Philip Cannata v. Blackmon Mooring of Austin, Inc. ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00672-CV
Philip Cannata, Appellant
v.
Blackmon Mooring of Austin, Inc., Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
NO. C-1-CV-09-007603, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Philip Cannata appeals a take-nothing summary judgment on his negligence
claim against appellee Blackmon Mooring of Austin, Inc. Cannata sought damages for injuries
resulting from his alleged exposure to a harmful chemical that Blackmon Mooring used during mold
remediation of Cannata’s workplace. We will affirm the trial court’s summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
St. John Neumann Catholic Church of Austin, Texas, hired Blackmon Mooring
to remediate mold in its music room and sacristy in August of 2007. As part of the remediation
process, Blackmon Mooring injected a biocide called Sporicidin into the building’s air system to kill
mold, mildew, dust mites, bacteria, and viruses. At the same time or soon after Blackmon Mooring
used Sporicidin in the church, Cannata, who asserts that he was not warned to stay away, entered the
music room and stayed there for approximately twenty minutes until he learned from another
employee that the building was off limits at that time. He discovered later that the church’s facilities
manager had sent Cannata and the other church employees an email warning of the situation at
approximately the same time Blackmon Mooring applied the Sporicidin.
Later that same day, Cannata began to feel “uncomfortable and exhausted” and
starting experiencing headaches, chest tightness, shortness of breath, itchy burning skin, diarrhea,
and a bitter, metallic taste in his mouth. Cannata went to see his family doctor, who noted that
Cannata was “very ill” from the exposure and prescribed an inhaler and other medication. Cannata’s
doctor also suggested that he see an allergist, which Cannata did shortly thereafter. Although not
clear from the record, it appears that Cannata experienced many of these same symptoms for at least
several days after his exposure.
Cannata filed this suit against Blackmon Mooring, alleging that Blackmon Mooring
had negligently exposed him to the “harmful and toxic” substance glutaraldehyde1 on August 6,
2007, by using the glutaraldehyde-containing product Sporicidin in the music room’s ventilation
system immediately before Cannata entered that room. Cannata complained that Blackmon Mooring
was negligent in failing to (1) place proper and adequate warning signs in the exposure area;
(2) block access to the exposure area; and (3) maintain a company presence at the remediation site
1
Glutaraldehyde is “a colorless, oily, liquid-chemical with a pungent odor” that can be used
in various applications, including sterilizers, biocides, embalming solutions, and disinfectants.
Persons exposed to glutaraldehyde can suffer throat and lung irritation, asthma and difficulty
breathing, contact and allergic dermatitis, nasal irritation, sneezing, wheezing, and burning eyes and
conjunctivitis. See Centers for Disease Control & Prevention, National Institute for Occupational
Safety & Health, Workplace Safety & Health Topics, www.cdc.gov/niosh/topics/glutaraldehyde/
(last visited on June 6, 2012).
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while the Sporicidin was being released. Cannata requested as damages his medical expenses, pain
and suffering, mental anguish, and physical impairment.
After generally denying Cannata’s claim, Blackmon Mooring filed a motion for
summary judgment asserting that it was entitled to summary judgment because its evidence
conclusively established that it did not use glutaraldehyde or a product containing glutaraldehyde
at the St. John Neumann Catholic Church on August 6, 2007. Specifically, Blackmon Mooring
asserted that its evidence conclusively showed that Blackmon Mooring used Sporicidin brand
disinfectant solution in the church that day and that Sporicidin does not contain glutaraldehyde. In
the alternative, Blackmon Mooring asserted that Cannata could produce no evidence that Blackmon
Mooring applied any dangerous chemicals, including glutaraldehyde, to the church, that Blackmon
Mooring applied any chemicals to the church that would present any inhalation hazards, or that
the chemicals used by Blackmon Mooring at the church caused Cannata any personal injuries. The
trial court, without specifying the grounds on which it was relying, granted Blackmon Mooring’s
summary judgment and ordered that Cannata take nothing on his negligence claim. It is from this
summary judgment that Cannata now appeals.
