Cynthia J. Lathrop v. Momentum Motor Cars, Ltd. d/b/a Momentum BMW--Appeal from 113th District Court of Harris County

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 24, 2006

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01176-CV

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CYNTHIA J. LATHROP, Appellant

V.

MOMENTUM MOTOR CARS, LTD., D/B/A, MOMENTUM BMW, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2002-56815A

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

Cynthia J. Lathrop, appellant, appeals the grant of summary judgment to Momentum Motor Cars, Ltd., d/b/a Momentum BMW, appellee. Appellant contends the trial court erred in granting appellee=s no-evidence summary judgment motion because appellant provided more than a scintilla of evidence on her claims, and appellee did not comply with the specificity requirements of Rule 166a(i). We affirm in part and reverse and remand in part.

Factual and Procedural Background

Because we are reviewing a no-evidence motion for summary judgment, we lay out the facts as appellant, the non-movant, alleges them. On March 31, 2001, Fernando Alucema was speeding down Memorial Drive in Houston, Texas at approximately 100 miles per hour. As a service manager for Momentum BMW, Alucema was entrusted with a BMW 3-series vehicle. However, because it had a flat tire on March 31, he drove instead a BMW 7-series, which was permissible under Momentum=s policies. While Alucema was driving the 7-series at excessive speeds, he struck Lathrop=s vehicle, injuring her. Prior to this accident, Alucema had received at least three speeding tickets. Momentum=s policy was to review the driving records of all its employees.

Lathrop sued Alucema and Momentum on various negligence theories. Her insurance company, GEICO, intervened in that suit and is an amicus on this appeal. Alucema is not a party to this appeal. Lathrop alleged that Momentum was negligent in entrusting a car to Alucema, negligent in supervising Alucema and its employees generally, and was liable for punitive damages. Momentum moved for summary judgment alleging there was no evidence it had entrusted Alucema with the 7-series, no evidence Alucema was a reckless driver when entrusted with the vehicle, and no evidence that Momentum had knowledge of Alucema=s alleged recklessness. Additionally, Momentum made conclusory statements that there was no evidence of negligent supervision, or of either fraud, malice, or willfulness as is necessary to receive punitive damages.[1] The trial court granted summary judgment in Momentum=s favor, severed those claims from Lathrop=s suit against Alucema, and this appeal ensued.

On appeal, Momentum re-urges its summary judgment arguments and also argues that negligent supervision is not a recognized cause of action in Texas, or at minimum is encompassed in Lathrop=s negligent entrustment cause of action. Lathrop argues that a no-evidence motion for summary judgment is insufficient as a matter of law if it does not specifically state which elements of a cause of action lack evidence. Further, she argues that she has met her burden to create fact issues so as to preclude summary judgment. We will affirm in part, and will reverse and remand in part.

Analysis

I. Standard of Review for a 166a(i) Motion for Summary Judgment

This case concerns a no-evidence motion for summary judgment. Tex. R. Civ. P. 166a(i). Our first step is to consider to what extent that motion was legally sufficient. A summary judgment motion must stand on its own merits. Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). Therefore, an appellant may raise issues regarding the motion=s sufficiency for the first time on appeal. Id. To be legally sufficient, a no-evidence motion must state the specific elements of a cause of action for which there is no evidence. Id.; see also Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied) (reversing grant of summary judgment because movant failed to identify elements of various causes of action lacking evidence).

If the movant has identified specific elements she claims lack evidence, we must then determine de novo whether the non-movant has produced more than a scintilla of probative evidence to raise a genuine issue of material fact. See Oliphint v. Richards, 167 S.W.3d 513, 515B16 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). We take as true all evidence favorable to the non-movant and make all reasonable inferences in her favor. Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.CHouston [14th Dist.] 2005, no pet.). A no-evidence summary judgment motion must be granted unless the non-movant produced competent summary judgment evidence raising a genuine issue of material fact. Id. Because the trial court below did not specify the grounds it relied upon in granting the motion, we will affirm if any of the grounds are meritorious. Oliphint, 167 S.W.3d at 516.

II. Legally Insufficient No-Evidence Claims

As an initial matter, we note that Momentum stipulated in its brief and at oral argument that it filed a no-evidence motion for summary judgment. As such, we hold Momentum to the strict requirements of that motion. To be legally sufficient, Momentum was required to list the elements of the various causes of action it contended lacked evidence.

Below, portions of Momentum=s motion merely contained conclusory statements about there being no evidence to prove negligent supervision, or of fraud, malice, or willfulness as required to receive punitive damages. Momentum=s conclusory statements were insufficient as a matter of law. See Cuyler, 60 S.W.3d at 212; Johnson, 140 S.W.3d at 706. Momentum failed to list the various elements requiring proof, and further failed to state which elements lacked evidence. Without specifically listing the elements of the various causes and action, and then highlighting which particular elements lack evidence, a no-evidence motion for summary judgment is legally insufficientCas was Momentum=s below.[2]

Because Momentum=s motion was legally insufficient concerning the cause of action for negligent supervision and the allegations to prove punitive damages, we reverse and remand as to those claims. However, Momentum properly contested three elements of Lathrop=s remaining cause of action allegedly lacking any evidence: (1) entrustment, (2) recklessness of Alucema as a driver, and (3) Momentum=s knowledge of any reckless propensity. These elements concern the claim of negligent entrustment and we now consider if the trial court correctly granted summary judgment because there was no evidence as to one of those elements.

