SADIE FRIEDRICHS, ET AL. v. COASTAL REFINING AND MARKETING, INC.--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-01-647-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

SADIE FRIEDRICHS, ET AL. , Appellants,

v.

COASTAL REFINING AND MARKETING, INC. , Appellee.

___________________________________________________________________
On appeal from the 92nd District Court

of Hidalgo County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1)

Opinion by Justice Rodriguez

Appellants bring this appeal following the trial court's order granting appellee's summary judgment and dismissing appellants' cause with prejudice. By two issues, appellants contend the trial court erred in: (1) granting the summary judgment because there are genuine issues of material fact concerning duty and proximate causation; and (2) admitting appellee's summary judgment evidence because it is defective and insufficient as a matter of law. We affirm.

I. Facts

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.4.

II. Summary Judgment Evidence

By their second issue, appellants contend the trial court erred in admitting appellee's summary judgment evidence because it is defective and insufficient.

A. Standard

We review a trial court's decision to admit or exclude summary judgment evidence under an abuse of discretion standard. Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 299 (Tex. App.-Corpus Christi 2002, pet. denied);Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 511 (Tex. App.-Corpus Christi 2001, pet. denied).

B. Affidavits

Appellants first argue that the affidavits of Stephen Boyd and William Wright, attached to appellee's summary judgment, are improper because they state legal conclusions.

To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to matters stated therein. Tex. R. Civ. P. 166a(f); Krishnan, 83 S.W.3d at 299; Larson, 64 S.W.3d at 511. An affidavit by an interested party must be clear, positive and direct, credible and free from contradictions and inconsistencies, and capable of being readily controverted. Tex. R. Civ. P. 166a(c); Krishnan, 83 S.W.3d at 299. An affidavit supporting or opposing a motion for summary judgment must set forth facts, not legal conclusions. Krishnan, 83 S.W.3d at 299; Larson, 64 S.W.3d at 514 n.6.

An objection that an affidavit states a legal conclusion is an objection based on a defect in the substance of the affidavit. Montemayor v. Chapa, 61 S.W.3d 758, 763-64 (Tex. App.-Corpus Christi 2001, no pet.). As such, the objection may be raised on appeal even if it was never ruled on, or even raised, at the trial court level. Id. at 764;Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.-Houston [1st Dist.] 1999, no pet.); see Scripps Tex. Newspapers, L.P. v. Belalcazar, No. 13-02-414-CV, 2003 Tex. App. LEXIS 1728, *6-*7 (Corpus Christi Feb. 27, 2003, pet. filed). Thus, even though appellants failed to object to the affidavits during trial, they may raise the objections for the first time on appeal.

First, appellants contend that Boyd's affidavit makes conclusions of ownership and the investiture of property rights without providing any factual basis for Boyd's capacity to testify to such matters. We agree. In the affidavit, it is never explained who Boyd is and how he is competent to testify about the ownership and investiture rights of the parties involved. See Tex. R. Civ. P. 166a(f); Krishnan, 83 S.W.3d at 299; Larson, 64 S.W.3d at 511. Moreover, the statements made by Boyd do not set forth facts, but rather legal conclusions. See Krishnan, 83 S.W.3d at 299; Larson, 64 S.W.3d at 514 n.6. For these reasons, we find the affidavit is not competent summary judgment evidence.

Second, appellants contend that Wright's affidavit contains legal conclusions and relies on hearsay information. They also contend that Wright is a party to the litigation and his affidavit fails to meet the standards for an affidavit by an interested party.

A party must obtain a ruling on an objection as to defects in the form of an affidavit or attachment, or it is not preserved for our review. See Tex. R. Civ. P. 166a(f);Wren v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 498 (Tex. App.-Fort Worth 2002, no pet.); Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex. App.-Houston [14th Dist.] 1999, pet. denied); see also Belalcazar, 2003 Tex. App. LEXIS 1728, at *7. Case law holds that objections to affidavits of interested witnesses and objections to hearsay relate to the form of the affidavit. See Ahumada, 992 S.W.2d at 562 (holding affidavit of interested witness presents a defect of form); Harris v. Spires Council of Co-Owners, 981 S.W.2d 892, 897 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (holding hearsay in affidavit is defect of form). Thus, because appellants failed to object and obtain rulings on their objections, these contentions are not preserved for our review. See Wren, 73 S.W.3d at 498. We will only address appellants' contention that Wright's affidavit contains improper legal conclusions. See Montemayor, 61 S.W.3d at 763-64.

Reviewing Wright's affidavit, we do not find any legal conclusions; only factual assertions. We conclude this argument has no merit. Wright's affidavit is competent summary judgment evidence.

C. Deposition

Appellants next argue that Wright's deposition testimony is insufficient as evidence for appellee's summary judgment. Relying on Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978), appellants contend that as an interested witness, Wright's deposition testimony must be clear, direct, positive, and internally devoid of inconsistencies. Id. at 69.

