Opinion
05-20-00707-CV
05-18-2022
CARISSA TARVER, Appellant v. 4441 ALMA ROAD, LLC D/B/A CUBESMART 5408 AND GAYLAGUNDERSON, Appellees
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-02271-2019
Before Chief Justice Burns, Justice Schenck, and Justice Partida-Kipness
MEMORANDUM OPINION
DAVID J. SCHENCK JUSTICE
Carissa Tarver appeals the trial court's orders granting no-evidence summary judgments in favor of appellees 441 Alma Road, LLC D/B/A CubeSmart 5408 ("CubeSmart") and Gayla Gunderson in a suit Tarver initiated after a golf cart, in which she was riding, collided with a vehicle driven by Gunderson at a CubeSmart self storage facility. Tarver urges she provided sufficient evidence to withstand CubeSmart's and Gunderson's no-evidence motions for summary judgment. We affirm the trial court's orders granting summary judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.
Background
On April 26, 2019, Tarver filed her original petition against CubeSmart and Gunderson asserting she was physically injured on or about June 16, 2018, while she was an invitee on the premises of a CubeSmart self-storage facility. She asserts that while she was riding in a golf cart driven by a CubeSmart employee, the employee drove the cart directly into the path of a vehicle driven by Gunderson, who she claims recklessly and carelessly backed out of a parking space and into the golf cart. As to CubeSmart, Tarver asserted claims of negligence, negligent entrustment and negligence via respondeat superior. As to Gunderson, Tarver asserted claims of negligence and gross negligence. CubeSmart and Gunderson generally denied Tarver's claims and asserted various defenses.
Tarver asserted CubeSmart failed to properly train or supervise its employee.
On December 30, 2019, Tarver's counsel moved to withdraw as counsel for Tarver at her request. By order dated March 30, 2020, the trial court granted the motion to withdraw. Gunderson filed her no-evidence motion for summary judgment on May 11, 2020, and CubeSmart filed its no-evidence motion on May 20. Notices of these filings were sent to Tarver electronically at the email address that was supplied to the court. CubeSmart and Gunderson set their motions for hearing, by written submission, on June 30 and July 9, respectively. Tarver filed a response to CubeSmart's motion on June 30 and a response to Gunderson's motion on July 2. Prior to filing her responses, Tarver, through new counsel, filed a motion to continue the hearing on CubeSmart's motion. The record does not contain a ruling on that motion. The trial court granted CubeSmart's and Gunderson's motions on July 3 and July 10, respectively. This appeal followed.
Standard of Review
We review a no-evidence motion for summary judgment under the same legal-sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.-Dallas 2010, no pet.). The moving party must file a motion that specifies which elements of the nonmoving party's claim lack supporting evidence. Tex.R.Civ.P. 166a(i); Thomas v. Omar Invs., Inc., 129 S.W.3d 290, 293 (Tex. App.-Dallas 2004, no pet.). Once a proper motion is filed, the burden shifts to the nonmoving party to present some evidence raising any genuine issues of material fact. Pollard, 315 S.W.3d at 638. Summary-judgment evidence must be admissible under the rules of evidence. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Parties cannot rely on factual statements contained in its response as summary-judgment proof. Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). We examine the record in the light most favorable to the non-movant and disregard all contrary evidence and inferences. King Ranch, 118 S.W.3d at 750-51.
A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Tex.R.Civ.P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). More than a scintilla of evidence exists when the evidence presented would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
Discussion
Tarver contends the trial court erred in granting CubeSmart's and Gunderson's no-evidence motions for summary judgment because she presented evidence that raised a fact issue on the challenged elements of her claims.
I. Summary Judgment - CubeSmart
CubeSmart's no-evidence motion for summary judgment recited the elements of Tarver's negligence claim and asserted Tarver could not provide any evidence to support the elements of breach and causation. The motion also recited the elements of negligent entrustment and negligence via respondeat superior and asserted Tarver could not provide any evidence as to all elements of the claims.
The elements of negligence are (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from the breach. Firestone Steel Prods. Co. v. Baraja, 927 S.W.2d 608, 613 (Tex. 1996).
The elements of negligent entrustment are (1) the owner of a vehicle entrusted that vehicle to a driver, (2) the vehicle was entrusted to a driver that the owner knows or should know is unlicensed, incompetent, or reckless; (3) that driver was negligent at the time of the accident, and (4) the driver's negligence proximately caused the accident. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).
