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.1
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.2 In response,
1
Other parties were involved in this lawsuit as plaintiffs, however, these other claims
have been settled and severed from the judgment before us.
2
A review of Huffaker’s live pleading, filed after Wylie’s no-evidence motions on
February 7, 2008, reveals that Huffaker abandoned his claims of gross negligence,
negligence per se, and res ipsa loquitur. As such, we will not address these claims as they
were no longer before the trial court when the trial court granted Wylie’s motions.
2
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.
3
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
4
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.
5
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).3
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
3
Because we conclude that Huffaker failed to produce more than a scintilla of
evidence to raise a genuine issue of material fact as to the duty Wylie owed Huffaker or
that Wylie breached that duty, it is not necessary for us to address Wylie’s summary
judgment ground that Huffaker could produce no evidence that any breach of duty
proximately caused Huffaker’s damages.
6
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.
7
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
8
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
9
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.4 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.
4
Rebber further testified that he had no way of knowing whether someone was
smoking in that area at the time the fire started.
10
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
11