III. There is No Evidence on the Element of Recklessness

The elements of negligent entrustment are (1) the owner must have entrusted the vehicle, (2) to an unlicensed, incompetent, or reckless driver, (3) whom the entrustor knew was an unlicensed, incompetent, or reckless driver, (4) the driver must have been negligent on the occasion in question, and (5) the driver=s negligence must have been the proximate cause of the accident. See Russell v. Ramirez, 949 S.W.2d 480, 489 (Tex. App.CHouston [14th Dist.] 1997, no writ.). Momentum challenged only the first, second and third elements. Because we hold there was no evidence to prove Alucema was reckless at the time of entrustment, we need not reach the other challenged elements.

A. Evidence of Recklessness

There is no evidence on the issue of whether Alucema was a reckless driver at the time Momentum entrusted him with the vehicle.[3] While the standard for our review requires only enough evidence to raise a fact issue, and the non-movant need not marshal all her evidence to defeat the motion, there must be competent summary judgment evidence to raise the fact issue. There is no difference between the standards used for determining when evidence would be admissible for summary judgment purposes and when it would be admissible at trial. See United Blood Svcs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam). Viewing Lathrop=s evidence in the light most favorable to her, and drawing all reasonable inferences in her favor, there is no evidence on the element of recklessness.

During his deposition, Alucema admitted to having received at least three speeding tickets. He provided no details about these speeding tickets other than they were Ataken care of.@ We do not know how fast he was going, whether they were for violations on residential streets or highways, the dates of these violations, or, most importantly, whether he was adjudicated as guilty for these violations. Three adjudicated moving violations could evidence a pattern of excessive, unsafe driving. Cf. Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex. Civ. App.CHouston [14th Dist.] 1968, writ refused n.r.e.) (stating that proof of only one previous traffic violation is grossly inadequate to establish recklessness, and two within a two-year period may be inadequate). However, a statement that an officer had issued a speeding ticket is not competent summary judgment evidence on the issue of recklessness in and of itself. See Hines v. Nelson, 547 S.W.2d 378, 386 (Tex. Civ. App.CTyler 1977, no writ) (stating that while a driving record or driving habits may show recklessness, if the driving record contains violations or accidents without an indication of guilt or fault, then the evidence is insufficient to show recklessness); Beall v. Cooke, 01-00-00150-CV, 2001 WL 699915, at *4 (Tex. App.CHouston [1st Dist.] June 21, 2001, no pet.) (not designated for publication) (same). Without an adjudication of guilt on those citations and without an admission from Alucema regarding his driving habits or the circumstances giving rise to the three citations, the evidence of speeding tickets is not enough to raise a fact issue of recklessness. Alucema admitted to no more than receiving three citations from a law enforcement officer, which alleged that he had violated a penal ordinance. Cf. Crnic v. Vision Metals, Inc., 14-03-01307-CV, 2005 WL 81629, at *2 (Tex. App.CHouston [14th Dist.] January 6, 2005, no pet.) (citing Issacs v. Plains Transp. Co., 367 S.W.2d 152, 153 (Tex. 1963) for the proposition that citations are given for possible violations of penal ordinances or statutes and not for the purpose of establishing fault in civil litigation). Thus, no evidence establishes recklessness. We overrule appellant=s issue and affirm the judgment of the trial court.

Conclusion

Having determined that there was no evidence on one of the elements of negligent entrustment, we affirm the judgment of the trial court in that respect, but reverse and remand the case for further proceedings on the issues of negligent supervision, and fraud, malice, and willfulness because the motion for summary judgment was legally insufficient on those claims.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

[1] On appeal, Lathrop concedes that she cannot prove fraud to receive punitive damages; she contends to this court that her claim relies on an accusation of malice. She makes no statement regarding willfulness.

[2] Momentum also argues, for the first time on appeal, that negligent supervision is an inappropriate claim in this case. We do not consider Momentum=s alternate basis for eliminating the negligent supervision claim because it is raised for the first time on appeal. To effectively raise this argument, Momentum needed to have raised it in its motion for summary judgment below. The trial court was not presented with an opportunity to consider that claim, and it is improperly presented on appeal.

[3] While this particular element may be proven by showing either the driver was unlicensed, or incompetent, or reckless, appellant has provided adequate briefing only on the issue of recklessness. Although she makes passing reference in a subheading and one sentence about incompetency, she has not challenged whether Alucema was a licensed driver, and has not highlighted any evidence tending to show that he was incompetent. It is undisputed that Alucema was a licensed driver, which is prima facie evidence of his competency. See Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex. App.CAmarillo 1996, writ denied). Appellant has not adequately briefed or discussed any evidence tending to rebut that presumption. As a result, we are confronted only with evidence and argument that could tend to prove recklessness.