ANALYSIS
On appeal, Cannata asserts that the trial court erred in granting Blackmon Mooring’s
motion for summary judgment because Blackmon Mooring failed to submit competent summary-
judgment evidence conclusively proving that there were no genuine issues of material fact regarding
the existence of glutaraldehyde in the biocide. More specifically, Cannata asserts that the trial court
based its judgment on the alleged oral testimony it heard from Blackmon Mooring’s counsel at the
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summary-judgment hearing. Cannata also argues that he submitted competent summary-judgment
evidence in response to Blackmon Mooring’s motion that raised a genuine issue of material fact
sufficient to defeat Blackmon Mooring’s motion for summary judgment.
Standard of review
Usually, when a party moves for traditional and no-evidence summary judgment, as
Blackmon Mooring did here, we first review the trial court’s judgment under the no-evidence
standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R.
Civ. P. 166(a)(i). Here, however, we will review the traditional summary-judgment grounds
first because they are dispositive of Cannata’s appeal. See Poag v. Flories, 317 S.W.3d 820, 825
(Tex. App.—Fort Worth 2010, pet. denied); see also Tex. R. App. P. 47.1 (requiring “written
opinion that is as brief as practicable,” addressing all issues that are raised and necessary to
final disposition).
The standards for reviewing a motion for summary judgment are well established.
We review the trial court’s summary judgment rulings de novo. See Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for traditional summary
judgment, the movant must show that there are no disputed issues of material fact and the movant
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). In deciding whether there is a disputed material-
fact issue precluding summary judgment, we take as true proof favorable to the non-movant, and we
indulge every reasonable inference and resolve any doubt in favor of the non-movant. Randall’s
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant can establish his
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entitlement to summary judgment as to a cause of action asserted against him by conclusively
negating at least one essential element of the cause of action or conclusively establishing each
element of an affirmative defense to the cause of action. American Tobacco Co., Inc. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997). If the movant can show that it is entitled to judgment as a matter
of law, the burden shifts to the non-movant to present evidence raising a fact issue to avoid summary
judgment. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). If the summary-
judgment evidence set out in the motion and response shows that no genuine issue of material fact
exists, and the movant is entitled to judgment as a matter of law, we will affirm the summary
judgment. See Tex. R. Civ. P. 166a(c); D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)
(citing Nixon, 690 S.W.2d at 548). Further, because the trial court’s order does not specify the
grounds for its summary judgment, we must affirm the summary judgment if any of the theories
presented to the trial court are meritorious. See Knott, 128 S.W.3d at 216.
Blackmon Mooring’s summary-judgment evidence
To prove an action for negligence, a plaintiff must establish “‘a legal duty owed by
one person to another, a breach of that duty, and damages proximately caused by the breach.’”
Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting Love, 92 S.W.3d
at 457). Cannata’s live pleading and discovery responses assert that Blackmon Mooring owed him
a duty to exercise ordinary care in its use of “dangerous and harmful chemicals,” specifically
the glutaraldehyde-containing product Sporicidin. He claims that Blackmon Mooring breached
that duty by negligently exposing him to glutaraldehyde and that, as a result of that exposure to
glutaraldehyde, he incurred injuries. Thus, Blackmon Mooring as defendant here would be entitled
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to summary judgment on Cannata’s negligence claim as specifically pleaded—i.e., duty to exercise
ordinary care in using glutaraldehyde and damages caused by exposure to glutaraldehyde—if its
summary-judgment evidence conclusively establishes that it did not use glutaraldehyde or a product
containing glutaraldehyde at St. John Neumann Catholic Church on August 6, 2007. See SmithKline
Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995) (holding that defendant “need not . . .
show that the plaintiff cannot succeed on any theory conceivable in order to obtain summary
judgment; he is only ‘required to meet the plaintiff’s case as pleaded.’” (emphasis in original)
(quoting Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex. 1976)).
Blackmon Mooring’s summary-judgment evidence consists of an affidavit from its
commercial manager, Mark Roth, a “Material Safety Data Sheet” (MSDS)2 for “Sporicidin Brand
Disinfectant Solution,” and Cannata’s responses to Blackmon Mooring’s requests for disclosure.
Generally stated, Roth’s affidavit establishes that Blackmon Mooring used “Lysol Brand concentrate,
Sporicidin brand disinfectant solution,” and a liquid dishwashing detergent such as Dawn, Ivory, or
Joy, during its mold remediation of St. John Neumann Catholic Church in August of 2007. Roth
further states that Blackmon Mooring did not use any form of glutaraldehyde or any products
containing glutaraldehyde at the church. Instead, he explains, Blackmon Mooring used only the
EPA-registered biocide Sporicidin disinfectant, which he asserts does not contain glutaraldehyde.
