Opinion
No. 04-17-00051-CV
07-05-2018
Bertha Ines TORRES, Individually for the Wrongful Death of Benjamin Torres, as Representative of the Estate of Benjamin Torres, Deceased, and as Next Friend of M.R.T., R.M.T., and J.G.T., Minor Children; et. al, Appellants v. UPPER VALLEY HELPSOURCE, INC., Appellee
MEMORANDUM OPINION
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 17-02-56845-CV
Honorable Richard C. Terrell, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
The family of Benjamin Torres ("Appellants") brought a wrongful death action against Upper Valley Helpsource, Inc. ("UVH"). On appeal, Appellants contend the trial court erred by granting UVH's no-evidence motion for summary judgment because (1) UVH failed to amend its no-evidence motion to address a new cause of action raised by Appellants in their third amended petition and (2) Appellants raised a genuine issue of material fact on each element of their negligence claim against UVH. We affirm the judgment of the trial court.
BACKGROUND
At approximately 6:30am on September 23, 2013, Benjamin Torres, driving a motorcycle, was traveling eastbound on Texas State Highway 44 near Alice, Texas. As Torres neared the intersection of Highway 44 ("the highway") and Jim Wells County Road 336 ("CR 336"), a vehicle driven by Celia Villegas was traveling north on CR 336. When Villegas arrived at the intersection of the highway and CR 336, she stopped and looked to her left to see if the highway was safe to enter. However, Villegas's view was obscured by tall grass alongside the highway. Thus, Villegas was unable to see Torres approaching the intersection. Believing the highway was free of approaching cross-traffic, Villegas turned right onto the eastbound lanes of the highway. Because Villegas entered the highway directly in front of Torres, Torres was forced to take evasive action to avoid colliding with Villegas's vehicle from behind. In the process of taking this evasive action, Torres lost control of his motorcycle and fell onto the highway. Torres was then struck by a pick-up truck driven by Raul Rosalez, who was traveling eastbound on Highway 44 behind Torres. Torres died as a result of his injuries.
At the time of the accident, A&A Enterprises LLC owned the land and improvements located on the southwest corner of the intersection where the accident occurred ("subject property"). However, the right of way alongside the highway was subject to a mowing contract between the Texas Department of Transportation ("TxDOT"), TIBH Industries, Inc. ("TIBH"), and UVH.
As a result of Torres's motorcycle accident, Appellants brought a wrongful death action against TIBH, UVH, A&A Enterprises, Villegas, and Rosalez. In their second amended petition, Appellants asserted a single claim of negligence against UVH, alleging that UVH negligently failed to properly maintain and cut the vegetation alongside the highway in violation of its contract with TxDOT ("mowing contract"), which proximately caused Torres's accident. On November 4, 2016, UVH filed a hybrid motion for no-evidence and traditional summary judgment, arguing Appellants could produce no evidence that UVH owed a legal duty to Appellants and that on the undisputed facts of the case, UVH owed no legal duty as a matter of law. UVH also moved for no-evidence summary judgment on the elements of breach and proximate cause. On November 16, 2016, Appellants filed a third amended petition, wherein Appellants expounded on the factual basis for their negligence claim against UVH, specifying that UVH acted negligently by failing to mow the subject property six times between May 12, 2012 and January 25, 2014 as allegedly required by the mowing contract. Appellants also added an additional cause of action against UVH based on its failure to comply with the mowing contract. On January 10, 2017, the trial court signed an order granting UVH's no-evidence motion for summary judgment.
On January 27, 2017, the trial court signed an order severing Appellants' claims against UVH from Appellants' claims against the other parties to the lawsuit. Appellants timely perfected this appeal.
The trial court granted a no-evidence summary judgment for TIBH on the same day it granted a no-evidence summary judgment for UVH. The trial court then severed Appellants' claims against TIBH and UVH from the remainder of the lawsuit and assigned to those claims a new cause number. During appellate mediation, Appellants settled their claims against TIBH. Appellants proceeded with this appeal against UVH.
STANDARD OF REVIEW
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). "A no-evidence motion for summary judgment must be granted if, after an adequate time for discovery, the moving party asserts there is no evidence of one or more essential elements of a claim or defense on which an adverse party has the burden of proof at trial and the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements." Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.—San Antonio 2008, pet. denied); see also TEX. R. CIV. P. 166a(i).
