Opinion
No. 13-02-705-CV
Memorandum Opinion delivered and filed August 31, 2004.
On appeal from the County Court at Law No. 3 of Cameron County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION
This is a personal-injury action. Appellant, Laura Saldana, appeals from a summary judgment granted in favor of appellees, the City of Brownsville (the City) and Angel Gomez. By six issues, appellant generally contends the trial court erred in granting the summary judgment. Specifically, appellant argues that appellees did not meet their burden and failed to present competent summary judgment evidence. Appellant also contends that she defeated appellees' motion by presenting competent contradictory evidence. We reverse and remand
I. Background
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4.
In January 2002, appellant filed suit against appellees for personal injuries she sustained as a result of an accident that occurred in 1993 when she was twelve years old. Officer Gomez, an employee of the City, was driving a police car that struck appellant as she was attempting to cross the street.
On July 9, 2002, appellees moved for summary judgment under Texas Rules of Civil Procedure 166a(b) and 166a(i). See Tex.R.App.P. 166a(b), (i). They contended that as a matter of law they were not negligent and had negated any breach of duty owed to appellant, an essential element of appellant's sole cause of action for negligence. Appellees attached the following evidence to their motion: (1) the City Police Department's accident report; (2) excerpts from appellant's November 5, 2002 deposition; (3) Officer Gomez's affidavit; and (4) excerpts from the December 13, 2002 deposition of Roy Zepeda, an eye witness. On July 12, 2002, the trial court signed a fiat ordering appellees' motion set for submission on August 21, 2002 and informing the parties that its decision would be made on the "basis of the Motion, reply(s) to the motion, admissions, affidavits, counter-affidavit, pleadings, depositions, interrogatories and answers to interrogatories timely filed prior to the hearing." Complaining of the summary judgment motion and its evidence, appellant filed her response to appellees' motion for summary judgment on August 16, 2002. Attached to her response was her own affidavit and the affidavit of Maricela Castro, an eye witness to the accident. By written objection filed on August 20, 2002, appellees complained that appellant's response was untimely filed. Appellant replied to appellees' objection on August 21, 2002. On August 28, 2002, the trial court granted appellants' motion for summary judgment. In its order, the court noted that in consideration of the motion, it had reviewed the file, appellant's response, and the reply filed by appellees. On August 30, 2002, two days after the order was signed, appellees filed a motion for leave of court to supplement their reply to appellant's response to their motion for summary judgment. Appellees objected to the Castro affidavit attached to appellant's response and moved for sanctions. In the alternative, appellees requested leave to file an amended motion for summary judgment. Appellant filed a motion for new trial which was denied by written order on October 30, 2002. No other written orders appear in the record.
The accident report reflects that Officer Gomez was not issued a ticket. The only contributing factor noted was appellant's failure to yield right-of-way to the vehicle. The investigator's narrative noted the following:
Unit #1 was traveling northeast on the 900 block of McDavitt Blvd. As Unit #1 passed the intersection of McDavitt Blvd[.] and Velma Street, Unit #1 collided with a pedestrian who was attempting to cross the 900 block of McDavitt Blvd. from the westside to the eastside. Unit #1 took evasive action by veering to the right and applying the brakes, but Unit #1 was unable to avoid the collision. Witness #1 claimed that [the] pedestrian ran into the street between the moving vehicles before she was struck by Unit #1.
At her deposition, appellant stated that she remembered looking both ways and did not see any cars, so she crossed the street. She did not remember anything else until she heard everybody asking her if she was okay.
Officer Gomez's affidavit set out, in relevant part, that he first saw appellant when she was directly in front of his vehicle. He did not see her prior to "her darting in front of [him]." He "immediately applied [his] brakes and turned [his] vehicle towards the curb in an attempt to avoid hitting [her]." Officer Gomez concluded the impact was unavoidable; that there was nothing he could do to prevent the accident.
Roy Zepeda, an eye witness, testified at his deposition to the following:
There was a child — a young girl who was standing on the sidewalk, getting off the sidewalk to my right. There was a vehicle in front of me. She waited for the vehicle in front of me to clear her pat[h]. She ran across the street in front of my vehicle and into the other lane, into the path of an oncoming vehicle. She was struck by the vehicle. . . .
* * *
She ran across my lane and kept running into the oncoming lane of traffic. The police officer's car was coming up on her. He slammed on his brakes. . . . He made an attempt to stop.
She looked over her shoulder and saw him and kept running across the street. The officer veered to his right to try to avoid hitting her but she kept running into his path.
Furthermore, over objection, when asked if it appeared to him as if the vehicle was traveling over the speed limit at the time the accident occurred, Zepeda responded, "I'm not going to venture to say that he was. It did not appear to me that it was an unreasonable speed." Again, over objection, Zepeda responded that he did not think that the police officer driving the car did anything wrong.
In her affidavit, appellant stated "[she] was struck by a police officer who was speeding and although [she did] not have recall regarding this incident [she did] have a witness [Maricela Castro] who can testify to this fact."
Maricela Castro affied that she witnessed the accident when Saldana was struck by a "police officer who was speeding and/or traveling at a high rate of speed at the time he impacted . . . Saldana."
