kenneth-huffaker-v-wylie-lp-gas-inc-individually-and-as-general ( 2009 )

NO. 07-08-0133-CV

 

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MAY 29, 2009

______________________________

KENNETH HUFFAKER, APPELLANT

V.

WYLIE LP GAS, INC., INDIVIDUALLY, AND AS GENERAL PARTNER

OF T&B, LTD., A TEXAS LIMITED PARTNERSHIP, AND

T&B, LTD., A TEXAS LIMITED PARTNERSHIP, APPELLEES

_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-534,840; HONORABLE RUBEN REYES, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Kenneth Huffaker, appeals the granting of a no-evidence summary judgment in favor of appellees, Wylie LP Gas, Inc. (individually, Wylie LP Gas), individually and as General Partner of T&B, Ltd., and T&B, Ltd. (collectively, Wylie). We affirm the trial court’s judgment.

 

Factual and Procedural Background

          On or about February 27, 2006, an explosion and fire occurred at Wylie LP Gas’s propane gas business property that spread to adjacent property owned by Huffaker. The fire damaged and destroyed real and personal property of Huffaker. Huffaker filed suit against Wylie to recover damages resulting from this fire.

          On January 10 and 11, 2008, Wylie filed a no-evidence motion for summary judgment and a supplemental no-evidence motion for summary judgment in which Wylie challenged, inter alia, whether Huffaker could produce evidence (1) that T&B, Ltd., or Wylie LP Gas, as General Partner of T&B, Ltd., is a proper party to the suit; (2) of any of the elements necessary to state claims for gross negligence, negligence per se, or res ipsa loquitur; (3) of a breach of duty or that any breach of duty proximately caused Huffaker’s damages in regard to the storage, maintenance, inspection, filling, or handling of propane tanks; (4) Wylie’s implementation or monitoring of safety procedures was a breach of duty or that any breach of duty proximately caused Huffaker’s damages; (5) Wylie had knowledge of any person smoking in close proximity to the propane tanks or that such smoking caused the explosion and fire; or (6) that Huffaker suffered compensable mental or emotional anguish damages proximately caused by the explosion and fire. In response, Huffaker filed summary judgment evidence consisting of deposition transcripts of former Wylie employee David Rebber, current Wylie manager Ronald Bridges, and Wylie President William Tipton. In addition, Huffaker provided transcripts of recorded statements taken from Rebber and Bridges. Wylie objected to this evidence because it was unverified and, therefore, constituted inadmissible hearsay. No ruling on Wylie’s objections are contained within the record.

          On February 25, 2008, the trial court granted Wylie’s no-evidence motions for summary judgment. It is from this ruling that Huffaker now appeals.

          By one issue, Huffaker contends that the trial court erred in granting Wylie’s no-evidence motions for summary judgment because Wylie did not preserve objections to Huffaker’s summary judgment evidence and because that evidence constitutes more than a scintilla of evidence to support Huffaker’s claim that Wylie was negligent. We affirm the trial court’s judgment.

Wylie’s Objections to Huffaker’s Evidence

          In response to Huffaker’s presentation of summary judgment evidence, Wylie filed objections to each of Huffaker’s six exhibits on the basis that the exhibits are unverified and, therefore, constitute inadmissible hearsay. The trial court granted Wylie’s motions for no-evidence summary judgment without ruling on Wylie’s objections to Huffaker’s summary judgment evidence. On appeal, Huffaker contends that Wylie failed to preserve these objections due to its failure to obtain a trial court ruling on them.

          Deposition transcripts and excerpts are not required to be authenticated when submitted as summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex.1994) (per curiam); McClure v. Attebury, 20 S.W.3d 722, 731 (Tex.App.–Amarillo 1999, no pet.). Thus, the issue of whether Wylie’s objections were preserved relates solely to the recorded statements of Bridges and Rebber. Generally, documents submitted as summary judgment evidence must be sworn to or certified. Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex.App.–San Antonio 1997, writ denied). Unauthenticated or unsworn documents or documents not supported by affidavit are not entitled to consideration as summary judgment evidence. Id. While defects in affidavits or attachments in response to motions for summary judgment are generally waived unless properly preserved at trial, a complete absence of authentication is a defect of substance that may be urged for the first time on appeal. Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex.App.–Dallas 2002, no pet.). Our review of the recorded statements reveals that none of the three are certified, sworn, or supported by affidavit. Consequently, we conclude that Wylie’s objection was an objection to a defect of substance that was not waived by Wylie’s failure to obtain a ruling of the trial court. Id. Further, because there is a complete absence of authentication of this evidence, neither the trial court nor this Court may consider these statements as evidence in response to Wylie’s motions for summary judgment. Llopa, Inc., 956 S.W.2d at 87.