When reviewing a no-evidence summary judgment, we "examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); see TEX. R. CIV. P. 166a(i). "A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). "[M]ore than a scintilla of evidence exists if the evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Id. at 601 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
APPELLANTS PRODUCED NO EVIDENCE OF EITHER DUTY OR BREACH
In their second issue, Appellants contend the trial court erred by granting UVH's no-evidence motion for summary judgment because Appellants presented evidence raising a genuine issue of material fact on each disputed element of their negligence claim. In its no-evidence motion for summary judgment, UVH asserted Appellants could produce no evidence it owed a legal duty to Appellants, that UVH breached a duty it owed, or that any breach by UVH proximately caused Appellants' injuries.
"The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach." IHS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). "It is axiomatic that a legal duty must exist before a defendant may be held liable in negligence." Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex. 1995). "[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
Appellants argue the terms of the mowing contract demonstrate UVH owed a duty to traveling motorists to complete six mowing cycles on the subject property by the end of the contract period. The contract states UVH was to perform a total of six mowing cycles on the subject property. According to Appellants, the contract period began on May 15, 2012 and ended on January 25, 2014. Appellants presented TxDOT records showing that during that period of time, UVH completed five mowing cycles on the subject property. The TxDOT records also show UVH completed a sixth mowing cycle on February 5, 2014. Appellants argue that by failing to complete six mowing cycles by January 25, 2014, UVH breached a duty to traveling motorists.
Article 1 of the contract states, "This contract becomes effective on May 15, 2012 and terminates on January 25, 2014 unless termination occurs as otherwise provided in this agreement." However, Attachment "A" to the contract, which defined UVH's work obligations, states, "This contract will end on April 20, 2014. No further work will be performed after this date" absent a mutual agreement between TxDOT and UVH. The parties disagree on whether the end date in Article 1 or the end date in Attachment "A" controls and thus, whether UVH completed six mowing cycles within the contract period.
Nonetheless, even if Appellants are correct that the contract period ended on January 25, 2014, Appellants failed to present any evidence demonstrating UVH owed a legal duty to Appellants giving rise to liability in this case. Under the terms of the mowing contract, the Jim Wells County Maintenance supervisor would schedule and direct all work performed by UVH, which included giving notice to UVH to begin a mowing cycle. The notice would specify the number of acres to be mowed and the number of working days allowed to complete the mowing cycle. UVH was required to commence work on a mowing cycle within forty-eight hours of receiving written notice of a work order. Thus, UVH had an obligation to mow vegetation alongside the roads and highways covered by the contract only when directed to do so by Jim Wells County.
The circumstances of this case are similar to those addressed by our sister court in Sipes v. Langford. 911 S.W.2d 455 (Tex. App.—Texarkana 1995, writ denied). In that case, Sipes was driving through a crossover on a highway when tall grass in the median obstructed her view of oncoming cross-traffic and she collided with another vehicle. Id. 456. Sipes sued Langford, the contractor responsible for mowing the vegetation in the highway's median, alleging that Langford's mowing contract with TxDOT imposed upon Langford a duty to the travelling public to monitor the grass and mow more frequently to prevent the growth of tall grass in the median. Id. The court held that Langford owed no legal duty to Sipes because the contract did not require Langford to monitor vegetation growth or mow at any other time than when directed to by TxDOT. Id. at 457. The court noted that although Langford had a common law duty to perform the mowing work with care, skill, and reasonable experience, he had no legal duty to mow the highway vegetation absent an order by the state to do so. Id.
Similarly, in Villegas v. Texas Department of Transportation, this court held that a subcontractor tasked with mowing highway vegetation at TxDOT's discretion owed no legal duty to mow the shoulders and culvert along a highway where the subcontractor was not obligated to mow until directed to do so by TxDOT. Villegas v. Tex. Dep't of Transp., 120 S.W.3d 26, 40 (Tex. App.—San Antonio 2003, pet. denied). In that case, we noted that under the terms of the subcontractor's mowing contract, TxDOT was responsible for determining when the vegetation should be mowed and for informing the subcontractor of when and where to start mowing. Id. at 38.
In this case, UVH's mowing contract with TxDOT likewise did not require UVH to either monitor the growth of the vegetation along the highway or perform any mowing work other than when directed to do so by the county. Appellants do not argue that UVH negligently left tall vegetation when it mowed the subject property. Nor do Appellants argue that UVH negligently failed to mow the subject property when directed to do so by the county. Appellants do not point to any evidence that there was an outstanding work order for UVH to mow the subject property at the time of Torres's accident. To the contrary, the evidence produced by Appellants reveals that UVH had no obligation to mow the highway vegetation other than when instructed by the county to perform a mowing cycle. See Sipes, 911 S.W.2d at 456-57.
