Court of Appeals of Texas, Fourteenth District, Houston
On Appeal from the 234th District Court, Harris County, Texas. Trial Court Cause No. 2010-28651A.
For APPELLANT: David Anderson Jr., Andrew Cook, HOUSTON, TX.
For APPELLEE: Charles Creighton Carr II, Jason Allen Newman, HOUSTON, TX.
Panel consists of Chief Justice Kem Thompson Frost, Justice Jeffrey Brown, and Justice J. Brett Busby. (Justice Jeffrey Brown not participating).
Kem Thompson Frost, Chief Justice.
A homeowner sued an electric utility, seeking to recover damages caused by the utility's purported gross negligence in allegedly restoring the electrical current to the home after it was flooded by storm surge. We conclude that the summary-judgment evidence does not raise a genuine fact issue as to whether the utility is liable for damages resulting from that action. Accordingly, we affirm the trial court's summary judgment.
I. Factual and Procedural Background
Appellant/plaintiff Christine Kolius owns real property located at 119 Shoreacres Boulevard in La Porte, Texas (" Property" ). On September 13, 2008, the storm surge caused by Hurricane Ike flooded the area, including the house on Kolius's property (" House" ). Appellee/defendant CenterPoint Energy Houston Electric, LLC is a utility that delivers electricity to the House. On September 25, 2008 (the " Incident Date" ), the electricity at the House had not yet been restored and the renters who had been occupying the House had not returned. The House was vacant. According to a neighbor, on that date, two men from Asplundh Construction Corporation stopped at the neighbor's home and asked her if she would like to have her electric service restored. The neighbor replied that she would like it very much and one of the Asplundh workers allegedly said, " we will have the power on in the next 15 minutes unless you hear a loud explosion," and laughed. According to the neighbor, approximately ten minutes later, she heard a loud explosion and saw smoke rising from the House. The neighbor ran to the House and saw a fire where " the electrical service entered the [House]." The neighbor stated that emergency vehicles arrived but the House was " fairly consumed with fire by the time the firefighters were able to connect their hoses and direct water to the [House]."
Kolius sued both CenterPoint and Asplundh. She asserted a claim for gross negligence, alleging that CenterPoint and Asplundh were grossly negligent when they allegedly restored electrical current " to a residence that was visibly submerged by flood water."  Kolius alleged that
CenterPoint and Asplundh knew the home had been submerged in salt water and that it was unsafe to restore electrical current when they did so. Kolius asserted that CenterPoint is jointly liable with Asplundh for all the actions made the basis of her suit and that the gross negligence of both caused a fire that completely destroyed the House. She sought to recover actual damages as well as exemplary damages.
CenterPoint filed a traditional and no-evidence motion for summary judgment. In the no-evidence part of this motion, CenterPoint asserted that there is no evidence that (1) CenterPoint engaged in conduct that was grossly negligent, (2) CenterPoint and Asplundh were engaged in a joint enterprise, or (3) CenterPoint is liable for Asplundh's conduct. Asplundh also filed a summary-judgment motion.
The trial court denied Asplundh's summary-judgment motion and granted CenterPoint's summary-judgment motion. The trial court then severed Kolius's claim against CenterPoint, thus making final the summary judgment in favor of CenterPoint. Kolius now challenges that summary judgment.
II. Standard of Review
In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine fact issue if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
III. Issues Presented
Kolius asserts the following issues for appellate review:
(1) Whether CenterPoint is protected from liability by its tariff.
(2) Whether CenterPoint owed Kolius a non-delegable duty not to restore electrical current to the House in light of the potential for property damage.
(3) Whether a scintilla of evidence existed as to whether CenterPoint was negligent or grossly negligent.
(4) Whether a scintilla of evidence existed as to a joint enterprise between ...