Sharon Passmore, Mark Dickmeyer and John Dickmeyer v. Ruby Dickmeyer ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-220 CV ____________________

SHARON PASSMORE, MARK DICKMEYER, and JOHN DICKMEYER, Appellants

V.

RUBY DICKMEYER, Appellee

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On Appeal from the 88th District Court Tyler County, Texas Trial Cause No. 19,126

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MEMORANDUM OPINION  

   Appellants Sharon Passmore, Mark Dickmeyer, and John Dickmeyer appeal a summary judgment granted in favor of appellee Ruby Dickmeyer ("Ruby"). In four issues, appellants argue the trial court improperly applied the traditional summary judgment burden of proof and erred in dismissing the wrongful death cause of action based upon the statute of limitations and deemed admissions. We affirm.

After appellants' father, Robert A. Dickmeyer ("Robert") died, appellants brought wrongful death and conversion causes of action against Robert's wife Ruby. Appellants alleged that after Robert suffered a heart attack, Ruby acted against the advice of Robert's physicians and discharged him from the hospital before he could receive rehabilitative therapy. Appellants alleged that Robert "never regained his health and subsequently passed away much sooner tha[n] he would have if given the proper rehabilitation therapy." Appellants also alleged Ruby failed to return personal items Robert gave them prior to his death.

Ruby filed a hybrid motion for summary judgment that asserted both traditional and no-evidence grounds. In the traditional assertions for summary judgment, Ruby contended that appellants could not sustain the element of causation in their wrongful death cause of action, and she submitted Robert's medical records and death certificate as summary judgment evidence to show that Robert died as a result of prostate cancer, a urinary tract infection, and renal failure. Ruby further asserted the appellants could not prove they owned any property made the subject of the conversion suit because by failing to respond to requests for admissions, appellants admitted sufficient facts to prove as a matter of law that Robert's will devised all of his property to Ruby. Ruby also contended the "Dead Man's Rule" prevented the appellants from testifying to any oral statements their father made in regard to the alleged gifts. See Tex. R. Evid. 601(b). Ruby contended that any cause of action for wrongful death was barred by the statute of limitations because Robert suffered a heart attack approximately four years before appellants filed suit. In the no-evidence portion of the motion for summary judgment, Ruby argued appellants could not prove the elements of their causes of action for wrongful death and conversion because there was no evidence Ruby had a duty to provide Robert with rehabilitation care, that the alleged failure to provide such care caused his death, or that Robert gave appellants any property prior to his death.

Appellants opposed the motion for summary judgment on the grounds that Ruby's motion relied on a request for admission that involved legal conclusions that appellants were not qualified to render. Appellants also noted that Ruby's motion for summary judgment relied upon two requests for admissions that contained inaccuracies. Appellants further argued Ruby's summary judgment evidence indicated Ruby implicitly accepted the responsibility to assist Robert in his "health care" because Robert's physician showed Ruby how to irrigate his catheter. Appellants asserted Texas Rule of Evidence 601(b) did not apply because they did not sue Ruby in her capacity as executor, administrator, or guardian, and they were not Robert's heirs because he died testate. See Tex. R. Evid. 601(b). Appellants did not attach any summary judgment evidence to their response. The trial court granted summary judgment in Ruby's favor without specifying the ground or grounds relied on for the ruling. ⁽¹⁾

We review the trial court's grant of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A movant for traditional summary judgment has the burden of proving all essential elements of its cause of action or defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present evidence raising a genuine issue of material fact on each of the challenged elements. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.--Dallas 2000, no pet.) (citing Tex. R. Civ. P. 166a(i) cmt.). If the nonmovant fails to do so, the trial judge must grant the motion. Id. When a trial court's order granting summary judgment does not state the grounds relied upon for its ruling, an appellate court will affirm the judgment if any theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

In their first and second issues, appellants assert the trial court erred in granting Ruby's motion for traditional summary judgment. Ruby presented argument and submitted evidence in support of the traditional summary judgment grounds she asserted. However, Ruby also alleged no evidence grounds as to certain elements of appellants' wrongful death and conversion causes of action. The burden then shifted to appellants to produce evidence raising a genuine issue of material fact on the challenged elements. See Gen. Mills Rests., 12 S.W.3d at 832; Tex. R. Civ. P. 166a(i) cmt.

Ruby challenged appellants' wrongful death suit by arguing there was no evidence Ruby owed Robert a duty to provide cardiac rehabilitation therapy or that such failure caused his death. The wrongful death statute states, "A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default." Tex. Civ. Prac. & Rem. Code Ann. § 71.002(b) (Vernon 1997). In response, appellants failed to attach affidavits, discovery, or other evidence to prove that Ruby's wrongful act, neglect, carelessness, unskillfulness, or default was a cause of Robert's death. See id. Appellants have failed to produce evidence raising a genuine issue of material fact on the causation element of their wrongful death action. Thus, the trial court properly granted summary judgment in favor of Ruby on appellants wrongful death suit. See Tex. R. Civ. P. 166a(i). Ruby also challenged the ownership element of appellants' conversion claim. "Conversion is the wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights." Burns v. Rochon, 190 S.W.3d 263, 267-68 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). To establish a claim for conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had possession of the property or was entitled to possession; (2) the defendant unlawfully and without the plaintiff's authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Id. 190 at 268. Ruby contended there was no evidence that Robert gave appellants property prior to his death. In response to Ruby's no-evidence motion for summary judgment, appellants did not produce any evidence to show Robert gave them any property prior to his death or that they otherwise owned any property made the subject of their conversion cause of action. The trial court properly granted summary judgment in Ruby's favor on the conversion cause of action. See Tex. R. Civ. P. 166a(i). Issues one and two are overruled and the judgment is affirmed. ⁽²⁾

AFFIRMED. ________________________________

CHARLES KREGER

Justice

Submitted February 2, 2006

Opinion Delivered December 14, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Ruby's first amended answer asserted a counterclaim for court costs and attorney's fees. The summary judgment became final when the trial court severed the counterclaim from the causes of action at issue. See Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984).

2. Because our holding is dispositive of this appeal, we need not reach appellants remaining issues.