frances-rubio-individually-and-as-representative-of-the-estate-of-her ( 2011 )

NUMBER 13-10-00351-CV AND NUMBER 13-10-00352-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
FRANCES RUBIO, INDIVIDUALLY,
AND AS REPRESENTATIVE OF THE
ESTATE OF HER DECEASED HUSBAND,
JOSE HINOJOSA RUBIO AND PAULA ESCOBAR,
PAM FLORES & MARY HERNANDEZ, Appellants,
v.
GUADALUPE MARTINEZ, Appellee.
On appeal from the 135th District Court
of Victoria County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellants, Frances Rubio, Paula Escobar, Pam Flores and Mary Hernandez
(hereinafter referred to as “the Rubios” collectively),1 appeal from the trial court’s
summary judgments in favor of appellee, Guadalupe Martinez (hereinafter “Martinez”).
Because there is no evidence that Martinez negligently entrusted her vehicle to Juan
Lopez, the driver of her vehicle, and because Martinez has established the affirmative
defense of suicide as a matter of law, we affirm the trial court’s judgments.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about June 2, 2006, the decedent Jose Rubio was rear ended by a car
driven by Juan Lopez (hereinafter “Lopez”), but owned by Martinez. Martinez was not in
the vehicle at the time of the accident. Lopez left the scene of the accident and his
whereabouts remain unknown to Martinez. A police officer from the Victoria Police
Department investigated the accident, reporting that Jose Rubio was not injured in the
accident. On or about June 28, 2006, Jose Rubio committed suicide. The Rubios filed
a lawsuit on July 28, 2008, bringing causes of action for wrongful death, a survivor
action, negligent entrustment, and negligence against Lopez and Martinez.2 The
Rubios alleged that Martinez negligently entrusted her vehicle to an incompetent,
untrained, and unlicensed driver. Martinez asserted the affirmative defense of suicide.
On June 1, 2009, Martinez filed both a traditional and no-evidence motion for summary
judgment with respect to her suicide defense. On April 30, 2010, the trial court granted
Martinez’s summary judgment as to the Rubios’ wrongful death and survival claims.
1
Frances Rubio is the surviving spouse and executrix of the estate of the deceased Jose
Hinojosa Rubio. Paula Escobar, Pam Flores and Mary Hernandez are the surviving children of Jose
Hinojosa Rubio.
2
The Rubios also alleged that Lopez was in the course and scope of employment with Martinez
and that the doctrine of respondeat superior applies, but the Rubios supplied no evidence in their
responses to Martinez’s motions for summary judgment that Lopez was employed by Martinez.
2
The trial court severed the wrongful death and survival causes of action from the
remaining claims of negligent entrustment and negligence, and assigned cause number
08-6-67436-BB. An appeal ensued from this order under cause number 13-10-00351-
CV.
On April 29, 2010, Martinez filed a no-evidence motion for summary judgment on
the Rubios’ negligent entrustment claim.3 The trial court granted Martinez’s motion and
ordered that the negligent entrustment issue be severed from the remaining negligence
claim, and assigned cause number 08-6-67436-BBB. An appeal from this order ensued
under cause number 13-10-00352-CV.4
II. NEGLIGENT ENTRUSTMENT
In one issue in cause number 13-10-00352-CV, the Rubios contend that the trial
court erred in granting Martinez’s no-evidence motion for summary judgment because
she failed to demonstrate entitlement thereto as a matter of law.
A. Standard of Review
In a no-evidence summary judgment motion under rule 166a(i), the movant must
specifically state the elements for which there is no evidence. Tex. R. Civ. P. 166a(i).
The burden then shifts to the non-movant to bring forth evidence that raises a fact issue
on the challenged elements. Id. When reviewing the granting of a no-evidence
summary judgment motion, we review the evidence in the light most favorable to the
3
A conclusion that Martinez did not negligently entrust her vehicle to Lopez would have resolved
all issues in this case through summary judgment. However, Martinez’s summary judgment as to the
negligent entrustment issue did not contain the wrongful death and survivor causes of action. We will
address these issues accordingly.
4
There being two orders and two records, separate cause numbers were assigned to each case
on appeal. These appeals, however, arise from a single case and a single set of facts in the trial court.
Although neither party has sought to consolidate these appeals, in the interest of judicial economy, we
issue a single opinion disposing of both appeals.
3
non-movant, disregarding all contrary evidence and inferences. Macias v. Fiesta Mart,
Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A no-
evidence summary judgment motion is improperly granted if the non-movant brings forth
more than a scintilla of evidence to raise a genuine issue of material fact. Tex. R. Civ. P.
166a(i). 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.” Macias, 988 S.W.2d at 317 (citing
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conversely, more than a
scintilla of evidence exists when the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” Id. (citing Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). We will not consider
evidence attached to a no-evidence motion unless it creates a fact issue. See Binur v.
Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Because the propriety of granting a
summary judgment is a question of law, we review the trial court's decision de novo.
Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
B. Analysis
To establish negligent entrustment of an automobile, a plaintiff must show the
following: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent,
or reckless driver; (3) whom the owner knew or should have known to be unlicensed,
incompetent, or reckless; (4) the driver was negligent on the occasion in question; and
(5) the driver's negligence proximately caused the accident. Schneider v. Esperanza
Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).
Express permission is that which is affirmatively stated, while implied permission
may be inferred from conduct between the parties in which there is acquiescence or
4
lack of objection signifying consent which is shown by usage and practice of the parties
over a period of time preceding the occasion on which the automobile was being used.
Royal Indem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex. 1966).
In their response to the no-evidence motion for summary judgment, the Rubios
asserted that Martinez gave implied permission to Lopez to drive her vehicle by virtue of
their dating relationship and that Martinez was not credible because of certain
inconsistent statements. See Tex. R. Civ. P. 166a. However, the Rubios brought
forward no evidence that raised a fact issue on the challenged elements of whether
Martinez expressly or impliedly entrusted her vehicle to Lopez. Royal Indemnity, 399
S.W.2d at 347. Accordingly, we overrule the Rubios’ sole issue pertaining to negligent
entrustment.
II. AFFIRMATIVE DEFENSE OF SUICIDE
By four issues in cause number 13-10-00351-CV, the Rubios argue that (1) the
trial court erred in granting Martinez’s motion for summary judgment because she failed
to establish the affirmative defense of suicide as a matter of law; (2) the trial court erred
by striking Paula Escobar’s affidavit; (3) the trial court erred by granting more relief than
appropriate or prayed for; and (4) the trial court erred by not enforcing the terms of a
Rule 11 agreement. See Tex. R. Civ. Proc. 11.
A. Standard of Review
Martinez filed both a no-evidence and traditional motion for summary judgment
on her defensive issue of suicide. See TEX. CIV. PRAC. & REM. CODE ANN. §
93.001(a)(2) (West 2011). Only when a party conclusively proves every element of its
5
affirmative defense is it entitled to summary judgment. Tex. R. Civ. P. 166(a); Science
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Here, we will review this as a traditional motion because a party may never
properly urge a no-evidence summary judgment on the claims or defenses on which it
has the burden of proof, such as an affirmative defense. Nowak v. DAS Inv. Corp., 110
S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see also Michael v.
Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus Christi 2001, no pet.); Judge David
Hittner & Lynn Liberato, Summary Judgments in Texas: State and Federal Practice, 46
Houston L. Rev. 1379, 1388-9 (2010).
We review the grant of a traditional summary judgment de novo. Alejandro v.
Bell, 84 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2002, no pet.). A trial court
properly grants summary judgment for a defendant if the defendant establishes all the
elements of an affirmative defense, Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,
425 (Tex. 1997), and if the moving party establishes that no genuine issue of material
fact exists and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In deciding whether there
is a genuine issue of material fact, evidence favorable to the non-movant will be taken
as true, and all reasonable inferences made, and all doubts resolved, in favor of the
non-movant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Property Mgmt. Co.,
Inc., 690 S.W.2d 546, 548-9 (Tex. 1985). The non-movant has no burden to respond to
a traditional summary judgment motion unless the movant conclusively establishes its
cause of action or defense. Swilley, 488 S.W.2d 64, 68 (Tex. 1972).
6
B. Analysis
By their first issue, the Rubios claim that the trial court erred in granting
Martinez’s motion for summary judgment since she failed to demonstrate entitlement
thereto as a matter of law based on an affirmative defense of suicide. TEX. CIV. PRAC. &
REM. CODE ANN. § 93.001(a)(2). Section 93.001 Texas Civil Practice and Remedies
Code Annotated provides in pertinent part:
(a) It is an affirmative defense to a civil action for damages for personal
injury or death that the plaintiff, at the time the cause of action arose, was:
…
(2) committing or attempting to commit suicide, and the plaintiff's
conduct in committing or attempting to commit suicide was the sole cause
of the damages sustained; provided, however, if the suicide or attempted
suicide was caused in whole or in part by a failure on the part of any
defendant to comply with an applicable legal standard, then such suicide
or attempted suicide shall not be a defense.
Id.
To be entitled to summary judgment on the affirmative defense of suicide,
Martinez had the burden of proving as a matter of law that at the time the wrongful
death claim cause of action arose (1) Jose Rubio was committing or attempting to
commit suicide and (2) that this conduct was the sole cause of damages. See TEX. CIV.
PRAC. & REM. CODE ANN. § 93.001(a)(2); Galindo v. Dean, 69 S.W.3d 623, 625-626
(Tex. App.—Eastland 2002, no pet.); Bracy v. Wal-Mart Stores, Inc., No. 2-06-223-CV,
2007 WL 1228642, at *3 (Tex. App.—Fort Worth April 26, 2007, no pet.) (mem. op.).
Once Martinez established that Jose Rubio’s suicide was the sole cause of his
damages, the burden then shifted to the Rubios to bring forth evidence that raised a
genuine issue of material fact as to whether Martinez or Lopez failed to comply with an
applicable legal standard. See Bracy, No. 2-06-223-CV, 2007 WL 1228642, at *3.