II. Standard of Review
The record in this case establishes that appellees' motion for summary judgment was filed as a no-evidence motion and, in the alternative, as a traditional summary judgment. See Binur v. Jacobo, 136 S.W.3d 646, 651 (Tex. 2004).
In the appeal of a traditional summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action or whether the defendant has conclusively established all elements of his affirmative defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Crain v. Smith, 22 S.W.3d 58, 59 (Tex. App.-Corpus Christi 2000, no pet.); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof, thus, falls to the movant in a traditional summary judgment proceeding. Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.-Corpus Christi, no pet.). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant's favor. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1996); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
In a no-evidence summary judgment motion, the party seeking a no-evidence summary judgment must assert no evidence exists as to one or more of the essential elements of the non-movant's claims on which she would have had the burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.-Austin 2000, no pet.). Once the movant specifies the elements on which there is no evidence, the non-movant is required to produce evidence sufficient to raise a genuine issue of material fact. See Tex. R. Civ. P. 166a(i). The non-movant need not marshal her proof, but she should identify more than a scintilla of evidence raising a fact issue on the challenged elements. See id. The non-movant's failure to respond to a no-evidence motion is fatal. See Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, no pet.). A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex. App.-Austin 1998, no pet.). Again, we review the evidence in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Lake Charles Harbor Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 241-42 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).
Because the propriety of a summary judgment is a question of law, we review the trial court's granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.-Corpus Christi 2000, pet. denied).
III. Analysis
By her last issue, appellant contends she presented sufficient evidence in response to appellees' motion for summary judgment to create a fact issue. Appellees assert the trial court was correct in granting their motion and in not considering appellant's late-filed response. Appellees base their argument on language found in the July 12 fiat that set the submission date of the motion. In that document, the trial court set out that its decision would be made "on the basis of the Motion, reply(s) to motion, admissions, affidavits, counter-affidavit, pleadings, depositions, interrogatories and answers to interrogatories timely filed prior to the hearing." (Emphasis added.) Appellees assert that because the trial court stated it would only consider timely-filed documents and because appellant's response was not timely filed, the response was not reviewed by the trial court.
Because appellant's final issue is dispositive of this appeal, we address it first. See Tex.R.App.P. 47.1.
Rule 166a(c) provides that a non-movant may file her response "not later than seven days prior to the day of [the] hearing." Tex. R. Civ. P. 166a(c); Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex. App.-Dallas 1995, writ denied). To file within seven days, the adverse party must obtain leave of court. Tex. R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Sullivan, 943 S.W.2d at 486. The trial court has discretion, however, to allow the late filing of opposing proof. Sullivan, 943 S.W.2d at 486 (citing Bell v. Moores, 832 S.W.2d 749, 755 (Tex. App.-Houston [14th Dist.] 1992, writ denied)).
In this case, the order granting appellees' motion for summary judgment set out that the trial court reviewed "[appellant's] response and [appellees'] reply thereto" in arriving at its opinion that the motion should be granted. Thus, the order indicates that the trial court allowed the late filing of appellant's response because it acknowledged that the response had been reviewed in arriving at its opinion. We cannot presume the trial court did not consider the response. Cf. Benchmark Bank, 919 S.W.2d at 663 (when nothing in record indicates trial court granted leave to late file, we presume trial court did not consider response). From our review of the record, we therefore conclude the trial court allowed appellant's response to be filed and considered Castro's attached affidavit controverting appellees' evidence that Officer Gomez was not driving at an unreasonable speed.
We note there is no order in the record addressing appellees' reply wherein they objected to appellant's untimely filing of her response, although the trial court stated it had also reviewed that reply in arriving at its opinion. We also note that appellees' objections to Castro's affidavit were filed two days after the order was signed; therefore, the trial court could not have reviewed and ruled on these objections prior to granting appellees' motion.
Accordingly, under the no-evidence summary judgment standard of review, viewing the evidence in the light most favorable to the non-movant and disregarding all contrary evidence and inferences, see Lake Charles Harbor, 62 S.W.3d at 241-42, we conclude appellant produced more than a scintilla of summary judgment evidence raising a fact issue on the challenged element, breach of duty. See Tex. R. Civ. P. 166a(i). Thus, the trial court erred if the judgment was entered on appellees' no-evidence summary judgment motion.
Furthermore, taking as true all evidence favorable to appellant and indulging every reasonable inference in her favor, see Cathey, 900 S.W.2d at 341, under the traditional summary judgment standard of review, we cannot conclude that the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to the breach of duty element. See Velsicol Chem. Corp., 956 S.W.2d at 530; Crain, 22 S.W.3d at 59. Thus, the trial court also erred if the judgment was entered on appellees' alternative traditional summary judgment.
We sustain appellant's final issue. Furthermore, based on the above analysis, appellant's first issue wherein she generally contends appellees did not meet their burden is also sustained. Because of the disposition of appellant's first and last issues, we need not address her remaining issues that challenge the evidence filed in support of appellees' motion. See Tex.R.App.P. 47.1.
V. Conclusion
We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.