Beverly R. Pleasant, Individually and on Behalf of the Estate of Patrice Sharai Pleasant v. Tomas Granados Hernandez and Universal Tire & Wheel, Inc. ( 2022 )

Reversed and Remanded and Memorandum Opinion filed August 25, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00617-CV
BEVERLY R. PLEASANT, INDIVIDUALLY AND ON BEHALF OF THE
ESTATE OF PATRICE SHARAI PLEASANT, DECEASED, Appellant
V.
TOMAS GRANADOS HERNANDEZ AND UNIVERSAL TIRE & WHEEL,
INC., Appellees
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 37468
MEMORANDUM OPINION
Appellant Beverly R. Pleasant, individually and on behalf of the estate of
Patrice Sharai Pleasant, deceased, (“Pleasant”) sued appellees Tomas Granados
Hernandez (“Granados”) and Universal Tire & Wheel, Inc. alleging negligence
actions under the Texas Wrongful Death and Survival Statutes.1 See Tex. Civ.
1
Universal Tire filed a verified plea in abatement asserting that Pleasant lacked capacity
to prosecute her claims under the Texas Wrongful Death Act and the Texas Survival Statute. See
Prac. & Rem. Code Ann. §§ 71.002 et seq; 71.021. Appellees filed a traditional
motion for summary judgment on Pleasant’s causes of action. The trial court
granted appellees’ motion and Pleasant appealed in multiple issues. Because
appellees failed to meet their summary judgment burden to conclusively prove that
Granados did not breach his duty to exercise ordinary care while driving the
Universal Tire truck, we hold the trial court reversibly erred when it granted
appellees’ motion for summary judgment. We therefore reverse the trial court’s
final summary judgment and remand to the trial court for further proceedings.
BACKGROUND
Patrice Sharai Pleasant was driving south on FM 50 in Washington County,
Texas on October 17, 2018. Granados was driving a Universal Tire box truck
northbound on the same road. As the two vehicles approached each other,
Patrice’s vehicle suddenly crossed FM 50’s center line. Granados continued on the
same course in his lane of FM 50 and did not react to the movement of Patrice’s
vehicle. As a result, Patrice’s vehicle sideswiped the left side of the Universal Tire
truck, began rotating counterclockwise while sliding south until the rear of
Patrice’s vehicle struck a trailer being towed by a third vehicle which had been
driving behind the Universal Tire truck. Patrice, age 22, died as a result of the
collision.
Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002 et seq; 71.021. Universal Tire did not set its plea
for a hearing and the record does not indicate that the trial court ruled on the plea. See Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 853 n.7 (Tex. 2005) (stating that a defendant has
the burden to challenge capacity via a verified pleading, and if properly challenged, “the trial
court should abate the case and give the plaintiff a reasonable time to cure any defect.”).
Universal Tire, seeking a final resolution of the case, filed a joint motion for summary judgment
along with Granados, which the trial court granted. Additionally, Universal Tire has not
challenged Pleasant’s capacity to pursue her claims in this appeal. Because capacity, which does
not implicate a court’s subject matter jurisdiction, can be waived, we need not address it in this
appeal. See Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763, 778–79 (Tex. 2020).
2
Pleasant sued Granados and Universal Tire alleging negligence claims under
the Texas Wrongful Death and Survival statutes in October 2020. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 71.002 et seq; 71.021. The appellees filed separate
answers in November 2020. It is undisputed that Granados was acting in the
course and scope of his employment with Universal Tire at the time of the
collision.2
Less than six months after filing their answers, appellees filed a joint
traditional motion for summary judgment. Appellees asserted that their attached
summary judgment evidence conclusively proved that Granados “did not commit
any driver error that caused or contributed to the accident.” The evidence included
Granados’ translated affidavit, a short affidavit prepared by William B. Nalle, P.E.,
a mechanical engineer, and a certified copy of the Texas Peace Officer’s Crash
Report prepared by Matthew Groman of the Texas Department of Public Safety.
Groman’s Crash Report includes a not-to-scale diagram of what Groman
determined was the track of the vehicles before, during, and after the collision. He
also noted Patrice’s age and that she was killed in the accident. Groman concluded
that a contributing factor causing the accident was Patrice’s car being on the
“Wrong Side–Not Passing.” Groman did not include any other contributing factors
in his report.
Granados stated in his affidavit that he “was driving north on FM 50, which
is a two-lane road,” “at approximately 50-55 mph and [his] vehicle was in the
middle of the northbound lane.” Granados continued that Patrice’s vehicle was
approaching him in the southbound lane when, “immediately prior to the collision,
2
Under the theory of vicarious responsibility, or respondeat superior, an employer may
be held liable when the negligence of its employee, acting in the course and scope of his
employment, is the proximate cause of another’s injury. See Painter v. Amerimex Drilling I,
Ltd., 561 S.W.3d 125, 131 (Tex. 2018); DeWitt v. Harris Cty., 904 S.W.2d 650, 654 (Tex. 1995).
