Opinion
No. 05-05-00295-CV
Opinion Filed December 1, 2005.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. 03-12585-A.
Affirm.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Louis Morales appeals a take-nothing summary judgment rendered against him on his claims against Uptown Properties, Inc. for its alleged negligent hiring, supervision, training, and retention respecting one of its employees. In his sole issue on appeal, Morales asserts the trial court erred in granting Uptown's motion for summary judgment. The facts are well-known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We decide Morales's sole issue against him and affirm the trial court's judgment.
I. Factual and Procedural Background
The foundation for Morales's claims include allegations that he was injured in a fight with an Uptown employee at Uptown's place of business, a carwash. Uptown filed a motion for summary judgment on all of Morales's claims. On appeal, Morales only challenges the granting of the summary judgment motion as to claims for negligent hiring, supervision, training, and retention.
II. Traditional and No-Evidence Motion for Summary Judgment A. Nature of Uptown's Motion for Summary Judgment
Before turning to the merits, we note that both parties on appeal assert that the motion for summary judgment is a no-evidence motion. However, although the motion for summary judgment does not identify what portions of Rule 166a it relies upon, the language of the motion reflects it is both a no-evidence motion and a traditional motion for summary judgment.
In its summary judgment motion, Uptown acknowledges it has a duty to the public to hire competent employees, to supervise, and train them, but it asserts that it did not breach this duty. Uptown attached to its motion affidavits of its supervisor, Eddie Smith and its employee, Gilberto Contreras, who was involved in the fight with appellant. The affidavits addressed Contreras' prior work experience at a carwash, his lack of a criminal record, Uptown's policies regarding proper employee behavior, and management's express directions that Contreras stay away from Morales. Although Uptown presented evidence asserting it negated the element of breach of duty, it also stated there was no evidence that is had breached its duty. Further, Uptown alleged in its motion there was no evidence that failure to supervise was a producing cause of the injury. Based upon this record, we conclude the motion in question is both a traditional and a no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a (a), (b), (i); Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).
Our analysis will be of both the traditional and no-evidence characters of the summary judgment motion. We could not simply address the no-evidence character of Uptown's summary judgment motion and fully review the summary judgment rendered by the trial court. The effect of Uptown's traditionally worded motion for summary judgment motion was to present evidence to negate the elements of Morales's claims. The "no-evidence" portion of the summary judgment motion simply contended that Morales had no evidence to support his claim which was contrary to the evidence offered by Uptown. Here and at the trial court, Morales contended that the evidence presented by Uptown created an issue of fact precluding summary judgment and all Morales need do was argue his position. We cannot agree with Morales.
B. Standard of Review
This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standards for reviewing a traditional summary judgment are well-established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). Summary judgment for a defendant is proper only when the defendant negates at least one element of the plaintiff's theory of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the defendant produces evidence entitling it to summary judgment, the burden shifts to the plaintiff to present evidence creating a fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). When a defendant moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a plaintiff's claim, the burden is on the plaintiff to present evidence to raise a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.).
As in this case, when a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Additionally, the appellant is required to show that each of the independent grounds asserted in support of summary judgment was insufficient to support the judge's ruling. Orozco v. Dallas Morning News, 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no writ).
III. Discussion A. Morales's Objections to Affidavit Evidence
First, before determining whether the trial court erred in granting Uptown's motion for summary judgment, we must address Morales's objections to six specific statements in the affidavits supporting Uptown's motion. The grounds for Morales's objections are that the statements: 1) are not based on personal knowledge, 2) are speculative, and 3) are legal conclusions. To consider these objections, we must determine if Morales preserved error for our review.
To preserve error for appellate review of a party's objections, the record must show that: 1) a party stated its specific grounds for its objections in compliance with the relevant rules, 2) the party obtained a ruling, either expressly or implicitly, on its objections, or 3) the trial court refused to rule on the objections and the complaining party objected to the refusal. See Tex.R.App.P. 33.1(a). Initially, we note that, although Morales filed written objections with the trial court, he did not receive a written order from the trial court regarding his objections. His written objections to the trial court regarding lack of personal knowledge and speculation are considered objections to the "form" of the affidavit, and must be preserved in the trial court. Stewart v. Sanmina Texas L.P., 156 S.W.3d 198, 207 (Tex.App.-Dallas 2005, no pet.) (stating lack of personal knowledge is defect of form); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (stating speculation is defect of form). By failing to obtain a ruling on his objections as to lack of personal knowledge and speculation in the trial court, Morales cannot raise these objections on appeal. See Stewart, 156 S.W.3d at 207. Therefore, Morales has waived any complaint as to the form of the affidavits.
Morales's objections that statements in the affidavits are legal conclusions relate to a defect in the substance of the affidavits and may be raised for the first time on appeal. Id. Morales's objections identify the number of the particular paragraph and state, "Said paragraph contains statements that are merely legal conclusion (sic)." These objections provide no description of the particular basis for the objection and are not sufficiently specific. Id. Objections that statements are "conclusory" may not be "conclusory" themselves. See id. We reject Morales's argument that Uptown's evidence is substantively defective.
B. Review of the Summary Judgment
Uptown's summary judgment evidence showed that: 1) it hired an individual, Contreras, with prior experience at a carwash, who had no criminal record, 2) it had a policy against fighting, 3) Morales insulted its employee, 4) Uptown instructed its employee to stay away from Morales, and 5) Morales returned to the area where the employee was "cooling off" after the insults were made. Morales did not controvert these facts nor did he offer any facts to address the "no evidence" contentions raised by Uptown.
In his response to the summary judgment motion, Morales claimed Uptown's managers should have separated its employee and Morales. Morales argues a fact issue exists as to whether "[Uptown's] management took proper actions by merely informing the assailant to stay away from [Morales]." Further, Morales asserts that the case of Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309, (Tex. 1983) supports his contention that Uptown should have done more to prevent the fight. We conclude Otis Engineering is distinguishable from the facts in this case and does not support Morales's contention that he has raised a material issue of fact.
In Otis Engineering Corp., an employee too intoxicated to perform his work was sent home early by his employer and was involved in a fatal automobile accident. Summary judgment proof was offered contending the employer had options other than sending the intoxicated employee home under his own power, such as sending the employee to the nurse's station or calling the employee's wife. In that case, where the employee was incapacitated and the employer exercised control over the employee, the supreme court determined an issue of fact remained to be decided by the fact finder as to whether the employer acted reasonably and prudently in view of the other available options.
Morales did not present any evidence to the trial court stating what additional actions Uptown allegedly should have taken to exercise control over its employee to avoid the fight. He simply made arguments to this effect in his response to the summary judgment motion. Accordingly, he did not met his burden to present evidence to raise a material issue of fact. Gen. Mills Rest. Inc., 12 S.W.3d at 832. He had that burden under either a traditional or no-evidence summary judgment standard. Id.; Walker, 924 S.W.2d at 377. Morales's sole issue is decided against him.
IV. Conclusion
We conclude the trial court did not err in granting Uptown's motion for summary judgment. The trial court's judgment is affirmed.