Lizeth Hernandez (Formerly known as Lizeth Caro) v. Arturo N. De La Rosa--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LIZETH HERNANDEZ (F/K/A LIZETH CARO),

Appellant,

v.

ARTURO N. DE LA ROSA,

Appellee.

No. 08-04-00022-CV

Appeal from the

County Court at Law No. 7

of El Paso County, Texas

(TC# 2002-2028)

O P I N I O N

This is an appeal from a summary judgment granted in favor of Appellee in a lawsuit filed by Appellant related to injuries that she incurred in a traffic accident. The trial court originally granted summary judgment in favor of Appellee without specifying the grounds. Appellant appeals in two issues challenging the court s granting of the summary judgment. For the reasons stated, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 23, 2002, Appellant filed a lawsuit against Appellee for personal injuries arising out of an automobile collision that occurred on March 19, 2001. Appellant was involved in a collision with an automobile driven by Appellee s son, David De La Rosa. Appellee, Arturo N. De La Rosa, is divorced from David s mother, Rosa Elena De La Rosa. Appellant did not sue David De La Rosa individually, nor did she sue Rosa Elena De La Rosa. David resides with his mother.

Appellant filed her original petition, suing Arturo, and attempting to impute the negligence of David to his father under the theory that Arturo was the owner and insured driver listed on the vehicle which David De La Rosa was driving at the time of the collision. Appellee filed two motions for summary judgment on traditional grounds and as a no-evidence motion. Arturo De La Rosa contended that Appellant had sued him as the owner of the vehicle involved in the collision and while alleging negligent acts and omissions of David De La Rosa, had not sued him as a party. Arturo De La Rosa contends that he is not the owner of the vehicle involved in the collision and that the statute of limitations has run, preventing the filing of any lawsuit against David De La Rosa.

He also alleged that there was no evidence that David De La Rosa was an unlicensed, incompetent, or reckless driver on March 19, 2001, negating one of the elements of liability under a theory of negligent entrustment.

In support of his motion, Arturo De La Rosa, filed three affidavits which established that the automobile involved in the collision with Appellant was a 1993 Ford Mustang that was owned by Rosa Elena De La Rosa, was awarded to Rosa Elena De La Rosa as her separate property during the divorce of the De La Rosas, and was under the custody and control of Rosa Elena De La Rosa. Appellant filed no objections to the summary judgment evidence.

Appellant filed a first amended petition on September 26, 2003 which, in addition to the previous allegations of imputed negligence, alleged negligent entrustment of the vehicle in question by Arturo De La Rosa. Also on September 26, 2003, Appellant filed her response to the motion for summary judgment. Included as an exhibit to the response is a copy of the final decree of divorce between Arturo and Rosa De La Rosa.

The trial court granted Appellee s motion for summary judgment on November 3, 2003 without specifying the grounds. This appeal follows.

II. DISCUSSION

In Issue No. One, Appellant argues that the trial court erred in granting the summary judgment where Appellant showed by more than a scintilla of evidence that the insured was the owner of the vehicle in question. We read this as a legal and factual sufficiency of the evidence challenge. Issue No. Two attacks the trial court s granting of the summary judgment because Appellee filed no summary judgment evidence showing that David De La Rosa, was not [sic] unlicensed, incompetent or reckless driver. A. Summary Judgment Standard of Review

Both issues complain that the court erred in granting Appellee s motion for summary judgment. The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex. App.--El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant s cause or claim. See Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex. 1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex. App.--El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiff s causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex. 1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex. 1989).

Under the no-evidence summary judgment rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. The reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n.3 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiff s case against each defendant ).

The San Antonio Court of Appeals states the applicable standard of review for no-evidence summary judgments as follows: A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant s claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. 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 of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

B. Issues on Review

In Issue No. One, Appellant argues that the trial court erred in granting summary judgment for the reason that the evidence presented was more than a scintilla of evidence to support Appellant s theory that Arturo De La Rosa was the owner of the vehicle involved in the collision. In her response to the motion for summary judgment, Appellant attached a copy of an insurance policy maintained by Arturo De La Rosa which listed the 1993 Mustang vehicle as an insured vehicle under a policy issued to Arturo De La Rosa. Appellant contends that this is sufficient to establish ownership of the vehicle in question. She also attached a copy of the divorce decree between the De La Rosas arguing that the divorce decree did not dispose of the vehicle and, therefore, is the property of both ex-spouses, creating an issue regarding ownership. We disagree.

The record reflects that the copy of the insurance policy attached does include a reference to the 1993 Mustang. A review of the divorce decree, however, provides for a different interpretation than that propounded by Appellant. At page 26 of the decree, while describing the division of the marital estate and awarding property to the wife, paragraph W-7 clearly awards a motor vehicle to Rosa De La Rosa. Though the language of the decree describes the motor vehicle in general terms, the undisputed affidavits filed in Appellee s motion for summary judgment support the implied finding of the trial court that the 1993 Mustang was awarded to Rosa De La Rosa as her property and therefore, that Arturo De La Rosa did not own the car at the time of the accident. Appellant filed no objections to the affidavits attached as summary judgment evidence and provided nothing in rebuttal. As stated previously, she argues in her brief that the automobile was not addressed by the decree when clearly it was. Her only evidence in support of ownership is the insurance policy listing the vehicle in question. We do not consider the listing alone to create more than a scintilla of evidence sufficient to create a fact question regarding ownership.

In sum, Appellant s response is essentially a pronouncement that the insurance listing alone establishes that there are genuine issues of material fact and, therefore, Appellee s motion for summary judgment should be denied. In fact, a review of the summary judgment evidence establishes that the evidence provided is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See Kindred, 650 S.W.2d at 63. For the reasons stated, we overrule Appellant s Issue No. One.

Having overruled Issue No. One, we find that we need not address Appellant s remaining issue on review. We affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

August 4, 2005

Before Barajas, C.J., McClure, and Chew, JJ.