Doris A. Derouen v. Wal-Mart Stores, Inc.--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00087-CV
______________________________
DORIS A. DEROUEN, Appellant
V.
WAL-MART STORES, INC., Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 03-C-1379-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Doris A. Derouen (Derouen) filed suit against Wal-Mart Stores, Inc. (Wal-Mart) on August 27, 2003, alleging she had fallen and suffered an injury while shopping at a Wal-Mart store. On April 10, 2006, Wal-Mart filed a "no evidence" motion for summary judgment. The trial court granted Wal-Mart's motion. Derouen now appeals that ruling. We will affirm.

Derouen's suit was filed August 27, 2003. Wal-Mart filed an answer September 11, 2003. On April 10, 2006, Wal-Mart filed a motion for summary judgment, alleging that there was no evidence to support the claim of liability. Specifically, Wal-Mart alleged that Derouen could offer no evidence to prove that there was any act by Wal-Mart which could have been the proximate cause of Derouen's injuries. Derouen filed a response to the motion for summary judgment June 20, 2006. The trial court's order granting summary judgment in favor of Wal-Mart was signed June 30, 2006; it stated that a hearing had been held June 26, 2006; the order was file-stamped July 6, 2006. (1)

Untimely Response Cannot Be Considered

Wal-Mart urges us to affirm the trial court's order on the reasoning that Derouen did not comply with the requirements of Rule 166a(c). See Tex. R. Civ. P. 166a(c).

When a defendant files a motion for a no evidence summary judgment which properly alleges that there is a lack of evidence supporting one or more specific essential elements of the plaintiff's cause of action, the trial court must grant the summary judgment unless the plaintiff timely responds, presenting to the trial court evidence (more than a scintilla) which raises a genuine issue of fact bearing on the challenged elements. Tex. R. Civ. P. 166a(i); City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005); Trusty v. Strayhorn, 87 S.W.3d 756, 759 (Tex. App.--Texarkana 2002, no pet.); Drew v. Harrison County Hosp. Ass'n, 20 S.W.3d 244 (Tex. App.--Texarkana 2000, no pet.). A response to a motion for summary judgment must be filed at least seven days before the hearing on the motion unless the trial court grants leave to allow a late response. Tex. R. Civ. P. 166a(c). If the record contains no order or other affirmative evidence that the trial court granted leave to late file a response or summary judgment evidence, it is presumed that the late filing was not properly before the trial court and it cannot be considered on appeal to defeat summary judgment. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Alford v. Thornburg, 113 S.W.3d 575, 586 (Tex. App.--Texarkana 2003, no pet.).

There is nothing in the record to indicate that Derouen requested, or that the trial court granted, leave to file the late response. The record contains no reporter's record of any hearing on the motion for summary judgment. It is true that the certificate of service on Derouen's response states that it was served on opposing counsel, "via TBS," June 19, 2006. The file stamp on the response is prima facie rebuttable evidence of the date of its filing. Dallas County v. Gonzales, 183 S.W.3d 94, 103-04 (Tex. App.--Dallas 2006, pet. filed) (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex. 1990) (per curiam)). Derouen did not attempt to rebut this presumption. Nothing in the record before us indicates that Derouen filed a motion for new trial, and she has not addressed this argument in any briefing to this Court.

We conclude Derouen failed to comply with the timely filing requirements of Rule 166a(c) of the Texas Rules of Civil Procedure and, accordingly, the tardy response which she did file could not have been considered by the trial court.

No Evidence of Causation

Even if Derouen's response could be deemed timely filed, it contained no evidence to suggest that any act or omission on Wal-Mart's part caused the injuries Derouen claimed to have suffered. The proximate cause element has two components: cause-in-fact and foreseeability. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The test for cause-in-fact, or "but-for" causation, is whether (1) the act or omission was a substantial factor in causing the injury and (2) without the act or omission, the harm would not have occurred. Id.

Derouen attached several exhibits to her response to Wal-Mart's motion for summary judgment. These exhibits included copies of treatment notes from her treating doctors; excerpts from depositions of Derouen and her husband, which described the circumstances surrounding her fall in the Wal-Mart store and which detailed the pain Derouen has continued to experience; and a copy of Derouen's handwritten notes describing the accident.

After reviewing these documents, we find nothing which suggests that Wal-Mart was responsible for any condition causing Derouen's fall. That is to say, the record is devoid of any evidence suggesting an act or omission on the part of Wal-Mart which was a substantial factor in causing Derouen's injury. See id. Absent at least a scintilla of such evidence, Derouen could not meet the required showings for proximate cause. The trial court correctly granted Wal-Mart's motion for no evidence summary judgment.

We affirm the judgment of the trial court.

 

Bailey C. Moseley

Justice

 

Date Submitted: January 24, 2007

Date Decided: January 26, 2007

1. The trial court's order stated that there had been adequate time for discovery; the case had twice been put on the dismissal docket for want of prosecution, and on both occasions was returned to the trial docket at Derouen's request.