White v. Tackett , 2005 Tex. App. LEXIS 7043 ( 2005 )

OPINION

JOHN CAYCE, Chief Justice.

In this personal injury case, Patricia White was injured when a suspect fleeing from police crashed his car into hers. White sued Mark Tackett, in his official capacity as a state trooper for the Texas Department of Public Safety, for recklessness in initiating and continuing the pursuit that led to White’s injuries. Tackett moved for summary judgment on his affirmative defense of official immunity. The trial court granted Tackett’s summary judgment motion, and this appeal followed.¹

In two issues, White asserts that summary judgment for Tackett is improper because Tackett’s summary judgment evidence does not establish his official immunity defense as a matter of law and because White demonstrated the existence of a material fact issue regarding whether Tackett acted in good faith. In a single point on cross-appeal, Tackett complains that the trial court improperly sustained White’s objections to some of his summary judgment evidence. We affirm.

In a traditional summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.² The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.³ Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.⁴

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true.⁵ Evidence that favors the movant’s position will not be considered unless it is uncontroverted.⁶ If the uncontroverted evidence is from an interested witness, it does nothing more than raise a fact issue unless it is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.⁷

A defendant is entitled to summary judgment on an affirmative defense such as official immunity if the defendant conclusively proves all the elements of the affirmative defense.⁸ To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law.⁹

Governmental employees are entitled to official immunity from suit arising from the performance of discretionary duties within the scope of their authority as long as they act in good faith.¹⁰ A law enforcement officer acts in good faith in a pursuit case if, based on the officer’s perception of the facts at the time of the event, a reasonably prudent officer in the same or similar circumstances could have believed that the need to apprehend the suspect immediately outweighed a clear risk of harm to the public in continuing, rather than terminating, the pursuit.¹¹ This good faith test is analogous to the abuse of discretion standard we utilize when reviewing certain trial court rulings.¹²

The “could have believed” aspect of the good faith test means that in order to be entitled to summary judgment, an officer must prove that a reasonably prudent officer might have believed that the pursuit should have been continued.... It does not mean that an officer has to prove that it would have been unreasonable to stop the pursuit; nor must the officer prove that all reasonably prudent officers would have continued the pursuit.¹³

An officer acts in bad faith only if the officer could not have reasonably reached the decision in question.¹⁴

The “need” aspect of the good faith test refers to the urgency of the circumstances requiring police intervention, including factors such as the seriousness of the crime to which the officer is responding, whether the officer’s immediate presence is necessary to apprehend a suspect or to prevent injury or loss of life, and what alternative courses of action, if any, are available to achieve a comparable result.¹⁵ The “risk” aspect of good faith, on the other hand, refers to the countervailing public safety concerns: the nature and severity of harm that the officer’s actions could cause (including the risk that both the fleeing suspect and the officer could injure bystanders), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.¹⁶

A pursuit case requires a continuing assessment of need and risk; however, the officer is not required to affirmatively negate the existence of all circumstances or risks that did not actually exist.¹⁷ Further, the balancing of need versus risk does not prevent an officer from pursuing suspects for traffic violations or in residential or other populated or high traffic areas.¹⁸

If an officer satisfies his burden of establishing good faith, the plaintiff must put on controverting evidence to avoid summary judgment. “To controvert the officer’s summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent officer could have decided to stop the pursuit; the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.’ ”¹⁹

The summary judgment evidence consists of: 1) the unstricken portion of Tackett’s affidavit, which was attached to Tackett’s motion²⁰ and 2) a nine-page excerpt from Tackett’s deposition testimony attached to White’s summary judgment response, which Tackett referenced, in part, in his reply to White’s response.²¹ This evidence shows the following:

At 5:41 p.m. on New Year’s Eve 2001, Tackett was on routine patrol duty for the Texas Department of Public Safety when he clocked a new luxury sports car traveling in excess of the 55-mile-per-hour posted speed limit. The car was headed west on a rural farm-to-market road, FM 902, approximately five miles from the City of Gainesville, in what Tackett knew to be a high-crime area for theft and drug-related offenses. Tackett could not identify the make or model of the vehicle and was unable to read its license plate, but he saw two men inside who did not seem to “fit the vehicle.” Tackett observed that the driver was a Hispanic male in his 20s or early 30s who was wearing what appeared to Tackett to be “work” clothes — a red sweatshirt with no logo on it. The passenger was a white male with long hair and a dirty appearance. Normally, the type of person Tackett saw in that area in a brand new luxury sports car was an older person whose dress was a “little more fitting.”