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the silver Impala driven by Patrice Sharai Pleasant crossed over the center line into
the northbound lane in which I was driving.” According to Granados, the Impala
“struck the front left side of my vehicle.” Granados then asserted that “there was
not sufficient time between when the silver Chevrolet Impala driven by Patrice
Sharai Pleasant crossed over the center line into the northbound lane and the
collision for me to perform an evasive maneuver.” Hernandez then stated that he
“was not using my vehicle infotainment system, my cell phone, or any other
electronic device immediately prior to the Accident.” Finally, he opined that he
“did not commit any driver error that led to the Accident.”
Nalle stated that he had a Bachelor of Science degree in mechanical
engineering. Nalle continued that he worked as a mechanical engineer for Nalle
Plastics, where he provided “a variety of engineering and management functions
relating to machine design and general plant production.” He then founded
Accident Reconstruction Engineers where he provides “on-scene technical
investigation, engineering evaluation, appropriate court exhibits, aerial
photographs, and expert testimony for various types of vehicular accidents.” Nalle
then stated that his training for this career consisted of completing “courses on
advanced accident reconstruction and computer accident reconstruction at
Northwestern University in 1983 and 1988, respectively. I attended the
Engineering Dynamics Corporation HVE Forum in San Diego, California in May
2000 as well as numerous seminars on various aspects of the transportation
industry.” Nalle also stated that he was retained by the attorney for appellees about
a month after the fatal wreck occurred.
Nalle then laid out his opinion in three paragraphs:
9. On December 6, 2018, I conducted a visual inspection of the
2016 Ford Econoline truck driven by Tomas Granados
Hernandez in the Accident. On the same day, I conducted an
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inspection of the scene of the Accident, including observations
of the tire marks and gouge marks made by the vehicles
involved in the Accident as well as the police markings still
present at the scene.
10. Based on my investigation, I concluded that, prior to the
collision, the vehicle driven by Ms. Pleasant was traveling
south on FM 50 and the vehicle driven by Mr. [Granados] was
traveling north on FM 50. For an unknown reason Ms. Pleasant
crossed over the center line of the highway. The left side of her
car was about 3.0 to 3.5 feet over the center line at impact. The
lane width was nominally 11.5 feet wide. When Ms. Pleasant
struck Mr. [Granados’] truck there was literally no place for
him to go and he had no way to prevent the collision.
11. Ms. Pleasant, by driving across the center line, must bear the
full responsibility for the Accident. Mr. [Granados] acted as a
reasonable, prudent driver faced with a sudden emergency. He
was able to retain control of his damaged truck and bring it to a
safe stop without further incident.
Nalle did not include any photographs or measurements of the scene supporting his
opinion. Nalle also did not state whether he reviewed the police accident report or
other investigation materials prepared by the police.
Pleasant filed a response to appellees’ traditional motion for summary
judgment. Pleasant filed written objections to parts of Granados’ affidavit as “self-
serving, conclusionary [sic] statements of an interested witness.” Additionally,
Pleasant further objected to Nalle’s qualifications to render an opinion as well as to
parts of his affidavit as “self-serving, conclusory statements as well as legal
conclusions of someone hired and presumably paid by the Defendants’ counsel.”
The trial court did not, however, rule on Pleasant’s objections.
In addition, Pleasant attached her own affidavit that she prepared after
personally visiting the accident scene and after she “viewed the accident
reconstruction video prepared by the Texas Department of Public Safety that was
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recorded on the day of the accident.” Pleasant stated that Granados’ truck was 8
feet in width. Then, based on that measurement, and Nalle’s statements that the
width of each lane of FM 50 was 11.5 feet and that Patrice may have crossed the
center line by 3 feet, Pleasant stated that the accident could have been avoided if
Granados had moved his truck to the far right of his lane of FM 50. Pleasant also
attached photos to her affidavit and averred that they were “true and accurate
depictions of the road surface of FM 50 near the accident scene and photos
produced by the Defendants of the sideswipe damages to the subject box truck
resulting from the collision in question.”
The trial court conducted an oral hearing on the motion on August 5, 2021.
The trial court granted the motion at the end of the hearing. This appeal followed.
ANALYSIS
Pleasant raises numerous issues on appeal. As explained below, we need
reach only her second and fifth issues. In her second issue, Pleasant argues the
trial court erred when it granted appellees’ traditional motion for summary
judgment because appellees did not meet their summary judgment burden to
conclusively prove that Granados did not breach his duty to maintain a proper
lookout. In her fifth issue, Pleasant asserts the trial court erred when it awarded
costs to appellees pursuant to Rule 167.4 of the Texas Rules of Civil Procedure.
