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Gonzalez v. VATR Const. LLC

Court of Appeals of Texas, Fifth District, Dallas

December 12, 2013

Pedro GONZALEZ & Maria Gomez, Appellants
v.
VATR CONSTRUCTION LLC& All American Roofing & Construction, Appellees.

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Javier Gonzalez, Cassandra Gandara, Law Offices of Domingo Garcia, PC, Dallas, for Appellants.

Jes Alexander, Paul William Bennett, Fletcher, Farley, Shipman & Salinas, LLP, Daniel Mical Karp, Fee, Smith, Sharp & Vitullo, LLP, Dallas, for Appellees.

Before FITZGERALD, LANG-MIERS, and MYERS Justices.

OPINION

FITZGERALD Justice.

This case arises from a construction accident in which a roofer suffered fatal injuries after he failed to use safety equipment. Appellants Pedro Gonzalez and Maria Gomez (together, the " Estate" ) sued the general contractor, VATR Construction, LLC (" VC" ) and one of the subcontractors, All American Roofing & Construction (" All American" ) for, inter alia, negligence, gross negligence, and negligence per se. The trial court granted summary judgment in favor of VC and All American. On appeal, the Estate contends the trial court erred in granting summary judgment and in failing to sustain its objections to the summary judgment evidence. Concluding appellants' arguments are without merit, we affirm the trial court's judgment.

I. BACKGROUND

The construction project at issue here involved work at an apartment complex, the Villages at Turtle Rock (the " Villages" ). VC was the general contractor on the project and subcontracted the roofing work to All American. This relationship was memorialized in a Subcontract Agreement.[1] All American then entered into a Subcontract Agreement for the roofing repair work with Patricio Ceniceros, who in turn subcontracted the work to Gustavio Salazar. Salazar further subcontracted the work out to a group of men that included the deceased, Roger Alexis Gonzalez (" Gonzalez" ). Each of the men was required to sign an agreement with Salazar in which he affirmed responsibility for his own safety. Gonzalez failed to utilize fall protection equipment and sustained fatal injuries when he fell from the top of a building while working on the roof.

The Estate initiated this lawsuit against VC and All American and asserted claims for negligence, gross negligence, negligence per se, and negligent hiring. VC and All American filed traditional and no-evidence motions for summary judgment, arguing inter alia, that they owed no duty to Gonzalez. The Estate responded to the motions for summary judgment and filed a document entitled " Objections and Special Exceptions to Defendant [VC's] Motion for Summary Judgment." The day before the summary judgment hearing, the Estate filed a document entitled " Plaintiffs' Additional Objections and Special Exceptions." There is no indication that the trial court ever ruled on the any of the Estate's objections or special exceptions. The trial court granted summary judgment in favor of VC and All American and ordered that

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the Estate take nothing, but did not specify the basis for its ruling. This appeal followed.

II. STANDARD OF REVIEW

Typically, when a party files a hybrid summary judgment motion on both no-evidence and traditional grounds, we first review the trial court's judgment under the no-evidence standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the non-movant failed to produce more than a scintilla of evidence under the no-evidence summary judgment provisions of Rule 166a(i), then there is no need to analyze whether the movant's summary judgment proof satisfied the burden set forth for traditional summary judgment under Rule 166a(c). See TEX.R. CIV. P. 166a(c) & (d); E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813, 816 (Tex.App.-Fort Worth 2007, pet. denied).

But here, there is no clear distinction in the summary judgment motions (and, to a certain extent, on appeal) between which aspects of appellees' motions were brought on traditional summary judgment grounds and which were brought on no-evidence grounds. Both traditional and no-evidence summary judgment claims can be raised in a single motion so long as the motion sufficiently segregates the traditional claims from the no-evidence claims. Torres v. City of Waco, 51 S.W.3d 814, 822 n. 7 (Tex.App.-Waco 2001, no pet.). If a motion does not sufficiently segregate the claims, we review the motion under a traditional standard of review. Gross v. Methodist Hosps. of Dallas, No. 05-00-02124-CV, 2002 WL 1380399 at *2 (Tex.App.-Dallas June 27, 2002, no pet.) (not designated for publication). Therefore, we review the trial court's grant of summary judgment under the standard of review for traditional motions.

The standard of review for traditional summary judgment under TEX.R. CIV. P. 166a(c) is well established. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). The moving party carries the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare Gen.Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). We review the grant or denial of a traditional motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Tex. Integrated Conveyor Sys. Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex.App.-Dallas 2009, pet. denied).

III. ANALYSIS

Objections to Summary Judgment Evidence

In its first issue, the Estate argues the trial court erred in failed to sustain its objections and special exceptions to the summary judgment evidence.[2] We

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cannot determine whether the trial court properly granted summary judgment until we first determine what evidence was before the court. Therefore, we begin with the Estate's first issue.

After VC and All American filed their motions for summary judgment, appellants filed a sixteen page document entitled " Objections and Special Exceptions to Defendant [VC's] Motion for Summary Judgment." The Estate subsequently filed a document entitled " Plaintiffs' Additional Objections and Special Exceptions." The court did not rule on either the objections or the special exceptions.

It is well-established that " [t]he granting of a summary judgment motion does not necessarily provide an implicit ruling that either sustains or overrules the objections to the summary judgment evidence." Allen v. Albin, 97 S.W.3d 655, 663 (Tex.App.-Waco 2002, no pet.). Objections to the form of summary judgment evidence are preserved for appellate review only if those objections are made and ruled on in the trial court. See Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.). Substantive objections do not require a written ruling, and the objection may be raised for the first time on appeal. Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex.App.-Dallas 2004, no pet.). Therefore, we may consider only those objections challenging the substance of the summary judgment evidence. See Green v. Indust. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see also ...


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