Huffaker’s Negligence Claims

          We now turn to the central issue in this appeal, which is whether the deposition testimony of former Wylie LP Gas employee David Rebber, current Wylie LP Gas manager Ronald Bridges, and Wylie LP Gas President William Tipton was more than a scintilla of evidence to raise a genuine issue of material fact as to the elements of Huffaker’s negligence claims challenged by Wylie’s motions for summary judgment.

Standard of Review

          Because a no-evidence motion for summary judgment is, in essence, the same as a pretrial directed verdict, we apply the same legal sufficiency standard. See Kelly v. Demoss Owners Ass’n, 71 S.W.3d 419, 423 (Tex.App.–Amarillo 2002, no pet.). A no-evidence motion for summary judgment is properly granted unless the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the elements challenged by the motion. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). On the other hand, less than a scintilla of evidence has been described as evidence “so weak as to do no more than create a mere surmise or suspicion.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In reviewing a summary judgment, we must view all of the summary judgment evidence in the light most favorable to the non-movant. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.–Amarillo 1999, pet. denied). However, when the summary judgment does not specify the grounds asserted in the motion that it was premised upon, it will be affirmed if any of the grounds presented are meritorious. Kelly, 71 S.W.3d at 422.

Applicable Law

          The elements of a negligence claim are duty, breach of that duty, and damages proximately caused by the breach of duty. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

          In assessing whether a duty exists, a reviewing court should consider factors such as the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct; the magnitude of the burden in guarding against injury; and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). When the defendant distributes a dangerous article or agent, the defendant owes the public the degree of care proportionate to and commensurate with the dangers involved. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.3d 442, 447 (1941). When the defendant distributes a dangerous article or agent, it owes a nondelegable duty to take all reasonable precautions to effectually protect third parties from injury. Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944).

Analysis

          In its motions, Wylie contended that Huffaker could produce no evidence that either T&B, Ltd., or Wylie LP Gas, in its capacity as General Partner of T&B, Inc., were proper parties to this suit. According to the deposition transcript of Tipton, T&B, Ltd., owns the real property and some of the equipment that Wylie LP Gas leases. Wylie LP Gas is the General Partner of T&B, Ltd., and holds a one percent ownership interest in T&B, Ltd. However, this is all of the evidence presented in regard to these two defendants. Huffaker presented no evidence nor even alleges how T&B, Ltd., or Wylie LP Gas, as General Partner of T&B, Ltd., owed a duty to Huffaker, breached that duty, or caused the damages suffered by Huffaker as a result of the breach. Therefore, we affirm the trial court’s no-evidence summary judgment as it relates to claims against T&B, Ltd., and Wylie LP Gas, in its capacity as General Partner of T&B, Ltd. See Tex. R. Civ. P. 166a(i); Ford Motor Co., 135 S.W.3d at 600.

          As to Huffaker’s claims against Wylie LP Gas, individually, Wylie contends that Huffaker is unable to present more than a scintilla of evidence to raise a genuine issue of material fact as to the duty, or standard of care, Wylie LP Gas owed to Huffaker or that Wylie LP Gas breached that duty.

          Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of a layperson. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.–Amarillo 1999, pet. denied) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). The expert testimony must establish both the standard of care and the violation of that standard. Id. However, even expert testimony that a particular action would be prudent, beneficial, recommended, or desirable cannot be taken as evidence of the standard of care or that the failure to take the action constituted a breach of that standard. Id. at 739.

          In the present case, Huffaker provided no expert testimony as to any of the theories of liability asserted in his live pleading. Thus, we must analyze each of Huffaker’s theories of liability and the evidence presented as to each to determine whether a layperson would be able to ascertain the applicable standard of care in the absence of expert testimony.