To establish liability under a respondeat superior theory, the plaintiff must prove (1) she was injured as the result of a tort, (2) the tort was committed by an employee of a business, and (3) the tort was committed while that employee was acting within the scope of their employment. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).
A. Timeliness of Tarver's Response
A response to a no-evidence summary judgment, including any evidence opposing the motion, is due seven days before the summary-judgment hearing. Tex.R.Civ.P. 166a(c); see also B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). Rule 166a(c) provides that a response must be timely filed except on leave of court. Tex.R.Civ.P. 166a(c) (emphasis added). Where nothing appears of record to indicate that the late filing of a summary judgment response was with leave of court, it is presumed the trial court did not consider the response. B.C., 598 S.W.3d at 259. In considering whether a trial court granted leave, we examine the record for an "affirmative indication that the trial court permitted the late filing." Id. (quoting Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 663 (Tex. App.-Houston [14th Dist.] 2012, pet. denied)).
CubeSmart filed its no-evidence motion for summary judgment on May 20, 2020. On May 28, CubeSmart requested that the motion be set for hearing on written submission. The motion was set for hearing on June 30. Tarver filed her response to CubeSmart's motion on June 30. Thus, Tarver's response was untimely. See Tex. R. Civ. P. 166a(c). Nothing in the record affirmatively indicates that the trial court permitted the late filing. To the contrary, the order granting CubeSmart's no-evidence motion for summary judgment includes a statement:
(emphasis added). Thus, it is apparent the trial court did not grant Tarver leave to file her response. B.C., 598 S.W.3d at 259. Because Tarver did not timely file a response, the record affirmatively shows the trial court did not grant leave to file the late response, and CubeSmart's motion met the requirements of Rule 166a(i), the trial court was required to grant the no-evidence motion. Tex.R.Civ.P. 166a(i); BP America Production Co. v. Zaffirini, 419 S.W.3d 485, 509 (Tex. App-San Antonio 2013, pet. denied) (citing Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.-Houston [1st Dist.] 2008, no pet.)).Upon consideration of Defendant 4441 Alma Road, LLC d/b/a CubeSmart 5408's motion, the timely pleadings on file with the court, and applicable law, this Court is of the opinion that the motion should be GRANTED.
In her reply brief, Tarver asserts, for the first time, that the trial court should have granted her motion to continue the hearing on CubeSmart's no-evidence motion for summary judgment or, alternatively, should have considered her late-filed response, because CubeSmart did not give her new trial counsel, who appeared after CubeSmart filed its no-evidence motion, notice of the motion. Because Tarver did not present this complaint to the trial court, she failed to preserve same for appellate review. See Tex. R. App. P. 33.1(a).
B. Tarver's Claims against CubeSmart
Moreover, had the trial court considered the documents Tarver presented with her response, they did not raise a genuine issue of fact as to the challenged elements of her claims. Tarver attached to her response various discovery responses of CubeSmart, specifically its answers to requests for admission, responses to requests for production, and interrogatory answers. While not included in the trial court's record or referenced in the responses to the no-evidence motions for summary judgment, Tarver attached, as an appendix to her appellate brief, a copy of a surveillance video she indicates was produced during discovery depicting the accident and urges that we consider it as evidence on appeal. The district clerk has confirmed to this Court that the video was not presented as an exhibit or evidence during a hearing and is not a part of the trial court's record. We cannot consider the video because it was not before the trial court at the time of its decision and, thus, is not part of the record on appeal. See Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.- Dallas 2012, no pet.). Accordingly, in considering whether Tarver presented more than a scintilla of evidence on the challenged elements of her claims against CubeSmart, notwithstanding her preservation issues, we constrain our discussion to the written discovery responses attached to Tarver's response.
1. Negligence
As to CubeSmart's assertion Tarver has no evidence to support the elements of breach and causation, Tarver relies on CubeSmart's representation-in response to a request that CubeSmart produce documents regarding safety and on how to operate motor vehicles-that no documents have been identified and argues this response, in itself, is evidence CubeSmart failed to provide its employees with appropriate training to operate a golf cart and that the lack of training caused her injuries. Tarver points to no evidence that any such documentation once existed or explain how any training-or lack thereof-would have causally contributed to her injury. In essence, Tarver argues CubeSmart's lack of evidence in one specific form requested is an affirmation to the contrary of the request. A reasonable inference simply cannot be drawn from CubeSmart's lack of documentation regarding safety and how to operate motor vehicles to establish CubeSmart provided no training to employees, if required under the circumstances presented here, and the lack of training cause Tarver's injuries. Tarver's assertion is one of mere surmise or suspicion and is, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Consequently, the lack of documentation is not a scintilla of evidence of the existence of a duty, breach of a duty, let alone causation. And counsel's statements and conclusions in response to CubeSmart's no-evidence motion for summary judgment are likewise not summary judgment proof. See Quanaim, 17 S.W.3d at 42.