7
Because the statute requires that a plaintiff must be committing or attempting to
commit suicide at the time the cause of action arose, we note that a cause of action for
wrongful death accrues on the death of the injured person. See also Galindo v. Dean,
69 S.W.3d 623, 626 (Tex. App.—Eastland 2002, no pet.). Thus, the Rubios’ cause of
action for wrongful death accrued upon the death of Jose Rubio.
The next question under section 93.001(a) (2) is whether Jose Rubio’s suicide
was the sole cause of the damages sustained. Jose Rubio’s death certificate, which is
attached in support of Martinez’s motion, indicates that the cause of death was
“asphyxia due to hanging” and that “deceased . . . fashioned a noose with coat hanger
[sic] and hung himself.” Martinez also included the accident report as summary
judgment evidence, which reflects that Jose Rubio was not injured from the accident.
Thus, Martinez met her burden of establishing that Jose Rubio’s suicide was the sole
cause of the damages sustained. Galindo, 69 S.W.3d at 626-27.
Once Martinez established her entitlement to summary judgment based on the
affirmative defense of section 93.001(a)(2), to avoid summary judgment under section
93.001, the burden shifted to the Rubios to establish that Jose Rubio’s suicide was
caused by Martinez’s failure to comply with an applicable legal standard. TEX. CIV.
PRAC. & REM. CODE ANN. § 93.001(a) (2); Galindo, 69 S.W.3d at 628. The Rubios
argued that Juan Lopez violated legal standards by rear ending Jose Rubio’s vehicle
and by failing to stop and render aid without establishing how those violations constitute
liability upon Martinez.
Because the proximate cause of the underlying accident or occurrence was
Lopez’s negligence, not Martinez’s, see Rodgers v. McFarland, 402 S.W.2d 208, 210
8
(Tex. Civ. App.—El Paso 1966, writ ref’d n.r.e.), the evidence relied upon by the Rubios
does not raise a fact issue that Martinez violated an applicable legal standard. Bracy,
No. 2-06-223-CV, 2007 WL 1228643, **3-4; Galindo, 69 S.W.3d at 628. We hold that
Martinez has affirmatively established each element of the affirmative defense of suicide
that no genuine issue of material fact exists, and that Martinez is entitled to judgment as
a matter of law. Id. As such, we overrule the Rubios’ first issue.
By her second issue, the Rubios claim that the trial court erred by striking Paula
Escobar’s affidavit. The affiant, Paula Escobar is the decedent’s daughter and she
holds a license as a licensed vocational nurse. The essence of her affidavit attempted
to establish causation—that her father’s death was caused by the underlying automobile
accident. However, this affidavit addressed nothing with respect to Martinez’s liability.
Because we have previously held that Martinez did not negligently entrust her vehicle to
Lopez, the affidavit, even if allowed, would not have raised a fact issue. We overrule
the Rubios’ second issue.
By her third issue, the Rubios claim that the trial court erred by granting more
relief than appropriate or prayed for. Specifically, the Rubios claim that the order
granting summary judgment in this case only disposed of the wrongful death and
survival causes of actions, but did not dispose of “normal” damages that a person might
suffer in a car accident such as pain and suffering, mental anguish, physical
impairment, and medical expenses. We consider this issue to be moot. After the trial
court granted summary judgment on Martinez’s suicide defense, which covered the
Rubios’ wrongful death and survival causes of action, a subsequent summary judgment
on the negligent entrustment issue was granted, disposing of all remaining issues that
9
pertained to Martinez. The proximate cause of the accident or occurrence is the
negligence of the driver and not that of the owner. Rodgers, 402 S.W.2d at 210. Thus,
the remaining negligence cause of action referred to Lopez, the driver, and not to
Martinez. We overrule the Rubios’ third issue.
By their fourth issue, the Rubios argue that the trial court erred by not enforcing
the terms of a Rule 11 agreement that would prevent a summary judgment hearing until
after Guadalupe Martinez had been deposed. Martinez responded that the court
granted a continuance and that the Rubios did in fact have sufficient time to complete
discovery. The record before this court did not contain the Rule 11 agreement to which
the Rubios refer, nor did it include the motion for continuance. Under these
circumstances, we must presume that the missing portions of the record support the
trial court's judgment. In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.—Dallas 2006, no
pet.) (citing Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2003)). As such, we
overrule the Rubios’ fourth issue.
IV. CONCLUSION
Having overruled the Rubios’ issues on appeal, we affirm the trial court’s
judgments in both cause numbers 13-10-00351-CV and 13-10-00352-CV.
______________________________
GREGORY T. PERKES
Justice
Delivered and filed the
28th day of July, 2011.
10