I. Standard of review and applicable law
We review a trial court’s order granting a traditional summary judgment de
novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In
reviewing a grant of summary judgment, we consider all of the evidence in the
light most favorable to the nonmovant. Leonard v. Knight, 551 S.W.3d 905, 909
(Tex. App.—Houston [14th Dist.] 2018, no pet.). When a defendant moves for
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summary judgment on a plaintiff’s cause of action, it must conclusively disprove at
least one essential element of the plaintiff’s cause of action in order to prevail.
Doggett v. Robinson, 345 S.W.3d 94, 98 (Tex. App.—Houston [14th Dist.] 2011,
no pet.). Evidence is considered conclusive if reasonable people could not differ in
their conclusions. Leonard, 551 S.W.3d at 909. The non-movant has no burden to
respond to a motion for summary judgment unless the movant conclusively meets
its summary judgment burden. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
222–23 (Tex. 1999). If the movant establishes its entitlement to judgment, only
then does the burden shift to the nonmovant to come forward with competent
controverting evidence sufficient to raise a genuine issue of material fact. Muller
v. Stewart Title Guar. Co., 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.]
2017, no pet.). In reviewing a summary judgment motion, we take as true all
evidence favorable to the non-movant and we indulge every reasonable inference
and resolve any doubts in the non-movant’s favor. Universal MRI and
Diagnostics, Inc. v. Med. Lien Mgmt., Inc., 497 S.W.3d 653, 658 (Tex. App.—
Houston [14th Dist.] 2016, no pet.).
To prevail on her negligence causes of action against appellees, Pleasant had
to establish the existence of a duty, breach of that duty, and damages proximately
caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
The only element at issue in this appeal is breach. To establish breach of duty, the
plaintiff must show either that the defendant did something an ordinarily prudent
person exercising ordinary care would not have done under the particular
circumstances, or that the defendant failed to do something that an ordinarily
prudent person would have done in the exercise of ordinary care. Douglas v.
Aguilar, 599 S.W.3d 105, 108 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
Under Texas law, all drivers owe a general duty to exercise the ordinary care
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that a reasonably prudent person would exercise under the same circumstances to
avoid a foreseeable risk of harm to others. Mingrun, Inc. v. Wheaton, No. 09-21-
00198-CV, 2022 WL 2068857, at *7 (Tex. App.—Beaumont June 9, 2022, n. p. h.)
(mem. op.). Drivers have the duty to control the speed of the vehicle as necessary
to avoid colliding with another person or vehicle that is on or entering the highway.
Id.; see Tex. Transp. Code Ann. §§ 545.052 (“An operator moving in the opposite
direction of the movement of another operator shall: (1) move or remain to the
right; and (2) on a roadway wide enough for not more than one line of vehicle
movement in each directions, give the other operator: (A) at least one-half of the
main traveled portion of the roadway; or (B) if complying with Paragraph (A) is
not possible, as much of the roadway as possible.”); 545.351 (providing that an
operator of a vehicle “shall control the speed of the vehicle as necessary to avoid
colliding with another person or vehicle that is on or entering the highway in
compliance with law and the duty of each person to use due care.”). Drivers also
have the general duty to keep a proper lookout. Mingrun, Inc., 2022 WL 2068857,
at *7. This duty “encompasses the duty to observe, in a careful and intelligent
manner, traffic and the general situation in the vicinity, including speed and
proximity of other vehicles as well as rules of the road and common experience.
The failure to keep a proper lookout can be a proximate cause of an accident where
the motorist should have seen something in time to have avoided the accident by
evasive action and but for such failure the collision could have been avoided.
Generally, whether a driver kept a proper lookout in an automobile negligence case
is a question for the factfinder.” Id. “Indeed, when the evidence shows that a
driver exercised some care, it becomes an issue of fact as to whether that driver’s
conduct was negligent.” Douglas, 599 S.W.3d at 108 (internal quotation marks
omitted).
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II. There is a fact issue on whether Hernandez breached his duty to
exercise ordinary care prior to the collision.
Pleasant has included in her issues on appeal challenges to parts of the
affidavits prepared by Granados and Nalle as conclusory. An objection that
statements in an affidavit are conclusory may be raised for the first time on appeal.
Leonard, 551 S.W.3d at 911. We need not, however, decide whether the
challenged affidavits contain conclusory statements because, even if we assume
that they are not conclusory, appellees failed to meet their summary judgment
burden because the challenged affidavits do nothing more than create a fact issue
on whether Hernandez breached his duty to keep a proper lookout while driving.