Additionally, Tarver contends CubeSmart's acknowledgement that a collision occurred is, in itself, evidence of a breach of a duty and of causation. But the mere occurrence of a collision does not establish negligence. See Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1992, writ denied). A party must prove specific acts of negligence to establish a fact issue. Id. This Tarver has not done.
C. Negligent Entrustment
As to CubeSmart's assertion Tarver has no evidence to support any of the elements of her negligent-entrustment claim, Tarver argues CubeSmart's admission that it owned the golf cart that its employee was driving at the time of the incident, raises a material issue of fact as to the first issue of her negligent-entrustment claim. We disagree. This admission simply establishes it owned the golf cart involved in the accident; it does not establish CubeSmart entrusted the golf cart to the employee.
As to the second element of Tarver's negligent-entrustment claim, that CubeSmart knew or should have known the employee was unlicensed, incompetent, or reckless, Tarver again refers to the lack of documentation CubeSmart provided in a discovery response concerning training. As stated supra, we attribute no evidentiary weight to this contention. Thus, Tarver presented no evidence concerning the employee's competence to drive the golf cart. With respect to the third and fourth elements of Tarver's negligent-entrustment claim, addressing negligence and causation, Tarver again asserts that the existence of an accident raises an issue of fact. As previously stated, Tarver failed to present any evidence that the negligence of CubeSmart or its employee caused the accident.
D. Respondeat Superior
As to Tarver's respondeat superior claim, because Tarver failed to present a scintilla of evidence of negligence on the part of CubeSmart's employee, she likewise failed to raise a fact issue as to her claim for vicarious liability against CubeSmart. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002) (plurality op.) (under common-law doctrine of respondeat superior, or vicarious liability, "liability for one person's fault may be imputed to another who is himself entirely without fault solely because of the relationship between them"). Because Tarver failed to present any evidence that could place fault on CubeSmart's employee, the trial court did not err in granting summary judgment on her claim for vicarious liability.
Because Tarver's response to CubeSmart's no-evidence motion for summary judgment was untimely, because Tarver did not obtain leave to file her late response, and because Tarver, nevertheless, failed to present a scintilla of evidence on the challenged elements of her claims, the trial court did not err in granting CubeSmart's motion. We overrule Tarver's issue with respect to CubeSmart.
II. Summary Judgment - Gunderson
Gunderson's no-evidence motion for summary judgment recited the elements of Tarver's negligence claim and asserted Tarver could not provide any evidence to support the elements of breach and causation. The motion also recited the elements of gross negligence and asserted Tarver could not provide any evidence as to all elements of the claim.
Gross negligence requires a showing of two elements: (1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11); Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014).
In addressing the no-evidence summary judgment in favor of Gunderson, Tarver again references the video we have determined is not part of the summary judgment record. Accordingly, we will not address her arguments concerning same with respect to the summary judgment granted in favor of Gunderson.
In response to Gunderson's no-evidence motion, Tarver presented Gunderson's disclosures, interrogatory answers, responses to requests for admissions, responses to requests for production, and response to a request for a privilege log. In addition, Tarver presented the recorded statement Gunderson gave to her insurance carrier following the accident. Gunderson objected to her recorded statement being included in the summary judgment record on hearsay and double hearsay grounds. The trial court sustained Gunderson's objection to statements attributable to Tarver and/or other speakers and granted her no-evidence motion for summary judgment.
It appears Tarver wished to introduce Gunderson's statements she backed up, heard someone yell, she hit the brakes, they smacked into her, and she looked out the window and saw Tarver and the CubeSmart employee and that Tarver said "I was holding on really tight and . . . I hurt my back," or something to that effect.
Assuming Tarver preserved her complaint concerning the trial court's ruling on Gunderson's objection in the trial court and here, we review the trial court's ruling for an abuse of discretion. Berryman's South Forth Fork, Inc. v. J. Baxter Brinkmann Intern. Corp., 418 S.W.3d 172, 190 (Tex. App.-Dallas 2013, pet. denied). A trial court abuses its discretion if it acts arbitrarily and unreasonably. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). Unless the trial court's erroneous evidentiary ruling probably caused the rendition of an improper judgment, we will not reverse the ruling. Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 107 (Tex. App.-Dallas 2009, pet. denied).
