Court of Appeals of Texas, Fourth District, San Antonio
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2017CI01312 Honorable Stephani A. Walsh, Judge
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice
Rebeca C. Martinez, Justice.
C. Martinez, Justice.
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.
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
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.
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).
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).
Judgment Evidence Considered by the Trial Court
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.
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
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 ...