Opinion
NO. 01-20-00285-CV
04-29-2021
JUAN MIGUEL VENEGAS, Appellant v. JOSE ARGUETA, Appellee
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2017-24070
MEMORANDUM OPINION
In this suit for personal injuries from a motor-vehicle collision, appellant, Juan Miguel Venegas, challenges the trial court's orders (1) granting partial summary judgment on negligence and (2) striking his counter-affidavits.
We reverse and remand.
Background
In 2016, appellee, Jose Argueta, alleged that as he proceeded into an intersection on a green light, Venegas, proceeding the opposite way, turned left into the intersection, failed to yield the right-of-way, and struck Argueta's vehicle. Argueta sued Venegas for negligence and negligence per se as a result of the accident. Venegas answered the suit and generally denied the allegations.
Argueta sought partial summary judgment on Venegas's negligence, arguing that "Plaintiff is entitled to summary judgment as a matter of law regarding the legal duty, breach, and causation portions of h[is] negligence claim." In support of his motion, Argueta relied on his deposition, his medical records, and a peace officer's crash report. Based on his motion, Argueta claimed that Venegas owed him a duty not to strike his vehicle and that "[a]s a result of the collision, [Argueta] sought treatment with Southwest Accident & Injury Clinic for injuries sustained in the collision."
On January 3, 2019, Argueta sought a no-evidence motion for partial summary judgment on Venegas's affirmative and inferential rebuttal defenses. The trial court never ruled on this motion for partial summary judgment.
Venegas responded to the motion for partial summary judgment, arguing that it was not appropriate to enter summary judgment and even if it was, his discovery responses raised an issue of fact: "I was [at] a red stop light. My left turn signal turned green (left turn yield) to make a left turn. I started to make a left turn onto South Drive, and once I was in the middle of the intersection a truck hit me on the passenger side."
Argueta moved to strike Venegas's response to his motion for partial summary judgment because the response was untimely. Argueta also objected to Venegas's answers to interrogatories, claiming that Venegas could not rely on his own answers to raise a fact issue and that the trial court not consider the evidence attached to his summary judgment response.
The trial court never ruled on the motion to strike Venegas's summary judgment response.
In his first amended answer, Venegas generally denied the allegations, asserted a number of actions that Argueta should have taken to avoid the collision, and alleged comparative responsibility under Chapter 33 of the Texas Civil Practice and Remedies Code.
See TEX. CIV. PRAC. & REM. CODE § 33.001-.017.
On April 1, 2019, the trial court granted Argueta's motion for partial summary judgment without stating its reasons, and it sustained Argueta's objections to Venegas's summary judgment evidence.
The parties proceeded to trial with Argueta testifying by deposition, and he called two doctors to testify as to his medical expenses. After Argueta rested, Venegas did not call any witnesses and rested. Before the charge conference, Venegas's counsel stated on the record that "[a] partial Motion for Summary Judgment was granted with regards to liability, and we were precluded from putting on any evidence in defense of the liability issues. And so, we're calling our client to testify what he knows about causation of the accident." Venegas then testified that he was involved in the September 9, 2016 collision, that he was turning left on a green light, that Argueta did not have his headlights on, and that if had seen the headlights on, he would not have turned. He received a ticket that was later dismissed.
After jury deliberations, the trial court read the verdict, which awarded Argueta $29,543.68 for past medical care, $15,000 for past physical impairment, and $20,000 for past physical pain. On December 20, 2019, Argueta filed a "Motion for Entry of Final Judgment," stating that the jury had rendered a verdict in his favor and that opposing counsel had not signed the final judgment. Venegas responded, arguing in relevant part that the motion for entry of final judgment should be denied because the trial court's granting of a partial motion for summary judgment prior to trial as to liability resulted in reversible error and Argueta presented no evidence of damages as part of the partial summary judgment motion.
Once the trial court signed the final judgment on January 8, 2020, Venegas filed a motion for new trial and an amended motion for new trial, raising three issues. In relevant part, Venegas argued that there were genuine issues of material fact as to the liability of plaintiff and defendant and that no conclusive evidence on the question of whether Venegas "acted as an ordinarily prudent person faced with the same or similar circumstances." On February 24, 2020, the trial court denied Venegas's amended motion for new trial and Venegas timely filed a notice of appeal.
Partial Summary Judgment
In his first issue on appeal, Venegas argues that the trial court erroneously granted partial summary judgment on Argueta's claim for negligence and liability for damages. Venegas contends that Argueta did not include any conclusive evidence of specific acts of negligence by Venegas.