          Huffaker contends that Wylie LP Gas was negligent in the manner in which it stored propane tanks at its facility. In support of this theory, Huffaker offered the testimony of Tipton that, at the time of the fire, Wylie LP Gas was storing 11,000 full 20 pound propane tanks at its facility. This factual testimony provides no insight into what the applicable standard of care would have been for Wylie LP Gas. In fact, the only evidence relating to the manner of storage of the propane tanks was Tipton’s testimony that the tanks were stored in a manner that did not violate any rule or regulation of the Texas Railroad Commission and that Wylie LP Gas took the additional step of using dividers to ensure that the tanks did not touch one another, even though such a step was not required by any law. As such, we do not find the evidence sufficient to allow an ordinary layperson to conclude what the applicable standard of care was in regard to Wylie LP Gas’s storage of its propane tanks nor that Wylie LP Gas breached this standard.

          Huffaker also contends that Wylie LP Gas was negligent in failing to properly maintain, handle, and inspect the propane tanks in its storage. In support of this contention, Huffaker cites Bridges’s testimony that there were times when employees of Wylie LP Gas did not properly check the tanks for leaks. However, Bridges also testified that he began working for Wylie LP Gas sometime in the late 1980s. There is no evidence of the frequency with which employees failed to properly check the tanks and, further, there is no evidence as to how often a reasonable propane dealer would be expected to inspect the tanks in its storage. While the testimony does establish that Bridges felt that there were times when proper inspections were not performed, because the basis for his opinion is not shown, we cannot conclude what the applicable standard of care was in regard to Wylie LP Gas’s maintenance, handling, and inspection of the tanks nor does the evidence raise a genuine issue of fact about that standard having been breached.

          Huffaker contends that Wylie LP Gas was negligent in its filling of the propane tanks, particularly in that it would overfill the tanks which would then require that some of the liquid propane gas be bled off. Huffaker cites testimony of both Rebber and Bridges that there were times when tanks would be overfilled and the tanks would then have to be bled off. However, nothing in this testimony or in any evidence offered by Huffaker establishes that the applicable standard of care would be that no tanks ever be overfilled or that, if a tank was overfilled, that it should not be bled off. Because the filling of liquid propane gas tanks lies beyond the experience of an ordinary layperson, we conclude that Huffaker has provided no evidence of what the applicable standard of care is as it relates to filling propane tanks and, even more so, whether bleeding off the excess propane in an overfilled tank falls below the applicable standard of care.

          Huffaker also contends that Wylie LP Gas failed to implement and monitor proper safety procedures. The evidence that Huffaker relies on in support of this contention is that Wylie LP Gas had not held fire drills, three employees were performing their work without supervision, and that there were times when employees did not properly check for leaks in the stored tanks. However, there is no evidence that a reasonable liquid propane dealer would conduct fire drills or that, had Wylie held fire drills, the fire would have been contained. Further, there is no indication why employees needed to be supervised at all times or how the lack of supervision of these particular employees fell below the applicable standard of care. As to the failure to properly inspect the stored tanks, that issue was addressed above. Thus, there was no evidence presented that would allow a reasonable layperson to identify the applicable standard of care in relation to Wylie LP Gas’s safety procedures nor that Wylie LP Gas’s safety procedures fell below that standard.

          Finally, Huffaker contends that Wylie LP Gas knowingly allowed smoking in close proximity to the propane tanks. Rebber testified that he has seen employees “walk right to the gate [of Wylie LP Gas’s facility] and throw a cigarette down” and that it “was possible” that an employee was smoking just east of the propane tank storage area where the fire started. Bridges testified that he was aware that the fire marshal found cigarette butts inside the yard and that the employees were allowed to smoke inside the confines of the gate of Wylie LP Gas’s facility. However, because there was no evidence offered of the proximity of the area where smoking occurred to the propane tanks, we would have to speculate that it was an unsafe distance. While we believe that a layperson could conclude that smoking in close proximity to liquid propane gas tanks was a breach of the applicable standard of care, Huffaker offered no evidence to raise a genuine issue of material fact as to how close to the propane tanks employees were smoking.

          Because there is no expert evidence establishing the applicable standard of care owed by Wylie LP Gas and because a layperson would not be able to determine the applicable standard of care in regard to the theories of liability asserted by Huffaker, we conclude that the trial court was correct in granting Wylie’s no-evidence summary judgment motions.

Conclusion

          For the foregoing reasons, we affirm the trial court’s judgment.

