KNEBLICK V. MARKS

NO. 10-90-199-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          PATRICIA KNEBLICK, INDIVIDUALLY

          AND AS PARENT AND NEXT FRIEND OF

          LESLIE KAY KNEBLICK AND ROBIN

          MICHELLE KNEBLICK, AND AS SURVIVING

          SPOUSE AND HEIR-AT-LAW OF MICHAEL

          RAY KNEBLICK, DECEASED, ET AL,

                                                                                            Appellants

          v.

          ARMOND BARRY MARKS, ET AL,

                                                                                            Appellees

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From the 13th Judicial District Court

Navarro County, Texas

Trial Court # 301-86

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O P I N I O N

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          This is an appeal by Patricia Kneblick based on the granting of a summary judgment in favor of Armond Barry Marks (Marks) and Vantage Transportation, Inc. (Vantage). Mrs. Kneblick sued Marks and Vantage for the wrongful death of her husband who was killed in an automobile accident when the driver of another car crossed the median on Interstate 45 and collided head-on with the car driven by Michael Ray Kneblick. Mrs. Kneblick alleges that Marks, while operating a tractor-trailer owned by Vantage, side-swiped a car which crossed the median of the highway and collided with Michael Ray Kneblick's car ultimately resulting in the death of Mr. Kneblick. We will reverse and remand.

          For a party to be entitled to summary judgment the movant must conclusively prove all essential elements of his claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex. 1985). The burden is on the movant to show there are no genuine issues of material fact and that, as a matter of law, movant is entitled to judgment. Id. All evidence favorable to the non-movant will be taken as true. Id. Additionally, every reasonable inference must be indulged and any doubts resolved in the non-movant's favor. Id. Additionally, evidence favoring the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing and Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Even if evidence favoring the movant's position is uncontroverted, and if reasonable minds would not necessarily come to the same ultimate conclusion, then the conclusion would be a conclusion of fact precluding summary judgment. Gibson v. John D. Campbell & Co., 624 S.W.2d 728, 732 (Tex.App.--Fort Worth 1981, no writ).

          Mrs. Kneblick complains that the trial court erred in granting summary judgment on the basis of an interested witness's controverted testimony and when genuine issues of material fact existed. She argues that the affidavit of Marks, which stated that he was not involved in and did not cause the accident in question, serves only to raise a material issue of fact, the credibility of Marks. Marks argues that the summary judgment is proper under Rule 166a(c) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(c). The rule provides in part:

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

Id. (emphasis added). Here, there is evidence controverting Marks' affidavit that he was not involved in and did not cause the accident. The affidavit of Betty Youngblood states that she heard Marks saying he had been involved in a wreck during the period of time in which this collision occurred and in the same geographical area.

          Marks' credibility is a material question of fact. If the credibility of Marks is likely to be a dispositive factor in the resolution of this case, then the summary judgment is inappropriate. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). The judgment is reversed and this cause is remanded to the trial court.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Reversed and remanded

Opinion delivered and filed May 16, 1991

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