This is particularly true of Granados’ affidavit. See Ragsdale v. Progressive
Voter’s League, 801 S.W.2d 880, 882 (Tex. 1990) (stating that the testimony of an
interested witness, such as a party to the suit, does no more than raise a fact issue
to be resolved by the factfinder, even if it is uncontradicted); Mingrun, Inc., 2022
WL 2068857 at *7 (stating that whether a driver kept a proper lookout is a question
for the factfinder); Douglas, 599 S.W.3d at 108 (stating that when evidence shows
driver exercised some care, it becomes an issue of fact whether that driver’s
conduct was negligent); Jameson v. Melton, 366 S.W.2d 115, 118 (Tex. App.—
Dallas 1963, no writ) (“Proper lookout is ordinarily a question for the jury.”). In
addition, because Granados’ credibility will likely be dispositive in the resolution
of the case, summary judgment based on his affidavit is inappropriate. Casso v.
Brand, 776 S.W.2d 551, 558 (Tex. 1989).
The fact that Nalle claims to be an expert does not change this result because
opinion testimony does not establish any material facts as a matter of law, even
when uncontroverted, unless the subject is one for experts or skilled witnesses
alone. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005); Bayliss v.
Cernock, 773 S.W.2d 384, 389 (Tex. App.—Houston [14th Dist.] 1989, writ
9
denied). Whether a certain subject matter is one solely for experts is a question of
law. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89–90 (Tex. 2004).
A subject matter is for experts alone if factfinders “cannot properly be assumed to
have or be able to form correct opinions of their own based upon evidence as a
whole and aided by their own experience and knowledge of the subject of inquiry.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). If the subject matter
“is not solely for experts,” i.e., factfinders are capable of forming their own
opinions based on the record as a whole, then “uncontroverted opinion testimony is
not conclusive, regardless of whether it comes from an expert or a lay witness.”
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 339 (Tex. 1998).
Expert testimony is required when alleged negligence is of such a nature as not to
be within the common experience of laypersons. Roark v. Allen, 633 S.W.2d 804,
809 (Tex. 1982). Because operating a motor vehicle is within the common
experience of laypersons, we conclude that resolution of whether Granados
breached his duty to maintain a proper lookout does not require expert testimony.
Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 892–94 (Tex. App.—Texarkana
2004, pet. denied) (holding expert testimony not required in car wreck case
because questions at issue were not complex or beyond the competence of an
average juror); J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 93 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied) (holding in car wreck case that expert
testimony was not required to prove defendant breached the standard of care
because “driving an automobile in areas of road construction and automobile
accidents certainly are not outside of the understanding of the average layman.”);
Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler 1992, writ
denied) (“A proper lookout encompasses the duty to observe, in a careful and
intelligent manner, traffic and the general situation in the vicinity, including speed
and proximity of other vehicles, as well as rules of the road and common
10
experience.”). Therefore, Nalle’s uncontroverted affidavit does not establish any
material facts as a matter of law.
Finally, Groman’s Crash Report does not conclusively establish that
Hernandez did not breach his duty to maintain a proper lookout. The report states
only that Patrice’s driving on the “wrong side – not passing,” was a contributing
factor to the wreck. Viewing this evidence in favor of Pleasant, the nonmovant, we
conclude it does no more than create a fact issue on whether Patrice was the sole
cause of the wreck. See Pilgrim’s Pride Corp., 134 S.W.3d at 895 (stating that
investigating officer’s observations of the weather conditions, the intersection, the
location of the two vehicles, and their respective damage “were admissible as
rationally based on [the officer’s] perception and were helpful to the determination
of who caused the accident.”).
Because we conclude that appellees failed to meet their summary judgment
burden, we hold the trial court committed reversible error in granting the motion
for summary judgment. We sustain Pleasant’s second issue.
III. Because we have sustained Pleasant’s second issue challenging the trial
court’s final summary judgment, we also reverse the trial court’s award
of litigation costs pursuant to Rule 167.4 of the Texas Rules of Civil
Procedure.
Rule 167.4 provides that “[i]f a settlement offer made under this rule is
rejected, and the judgment to be awarded on the monetary claims covered by the
offer is significantly less favorable to the offeree than was the offer, the court must
award the offeror litigation costs . . . .” Tex. R. Civ. P. 167.4. Because we have
sustained appellant’s second issue and reverse the trial court’s final summary
judgment on Pleasant’s causes of action, we must also sustain Pleasant’s fifth issue
because there is no longer a final judgment to support the award of litigation costs.
See id.11
CONCLUSION
Having sustained Pleasant’s second and fifth issues, we reverse the trial
court’s final summary judgment and remand the case to the trial court for further
proceedings.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Zimmerer, Spain, and Poissant.
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