 

                                                                           Mackey K. Hancock

                                                                                    Justice

rs.  In 2007, the State filed a motion to proceed alleging multiple violations of the conditions of Appellant's community supervision, including the commission of the offense of "Injury to a Child" on July 5, 2007.[1]  Arising out of the July 5 incident, Appellant was subsequently charged with the offense of aggravated assault[2] in Cause No. 2008-419,983, and on May 4, 2009, Appellant proceeded to a jury trial on a plea of "not guilty." Simultaneously with the jury trial in Cause No. 2008-419,983, Appellant entered a plea of not true to the State's motion to proceed in Cause No. 2005-409,347.  The jury trial resulted in a "not guilty" verdict; however, after hearing additional testimony on the alleged violations of community supervision, the court adjudicated Appellant guilty of the offense charged in Cause No. 2005-409,347 and assessed punishment at twenty years confinement.

            Presenting three issues, Appellant asserts the trial court abused its discretion when it revoked his community supervision because:  (1) the State failed to prove by a preponderance of evidence that he committed the offense alleged in the motion to proceed (i.e., injury to a child); (2) he was indigent and unable to make required payments; and (3) although he failed to complete programs required by the order for deferred adjudication, there was still sufficient time remaining on his term of community supervision to complete the programs.  We affirm.

Adjudication Hearing

Shortly after receiving the jury's "not guilty" verdict in Cause No. 2008-419,983, the trial court held a hearing to adjudicate Appellant's guilt in Cause No. 2005-409,347.  The trial court announced, without objection, that it would "take into consideration all of the evidence presented in the jury trial."  Afterwards, both parties stated they were ready to commence the proceedings.

            Patricia Acosta testified to the facts giving rise to the original offense charged in Cause No. 2005-409,347.  She testified that in May 2005, while she was at Appellant's house to pick up her son following visitation, he grabbed her cell phone as she was calling her family to check in, broke the phone, and tore her shirt off as she was running away.  Appellant then took her car keys and told her, that if she wanted her son, she would go into his house.  After she went into the house, Appellant told her that he was going to kill her and keep her son.  He then threatened her with a knife, punched her in the stomach, got atop her, and held a knife to her throat.  Afterwards, he forced her and her son into a car and drove them to a park where he threatened to kill her if she did not come back to him.  Eventually, she told him she would come back to him and he drove them back to his house.  When they pulled into the driveway, her family pulled in behind them.  Patricia grabbed her son and ran to her family. Thereafter, the police arrived. 

            Joanie Jones, Appellant's community supervision officer, testified that, including the commission of the offense alleged to have occurred on July 5, 2007, Appellant exhibited a pattern of behavior for continued violence.  She testified Appellant failed to pay community supervision fees and restitution for a number of months when he was employed and had six hundred dollars in disposable income each month.  She also testified that he blamed others for his noncompliance and aggressive behaviors. Although he was referred to anger counseling twice for specific classes, she testified he failed to complete either class and generally resisted participating in any counseling.  She further testified Appellant failed to attend a budgeting class as directed.  These infractions continued despite multiple supervision conferences and an administrative hearing intended to obtain Appellant's compliance with the requirements of his deferred adjudication order.

            Appellant did not testify on his own behalf or present any evidence.[3]  The trial court subsequently granted the State's motion finding, in pertinent part, as follows:

[T]he State proved by a preponderance of the evidence that defendant committed the offense of injury to a child; . . . , defendant failed to pay his supervision fees as alleged; . . . , failed to pay restitution as alleged; . . . , failed to maintain and complete any drug, alcohol or any other program as directed and deemed necessary, failed to pay for, attend and successfully complete individual anger counseling.

           The trial court also found Appellant used a deadly weapon in the commission of the offense and then sentenced him to twenty years confinement. This appeal followed.

Discussion

            Although Appellant acknowledges in his brief that the trial court properly took judicial notice of the evidence introduced in his criminal trial at his subsequent adjudication hearing, he asserts the trial court abused its discretion by finding the State proved the offense of injury to a child by a preponderance of evidence when the State introduced no independent evidence of that offense during the trial or adjudication hearing.  In the alternative, Appellant asserts that, even if there was some evidence supporting the trial court's finding, the evidence was legally insufficient. 

            Appellant also asserts the trial court abused its discretion by proceeding to adjudication when there was insufficient evidence introduced by the State to show he was able to make required payments and there was sufficient time remaining in his community supervision term for him to complete any necessary programs he had failed to complete.