It appears from the trial court's ruling that it sustained Gunderson's hearsay objections to only those statements attributable to Tarver and/or other speakers. It also appears that the only statement attributed to Tarver upon which she attempted to rely in responding to Gunderson's no-evidence motion for summary judgment, was Gunderson's statement Tarver "said 'I was holding on really tight and . . . I hurt my back,' or something to that effect." Tarver claims this was a statement by a party opponent and thus, under rule 801(e)(2), was not hearsay, or was a statement against interest and thus admissible, under rule 803(24), as an exception to the hearsay rule. See Tex. R. Evid. 803(24). Tarver's attempt to use her own statement, not the statement of any opposing party, as relayed by Gunderson to her insurance carrier, as a statement of a party opponent or a statement against interest fails. The statement is clearly hearsay as Tarver is attempting to offer her own out of court declaration to prove the truth of the matter asserted, that she was somehow injured in connection with the accident. Tex. R. Evid. 801(d). Accordingly, we conclude Tarver cannot not show the trial court abused its discretion in excluding this statement.
A. Negligence
It appears from the trial court's ruling on Gunderson's no-evidence motion for summary judgment that the trial court did not sustain Gunderson's objection to statements she made to her insurance carrier that are attributable to her. As to Gunderson's description to her insurance carrier regarding the accident, specifically that she backed up, heard someone yell, she hit the brakes, and they struck her vehicle, it is not an admission of her negligence or that she caused the accident. In fact, her statement indicated she took immediate evasive action when she was alerted to the situation, and it was the vehicle in which Tarver was riding that collided into her. Accordingly, we conclude Gunderman's statement to her insurance carrier is not a scintilla of evidence of her negligence.
As to Gunderson's written discovery responses that Tarver attached to her response to Gunderson's motion for summary judgment, Tarver does not point to any of the responses as providing a scintilla of evidence of a challenged element of her claims. A non-movant must identify in its response the specific summary-judgment evidence it asserts raises a fact question and explain why that evidence raises a fact issue. Tex.R.Civ.P. 166a(i). Merely citing generally to summary-judgment evidence in response to either a no-evidence or traditional motion for summary judgment is not sufficient to raise an issue of fact to defeat summary judgment. Bich Ngoc Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.- Dallas 2013, pet. denied). In fact, in the discovery responses attached to Tarver's response, Gunderson denied liability for the accident, and Tarver made no attempt to present or cite to any evidence of proximate cause.
2. Gross Negligence
With respect to Tarver's gross-negligence claim, we note that a gross-negligence claim does not exist independent of an underlying negligence claim. A plaintiff's failure to prove a negligence claim may also preclude recovery under a gross-negligence claim. See RT Realty, L.P. v. Tex. Util. Elec. Co., 181 S.W.3d 905, 914-16 (Tex. App.-Dallas 2006, no pet.) (because claimant offered no evidence that electric utility owed a legal duty the gross negligence claim failed as a matter of law); Wortham v. Dow Chem. Co., 179 S.W.3d 189, 202-03 & n. 16 (Tex. App.- Houston [14th Dist.] 2005, no pet.) (stating that a claimant who cannot support a negligence claim cannot succeed on a gross-negligence claim and concluding that there was no evidence raising a fact issue as to plaintiff's negligence claims). As we have previously stated, Tarver produced no evidence in support of her negligence claim against Gunderson. Moreover, Tarver's gross-negligence theory centered on her allegation that Gunderson used a cell phone while operating her vehicle. Tarver presented no evidence to substantiate this claim and in fact the evidence attached to her response to Gunderman's no-evidence motion for summary judgment established the opposite.
Because Tarver failed to present a scintilla of evidence on the challenged elements of her claims against Gunderson, the trial court did not err in granting Gunderson's no evidence motion for summary judgment. We overrule Tarver's issue with respect to Gunderson.
Conclusion
The trial court did not err in granting CubeSmart's and Gunderson's no-evidence motions for summary judgment. We affirm the trial court's summary judgment orders dismissing all claims Tarver asserted against CubeSmart and Gunderson.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's orders granting 4441 ALMA ROAD, LLC DBA CUBESMART 5408 AND GAYLA GUNDERSON summary judgment are AFFIRMED.
It is ORDERED that appellee 4441 ALMA ROAD, LLC DBA CUBESMART 5408 AND GAYLA GUNDERSON recover their costs of this appeal from appellant CARISSA TARVER.