Sheryl Hintz, Individually and as Adminstratrix of the Estate of Ann Ferguson Bonk v. Edward Lowe

Affirmed in part, Reversed and Remanded in part, and Memorandum Opinion filed October 21, 2004

Affirmed in part, Reversed and Remanded in part, and Memorandum Opinion filed October 21, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00979-CV

____________

SHERYL HINTZ, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF

ANN FERGUSON BONK, DECEASED, Appellant

V.

EDWARD LOWE, Appellee

NO. 14-03-00983-CV

_______________________

SHERYL HINTZ, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF

ANN FERGUSON BONK, DECEASED, Appellant

V.

MARGARET HARRIS, Appellee

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Cause Nos. 313,137-404 and 313,137-403

M E M O R A N D U M   O P I N I O N

In this wrongful death and survival suit, Appellant Sheryl Hintz, individually and as administratrix of Ann Ferguson Bonk=s estate, appeals from a take-nothing summary judgment in favor of appellees Edward Lowe and Margaret Harris.  Concluding Hintz did not raise a genuine issue of material fact on the element of proximate cause, we affirm the trial court=s grant of summary judgment on Hintz=s negligence and gross negligence claims. Agreeing with all parties that summary judgment was improperly granted on Hintz=s assault claims, we reverse the summary judgment on those claims and remand them to the trial court.

I.  Factual and Procedural Background

Hintz=s mother, Ann Ferguson Bonk, was a resident at the Brookshire Nursing Center from May 28, 1997 through November 24, 1998.  On November 20, 1998, Bonk was the victim of an assault or attempted assault by a janitor hired by Health Care Services Group, Inc., a contractor providing housekeeping services for Brookshire.  At the time, Lowe was Brookshire=s administrator, and Harris was Brookshire=s director of nursing.  Bonk died at a different facility on September 11, 1999.

Hintz subsequently sued multiple defendants, including Advanced Living Technologies, Inc., d/b/a Brookshire Nursing Center, Health Care Services Group, Inc., and Lowe and Harris individually.  Hintz alleged negligence, gross negligence, and common law and statutory assault based on the janitor=s alleged assault, alleged delayed reporting and inadequate care following the assault, alleged incidents of physical abuse and rough handling, alleged improper nutrition, alleged failure to provide adequate nursing care, alleged failure to monitor and supervise the nursing staff, and numerous other alleged acts and omissions.

Lowe and Harris jointly moved for summary judgment on no evidence grounds. They contended Hintz had Ano evidence that Defendants, acting individually outside the course and scope of their employment at Brookshire Nursing Center, proximately caused Plaintiff=s alleged injury.@  Lowe and Harris also alleged, APlaintiff has not only failed to establish cause in fact by a reasonable medical probability, Plaintiff has failed to establish that the alleged injury was foreseeable by either Defendant.@

In response, Hintz argued the motion did not state the elements of the claims being challenged.  Hintz further asserted that sections of the Texas Administrative Code^[1] created duties owed by Lowe and Harris individually, and Brookshire=s own policies created a duty for Harris.  In support of this last argument, she referred to AJob Description, attached hereto as Exhibit >Y= and incorporated by reference as if set forth fully herein.@  Hintz did not specifically address the question of proximate cause, but contended generally APlaintiffs would show that there are genuine issues of material fact that preclude the granting of summary judgment in favor of [Lowe and Harris], as to Plaintiffs= claims for liability against them, as appear from the pleadings on file with the Court@ and a series of exhibits.  She then listed twenty-one exhibits, which she stated were Aattached hereto and incorporated herein by reference . . . .@  The only exhibit actually attached was the job description, designated AExhibit U.@  The other twenty exhibits, comprising over 1700 pages, were apparently attached to Hintz=s response to the summary judgment motion of Health Care Services Group.

The trial court granted Lowe and Harris=s summary judgment motion and ordered Aall claims and causes of action asserted against Defendants, Margaret Harris and Edward Lowe, individually and/or in their individual capacity . . . [to be] dismissed with prejudice.@  The trial court subsequently severed the causes against Lowe and Harris from the original suit, giving the two cases separate cause numbers.  After filing separate notices of appeal, Lowe and Harris filed motions to consolidate, and this court granted the motions.

II.  Discussion

A. Introduction

In both cases Hintz now raises the following issues: (1) whether Lowe and Harris had an independent duty to Bonk apart from the duty of Brookshire Nursing Home; (2) whether Lowe and Harris=s no evidence motion for summary judgment raised a challenge to the proximate cause element of negligence entitling them to summary judgment; and (3) whether the trial court erred in granting summary judgment on Hintz=s claims for intentional torts not challenged in the summary judgment motion.  We first address Hintz=s response to the element of proximate cause.^[2]  We then turn to the intentional torts, i.e., the assault claims.