To defeat UVH's no-evidence motion for summary judgment, Appellants were required to bring forward more than a scintilla of probative evidence that raises a genuine issue of material fact regarding whether UVH owed Appellants a legal duty. See Smith, 288 S.W.3d at 424. Upon examining the record in the light most favorable to Appellants and indulging in every reasonable inference and resolving any doubts in their favor, we conclude Appellants failed to produce any evidence that would enable reasonable and fair-minded people to differ in their conclusions regarding whether UVH owed a legal duty to mow the vegetation on the subject property absent an order from the county to perform a mowing cycle. See City of Keller, 168 S.W.3d at 824; Ford Motor Co., 135 S.W.3d at 601. Moreover, Appellants failed to produce any evidence that would enable reasonable and fair-minded people to differ in their conclusions regarding whether UVH breached any obligation it had under the mowing contract, such as by failing to perform a mowing cycle after being directed to do so by the county. Accordingly, because Appellants failed to produce evidence raising a genuine issue of material fact as to their negligence claim, the trial court did not err by granting UVH's no-evidence motion for summary judgment as to Appellants' negligence claim.
We overrule Appellants' second issue.
ADDITIONAL BREACH OF CONTRACT CLAIM
Trial Court Erred by Granting Summary Judgment as to all of Appellants' Claims
In their first issue, Appellants contend the trial court erred by granting UVH's no-evidence motion for summary judgment because UVH failed to amend its summary judgment motion after Appellants filed their third amended petition. Appellants argue their third amended petition contained a new breach of contract claim against UVH, and that to properly obtain a summary judgment on all of Appellants' claims, UVH was required to amend its no-evidence summary judgment motion to address the newly pleaded breach of contract claim.
"A party who fails to amend or supplement his motion for summary judgment to address claims asserted in a plaintiff's amended pleading is generally not entitled to a summary judgment on the plaintiff's entire case, because the entry of such judgment would grant more relief than requested." Rust v. Texas Farmers Ins. Co., 341 S.W.3d 541, 552 (Tex. App.—El Paso 2011, pet. denied). When an amended pleading raises new claims, the portion of a final summary judgment rendered on the plaintiff's entire case must generally be reversed. Rotating Services Industries, Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
However, a plaintiff may not avoid a no-evidence summary judgment simply by filing an amended claim that reiterates the same essential elements of his original claims in another fashion. Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 387 (Tex. App.—Fort Worth 2003, pet. denied). "An amended or supplemental motion is not required when the grounds asserted in the motion for summary judgment conclusively negated a common element of the previously and newly pleaded claims, or when the motion is broad enough to encompass the newly asserted claims." Rust, 341 S.W.3d at 552.
Appellants' second amended petition contained a single cause of action against UVH—negligence. Appellants based their negligence claim on UVH's alleged failure to properly maintain and cut the vegetation on the subject property in violation of the mowing contract. In the third amended petition, Appellants specified the factual basis for Appellants' negligence claim against UVH, alleging UVH negligently failed to timely complete six mowing cycles on the subject property in violation of the mowing contract. The third amended petition also added the following language to the section listing Appellants' claims against UVH: "Failure to Comply with Contract Documents between [UVH] and [TxDOT] Material to the Condition or Defect that was the Proximate Cause of Injury and Death." Appellants argue that by including this additional language in their third amended petition, they raised a new theory of liability, i.e., a breach of contract action that Appellants are allegedly entitled to bring as third-party beneficiaries to the mowing contract. According to Appellants, because UVH did not amend its no-evidence motion for summary judgment to address the newly pleaded breach of contract claim, the trial court improperly granted UVH's no-evidence motion for summary judgment and dismissed all of Appellants' claims against UVH.
"Texas follows a 'fair notice' standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). "In determining whether a pleading is adequate, we examine whether an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the nature and the basic issues of the controversy." Bundren v. Holly Oaks Townhomes Ass'n, Inc., 347 S.W.3d 421, 430-31 (Tex. App.—Dallas 2011, pet. denied). "When ... no special exceptions are filed, we construe pleadings liberally in favor of the pleader." Id. at 431.
The third amended petition's language regarding Appellants' allegations against UVH reads as follows:
CAUSES OF ACTION AGAINST [UVH]
Failure to Comply with Contract Documents between [UVH] and [TxDOT] Material to the Condition or Defect that was the Proximate Cause of Injury and Death.