Because of the vehicle’s speed, both occupants’ appearance, and the fact that it was a high-crime area, Tackett attempted to make a traffic stop by turning around to follow the car and activating his patrol lights. When the driver did not stop, but sped up instead, Tackett turned on his siren. The driver, who was later identified as Guadalupe Max Limones, Jr., still did not stop or slow the car. Instead, he again increased his speed and began a series of maneuvers that were illegal and dangerous to himself, his passenger, and others on the road, including driving on the wrong side of the two-lane road, passing in a no-passing zone, and driving erratically and recklessly.

Although the weather was good, visibility was clear, the pavement was dry, and traffic was lighter than usual, Tackett was unable to keep up with Limones along FM 902. Unlike Limones, Tackett did not pass in no-passing zones, and he slowed down for westbound vehicles in front of him, waiting until they pulled over before he passed. Because Tackett did not then know Limones’s identity, the make or model of the car, or the car’s license plate number, he had no information with which to trace either Limones or the vehicle. Consequently, he radioed for assistance from other law enforcement officers.

Two Cooke County sheriffs deputies, Wesley Wood and Greg Taylor, responded to the request. They formed a partial roadblock by positioning their patrol cars, with fights flashing, at the intersection of FM 902 and FM 372 — a T-intersection located approximately a mile from the Gainesville city limits and several miles west of the original encounter between Tackett and Limones.

When he reached the T-intersection, Li-mones did not stop. Instead, he sped past Wood’s and Taylor’s vehicles and proceeded north along FM 372 towards Gaines-ville. Wood took over the pursuit with Taylor and Tackett, respectively, at various distances behind him. Tackett lost sight of Limones’s car as it proceeded towards Gainesville. Therefore, shortly after he turned onto FM 372, Tackett made another radio call requesting assistance from the Gainesville Police Department so that Limones could be stopped on FM 372 before he reached the intersection of California and Grand Avenues, one of Gainesville’s busiest intersections. Traffic was still fairly light and he was keeping watch for pedestrians and other vehicles.

Limones’s car collided with a vehicle being driven by White on Broadway Street.²² The crash occurred approximately two minutes after Limones entered Gainesville. Due to his patrol car’s distance behind Limones and the other pursuing patrol units, Tackett did not witness the collision but arrived at the scene about thirty seconds after it had occurred. He saw White lying on the ground and not moving, and he called for an ambulance. He then began to pursue Limones and the passenger who, according to an eye-witness, had fled on foot.

This evidence establishes Tackett’s good faith as a matter of law. It shows that Tackett assessed the initial need for the pursuit by considering Limones’s speed, his dangerous, unlawful attempts to evade detention for a traffic stop, both men’s appearances when contrasted with the luxury car they were in, and the fact that they were speeding in an area known for theft and drug-related offenses. Tackett also considered the lack of alternative courses of action; he could not identify either the car or its driver, so apprehending the suspect later was not an option.

The evidence further shows that Tackett assessed the risks of the pursuit. He noted that he was on a rural road, the weather was good and visibility was clear, the pavement was dry, and traffic was fighter than usual. He activated both his lights and his siren, thereby making himself more visible to other drivers. In addition, in attempting to catch Limones, Tackett observed no-passing zones and slowed to allow vehicles in front on him to pull over before passing them. When he realized that he could not keep up with Limones, Tackett radioed for assistance.

