or disability. General references to attached documents alone do not relieve the respondent of his burden to direct the court=s attention to probative evidence. See DeGrate, 261 S.W.3d at 408. Neither this court nor the trial court is required to wade through a voluminous record to marshal a respondent=s proof for him. Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.CSan Antonio 2006, no pet.) (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989)). Because the documents Gonzales filed in response to the Carrier=s motion for summary judgment failed to identify specific and competent summary judgment evidence demonstrating that he suffered a compensable injury and disability, he did not raise a fact issue sufficient to defeat the motion. See id. at 239. Therefore, we cannot conclude the trial court erred by granting summary judgment for the Carrier. Conclusion Finding no error in the issue presented on appeal, we affirm. /s/ Kent C. Sullivan Justice Panel consists of Justices Yates, Guzman, and Sullivan. [1] Gonzales named both Watson and the Carrier in his original petition. On October 9, 2007, the District Court granted a non-suit against Watson, and the case proceeded against the Carrier. [2] Gonzales does not contend that he was not given an adequate time to conduct discovery. See Tex. R. Civ. P. 166a(i). [3] Together, the four sets of documents amount to approximately seventy-five pages.