Opinion
No. 04-03-00339-CV.
Delivered and Filed: October 8, 2003.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-03589, Honorable Karen H. Pozza, Judge Presiding.
After the trial court rendered summary judgment in favor of appellees in case number 2001-CI-15710, styled Bexar County Hospital District d/b/a University Health System v. Grewal, it severed appellants' cause of action against appellees and assigned cause number 2003-CI-03589 to the severed action.
AFFIRMED.
Sitting: Alma L. LOPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellants, John and Surrender Grewal (hereinafter the Grewals), appeal from a partial summary judgment in favor of appellees, Michael Shawn Hickenbottom, Individually and d/b/a Shawn Michaels' Wrestling Academy; Michael Shawn Hickenbottom d/b/a Texas Wrestling Alliance; Showstopper Promotions, Inc., Individually and d/b/a Texas Wrestling Alliance (referred to collectively as the Wrestling School). We affirm.
BACKGROUND
On August 15, 1999, Rajinder Grewal traveled to San Antonio, Texas from his home in London, England to investigate and potentially enroll in Shawn Michaels' Wrestling Academy. The school admitted Rajinder and the parties executed an Enrollment Agreement. During a subsequent training session at the school, Rajinder sustained injuries leaving him in a coma. The Grewals sued several defendants, including the Wrestling School, asserting a variety of causes of action. The Wrestling School moved for a partial summary judgment asserting that a clause in the Enrollment Agreement, which released the school from any liability for negligence, barred the Grewals' negligence claim. The Grewals objected to the Wrestling School's summary judgment proof, asserted affirmative defenses to the release, and asserted that the Enrollment Agreement violated public policy. The trial court granted the Wrestling School's motion for partial summary judgment without stating its grounds. The Grewals raise three issues on appeal challenging the trial court's judgment in light of their: (1) objection to the Wrestling School's summary judgment proof; (2) pleading and proof of affirmative defenses to the Enrollment Agreement and the release contained therein; and (3) position that the agreement's release language violates public policy and is consequently void.
SUMMARY JUDGMENT EVIDENCE
In support of its motion for summary judgment, the Wrestling School attached a copy of the Enrollment Agreement and the affidavit of Carole Hickenbottom, who stated she witnessed Rajinder sign the agreement. In their response, the Grewals contend a fact issue exists on whether Rajinder actually signed the agreement, and as support, they submitted the affidavit of Rajinder's father, John Grewal, in which he stated Rajinder told his father "he did not intend to sign the paperwork. Raj continued to tell us . . . that he had not signed the paperwork that the Defendants rely on. . . ." Mr. Grewal also attested to statements allegedly made by Shawn Michaels to Rajinder. Each party objected to the other's evidence. The trial court sustained the Wrestling School's objections and overruled the Grewals' objections. In their first and second issues on appeal, the Grewals assert the trial court's rulings were in error. We review the trial court's admission or exclusion of summary judgment evidence using an abuse of discretion standard. Power v. Kelley, 70 S.W.3d 137, 140 (Tex.App.-San Antonio 2001, pet. denied).
The Wrestling School's Summary Judgment
The Grewals assert the trial court erred in granting the Wrestling School's motion for partial summary judgment because Hickenbottom's affidavit is that of an interested witness and it could not be readily controverted because of Rajinder's medical condition. In her affidavit, Hickenbottom states she is the mother of Michael Shawn Hickenbottom, President of Showstopper Promotions, Inc., and the wife of the Vice President of Showstopper Promotions, Inc. She states she witnessed Rajinder sign the Enrollment Agreement while sitting at her kitchen table.
A trial court may grant a summary judgment based on the testimony of an interested witness if that evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, that the responding party could have readily controverted. Tex.R.Civ.P.166a(c). The "readily controverted" requirement means that the testimony at issue is of a nature which the responding party can effectively counter by opposing evidence. See Casso v. Bran, 776 S.W.2d 551, 558 (Tex. 1989).
Assuming without deciding she is an interested witness, we conclude the trial court properly granted the summary judgment because Hickenbottom's affidavit satisfies the readily controvertible requirement. Hickenbottom's affidavit states Rajinder signed the Enrollment Agreement. The Grewals could have readily controverted this statement by presenting their own summary judgment proof that the signature on the Enrollment Agreement is not Rajinder's actual signature. Because the Grewals could have readily controverted Hickenbottom's affidavit, the trial court did not err in overruling the Grewals' objection to the affidavit. We overrule the Grewals' first issue on appeal.
The Grewals' Summary Judgment Evidence
Mr. Grewal's affidavit contains four types of statements concerning: (1) what Rajinder allegedly told his father about what he planned to do in connection with enrolling in the school; (2) what he learned about the school upon his arrival and his intentions for the future; (3) his intentions to sign the paperwork to join the school and his understanding of the terms of the Enrollment Agreement; and (4) what Shawn Michaels allegedly told Rajinder about the school. The Wrestling School did not object to specific individual statements in the affidavit. Instead, the Wrestling School made a general objection that the statements in the affidavit were based upon hearsay or conclusions based upon hearsay. The Grewals contend the statements made by Rajinder to his father are hearsay exceptions under Texas Rule of Evidence Rule 803(3). The Grewals also contend the statements made by Shawn Michaels are either admissions by a party-opponent under Texas Rule of Evidence 801(e)(2) or statements against interest under Texas Rule of Evidence 803(24).
