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Ogunbanjo v. Don McGill of West Houston, Ltd.

Court of Appeals of Texas, First District

January 28, 2014

OMORINSOLA OGUNBANJO, Appellant
v.
DON MCGILL OF WEST HOUSTON, LTD., Appellee

On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 2012-00308

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

MEMORANDUM OPINION

Rebeca Huddle, Justice

Omorinsola Ogunbanjo appeals the trial court's rendition of summary judgment in favor of Don McGill of West Houston, Ltd. Ogunbanjo sued Don McGill, alleging causes of action for negligence and gross negligence. Don McGill moved for summary judgment on all of Ogunbanjo's claims. The trial court granted Don McGill's motion, rendering a take-nothing judgment against Ogunbanjo. In a single issue, Ogunbanjo contends that the trial court erred in granting summary judgment. We affirm.

Background

According to Ogunbanjo's deposition testimony, she took her car to be serviced at a Don McGill dealership in October 2011. After dropping off her car, she was told to wait in the waiting room for the driver of the shuttle service to take her home. While she was waiting, a Don McGill salesman, John Thompson, offered to give her a ride home. They left the dealership in Thompson's personal vehicle. While driving to Ogunbanjo's house, Thompson tried several times to remove Ogunbanjo's hat and to lift up her skirt. She repeatedly hit his hand and told him to stop. When they arrived at her house, Thompson tried to touch her buttocks as she was getting out of the car. The next day, Ogunbanjo returned to the dealership with her uncle and brother to report the incident to the manager. The manager immediately fired Thompson.

Ogunbanjo sued Don McGill, contending that Don McGill was negligent in failing to provide a safe shuttle service, to follow proper management and supervision policies, to provide adequate supervision of its employees, and to warn her of the dangers of its negligence. She also alleged that these failures were conscious or intentional and therefore constituted gross negligence.

After the case had been pending for a year, Don McGill moved for summary judgment, arguing that there was no evidence to support Ogunbanjo's claims for gross negligence and mental anguish, and that Ogunbanjo's negligence claim failed on traditional and no-evidence grounds. The trial court granted the motion.

Discussion

Ogunbanjo contends that the trial court erred in granting Don McGill's summary judgment motion. She argues that, because there is a fact issue regarding whether Don McGill was negligent, summary judgment on her claims for negligence, gross negligence, and mental anguish damages was also improper.

A. Standard of Review

We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When a party has filed both a traditional and no-evidence summary judgment motion, we typically first review the propriety of the summary judgment under the no-evidence standard. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600.

To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support 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); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

In a traditional summary judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or ...


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