The evidence further shows that Tackett continued to assess both the need for and the risks of the pursuit as it approached Gainesville. Tackett observed that Li-mones, who was still unidentified, did not stop for Wood’s and Taylor’s partial roadblock at the T-intersection of FM 902 and FM 372, thereby adding to the seriousness of his actions. Once Wood took over the pursuit and the chase proceeded towards Gainesville, Tackett did not attempt to keep up with Limones or even keep sight of the car. Instead, although traffic was still fairly light, Tackett radioed for assistance from Gainesville’s police department so that they could stop Limones before he reached one of Gainesville’s busiest intersections and created “a mess.” Meanwhile, Tackett kept watch for pedestrians and other vehicles.

We hold that the evidence regarding Tackett’s ongoing balancing of both the need for and the risks associated with the pursuit conclusively establishes that a reasonably prudent officer in Tackett’s circumstances could have believed that the need to apprehend the suspect immediately outweighed a clear risk of harm to the public in continuing, rather than terminating, the pursuit.²³ Therefore, the burden shifted to White to put on controverting evidence showing that “no reasonable person in [Tackett’s] position could have thought the facts were such that they justified” his actions.²⁴

White has not met this burden. She contends that the Gainesville Police Department’s policy and Inter-Jurisdictional Pursuit Agreement, which limit the total number of vehicles participating in a pursuit to three, are evidence that a reasonable police officer would not have believed that the pursuit should have been continued. There is, however, no evidence that the policies in effect on New Year’s Eve 2001 contained the limitation on which White relies. Although Gainesville’s policies in the summary judgment record became effective in May 2001, they were revised after the accident — in August 2002, May 2003, and June 2003. Therefore, it is impossible for us to determine what the policies consisted of on December 31, 2001.²⁵ Further, there is no evidence that White, who was a State Trooper and not a member of the Gainesville Police Department, had notice of the policies’ contents.

White also asserts that Tackett’s “written statement” and his deposition testimony suggest that Limones’s race “may have” factored into Tackett’s decision to engage in the pursuit. She contends that, if Tackett was motivated by racism, he could not have acted in good faith. Tack-ett testified at his deposition, however, that he decided to make the initial traffic stop based on three factors: the vehicle’s speed, the appearance of both of the vehicle’s occupants, and the fact that the car was speeding in an area known for theft and drug-related offenses. Further, Tack-ett testified that the things about Li-mones’s appearance that did not “fit” the luxury sports car he was driving were his relatively young age and his attire, not his race. Moreover, Tackett observed that Li-mones’s companion, a white male, also did not “fit” the vehicle due to his long hair and dirty appearance.

In light of this evidence, the mere fact that Tackett also observed that Limones was Hispanic is insufficient to raise a fact issue concerning whether racism was the real motivation behind Tackett’s decision to engage in the pursuit.²⁶ To the contrary, White’s argument concerning racism is, on this record, nothing more than mere surmise or speculation, which is not evidence.²⁷

For all the foregoing reasons, we hold that Tackett conclusively established his good faith and that White did not controvert this evidence by presenting evidence showing that no reasonable person in Tackett’s position could have thought the facts were such that they justified Tack-ett’s actions.²⁸ Accordingly, the trial court properly granted Tackett summary judgment on White’s claims.

The dissent misunderstands our holding and confuses summary judgment burdens of proof with the rules governing what evidence may be considered in determining whether a movant has met his burden of proof. We do not hold that Tackett is entitled to summary judgment without conclusively establishing every element of his affirmative defense, nor have we shifted to White the burden of proving Tack-ett’s affirmative defense by relying on the excerpts from Tackett’s deposition testimony that White attached to her response in determining that Tackett’s defense is conclusively established by the summary judgment evidence. Instead, we simply recognize that, under settled principles of Texas summary judgment law, the trial court was required to consider all of the summary judgment evidence presented by the parties in ruling on the merits of Tack-ett’s motion, including the nine-page excerpt from Tackett’s deposition that White filed with her response.²⁹ The fact that Tackett specifically referenced only one page of the deposition excerpt in his reply to White’s response does not, as the dissent contends, preclude us from considering the testimony contained in the other eight pages of the excerpt in determining whether Tackett’s affirmative defense was conclusively established by the summary judgment evidence. Neither party’s burden of proof is changed by our determination that this uncontested summary judgment evidence supports Tackett’s motion.