2
A Material Safety Data Sheet is a written or printed document that provides information
about the properties and potential hazards of a particular product or material. The Occupational
Safety and Health Administration of the United States Department of Labor requires chemical
manufacturers and importers to obtain or develop an MSDS for each hazardous chemical they
produce or import, and employers are required to have an MSDS in the workplace for each
hazardous chemical which they use. See OSHA Toxic and Hazardous Substances Rule, 29 C.F.R.
§ 1910.1200(c),(g) (2012).
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In support of this assertion, Ross attached to his affidavit a copy of the MSDS for “Sporicidin Brand
Disinfectant Solution (EPA Reg. No. 8383-3),” which does not list glutaraldehyde as a component
of Sporicidin. Roth’s affidavit further explains that while the product “Activator for Sporicidin”
does contain glutaraldehyde, Blackmon Mooring did not use Activator for Sporicidin during its work
at St. John Neumann Catholic Church. In sum, Blackmon Mooring’s evidence meets its summary-
judgment burden to demonstrate that Blackmon Mooring did not expose Cannata to glutaraldehyde
because it did not use glutaraldehyde or a product containing glutaraldehyde at St. John Neumann
Catholic Church on August 6, 2007. And by doing so, Blackmon Mooring negated an essential
element of Cannata’s negligence claim, thus entitling it to summary judgment. See id. (holding that
defendant is entitled to summary judgment if it disproves at least one element of claim specifically
pleaded by plaintiff); see also Tex. R. Civ. P. 166a(c) (“A summary judgment may be based on
uncontroverted testimonial evidence of an interested witness . . . if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and inconsistencies, and could have been
readily controverted.”).
Cannata’s summary-judgment evidence
Once Blackmon Mooring, as the summary-judgment movant, established its right to
summary judgment, the burden shifted to Cannata, the nonmovant, to present evidence raising a fact
issue regarding his exposure to glutaraldehyde or to some other claim that might be brought within
the general language of his petition. See id. (“When a plaintiff’s petition alleges specific claims,
but does not limit itself to those claims, a defendant is entitled to summary judgment if he disproves
at least one element of each claim specifically pleaded unless plaintiff in response raises a genuine
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issue of material fact as to some other claim that might be brought within the general language of the
petition.”). In his response to Blackmon Mooring’s motion for summary judgment, Cannata merely
re-asserted his allegation that Blackmon Mooring used a product containing glutaraldehyde at
St. John Neumann Catholic Church on August 6, 2007, and attached the following exhibits in
support of that allegation:
Exhibit A: Affidavit of Philip Cannata;
Exhibit B: Letter from Mark Roth to St. John Neumann Catholic Church;
Exhibit C: Blackmon Mooring’s answers to Cannata’s request for production;
Exhibit D: MSDS for Sporicidin Sterilizing and Disinfectant Solution Activator;
Exhibit E: Verification affidavit of Bryan Zander (Blackmon Mooring
employee) regarding Blackmon Mooring’s answers to Cannata’s
interrogatories;
Exhibit F: Audio recording of Mark Roth (excluded from evidence and not
included in the appellate record);
Exhibit G: Information regarding Sporicidin Disinfectant Solutions & Spray
from www.mzgroup.com website (excluded from evidence);
Exhibit H: Information regarding Sporicidin Disinfectant from www.steam-
brite.com website (excluded from evidence);
Exhibit I: Information regarding Sporicidin Disinfectant from www.steam-
brite.com website (excluded from evidence);
Exhibit J: Price guide for Sporicidin Disinfectant and Sterilizing Solution,
including product description, from www.polarzone-nw.com website;
Exhibit K: Affidavit from Rita Cannata;
Exhibit L: Audio recording of St. John Neumann Catholic Church’s employee
(excluded from evidence and not included in the appellate record);
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Exhibit M: Symptoms associated with glutaraldehyde exposure from www.mcs-
america.org website (excluded from evidence);
Exhibit N: Letter from Andrew Weary, M.D.;
Exhibit O: Final Report of Maritza Navarro, M.D.;
Exhibit P: August 6, 2007 email from Kelly Montgomery of St. John Neumann
Catholic Church (excluded from evidence);
Exhibit Q: Information regarding air duct cleaning printed from
www.healthairductcleaning.org (excluded from evidence); and
Exhibit R: Information regarding anti-microbial treatments printed from
www.ductpro.com (excluded from evidence).
