Richard Cantu v. Transocean Enterprises Inc. d/b/a Todco Management Service, Inc. and Transocean Development Co. and Transocean, Sedco, Forex--Appeal from 189th District Court of Harris County

Affirmed and Memorandum Opinion filed July 17, 2007

Affirmed and Memorandum Opinion filed July 17, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01178-CV

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RICHARD CANTU, Appellant

TRANSOCEAN ENTERPRISES, INC. d/b/a TODCO MANAGEMENT SERVICE, INC. and TRANSOCEAN DEVELOPMENT CO. and TRANSOCEAN, SEDCO, FOREX, Appellees

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 05-24104

M E M O R A N D U M O P I N I O N

This is an appeal from a summary judgment. In two issues, appellant Richard Cantu (ACantu@), plaintiff below, argues that the trial court erred in striking his summary judgment affidavit and granting a take nothing summary judgment in favor of appellee, Transocean Enterprises, Inc. (ATransocean@). Because we conclude the trial court did not err in striking Cantu=s affidavit, and no genuine issues of material fact exist regarding the identity of Cantu=s employer, we affirm the judgment of the trial court.

Factual and Procedural Background

Cantu filed this personal injury lawsuit against Transocean, alleging he was injured in a motor vehicle accident caused by Transocean=s negligence. Cantu=s petition alleges he was an employee of Transocean, operating a company vehicle in the country of Venezuela, when his injuries occurred. Cantu further alleges his injuries were caused by Transocean=s negligent failure to maintain the vehicle he was driving at the time he was injured.

Transocean filed a traditional motion for summary judgment asserting it had no legal duty to Cantu because Cantu was never employed by Transocean and Transocean had no responsibility for maintaining the vehicle involved in the accident. Transocean alleged Cantu was an employee of Cliffs Drilling Company (ACliffs@), a separate corporate entity, and Transocean had no responsibility for maintaining vehicles owned by Cliffs. In support of its motion, Transocean attached the affidavit of Shirley Ridings. In her affidavit, Ridings testified she was a claims representative for The Offshore Drilling Company (ATODCO@) and, in her position, she assisted Cliffs with management of claims. Ridings testified Cantu was employed by Cliffs and was operating a vehicle owned by Cliffs at the time of the accident. Ridings further testified that Cliffs and Transocean are separate corporate entities. Cantu did not object to Ridings= affidavit at trial or on appeal.

Cantu filed a response to Transocean=s motion for summary judgment and argued that issues of fact existed as to the identity of his employer and the identity of the party responsible for maintaining the vehicle involved in the accident. In support of his response, Cantu attached his own affidavit in which he testified that he was an employee of Transocean at the time of the accident. Cantu also attached documents pertaining to his health care and insurance benefits, which allegedly supported Cantu=s claim that he was employed by Transocean during the relevant time period.

Transocean filed a reply to Cantu=s response and objected to Cantu=s affidavit on the grounds that it contained hearsay and was not based on personal knowledge. Transocean also objected to the documents attached to Cantu=s response on the grounds that they contained hearsay and were not properly authenticated.

On October 7, 2005, the trial court conducted an oral hearing and signed a judgment striking Cantu=s affidavit and granting a take-nothing summary judgment in favor of Transocean. Cantu timely filed notice of appeal. In two issues, Cantu argues the trial court erred in striking his summary judgment affidavit and granting Transocean=s motion for summary judgment.

Discussion

 I. Did The Trial Court Err in Striking Cantu=s Summary Judgment Affidavit?

In his second issue, Cantu contends the trial court erred in striking his summary judgment affidavit. Transocean argues that Cantu=s affidavit testimony regarding the identity of his employer at the time of the accident is not competent summary judgment evidence because it fails to state readily controvertible facts and contains conclusory statements which are not based on personal knowledge.

We review a trial court=s decision to admit or exclude summary judgment evidence under an abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. An appellate court must uphold the trial court=s evidentiary ruling if there is any legitimate basis for the ruling. Id.