B. Summary Judgment Based on No Evidence of Proximate Cause

In issue two, Hintz contends Lowe and Harris=s no evidence summary judgment motion did not raise a challenge regarding proximate cause, such as would warrant dismissal.  In a no‑evidence summary judgment motion, the movant asserts that after an adequate time for discovery, there is no evidence of one or more essential elements of claims on which the opposing party would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i); McMahan v. Greenwood, 108 S.W.3d 467, 478 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  To defeat a no evidence motion, a respondent is not required to marshal its proof.  Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).  The respondent need only point out evidence that raises a genuine issue of material fact on the challenged elements.  Tex. R. Civ. P. 166a(i) cmt.B1997; see Russo v. Smith Int=l, Inc., 93 S.W.3d 428, 433 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  If the trial court grants a motion for summary judgment without stating the grounds on which it relied, we must affirm the summary judgment if any ground argued in the motion was sufficient.  Blan v. Ali, 7 S.W.3d 741, 747B48 (Tex. App.CHouston [14th Dist.] 1999, no pet.); see Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 47 Tex. Sup. Ct. J. 666, 668, 2004 WL 1396194, at *3 (Tex. June 18, 2004).  The two elements of proximate cause are cause in factCor substantial factorCand foreseeability.  Id.  In the trial court, Hintz argued Lowe and Harris had not specified the elements lacking evidence.  See Tex. R. Civ. P. 166a(i) (stating Amotion must state the elements as to which there is no evidence@); Nabors Corporate Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 94 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (same).  We disagree.^[3]

In addition to alleging there was no evidence they owed a duty in their individual capacities, Lowe and Harris specifically alleged:  APlaintiff has not only failed to establish cause in fact by a reasonable medical probability, Plaintiff has failed to establish that the alleged injury was foreseeable by either Defendant.@  Thus, Lowe and Harris directly challenged Hintz to produce evidence of proximate cause. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194 (Tex. App.CAmarillo 1999, pet. denied) (stating requirement of specificity is satisfied if grounds in motion give Afair notice@ to the non‑movant).

In her response to the summary judgment motion, however, Hintz did not address proximate cause and did not specifically direct the trial court=s attention to any evidence of cause in fact or foreseeability.  She merely concluded her response by (1) alleging she Awould show that there are genuine issues of material fact that preclude the granting of summary judgment@ and (2) listing twenty-one exhibits, which she stated were Aattached hereto and incorporated herein by reference . . . .@

Hintz=s summary judgment proof in the present case consists of over twenty-one documents and over 1700 pages.  Over 600 pages are condensed deposition testimony, containing the equivalent of four pages each.  By failing specifically to direct the trial court=s attention to facts and summary judgment evidence on the issue of proximate cause, Hintz raised no fact question on that issue, and preserved no error for appeal.  See U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W.2d 789, 794 (Tex. App.CHouston [14th Dist.] 1995, writ denied); see also Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.CHouston [1st Dist.] 1996, no writ) (holding trial court did not abuse its discretion in refusing to consider 500-page deposition attached to summary judgment motion when party did not direct trial court to portions on which party was relying).

Hintz contends U.S. Rentals is distinguishable because, unlike the appellant in that case, Hintz Areferenced@ her evidence.  Hintz, however, did not direct the trial court to which, or what parts, of her twenty-one documents raised a fact issue on proximate cause.  And, like the appellant in U.S. Rentals, in her response to the summary judgment motion, she stated no facts related to proximate cause.  See U.S. Rentals, 901 S.W.2d at 793.

In support of her contention that the trial court should have considered her documents because she Areferenced@ them, Hintz cites Hinojosa v. Columbia/St. David=s Healthcare System, L.P., 106 S.W.3d 380, 387B88 (Tex. App.CAustin 2003, no pet.); and Dear v. City of Irving, 902 S.W.2d 731, 735 (Tex. App.CAustin 1995, writ denied).  These cases do not appear to involve voluminous records and are also distinguishable in other respects.

Hinojosa was a wrongful death and survival case in which the defendants, in their traditional partial summary judgment motion, contended because the deceased child did not survive a live birth, his death did not fall within the two statutory claims.  106 S.W.3d at 382. The parents responded by asserting that there existed a material fact issue on whether the child survived live birth.  Id. at 383.  In addition to excerpts from nine depositions, the parents also produced a death certificate, indicating the child=s duration of life as twenty minutes.  Id.

On appeal, the parents argued the child=s death certificate constituted prima facie evidence of live birth sufficient to raise a fact issue.  Id. at 384.  The appellate court rejected the defendants= argument that the parents= response to the motion for partial summary judgment was insufficient to preserve an argument based on the death certificate because the written motion did not specifically rely on the statutory significance of the death certificate. Id. at 387.  The appellate court explained: AAppellees= position confuses the requirement that all issues be raised in a motion before the trial court with an assessment of all the evidence produced in the summary‑judgment proceedings.@ Id.  The court observed that the Anon‑movant need not set out the exact evidence on which it relies or explain with specificity how this evidence supports the issues it raises; summary judgment is not a trial by affidavit or deposition.  Evidence need only be referenced or attached in order for a court to consider it.@  Id. at 387B88 (citations omitted).  The court concluded:

Because the parents argued that [the child] was born alive in their motion, they presented the issue of [the child=s] live birth to the trial court with sufficient specificity to satisfy the requirements of rule 166a and McConnell [v. Southside Independent School District, 858 S.W.2d 337, 342 (Tex. 1993)].  The death certificate serves as evidence on the issue of live birth.  The parents were not required to explain with specificity exactly how each document supported their contention, nor were they required to argue their evidence in order for the trial court to consider it.