Standard of Review and Applicable Law
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference, and we resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). Where, as here, the trial court grants the judgment without specifying the grounds, we affirm the summary judgment if any of the grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-873 (Tex. 2000). "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX. R. CIV. P. 166a(c). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of a claim and, thereby, establishes its right to judgment as a matter of law. See TEX. R. CIV. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established for summary judgment purposes if ordinary minds cannot differ regarding the conclusion to be drawn from the evidence. Price v. Am. Nat. Ins. Co., 113 S.W.3d 424, 427 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In a traditional motion for summary judgment, if the movant's motion and summary judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).
To prevail on a negligence cause of action, Argueta had to establish the existence of a duty, a breach of that duty, and damages proximately caused by the breach. W. Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To establish a breach of duty, the plaintiff must show either that the defendant did something an ordinarily prudent person exercising ordinary care would not have done under the particular circumstances or that the defendant failed to do something that an ordinarily prudent person would have done in the exercise of ordinary care. Douglas v. Aguilar, 599 S.W.3d 105, 108 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Mata v. Coastal Agric. Supply, Inc., No. 01-17-00509-CV, 2018 WL 3150869, at *2 (Tex. App.— Houston [1st Dist.] June 28, 2018, no pet.). The resolution of a defendant's possible breach of duty is a question of fact. Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Establishing causation in a personal injury case requires a plaintiff to "prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries." JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Proximate cause is generally a question of fact for the jury, but may be established as a matter of law if the circumstances are such that reasonable minds could not arrive at a different conclusion. Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex. App.—Austin 1990, writ denied) (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 104-05 (Tex. 1977)). When an accident victim seeks to recover medical expenses, he must show "what all the conditions were that generated the expenses and 'that all the conditions were caused by the accident.'" JLG Trucking, 466 S.W.3d at 162 (quoting Guevara v. Ferrer, 247 S.W.3d 662, 669 (Tex. 2007)).
"A driver has a general duty to exercise the ordinary care a reasonably prudent person would exercise under the same circumstances to avoid a foreseeable risk of harm to others." Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.). "Motorists [also] have a general duty to keep a proper lookout." Montes v. Pendergrass, 61 S.W.3d 505, 509 (Tex. App.—San Antonio 2001, no pet.). The duty to keep "[a] proper lookout encompasses the duty to observe, in a careful and intelligent manner, traffic and the general situation in the vicinity, including speed and proximity of other vehicles as well as rules of the road and common experience." Id. (quoting Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler 1992, writ denied)). "The failure to keep a proper lookout can be a proximate cause of an accident where the motorist should have seen something in time to have avoided the accident by evasive action and but for such failure the collision could have been avoided." Ciguero, 455 S.W.3d at 748 (quoting Montes, 61 S.W.3d at 510).
A driver's failure to yield the right-of-way or the mere occurrence of a collision does not give rise to negligence as a matter of law. See Middleton v. Palmer, 601 S.W.2d 759, 765 (Tex. App.—Dallas 1980, writ ref'd n.r.e.); see also Canales v. Womack, No. 01-07-00222-CV, 2008 WL 2388132, at *2 (Tex. App.—Houston [1st Dist.] June 12, 2008, no pet.) (mem. op.); Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.—Houston [14th Dist.] 1989, writ denied). It is the plaintiff's burden to prove specific acts of negligence on the part of the driver and that such negligence was a proximate cause of the accident. See Smith, 774 S.W.2d at 412.
Analysis
In his motion for partial summary judgment, Argueta relied on his deposition and the peace officer's crash report to show, as a matter of law, that Venegas owed a legal duty to Argueta, that he breached his duty, and that his breach proximately caused Argueta's injuries. Argueta testified at his deposition, as follows:
Q. How fast were you traveling when you first saw [Venegas]?
A. 35 miles or maybe even less than that.
Q. When you crossed the traffic light, what color was the light?
A. Green.
Q. Did you ever have to wait at a red light at that intersection or did you just cross the light when it was already green?
A. It was green. I didn't have to stop.
* * * *
Q. What exactly happened in this accident?
A. I see him on my left-hand side in that position. I'm going straight through. He had to cross. And I don't know. I don't know. He didn't have the light. I can't explain it.
* * * *
Q. So, when you cross into the intersection, how do you make contact with [Venegas's] vehicle?
A. I'm going straight. He's coming from the front. And what I felt is when he impacted me, when he hit me.
Q. But if you're going two different directions, why did your cars come in contact?
A. Well I asked him why did he do that, why did he do that, because he was going to cross. I think that he was—I thought he was going to cross; but he did not have the lights, you know, the intermittent, the flashing lights to indicate that he was going to cross.