We overrule White’s two issues and affirm the trial court’s judgment.³⁰

WALKER, J., filed a dissenting opinion.

ADDENDUM

PLAINTIFF’S EXHIBIT D

IN THE DISTRICT COURT OF COOKE COUNTY, TEXAS,

235TH JUDICIAL DISTRICT

PATRICIA WHITE VS MARK TACKETT, in his Official Capacity as State Trooper for the Texas Department of Public Safety, GREG TAYLOR, in his Official Capacity as Deputy Sheriff for Cooke County, Texas, and WESLEY WOODS, in his official Capacity as Deputy Sheriff for Cooke County, Texas.

CAUSE NO. 02-533 ORAL DEPOSITION OF MARK TACKETT

AUGUST 12, 2003.

ORAL DEPOSITION of MARK TACK-ETT, produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and numbered cause on the 12th day of August, 2003, from 10:37 a.m. to 1:00 p.m., before Denise A. Neu, CSR in and for the State of Texas, reported by machine shorthand, at the offices of the Sullivant Law Firm, 209 South Dixon, in the City of Gainesville, County of Cooke, State of Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto.

PROCEEDINGS

MARK TACKETT,

having been first duly sworn, testified as follows:

EXAMINATION

BY MR. WOOD:

Q. Would you state your full name, please, sir.

A. Mark Edward Tackett.

Q. And what is your profession, please?

A. State Trooper.

Q. Generally, the way I address people in your position, I just say Officer. Will that be all right if I just refer to you as Officer?

A. Whatever is fine.

Q. Okay. All right. Well, Officer, my name is Bill Wood, and, together with Grace Weatherly, we represent a lady by the name of Pat White in this lawsuit that you’re here about today. Do you have an understanding that’s who I am?

A. Yes, sir.

Q. Okay. If I ask you a question today that you don’t know the answer to, rather than guessing or speculating what the answer might be, will you just agree to tell me now that you don’t know the answer?

A. Yes, sir. I will.

Q. But traffic was not — not heavy at all, was it?

A. No, sir.

Q. And are these things that I’m talking about, like the condition of the roadway and the traffic and the location, are those factors that you considered in making a determination that — that it was safe for you to pursue him at high speed?

A. Yes, sir.

MR. HALPERN: Objection, form.

A. Yes, sir.

Q. (BY MR. WOOD) Now, while you’re on the highway and before we get to the point where he’s turned on 372, tell me what, if any, considerations you had about whether it was safe for you to drive as fast as 115 miles an hour to chase this guy.

A. Okay. You’re talking about from the time it started to 372; is that correct?

Q. Yes, sir.

A. You want me to tell you why I thought it was all right to drive like that?

Q. Yes, sir.

A. Okay. Mainly for the reasons that you just listed. I had a — I had a misdemeanor upgrade to a felony just by his driving and by his actions. There was very — very few vehicles on the road. And I had already seen that — that he had no regard for other people’s safety by driving on the wrong side of the road, passing in a no-passing zone. And I believe that any reasonable person that saw my lights and knew that I was a peace officer would stop. And he didn’t.

Q. All right. So during that time, did you feel like there was a — a need to apprehend that gentlemen in the Jaguar?

A. Yes, I did.

Q. All right. And now, tell me — tell me everything that you knew or thought of at that time that — that weighed on your decision in chasing him with regard to why it was important for you to immediately apprehend him.

A. The area that we were in has a high rate of criminal activity. And I’m not speaking specifically of that highway. I’m speaking specifically of the area. We have a lot of stolen items out there. There are a lot of people — narcotic-related issues. There’s — there’s more — there’s an increased amount of criminal activity on that side of the county and that portion.

For that date and time seeing those two subjects drive a new-looking sports car or luxury car at a high rate of speed on that highway, first — that’s what first alerted my attention.

What gained my suspicion is — that there could possibly be more criminal activity inside the vehicle is, number one, the driver and passenger did not fit the vehicle. I’m—

Q. They didn’t fit the vehicle?

A. No, sir. They did not. In that area to see that kind of vehicle, that’s just not the kind of — that’s not a normal description of people. I’m not saying it’s impossible. I’m just saying normally we don’t see driver/passenger in that combination driving a newer model luxury vehicle.

