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Soloman v. Whataburger Restaurants, LLC

Court of Appeals of Texas, Fourth District, San Antonio

May 9, 2018

Marcus SOLOMAN, Appellant
v.
WHATABURGER RESTAURANTS, LLC, Appellee

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2017CI01312 Honorable Stephani A. Walsh, Judge Presiding.

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         Marcus Soloman appeals a summary judgment granted in favor of Whataburger Restaurant, LLC, asserting the evidence raised a genuine issue of material fact that precluded summary judgment. We affirm the trial court's judgment.

         Background

         Soloman sued Jeromy McCormick and Whataburger for injuries he sustained as a result of an automobile accident. When the accident occurred, Soloman was a passenger in a vehicle being driven by McCormick. In his lawsuit, Soloman alleged McCormick's negligence caused the accident, and Whataburger was vicariously liable for McCormick's negligence.

         Whataburger moved for summary judgment asserting McCormick was not in the course and scope of his employment when the accident occurred. After considering the motion and Soloman's response, the trial court signed an order granting Whataburger's motion. Soloman filed a motion for new trial which the trial court denied. Soloman appeals.

         Standard of Review

         We review a trial court's order granting a summary judgment de novo. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017); see also Tex. R. Civ. P. 166a(c).

         "An appellate court reviewing a summary judgment must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion." Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). Applying this standard, the appellate court "must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented." Id. at 755. "An issue is conclusively established if reasonable minds could not differ about the conclusion to be drawn from the facts in the record." Cmty. Health Sys. Prof'l Servs. Corp., 525 S.W.3d at 681 (internal quotation omitted).

         Summary Judgment Evidence Considered by the Trial Court

         Before we consider the trial court's ruling on Whataburger's motion, we must first determine what evidence the trial court considered in making its ruling. No one disputes the trial court considered the evidence cited in and attached to Whataburger's motion and Soloman's response. However, Soloman argues the trial court also considered the evidence attached to his motion for new trial. Soloman further argues the evidence attached to his motion for new trial was not additional evidence but only references to additional pages of the deposition transcripts attached to his response.

         Soloman attached three complete deposition transcripts to his summary judgment response. The law is well-settled that "when presenting summary-judgment proof, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court." Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App.-San Antonio 2005, no pet.); see also Rollins v. Tex. Coll., 515 S.W.3d 364, 369 (Tex. App.-Tyler 2016, pet. denied) ("Referencing attached documents only generally does not relieve a respondent of directing the trial court to where in such documents the issues set forth in the response are raised."); Lawson v. Keene, No. 03-13-00498-CV, 2016 WL 767772, at *2 n.2 (Tex. App.-Austin Feb. 23, 2016, pet. denied) (mem. op.) (noting court would only consider evidence referenced in the response); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.-San Antonio 2003, no pet.) ("The trial court was not required to search the record for evidence raising a material fact issue without more specific guidance from [respondent]."). As a result, a respondent cannot attach an entire deposition transcript to his response as summary judgment evidence without citing the specific pages in the transcript on which the respondent relies. See Gonzales, 190 S.W.3d at 746 ("Attaching entire documents to a motion for summary judgment or to a response and referencing them only generally does not relieve the party of pointing out to the trial court where in the documents the issues set forth in the motion or response are raised."); see also Rollins, 515 S.W.3d at 369. Therefore, Soloman's argument that his motion for new trial did not present any additional evidence fails to the extent his motion for new trial cited to additional pages of the deposition transcripts he attached to his response.

         After reviewing Soloman's response and motion for new trial, we conclude Soloman's motion for new trial cited additional pages of the deposition testimony that were not cited in Soloman's response. Accordingly, we next ...


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