On direct examination from Argueta's attorney at the deposition, the following questions were asked:
Q. What did the defendant do just prior to impact?
A. Well, he was driving without the lights. He didn't have a signal light. And I thought he was going to continue straight through on South. But all of a sudden he turned.
Q. And when he turned, is that when the two cars collided?
A. Yes.
The peace officer's crash report stated,
Unit #1 was at the signal light at 10700 South Drive facing East. Unit #2 was at the signal light at 10700 South Drive facing West. The signal light turned green and Unit #2 traveled East through the light. Unit #2 failed to yield the right of way turning south onto Wilcrest and Unit #1 struck him.
The crash report also included a diagram showing how the vehicles were traveling and where the collision occurred. Based on his deposition and the crash report, Argueta's motion for partial summary judgment argued, "Clearly, Defendant owed a duty to Plaintiff not to strike his vehicle. As a result of the collision, [Argueta] sought treatment with Southwest Accident & Injury Clinic for injuries sustained in the collision." In his conclusion, Argueta stated,
Defendant is clearly solely responsible for the collision which is the basis of Plaintiff's cause(s) of action. Plaintiff sustained injuries as a result of the collision and sought medical treatment for those injuries. This testimony is appropriate evidence upon which to grant Plaintiff's motion on (1) legal duty owed; (2) breach; and (3) causation. Therefore, the Court should rule Defendant was negligent as a matter of law.
On appeal, Argueta contends that Argueta's testimony is sufficient to show breach of duty. We disagree. Considering Argueta's evidence and resolving any doubts in Venegas's favor, Argueta's evidence merely showed that he proceeded through a green traffic light and collided with Venegas, who was traveling in the opposite direction and had turned left from another traffic light. Although we agree that motorists owe a general duty to exercise reasonable care, Argueta's evidence did not conclusively show that Venegas breached his duty by failing to act as a reasonably prudent person under circumstances existing at the time of the accident. See P.A.M. Transp., Inc. v. Stevens Transp., Inc., No. 05-12-01031-CV, 2013 WL 3948880, at *2 (Tex. App.—Dallas July 13, 2013, no pet.) (reversing summary judgment because plaintiff did not establish negligence as matter of law in vehicular accident); see also Renfroe v. Ramsey, 477 S.W.2d 648, 650 (Tex. App.—Houston [14th Dist.] 1972, no writ) (stating that "[w]hether the appellant could 'safely' enter the intersection without interference or collision with traffic using such paved street or roadway is a question of fact to be determined from the evidence"). At best, Argueta presented evidence that Venegas failed to yield the right of way and collided with Argueta, but such evidence does not conclusively establish negligence as a matter of law. See Middleton, 601 S.W.2d at 765 (rejecting argument that duty to yield right of way after stopping at stop sign was negligence as matter of law); Canales, 2008 WL 2388132, at *2; Smith, 774 S.W.2d at 412 (stating that "occurrence of an accident or a collision is not of itself evidence of negligence" and "mere occurrence of a rear-end collision will not present evidence of negligence as a matter of law").
Moreover, the summary judgment evidence was not free from contradictions and inconsistencies. See TEX. R. CIV. P. 166a(c). Specifically, Argueta testified that his light was green and that he did not have to stop at the light. The peace officer's crash report stated, however, that both vehicles were at the signal lights and that "[t]he signal light turned green" and Venegas failed to yield the right of way. The inference from the crash report, construed in Venegas's favor, indicates that both parties were stopped at the stop light. Additionally, Argueta's deposition testimony indicated that the crash report's diagram of the accident was not accurate. Even Argueta's attorney commented, the "picture makes it very confusing" and "[t]hose labels make absolutely no sense whatsoever." Thus, we conclude that Argueta's evidence is not free from contradictions and inconsistency and therefore cannot support summary judgment on negligence as a matter of law.
In sum, we conclude that Argueta did not establish Venegas's negligence as a matter of law and thus the burden did not shift to Venegas to raise a fact issue. Accordingly, we conclude that the trial court erred in granting partial summary judgment on negligence.
We sustain Venegas's first issue.
In light of the disposition of the first issue, it is unnecessary to consider Venegas's second issue. See TEX. R. APP. P. 47.1.
Conclusion
We reverse the trial court's order granting partial summary judgment. Because the final judgment resulted from a jury trial which was necessarily limited by an erroneous partial summary judgment, we reverse the final judgment and remand for further proceedings consistent with this opinion.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Farris.