However, we need not address this contention because error, if any, has been waived. As we have already held, a party must obtain a ruling on an objection as to defects in the form of an affidavit or attachment, or it is not preserved for our review. See, e.g., Tex. R. Civ. P. 166a(f); Wren, 73 S.W.3d at 498. Objections to statements of an interested witness that are not clear, positive, direct, or free from contradictions go to the form of the summary judgment proof. Crow v. Rocket Special Util. Dist., 17 S.W.3d 320, 324 (Tex. App.-Waco 2000, pet. denied); see Ahumada, 992 S.W.2d at 562. Thus, because appellants failed to object to Wright's deposition and obtain a ruling on the objection, their contention is waived. See Wren, 73 S.W.3d at 498. Appellants' second issue is sustained as to their contention against Boyd's affidavit and overruled as to their remaining contentions.

III. Summary Judgment

By their first issue, appellants contend the trial court erred in granting appellee's summary judgment motion because there are genuine issues of material fact.

A. Standard

The granting of a summary judgment is proper if the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's causes of action, or whether the defendant has established all elements of an affirmative defense. Krishnan, 83 S.W.3d at 301; see Tex. R. Civ. P. 166a(c). We review the trial court's granting or denying of a traditional motion for summary judgment de novo. Belalcazar, 2003 Tex. App. LEXIS 1728, at *9. In determining whether a genuine issue of material fact exists, we view as true all evidence favorable to the non-movant and all reasonable inferences must be indulged in the non-movant's favor. Krishnan, 83 S.W.3d at 301; Vargas v. K.K.B., Inc., 52 S.W.3d 250, 254 (Tex. App.-Corpus Christi 2001, pet. denied).

B. Proximate Cause

Appellants asserted five causes of action against appellee in this case. These causes of action are all variations on the claim that appellee was negligent. These assertions include: (1) negligence in selling petroleum to distributors and customers; (2) negligent corporate safety policy; (3) common-law negligence; (4) negligence per se; and (5) gross negligence. In its motion for summary judgment, appellee contends there is no genuine issue of material fact as to the required element of proximate cause. We agree.

Negligence consists of three essential elements: (1) a legal duty owed; (2) a breach of that duty; (3) and damages proximately caused from the breach. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex. 1999); Praesel v. Johnston, 967 S.W.2d 391, 394 (Tex. 1998); Koepke v. Martinez, 84 S.W.3d 393, 396 (Tex. App.-Corpus Christi 2002, pet. denied). Assuming without deciding that appellee owed a duty to appellants that was breached when appellee allowed Arturo Mata to enter and leave its facility with petroleum, we focus on whether appellee's actions proximately caused the damages appellants allege. See Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

Proximate cause incorporates two elements: cause in fact and foreseeability. Southwest Key Program, Inc., 81 S.W.3d at 274; Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477. These elements cannot be established by mere conjecture, guess, or speculation. Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477.

The test for cause in fact, or "but for" causation, is whether the negligent act was a substantial factor in bringing about the injury, without which the harm would not have occurred. See Southwest Key Program, Inc., 81 S.W.3d at 274; Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477; Marathon Corp. v. Pitzner, 55 S.W.3d 114, 134 (Tex. App.-Corpus Christi 2001, no pet.). Cause in fact is not shown if the defendant's negligence merely provided a condition that made the injury possible. Boys Club of Greater Dallas, Inc., 907 S.W2d at 477; Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 417 (Tex. App.-Corpus Christi 1999, pet. denied). "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the natural and probable result thereof." Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477; Sholl, 990 S.W.2d at 417. Even if the injury would not have occurred "but for" the defendant's conduct, the connection between the defendant and the plaintiff's injuries may be too attenuated to constitute legal cause. Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477; Sholl, 990 S.W.2d at 417.

In this instance, viewing the evidence in the light most favorable to appellants, the summary judgment evidence shows that Mata, the driver of the vehicle which collided with the victim, Richard Friedrichs, was not an employee of appellee. It further shows that the vehicle Mata was driving at the time of the incident was not owned by appellee and that appellee had no control over the hours Mata worked. Thus, the fact that Mata was tired while he was driving was not caused by appellee. Further, even if appellee had refused to allow Mata to enter its facility, Mata would still have been tired and would still have been driving a vehicle. Moreover, the fact that appellee allowed Mata to fill the vehicle with petroleum from its facilities did not cause the injuries sustained by Friedrichs; the evidence shows that Friedrichs was trapped inside his vehicle for several hours and suffered bodily injuries from the collision. It is "mere conjecture, guess, or speculation" to suggest that Mata would have been on a different roadway, or would have reached the intersection a few minutes before Friedrichs, had appellee refused to allow Mata inside its facilities. Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477. Appellee's actions, at most, "merely provided a condition that made the injury possible," Sholl, 990 S.W.2d at 417, and was not the cause in fact of the death of the victim. Thus, appellee's actions were not the proximate cause of Friedrichs's death. See Southwest Key Program, Inc., 81 S.W.3d at 274; Boys Club of Greater Dallas, Inc., 907 S.W.2d at 477. We find, as a matter of law, that there are no genuine issues of material fact as to the required element of proximate cause in appellants' negligence causes. Krishnan, 83 S.W.3d at 301; see Tex. R. Civ. P. 166a(c). Appellants' first issue is overruled.

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Opinion delivered and filed

this 8th day of May, 2003.

1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).