As indicated in parentheses above, the trial court excluded exhibits F, G, H, I, L, M, P, Q, and R.
Cannata does not challenge these exclusions on appeal. We may not consider stricken evidence
when reviewing a summary judgment. See Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 294
(Tex. App.—Dallas 2009, no pet.) (“Evidence which has been excluded by written order or ruling
of the trial court is not part of the summary judgment evidence to be considered.”).
Cannata’s affidavit states that he worked as the music director at St. John Neumann
Catholic Church during August 2007, that he entered the church’s music room at 4:55 p.m. on
August 6, 2007, and that on the night of August 6, 2007, his lips burned and he had a bad taste in
his mouth that lasted several days. Cannata’s affidavit also establishes that on August 7, 2007, he
recorded a conversation he had with Mark Roth, a Blackmon Mooring manager, and a separate
conversation with his son and the church’s business manager, and that copies of those recordings
were attached to his summary-judgment response. Cannata’s affidavit further avers that exhibits G,
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H, I, J, M, Q, and R to his response are copies of pages he personally obtained from various websites
on the internet. Cannata’s affidavit provides no additional information.
Cannata’s exhibit B consists of two letters from Blackmon Mooring to St. John
Neumann Catholic Church. The first letter, dated November 28, 2007, establishes that on August 6,
2007, between approximately 12:00 pm and 5:00 pm, Blackmon Mooring began cleaning and
disinfecting the HVAC unit and ducts of the church’s music room, dressing area, hallway, and a
bathroom. The second letter, which is undated, establishes that Blackmon Mooring had visited the
church on July 30, 2007, to inspect certain areas of concern and had later submitted a proposal “to
clean the HVAC system, dehumidify space, and wipe down structure and contents with [sic] utilizing
heap air scrubbers.” The letter explains that Blackmon Mooring cleaned the HVAC system and
installed a dehumidifier and air scrubbers on August 6, 2007, and that the next day Blackmon
Mooring employees cleaned the structure and its contents. The undated letter further specifies that
Blackmon Mooring used HEPA vacuums and air-whip tools to clean the HVAC system and its
related components, after which “an epa [sic] registered biocide-Sporicidin” was “fogged into [the]
air system to kill mold, mildew, dust mites, bacteria and virus[es].” It explains the safety precautions
for Sporicidin—i.e., that pets and people should stay out of the affected area for half an hour to one
hour—and offers that Sporicidin “is a product that has been safely used for many years and is
commonly used in air systems and mold remediation jobs . . . in hospitals, universities, state agency
buildings, public buildings, allergy doctor’s homes and businesses for many years.” Finally, the
letter states that the “MSDS sheets on [S]poricidin” were attached to the letter. Although Cannata
did attach MSDS sheets as exhibits to his response, they are not attached to exhibit B in the record.
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Exhibit C, which is Blackmon Mooring’s written responses to Cannata’s requests for
production, states that Blackmon Mooring intended to produce documents in its possession that were
responsive to Cannata’s requests, including the following of possible relevance here:
• Please provide an MSDS for any aerosol product used by [Blackmon
Mooring] in August 2007 that contains “glu[ta]raldehyde.”
• Please provide a document that identifies the manufacturer of any aerosol
product used by you in August 2007 that contains “glutaraldehyde.”
• Please provide an MSDS for any aerosol product used by you in August 2007
at St. John Neumann Catholic Church.
In the record before us, there are no attachments to these written responses. Presumably in response
to these requests, however, Cannata asserts that Blackmon Mooring produced copies of MSDS
sheets for “Sporicidin Brand Disinfectant Solution (EPA Reg. No. 8383-3)” and “ACTIVATOR for
Sporicidin Sterilizing and Disinfecting Solution,” both of which Cannata attached as exhibit D to
his summary-judgment response. In addition to other matters, the MSDS for Sporicidin disinfectant
solution indicates that it is registered with the EPA and that its ingredients are “Phenol/Sodium
Phenate.” Regarding the health hazards presented by this product, the MSDS provides as follows:
Effects of Overexposure Emergency and First Aid Procedures
Inhalation: N/A. Inhalation: N/A.
