Opinion
No. 05-08-00446-CV
Opinion Filed May 20, 2009.
On Appeal from the 192nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-08609-K.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
In two issues, appellants contend the trial court erred by transferring venue of this case from Ellis County to Dallas County and by granting appellee's no-evidence motion for summary judgment. The facts and procedural history of this appeal are well known to the parties so we do not relate them in detail here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
Background
Scott and Sebatiana Jones died from carbon monoxide poisoning. Appellants, the Joneses' heirs, sued a number of defendants in Ellis County claiming a buffer Scott Jones was using at the time of his death was the source of the carbon monoxide. Appellants asserted claims against appellee, the manufacturer of the buffer, based on product liability, breach of warranty, deceptive trade practices, negligence, and gross negligence.
Appellee and several other defendants filed motions to transfer venue alleging the cause of action arose in Dallas County. One defendant, Olmsted-Kirk Paper Company d/b/a Olmsted-Kirk Equipment Supply Company, also sought to transfer venue pursuant to section 15.002(b) of the civil practice and remedies code based on the convenience of the parties. The trial court granted all motions to transfer venue without specifying the ground for the ruling.
After the case was transferred to Dallas County, appellee filed a no-evidence motion for summary judgment contending appellants had no evidence of causation, an element of each cause of action asserted against appellee. In their response to the motion, appellants relied on the affidavit of John S. Morse to establish causation. Appellee objected that a number of statements and opinions in Morse's affidavit were conclusory. The associate judge sustained the objections and granted appellee's motion for summary judgment.
Appellants appealed the granting of the motion, but not the associate judge's ruling on appellee's objections, to the district court. Appellants sought leave to file a supplemental affidavit from Morse to address appellee's objections to Morse's first affidavit. Without ruling on appellants' motion for leave to file the supplemental affidavit, the trial court affirmed the associate judge's order granting summary judgment for appellee.
Transfer of Venue
In their first issue, appellants argue the trial court erred by transferring venue to Dallas County. Several defendants filed motions to transfer venue contending Ellis County was not a county of proper venue. Olmsted also requested venue be transferred for the convenience of the parties under section 15.002(b) of the civil practice and remedies code. See Tex. Civ. Prac. Rem. Code Ann. § 15.002(b) (Vernon 2002). The trial court granted all motions to transfer venue, including Olmsted's motion, without stating its reasons for doing so.
Section 15.002(c) of the civil practice and remedies code prohibits appellate review of the granting of a motion to transfer venue based on the convenience of the parties. Id. § 15.002(c). Because Olmsted's motion sufficiently invoked section 15.002(b) in requesting a transfer and the trial court did not give a reason for granting the transfer requst, we are statutorily prohibited from reviewing the order. Trend Offset Printing Servs., Inc. v. Collin County Cmty. College Dist., 249 S.W.3d 429, 430 (Tex. 2008) (per curiam); Garza v. Garcia, 137 S.W.3d 36, 39 (Tex. 2004). We overrule appellant's first issue.
No-Evidence Motion for Summary Judgment
In their second issue, appellants assert the trial court erred by granting appellee's no-evidence motion for summary judgment because Morse's two affidavits provided more than a scintilla of evidence of causation, the element of each cause of action challenged by appellee in its motion for summary judgment.
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See Tex. R. Civ. P. 166a(i); Schindler v. Baumann, 272 S.W.3d 793, 795 (Tex.App. 2008, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App. 2000, no pet). A party submits less than a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Martin v. Estates of Russell Creek Homeowners Ass'n, Inc., 251 S.W.3d 899, 902 (Tex.App. 2008, no pet.). When analyzing a no-evidence summary judgment, we consider the evidence in the light most favorable to the nonmovant. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Gen. Mills, 12 S.W.3d at 833.
In their response to the motion for summary judgment, appellants relied on Morse's first affidavit to establish causation. The associate judge sustained appellee's objections that a number of Morse's statements and opinions supporting causation were conclusory. The remaining portions of Morse's first affidavit did not constitute a scintilla of evidence that appellee caused appellants' injuries. Appellants appealed the granting of the summary judgment to the district court, but did not appeal the associate judge's rulings on appellee's objections. Instead, appellants filed with the district court a supplemental affidavit from Morse attempting to address appellee's objections to the first affidavit.
Attached to Morse's first affidavit was a report prepared by Morse following an inspection of the buffer. Although the report contained many of the same statements and opinions that were struck by the associate judge from Morse's affidavit, appellee did not object to the report. Neither appellants nor appellee mention the report in their briefs and appellants do not rely on the report to establish causation. Even if we were to consider the report, however, the statements and opinions in the report suffer from the same defects as those in the affidavit. Because they are conclusory, the statements and opinions in the report are not competent summary judgment evidence. City of San Antonio v. Pollock, 2009 WL 1165317, at *4 (Tex. May 1, 2009) ("Bare, baseless opinions will not support a judgment even if there is no objection to the admission of the evidence."); Winchek v. Am. Express Travel Related Servs., Inc., 232 S.W.3d 197, 206 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Accordingly, the report was insufficient to defeat summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003) ("A conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment.").
Appellants were entitled to de novo review by the district court of the associate judge's ruling on the motion for summary judgment. Tex. Gov't Code Ann. § 54.510(e) (Vernon 2005). However, without leave of the trial court, appellants could "not submit on appeal any additional evidence or pleadings." Id. Nothing in the record reflects the trial court granted leave for appellants to file Morse's supplemental affidavit. Accordingly, we cannot conclude Morse's supplemental affidavit was before the district court.
The supplemental affidavit was not before the district court and the portions of the original affidavit remaining after the associate judge sustained appellee's objections did not provide a scintilla of evidence that appellee caused appellants' injuries. Therefore, the trial court did not err by affirming the associate judge's order granting appellee's no-evidence motion for summary judgment. We overrule appellants' second issue.
We affirm the trial court's judgment.