Q. You mean like they were too heavy or too small? What do you mean they didn’t fit the vehicle?

A. No, sir. What I mean is that you don’t usually see a young male dressed wearing a — or a sweatshirt, with a passenger that — with the appearance that he had. You don’t see those two people in a brand-new luxury car in that area.

Seeing that type of vehicle in that area is not uncommon due to the Lake Kiowa area. And normally in that area with that type of vehicle it’s an older person or somebody who’s dress is a little more fitting.

Q. Okay. Maybe I’m getting there. But the — I didn’t understand what you were saying. But you’re saying the youth and dress of these people that you saw in the Jaguar caused you to be suspicious; is that what you’re saying?

A. That’s half of it.

Q. What’s the other half?

A. The other half is that they didn’t stop. A normal person that sees lights on a police vehicle after they just got through driving at a high rate of speed past them would know that, okay. He’s coming after me. I need to go ahead and pull over. They didn’t pull over. They ran.

And that, plus, being in that part of the county increased my suspicions for criminal activity.

Q. Okay. I guess when that vehicle passed you, is that when you made the observations about the way these people were dressed in the Jaguar?

A. That’s when I saw the people in the Jaguar. Yes.

Q. Well, describe them for me from the standpoint of what you saw when they passed you.

A. Okay. When they came past me I saw a young — when I say young, I’m not talking about 18, 19 years old. I just mean — a younger — about my age — Hispanic male wearing what appeared to be work clothes. And a passenger—

Q. Before you leave that, let me ask you: What do you mean by work clothes? What—

A. Sweatshirt. Looked like they had come from work. Not the normal — not the normal attire you would expect somebody driving a luxury car to be wearing.

In that area every time — not every time. Excuse me. Normally when I see a luxury car in that area, it’s — people are dressed a little differently. And they’re not young. I’m sorry.

Q. No. I didn’t mean to interrupt you. Go ahead. They’re not young.

A. Normally when I see a vehicle like that in that area, it’s — like I say, it’s usually driven by an elderly person — and I don’t mean 80, 90. I’m just talking over my age.

Q. Somebody that’s old as me maybe?

A. I’m not trying to imply anything. But somebody that — an older person, who is just normally dressed differently. And when I say that, I’m speaking of the work clothes looking attire that

Q. Okay. Well, tell me any other observations about the driver that you made other than he was somebody maybe in his 20s or early 30s, is that fair?

A. Yes, sir.

Q. All right, And he was Hispanic?

A. Yes, sir. He was.

Q. And he had on a red sweatshirt that appeared to be absent any logos. Is there anything else you noticed about the driver as you passed him?

A. No, sir.

Q. Okay. Tell me what you noticed about the passenger, if anything, as the vehicle passed you.

A. The passenger — the main thing I got when I looked at him — the main thing that stuck in my mind when I saw past the driver into the passenger was that he had a long hair and that he just appeared dirty.

Q. Okay. Anything about the clothing of the passenger that you noticed?

A. No, sir.

Q. Could you tell whether the passenger was Hispanic?

A. No, sir. He was white.

Q. And — and I think you understand— I’m talking about — and I’m wanting to know what you saw coming in with two or three people under arrest. And it just — a lot of things being stolen on that side and narcotics escalated. So that’s why I went over there that particular night.

MR. WOOD: Okay. Objection, nonre-sponsive.

Q. (BY MR. WOOD) Is that a road where it would be normal to — on an occasion like the time of day it was on Decern-ber 31st and the nature of the traffic and the weather, would it be unusual to stop somebody for speeding who’s going 70 miles an hour on that road?

A. Who’s going 70?

Q. Yes, sir.

A. If I don’t answer the question, I apologize. But there are people out there that go 70. And the majority of the ones that I stop know that the speed limit is 55. They just tell me it’s such a nice good road coming from the golf course and they go 70.