Skin: May cause mild irritation. Skin: N/A.
Ingestion: May cause nausea and vomiting. Ingestion: If large amount is ingested, contact
a physician.
Eye: May cause irritation on direct contact. Eye: Immediately flush with water. If
necessary, contact a physician.
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EPA Signal Word: Caution
Carcinogenicity: Not listed as a carcinogen
by NTP, LARC monography or OSHA
Finally, the MSDS for Sporicidin disinfectant provides that no control measures must be taken for
respiratory protection, gloves are recommended, but other protective clothing and equipment is not
required, and a normal HVAC system is sufficient for ventilation.
The MSDS for “ACTIVATOR for Sporicidin Sterilizing and Disinfecting Solution”
does not refer to the EPA or indicate that this particular product is registered with the EPA. It does,
however, show that this Sporicidin product contains glutaraldehyde and suggests that certain types
of contact with glutaraldehyde pose health hazards. For example, it is “moderately toxic” and may
cause “chemical burns of the mouth, throat, esophagus, and stomach when swallowed,” its “vapor
may be irritating to the respiratory tract, causing stinging sensations in the nose and throat, discharge
from the nose, possibly bleeding from the nose, coughing, chest discomfort and tightness, difficulty
with breathing, and headache,” and that contact with the skin “may cause slight irritation with itching
and local redness.”
Cannata’s exhibit E is a one-page verification affidavit by Bryan Zander stating that
he “has read the foregoing Answers to Plaintiff’s First Set of Interrogatories to Blackmon Mooring
of Austin, Inc. and the answers are true and correct and within his[] personal knowledge.” It offers
no additional information other than the date and the name of the notary.
Cannata’s exhibit J is a document titled “Sporicidin Disinfectant and Sterilizing
Solution Price Guide” that includes a product description. This exhibit shows that “Sporicidin
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Disinfectant and Sterilizing Solution” is used by medical and dental professionals in hospitals,
clinics, nursing homes, office, and other places to kill pathogenic and odor-causing organisms. It
also shows, in addition to the prices for each type of product, that Sporicidin is sold in various forms,
including towelettes, aerosol spray, pump spray, and solution. Of relevance here, exhibit J shows
that Sporicidin Disinfectant and Sterilizing Solution is used to clean HVAC air ducts and for mold
remediation. Also, it shows that of the eight Sporicidin products for sale on this particular website,
two Sporicidin products—“Sporicidin Indicator Kit” and “Sporicidin Sterilizing and High Level
Disinfectant Solution”—contain glutaraldehyde, and the description for the indicator kit shows that
the glutaraldehyde is in test strips. Of note, this exhibit does not show that Sporicidin Disinfectant
contains glutaraldehyde, but it does indicate that only Sporicidin disinfect is “registered” with the
EPA. The document does not refer to Blackmon Mooring.
Exhibit K is an affidavit from Cannata’s wife regarding his symptoms between
August 6 and August 15, 2007. It does not address Cannata’s allegations regarding glutaraldehyde
and Blackmon Mooring. Similarly, exhibits N and O are reports from Cannata’s doctors regarding
his symptoms and treatments after August 6, 2007. These two exhibits, however, contain some
additional information regarding Cannata’s alleged exposure on August 6, 2007. Specifically,
exhibit N states that Cannata “was exposed to a chemical substance ‘Sporicidin’ which was used in
the ventilation system” at the church and that Cannata was not aware “of this toxic exposure.”
Exhibit O indicates that Cannata told his allergist that he was exposed to glutaraldehyde at his work.
Viewed in the light most favorable to Cannata, Cannata’s summary-judgment
evidence fails to raise a question of fact or controvert Blackmon Mooring’s summary-judgment
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evidence to the contrary regarding Blackmon Mooring’s use of glutaraldehyde at St. John Neumann
Catholic Church on August 6, 2007. At best, Cannata’s evidence establishes only that Blackmon
Mooring sprayed a Sporicidin product into the music room’s air system on August 6, 2007, and that
Blackmon Mooring produced in response to various discovery requests an MSDS sheet for a
Sporicidin product—“ACTIVATOR for Sporicidin Sterilizing and Disinfecting Solution”—that
contains glutaraldehyde. Although two exhibits show that Cannata told at least one of his doctors
that he was exposed to glutaraldehyde, we may not consider this assertion as competent summary-
judgment evidence because it is conclusory. See Tex. R. Civ. P. 166a(f) (requiring that evidence
in summary-judgment affidavits be admissible in evidence); United Blood Servs. v. Longoria,
938 S.W.2d 29, 30 (Tex. 1997) (citing to rule 166a(f) for same proposition). We also note that
Cannata’s own evidence shows that Blackmon Mooring used “an epa [sic] registered biocide-
Sporicidin” at the church and that, while ACTIVATOR contains glutaraldehyde but is not registered
with the EPA, “Sporicidin Brand Disinfectant Solution” is registered with the EPA and does not
contain glutaraldehyde.