Negligence
Defendant[] [UVH] ... committed acts of omission and commission, which collectively and severally constituted negligence, which proximately caused the collision as well as the injuries to and death of [Torres], deceased, as well as the damages of [Appellants] herein. Defendant [UVH]'s acts of negligence include without limitation—
a. Failing to comply with material terms of [its] contract with [TxDOT], which required [UVH] to mow the [subject property] six times between May 12, 2012 and January 25, 2014, thus creating a condition, defect, and hazard to motorists on the public roadway, to wit: a visual obstruction in the form of tall, uncut vegetation.
b. Failing to comply with material terms of [its] contract with [TxDOT], which required [UVH] to mow the [subject property] six times between May 12, 2012 and January 25, 2014, thus allowing a condition, defect, and hazard to motorists on the public roadway to occur and exist, to wit: a visual obstruction in the form of tall, uncut vegetation; and
c. Failing to comply with material terms of [its] contract with [TxDOT], which required [UVH] to mow the [subject property] six times between May 12, 2012 and January 25, 2014, thus failing to prevent a condition, defect, and hazard to motorists on the public roadway from occurring, to wit: a visual obstruction in the form of tall, uncut vegetation.
The failure of [UVH] to comply with material terms of the [mowing contract] were [sic] the proximate cause of the subject events as well as the injuries to and death of [Torres], as well as the damages suffered by [Appellants] herein. The negligent acts and/or omissions of [UVH] in failing to comply with material terms of the [mowing contract] were the proximate cause of the subject events, as well as the injuries to and death of [Torres] as well as the damages suffered by [Appellants] herein.Although much of the language in Appellants' third amended petition relates to the claim of negligence, when liberally construed in Appellants' favor, the additional heading above "Negligence" that reads "Failure to Comply with Contract Documents between [UVH] and [TxDOT] Material to the Condition or Defect that was the Proximate Cause of Injury and Death" conveys Appellants' intention to bring another claim in addition to negligence. The alleged facts in the third amended petition state UVH "failed to comply" with the mowing contract, and the additional claim relates to UVH's alleged "[f]ailure to comply" with the mowing contract. Thus, although the heading does not contain the phrase "third party breach of contract," an attorney of reasonable competence could ascertain Appellants' intent to bring a contract-based claim as a third party in addition to negligence. See Bundren, 347 S.W.3d at 430-31.
We conclude Appellants' third amended petition raised a new contract-based claim in addition to the previously-asserted negligence claim. Thus, because UVH did not amend or supplement its motion for summary judgment to encompass the newly-added claim, the trial court erred by granting UVH's no-evidence motion for summary judgment as to Appellants' entire case against UVH. See Harris, 245 S.W.3d at 487.
Trial Court's Error was Harmless
Although we have concluded the trial court erred by granting summary judgment as to Appellants' entire suit against UVH, we next must determine whether the error was harmless. See TEX. R. APP. P. 44.1. "The harmless error rule states that before reversing a judgment because of an error of law, the reviewing court must find that the error amounted to such a denial of the appellant's rights as was reasonably calculated to cause and probably did cause 'the rendition of an improper judgment,' or that the error 'probably prevented the appellant from properly presenting the case [on appeal].'" G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (quoting TEX. R. APP. P. 44.1(a)). Although "[g]ranting a summary judgment on a claim not addressed in the summary judgment motion . . . is, as a general rule, reversible error . . . the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case." Id. at 297-98.
Appellants' third amended petition states UVH "failed to comply with the terms of the [mowing] contract, in that [UVH] did not perform the required number of mowing cycles during the specified contract period." As explained above, Appellants failed to produce any evidence that UVH had a duty to perform a mowing cycle other than when instructed by the county to do so, or that UVH breached any duty that it did have under the mowing contract. The third amended petition does not allege any failure by UVH to comply with the mowing contract other than the allegation it did not perform six mowing cycles by the end of the contract period, i.e., that UVH did not perform its sixth mowing cycle by January 25, 2014—four months after the fatal incident. Accordingly, we conclude the trial court's order granting summary judgment as to all of Appellants' claims against UVH was harmless. See Vogel v. Travelers Indem. Co., 966 S.W.2d 748, 755 (Tex. App.—San Antonio 1998, no pet.) (holding reversal of summary judgment for consideration of newly-pleaded breach of contract claim would be "meaningless" where court had already held defendant did not breach any contractual duty).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Irene Rios, Justice