An affidavit containing hearsay is objectionable and does not raise a fact issue to defeat a summary judgment motion if proper objection is made. See Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex.App.-San Antonio 1988, no writ). Affidavits containing multiple levels of hearsay are admissible only if each component hearsay statement qualifies under an exception to the hearsay rule. See Tex.R.Evid. 805. The objecting party must make specific objections as to each component part of a particular piece of evidence to preserve error on appeal. See Dyer v. Shafer, Gilliland, Davis, McCollum Ashley, Inc., 779 S.W.2d 474, 477 (Tex.App.-El Paso 1989, writ denied). Here, the Wrestling School had the obligation to make a specific objection as to each statement that it believed constituted hearsay. However, because the trial court sustained the general objection, we will sustain the trial court's ruling on any justifiable ground. See K-Mart v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
Hearsay statements, other than those made by the declarant while testifying at trial, offered to prove the truth of the matter asserted are generally inadmissible. See Tex.R.Evid. 801(d), 802. Rule 803(3) provides an exception to this general rule for statements of the declarant's present state of mind, emotion, sensation, or physical condition. See Tex.R.Evid. 803(3). Statements admitted under this exception are usually spontaneous remarks about pain or some other sensation, not readily observable by a third party, that the declarant makes when he experiences the sensation. James v. Texas Dep' t. of Human Servs., 836 S.W.2d 236, 243 (Tex.App.-Texarkana 1992, no writ); see also Ochs v. Martinez, 789 S.W.2d 949, 959 (Tex.App.-San Antonio 1990, writ denied). The exception does not extend to statements of past external facts or conditions. Id.
We conclude the affidavit does not satisfy any exception to the general rule against hearsay. First, the statements between Rajinder and his father are not admissible hearsay under Rule 803(3) because they are statements of past external facts, that Rajinder allegedly had not signed the Enrollment Agreement. Second, the statements between Rajinder and Shawn Michaels are inadmissible double hearsay. There are two component levels of hearsay contained within these statements. The first level of hearsay occurs between the actual statements made by Shawn Michaels to Rajinder Grewal. The Grewals offer those statements against the declarant, Shawn Michaels, and therefore would be admissible as admissions by a party-opponent under Rule 801(e)(2)(A). However, the second component level of hearsay occurs when Rajinder's father repeats those statements in his affidavit. This second level does not satisfy any exception under the Texas Rules of Evidence. The Grewals cannot "bootstrap" an inadmissible hearsay statement with an admissible statement. Finally, the remaining statements in the affidavit are either conclusions based upon hearsay or are irrelevant to the issue of whether Rajinder signed the Enrollment Agreement. As offered, the affidavit contains inadmissible hearsay under the Texas Rules of Evidence and the trial court did not err by excluding it in its entirety. We therefore overrule the Grewals' second issue on appeal.
PUBLIC POLICY, DURESS, FRAUD, AND UNDUE INFLUENCE
In their third and final issue, the Grewals assert that the waiver and release of liability provisions in the Enrollment Agreement violate public policy and are therefore void. They contend that disparate bargaining power exists between Rajinder and the Wrestling School as evidenced by responses to questions Rajinder made in the Enrollment Agreement. The Grewals also claim the agreement is void based on fraud, duress, undue influence, and failure or inadequacy of consideration.
Parties may agree to limit the liability of one party for future negligence if the agreement does not violate the constitution, statutes, or public policy. Allright, Inc. v. Elledge, 515 S.W.2d 266, 267 (Tex. 1974). Such an agreement does not violate public policy if there is no disparity of bargaining power between the parties. Id. "A disparity of bargaining power exists when one party has no real choice in accepting an agreement limiting the liability of the other party." Id. A party claiming disparity of bargaining power must present evidence to raise a fact issue concerning the claim, unless the very occupation or position of one of the parties is evidence of such a fact. See id. at 268.
The Grewals do not assert that the release language is inconspicious. Instead, they ask this court to void the Enrollment Agreement because disparate bargaining power exists between the parties. As proof of disparity, the Grewals point to Rajinder's enthusiasm for becoming a student at the school and the school's alleged control over a student's future in wrestling. Assuming for the sake of argument that an unequal relationship may exist between a student and a school that trains in a particular skill, "it is the unfair use of, not the mere existence of, an unequal bargaining power that undermines a contract." Holeman v. National Bus. Inst., Inc., 94 S.W.3d 91, 99 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see also Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 204 (Tex.App.-Eastland 2001, pet. denied). Here, Rajinder freely chose to enroll at the school and there is no evidence that the school forced or pressured him into signing the Enrollment Agreement. In addition, we cannot say the instructors at the school occupy a position of dominance simply by virtue of their status as wrestling instructors. See Alright, 515 S.W.2d at 268; Federated Dep' t Stores, Inc. v. Houston Lighting Power Co., 646 S.W.2d 509, 512 (Tex.App.-Houston [1st Dist.] 1982, no writ). We also conclude that nothing remaining in the record supports the Grewals' claim of fraud, duress, undue influence, or failure of consideration that would void the agreement between Rajinder and the Wrestling School. We therefore overrule the Grewals' third issue on appeal.
CONCLUSION
We affirm the trial court's judgment.