Carolyn Butler and Tayl'e Hubbard v. McDonald's Corporation and Kenneth Fadke--Appeal from 106th District Court of Dawson County

Opinion filed January 5, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00323-CV

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  CAROLYN BUTLER AND TAYL=E HUBBARD, Appellants

V.

MCDONALD=S CORPORATION AND KENNETH FADKE, Appellees

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 04-06-17026

M E M O R A N D U M  O P I N I O N

Carolyn Butler and Tayl=e Hubbard appeal from the trial court=s order granting summary judgment to McDonald=s Corporation (McDonald=s) and Kenneth Fadke (Fadke). We affirm.

Background Facts

In June 2004, Butler filed suit individually and as next friend of Tayl=e Hubbard, a minor, against McDonald=s and Fadke, the owner and operator of the McDonald=s in Lamesa, Texas. In June 2002, Butler and Hubbard were patrons at the McDonald=s in Lamesa. They purchased chicken nuggets, fries, a hamburger, and two drinks. Butler alleges in the petition that, while Hubbard was eating her hamburger, she pulled human hair out of her mouth that was attached to her hamburger. Butler further alleges that she and Hubbard sustained medical injuries as a result of this human hair found in the hamburger. In the suit, Butler sought $7,500,000 in actual damages, $4,000,000 in punitive damages, pro se attorney=s fees, and pre and postjudgment interest.

McDonald=s and Fadke filed a motion for partial summary judgment on Butler=s individual claims. The trial court granted partial summary judgment and entered a take nothing judgment as to Butler=s individual claims. The court also severed Butler=s individual claims from her claims as next friend of Hubbard, making the take-nothing judgment a final judgment as to Butler=s individual claims. Butler filed a notice of appeal but later filed a motion to voluntarily dismiss her appeal. This court dismissed her appeal in August 2005. Butlerv. McDonald=s Corp., No. 11-05-00173-CV, 2005 WL 1983588 (Tex. App.CEastland, Aug. 18, 2005, no pet.) (not designated for publication).

Butler=s claims as next friend of Hubbard were the only remaining claims in the trial court. McDonald=s and Fadke filed a motion for a traditional and no-evidence summary judgment on the remaining claims. In the motion, McDonald=s and Fadke asserted that there is no evidence showing an expert had connected Hubbard=s visit to McDonald=s with her injuries and that there was no evidence that McDonald=s and Fadke breached any duty owed to Hubbard. The trial court granted summary judgment.

Issues on Appeal

Butler individually and as next friend of Hubbard contends in two issues that the trial court erred in granting partial summary judgment in favor of McDonald=s and Fadke on her individual claims and erred in granting summary judgment in favor of McDonald=s and Fadke on Butler=s claims as next friend of Hubbard.

Standard of Review

We review a no evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A no evidence motion for summary judgment is proper unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Rodriguez, 92 S.W.3d at 506.

A traditional motion for summary judgment is proper 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). Once the movant establishes a right to a summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 79 (Tex. 1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985).

Butler=s Individual Claims

Butler contends that the trial court erred in granting McDonald=s and Fadke=s motion for partial summary judgment regarding her individual claims. However, this issue is not before this court.

The trial court severed Butler=s individual claims from her claims as next friend of Hubbard when the trial court granted the partial summary judgment. Upon severance, the judgment as to Butler=s individual claims became final for the purposes of appeal. Martinezv. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994). Butler filed a notice of appeal in her individual capacity but later withdrew that notice of appeal, and this court dismissed her appeal. See Butler, 2005 WL 1983588.

After the trial court granted the second summary judgment dismissing Butler=s claims as next friend of Hubbard, she filed a notice of appeal individually and as next friend of Hubbard. However, the time period for filing a notice of appeal as to Butler=s individual claims had expired. When a severance order takes effect, the appellate timetable runs from the signing date of the order that made the severed judgment final and appealable. Martinez, 875 S.W.2d at 313. Butler had thirty days from May 10, 2005, the day the trial court severed her individual claims, to file a notice of appeal. Tex. R. App. P. 26.1. The second notice of appeal was untimely as to her individual claims. This court does not have jurisdiction to address the trial court=s grant of the partial summary judgment. We overrule Butler=s first issue on appeal.

Hubbard=s Claims

Butler as next friend of Hubbard contends that the trial court erred in granting McDonald=s and Fadke=s motion for summary judgment as to Hubbard=s claims. McDonald=s and Fadke argue in their motion for summary judgment and on appeal that there is no evidence showing that Hubbard=s damages were proximately caused by McDonald=s and Fadke=s acts or omissions.

The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). To establish causation, it must be shown that the conduct of the defendant caused an event and that the event caused the plaintiff to suffer damages. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). AExpert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the laymen.@ FFE Transp. Services, Inc. v. Fulgham,154 S.W.3d 84, 90 (Tex. 2004) (quoting Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)).

In this case, expert testimony on causation was required because the connection between exposure to human hair and Hubbard=s medical condition is not something within a layman=s common knowledge. See F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217 (Tex. App.CEastland 2005, no pet.). Butler did not present any expert evidence on the causation issue. Butler contends that the two pages of medical records from Lamesa Primary Care Clinic is expert testimony linking the incident at the McDonald=s to her injuries. However, the records are not supported by an affidavit and are not testimony. Further, the records do not contain any reference to Hubbard=s visit to McDonald=s. Rather, the records simply list the symptoms that Hubbard presented with at the Lamesa Care Clinic. Therefore, Butler failed to raise a material fact issue on the causation element in her claim as next friend of Hubbard. The trial court did not err in granting summary judgment. Appellant=s second issue is overruled.

McDonald=s and Fadke raise a cross issue in their brief contending that Ferme Butler has improperly intervened in this appeal. That issue has no effect on the outcome of this appeal; therefore, we will not address it. Tex. R. App. P. 47.1.

Conclusion

We affirm the judgment of the trial court.

RICK STRANGE

JUSTICE

January 5, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.