Standard of Review

            On violation of a condition of community supervision imposed under an order of deferred adjudication, a defendant is entitled to a hearing limited to the determination of whether the trial court should proceed with an adjudication of guilt on the original charge under section 21 of article 42.12 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon 2006).  See Antwine v. State, 268 S.W.3d 634, 636 (Tex.App.--Eastland 2008, pet. ref'd). "This hearing is neither a criminal nor a civil trial, but is rather an administrative hearing."  Wilkins v. State, 279 S.W.3d 701, 703 (Tex.App.--Amarillo 2007, no pet.) (citing Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993)).

            As such, the State's burden on a motion to revoke community supervision is lower than the burden of proof necessary for criminal conviction.  Smith v. State, 932 S.W.2d 279, 281 (Tex.App.--Texarkana 1996, no pet.).  The State has the burden of showing by a preponderance of the evidence that the defendant committed a violation of the condition(s) of community supervision; Cobb, 851 S.W.2d at 873; and satisfies this burden "when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable than not that a condition of probation has been violated as alleged in the [State's] motion."  Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.--Houston [14th Dist.] 1999, no pet.) (citing Battle v. State, 571 S.W.2d 20, 21-22 (Tex.Crim.App. 1978)).

            Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion.  Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006) (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984)).  Further, in determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling; Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979), while recognizing that "[t]he trial court is the sole judge of the credibility of witnesses and the weight given to their testimony."  Antwine, 268 S.W.3d at 636 (citing Cardona, 665 S.W.2d at 493).

Analysis

            At the outset we note that a finding of a single violation of community supervision is sufficient to support revocation.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon 2006); Antwine, 268 S.W.3d at 636 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980)).  See Coffel v. State, 242 S.W.3d 907, 909 (Tex.App.--Texarkana 2007, no pet.); Nurridin v. State, 154 S.W.3d 920, 924 (Tex.App.--Dallas 2005, no pet.).  Based upon the evidence presented, we find the trial court did not err in revoking Appellant's deferred adjudication community supervision because the State proved by a preponderance of evidence that Appellant failed to make required payments and complete scheduled counseling/anger management classes as required under the applicable order of deferred adjudication.

            Appellant's second and third issues are overruled. Our ruling on Appellant's second and third issues pretermits issue one.  See Tex. R. App. P. 47.1; Smith, 932 S.W.2d at 283; Ex parte Brown, 875 S.W.2d 756, 761 (Tex.App.--Fort Worth 1994, no pet.).

Conclusion

            The trial court's judgment is affirmed. 

 

                                                                                    Patrick A. Pirtle

                                                                                          Justice 

 

Do not publish.

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[1]The State's motion to proceed alleged that Appellant willfully and intentionally violated the conditions of his community supervision by:  (1) committing the offense of "Injury to a Child" on July 5, 2007; (2) failing to avoid injurious or vicious habits by demonstrating a history and consistent pattern of assaultive behavior, to-wit: he "committed a subsequent Assault/Injury to a Child on 07/05/07"; (3) failing to pay community supervision fees for a period of months; (4) failing to make required restitution payments; (5) failing to attend and complete counseling deemed necessary by his community supervision officer; and (6) failing to successfully complete individual anger counseling.  The State never specifically pled the elements of the offense of "Injury to a Child" or "Assault/Injury to a Child."  See Tex. Penal Code Ann. § 22.04 (Vernon Supp. 2009).

[2]The indictment alleged that "on or about July 5, 2007, [Appellant] did then and there intentionally, knowingly and recklessly cause serious bodily injury to Thristen [last name omitted] by striking the said [victim], who then and there was a member of the defendant's household or family, and did then and there use a deadly weapon, to-wit: the exact description of which is unknown to grand jurors, that in its manner of use or intended use was capable of causing death and serious bodily injury."  See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009). 

[3]Appellant presented no evidence or financial information to support his claim that he was unable to make the required payments even though he was employed and earned enough to have six hundred dollars a month in disposable income.  See Jimerson v. State, 957 S.W.2d 875, 878 (Tex.App.--Texarkana 1997, no pet.). Where a defendant does not testify or otherwise rebut the State's evidence of his ability to pay or present any justification for non-payment, an inference of intentional non-payment exists. Jackson v. State, 915 S.W.2d 104, 107 (Tex.App.--San Antonio 1996, no pet.).  Further, even if there may be sufficient time left in Appellant's term of community supervision to complete counseling and anger management classes, the uncontroverted evidence shows Appellant consistently resisted participation in such classes and failed to "[a]ttend and complete any drug, alcohol, or any other program as directed and deemed necessary by [his] Supervision Officer."  See Smith, 932 S.W.2d at 282-83.