Rule 166a(f) provides that A[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.@ Tex. R. Civ. P. 166a(f). Affidavit testimony which is conclusory, speculative, hearsay, or not based on personal knowledge is not competent summary judgment evidence. See id.

In his affidavit, Cantu asserted:

On April 19, 2003, I had been an employee of Defendant Transocean Enterprises, Inc. for approximately two years after Transocean purchased Cliffs Drilling Company, and was an employee of Transocean at the time of the accident. The vehicle I was driving at the time of the accident was controlled by Transocean Enterprises, Inc. and Transocean exclusively maintained the vehicle at all times. I had been driving that particular vehicle for about one and one half years at the time of the accident and in the time I drove it, all repairs, maintenance and modifications were made by Transocean Enterprises, Inc.

Cantu=s affidavit contains no statements of fact supporting his assertion that he was employed by Transocean and Transocean was responsible for maintaining the vehicle involved in the accident. Cantu did not assert, for example, that he received a paycheck from Transocean, was supervised by an employee of Transocean, or reported to a Transocean office. Cantu=s personal belief that he was employed by Transocean, standing alone, is insufficient to create a material fact issue as to who employed him. See Coco v. Port of Corpus Christi Auth., 132 S.W.3d 689, 693B94 (Tex. App.CCorpus Christi 2004, no pet.) (holding affidavit testimony regarding the identity of an employer must contain statements of fact which are clear, positive, direct, and capable of being readily controverted). Further, Cantu=s testimony that Transocean maintained the vehicle involved in the accident is not supported by statements of fact.

We hold Cantu=s affidavit testimony is conclusory and fails to affirmatively show that his statements are based on personal knowledge. See Tex. R. Civ. P. 166a(f). Accordingly, we conclude the trial court had a legitimate basis for striking Cantu=s affidavit and did not abuse its discretion in doing so. Cantu=s second issue is overruled.

 II. Did the Trial Err in Granting Transocean=s Motion for Summary Judgment?

In his first issue, Cantu claims the trial court erred in granting Transocean=s motion for summary judgment because genuine issues of fact exist as to the identity of Cantu=s employer and the identity of the party responsible for maintaining the vehicle involved in the accident. Transocean contends summary judgment was proper in this case because the only competent summary judgment evidence shows that Cantu was employed by Cliffs at the time of his motor vehicle accident, and Cliffs owned the vehicle involved in the accident. We agree.

We review a traditional summary judgment under a de novo standard, viewing all evidence in a light most favorable to the non-movant and indulging every reasonable inference in his favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The party moving for summary judgment bears the burden to show that no issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life, 128 S.W.3d at 215B16. Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff=s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When the trial court=s order does not specify the grounds for its summary judgment, we will affirm the judgment if any of the theories presented to the trial court are meritorious and preserved for appeal. Provident Life, 128 S.W.3d at 216.

The thrust of Transocean=s argument in this case is that Cantu sued the wrong corporate entity. Transocean asserts that Cantu was employed by Cliffs at the time of the motor vehicle accident, and Cliffs and Transocean Enterprises, Inc. (appellee herein) were separate corporate entities, both of which were owned by Transocean, Inc.

The affidavit of Shirley Ridings provides competent evidence that Cantu was not employed by appellee Transocean. Ridings testified she assisted Cliffs with management of claims in her capacity as a claims representative for TODCO. Ridings asserted Cantu was employed by Cliffs and was operating a vehicle owned by Cliffs at the time of the accident. Ridings further testified that Cliffs and Transocean are separate corporate entities.

Cantu failed to provide any competent summary judgment evidence which controverts Ridings= testimony. Cantu=s affidavit, discussed above, was properly struck by the trial court. None of the insurance and health care documents attached to Cantu=s summary judgment response are authenticated, nor do any of those documents identify appellee Transocean Enterprises, Inc. as Cantu=s employer or as the entity responsible for maintaining the vehicle involved in the accident.

Accordingly, we find that no genuine issue of material fact exists and Transocean is entitled to judgment as a matter of law. Cantu=s first issue is overruled and the judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 17, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.