Q. And my question really is: Is it— you don’t stop everybody that’s going 70 out there, do you?

A. Well, everybody I can.

Q. Okay. Now, at what point did you turn on the video camera during this pursuit?

A. It’s done automatically by the light bar.

Q. Okay. So when you turned on the light bar, the video camera came on?

A. Correct.

Q. Now, let me go back to something we spent a little time on. And that’s during that period of time that you had to observe the two people in the — in the Jaguar as you were passing them, did either one of them have a hat on?

A. Not that I recall.

Q. You told me that the driver had on a — I don’t want to misquote you. Was it a red sweatshirt?

A. (Witness nods.)

Q. Is that right?

A. Yes, sir.

Q. And when you say sweatshirt, are you talking about in the traditional sense like a cotton sweatshirt?

A. Yes, sir.

Q. Okay. Was it long sleeved or short sleeved?

A. I believe it was long sleeved.

Q. And you told me — well, before I get to that. Did the driver of that vehicle have any facial hair?

A. I don’t recall.

1 . White also sued Greg Taylor and Wesley Wood, in their official capacities as deputy sheriffs of Cooke County, Texas, and the trial court granted them summary judgment as well. White's appeal from the summary judgment in favor of Taylor and Wood was, however, dismissed by agreement of the parties.

2 . Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

3 . S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

4 . Great Am., 391 S.W.2d at 47.

5 . Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

6 . Great Am., 391 S.W.2d at 47.

7 . Tex.R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997).

8 . Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).

9 . Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

10 . Chambers, 883 S.W.2d at 653.

11 . Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex.1997); Chambers, 883 S.W.2d at 656.

12 . Univ. of Houston v. Clark, 38 S.W.3d 578, 581 (Tex.2000); Chambers, 883 S.W.2d at 657 n.7.

13 . Chambers, 883 S.W.2d at 656-57 (emphasis supplied); accord Clark, 38 S.W.3d at 581.

14 . Clark, 38 S.W.3d at 581; Hayes v. Patrick, 71 S.W.3d 516, 521 (Tex.App.-Fort Worth 2002, no pet.).

15 . Wadewitz, 951 S.W.2d at 467.

16 . See Clark, 38 S.W.3d at 583; Wadewitz, 951 S.W.2d at 467.

17 . Clark, 38 S.W.3d at 582-83, 586.

18 . Id. at 583.

19 . Chambers, 883 S.W.2d at 657.

20 . The trial court sustained White’s objections to various portions of Tackett’s affidavit filed in support of his summary judgment motion. We do not consider the excluded affidavit testimony in our analysis of whether Tackett met his burden of proving that he acted in good faith.

21 .Because the dissent has attached one page of the deposition excerpt to the dissenting opinion, we have included all nine pages of the excerpt as an addendum to this opinion in the interest of completeness.

22 . White contends that at the time of the collision Limones was traveling at speeds of up to 60 or 65 miles per hour in a residential neighborhood.

23 . See Clark, 38 S.W.3d at 587-88; Wadewitz, 951 S.W.2d at 466-67; Chambers, 883 S.W.2d at 656.

24 . Chambers, 883 S.W.2d at 657.

25 .Several of the policies that White proffered from other local governments likewise had effective or revision dates after the date of the New Year’s Eve 2001 accident.

26 . See S.W. Elec. Power Co., 73 S.W.3d at 215.

27 . See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) (both holding that circumstantial evidence may be used to establish any material fact, but it must transcend mere suspicion or surmise).

28 . See Chambers, 883 S.W.2d at 657.

29 . See Tex.R. Civ. P. 166a(c) (providing for trial court to rule on summary judgment motion based on, among other evidence, deposition transcripts referenced or set forth in motion or response); Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995) (holding that deposition transcript referred to in plaintiffs’ response to defendants' motion for summary judgment was, "by the plain language of Rule 166a(c), proper summary judgment evidence on which both the movant and the respondent could rely”).

30 .In light of our holding on White’s issues, we need not consider Tackett’s issue on cross-appeal regarding the trial court’s rulings on his summary judgment evidence. See Tex. R.App. P. 47.1 (providing that appellate court need address only those issues necessary to final disposition of appeal).