Cannata argues that his evidence, when viewed as a whole, raises a question of fact
regarding whether Blackmon Mooring used a product containing glutaraldehyde. Specifically, he
alleges that because Blackmon Mooring’s “project file” for the St. John Neumann Catholic Church
job contained MSDS sheets for both the non-glutaraldehyde Sporicidin and the glutaraldehyde
Sporicidin and because Blackmon Mooring’s letter to the church refers to more than one MSDS
sheet, we can infer that Blackmon Mooring used a product containing glutaraldehyde. But at best,
Cannata’s evidence merely shows that Blackmon Mooring used “an” EPA-registered biocide called
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Sporicidin as a fog in the church air system to kill mold, mildew, dust mites, and that it attached
“MSDS sheets on [S]poricidin” to its letter. It constitutes less than a scintilla of probative evidence
and, as such, is no evidence that Blackmon Mooring used glutaraldehyde at the church.
Even assuming, as Cannata asserts without any support in the evidence, that the
MSDS “sheets” referenced in the letter are the MSDS sheets for Sporicidin Disinfectant Solution
and Activator for Sporicidin Sterilizing and Disinfecting Solution, those MSDS sheets conclusively
show that only Sporicidin Disinfectant Solution is EPA registered: “Identity: Sporicidin Brand
Disinfectant Solution (EPA Reg. No. 8383-3)” versus “Identity: ACTIVATOR for Sporicidin
Sterilizing and Disinfecting Solution.” Thus, we can only reasonably infer from this evidence that
(1) Blackmon Mooring used an EPA-registered Sporicidin product at the church; (2) Blackmon
Mooring attached to its letter MSDS sheets for Sporicidin products; (3) the Sporicidin disinfectant
is EPA registered and does not contain glutaraldehyde; and (4) the ACTIVATOR contains
glutaraldehyde and is not EPA registered. At most, this creates no more than a mere surmise or
suspicion that Blackmon Mooring used ACTIVATOR at the church.
Cannata also asserts that the trial court relied on oral, and allegedly false, testimony
from Blackmon Mooring’s attorney regarding the purpose of including the MSDS sheets for
the Sporicidin product that includes glutaraldehyde. While Cannata is correct that a trial court’s
summary judgment must be based upon written pleadings and attached proof, not live testimony,
see Tex. R. Civ. P. 166a(c) (“No oral testimony shall be received at the hearing.”), there is no
indication in the record that Blackmon Mooring’s attorney testified in an evidentiary fashion at the
summary-judgment hearing; rather, it appears that he simply argued his client’s case. But even if
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the trial court had improperly relied on oral testimony, our review of the trial court’s summary
judgment is de novo, which means that we independently assess the summary-judgment evidence
anew to determine whether a question of fact exists. And in our de novo review of the trial court’s
summary judgment, we are likewise limited by the rules to the competent summary-judgment
evidence attached to the summary-judgment motion and response. See id. We may not and do not
consider oral testimony adduced at the summary-judgment hearing. As such, whether the trial court
considered the attorney’s argument as evidence does not affect our decision here that Blackmon
Mooring’s summary-judgment evidence established that it did not use glutaraldehyde at St. John
Neumann Catholic Church, thus negating at least one element of Cannata’s negligence cause of
action, and that Cannata’s summary-judgment evidence did not raise a question of fact regarding
Blackmon Mooring’s use of glutaraldehyde at St. John Neumann Catholic Church.
Accordingly, we overrule Cannata’s issue on appeal.
CONCLUSION
Having overruled Cannata’s sole issue on appeal, we affirm the trial court’s judgment.
__________________________________________
Jeff Rose, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed: June 20, 2012
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