Id. at 388.

Thus, unlike Hintz, the parents (non-movants) in Hinojosa had responded with an argument directed at the ground raised in the summary judgment motion. Moreover, it would appear that the parents attached only ten documents to the response (including only excerpts of depositions) and that the relevance of those documents was readily ascertainable.  See id. at 383 (briefly summarizing relevance of deposition testimony).

In Dear, the appellate court considered whether the trial court had erred in not granting special exceptions to a motion for partial summary judgment.  902 S.W.2d at 734.  On appeal, the appellant in Dear argued in part that the appellees= motion failed to make specific references to the supporting evidence.  Id. at 735.  The appellate court explained:

The rule [166a(c)] contains no requirement that the evidence be referenced more specifically than being incorporated into the motion, and Dear cites no authority for his argument that a motion for summary judgment is defective if it fails to set out the exact testimony on which it relies. Therefore, we need not address this argument . . . .

Id.

In a footnote, the Dear court observed, if an appellant cites no authority in support of a point of error, the court should overrule it.  Id. n.3.  Thus, Dear rests, at least in part, on the appellant=s failure to brief his appellate point adequately. Moreover, there is nothing in Dear to indicate the difficulty, if any, faced by the trial court or the non-movant in determining the significance of the summary judgment proof.

Hinojosa and Dear do not provide persuasive authority for the present case.  Consistent with U.S. Rentals, we overrule Hintz=s second issue in both causes and affirm the summary judgment on the negligence and gross negligence claims.  See U.S. Rentals, 901 S.W.2d at 794.^[4]

C.  Summary Judgment on Hintz=s Claims for Intentional Torts

In issue three, Hintz contends the trial court erred in granting summary judgment on her causes of action for intentional torts because Lowe and Harris did not challenge these causes of action in their summary judgment motion. Hintz specifically refers to her causes of action for common law and statutory assault.

Lowe and Harris=s summary judgment motion, focusing as it did on duty and proximate cause, was directed at Hintz=s negligence and gross negligence claims. Lowe and Harris concluded their no evidence summary judgment motion by stating, AIn the end, Plaintiff has failed to offer any evidence that Defendants owed an independent duty of care or that Defendants knowingly participated in any alleged tortious acts in connection with any of the negligent acts and/or omissions for which Plaintiff seeks to hold them individually liable.@  Hintz, however, had also alleged common law and statutory assault.  The trial court nevertheless granted summary judgment on Aall claims and causes of action asserted against Defendants, Margaret Harris and Edward Lowe, individually and/or in their individual capacity . . . .@

It is axiomatic a trial court may not grant judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding.  Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).  Lowe and Harris concede the trial court erred in granting judgment on the assault claims. Accordingly, we reverse the summary judgment on Hintz=s claims for common law and statutory assault and remand them to the trial court for further consideration.  See Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 134 (Tex. App.CHouston [14th Dist.] 1994, no writ).

III.  Conclusion

Having concluded Hintz did not raise a genuine issue of material fact on the element of proximate cause, we affirm the summary judgment on the negligence and gross negligence claims.  Agreeing with all parties that summary judgment was improperly granted on the assault claims, we reverse the summary judgment on those claims and remand them to the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed October 21, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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^[1]  See former 40 Tex. Admin. Code ' 18.19(12), 23 Tex. Reg. 6518, 6519 (1998) (Tex. Dept. of Human. Servs., Nursing Facility Administrators, Standards of Conduct) (repealed 29 Tex. Reg. 4233 (2004)) (current version to be codified at 40 Tex. Admin. Code ' 18.55(12), 29 Tex. Reg. 330, 330, adopted 29 Tex. Reg. 4236 (2004) (Tex. Dept. of Human. Servs., Nursing Facility Administrators, Violations of Standards of Conduct)); 22 Tex. Admin. Code ' 217.11(16), 17 Tex. Reg. 8435, 8436 (1992) (Board of Nurse Examiners, Standards of Professional Nursing Practice) (subsequently renumbered; current version at 22 Tex. Admin. Code ' 217.11(11) (2004)).

^[2]  Because we conclude Hintz did not direct the trial court to any evidence of proximate cause, we uphold the summary judgment on that ground and do not address the question of duty.

^[3]  Hintz does not appear to renew this assertion on appeal. Instead, her discussion under issue two focuses on the capacities in which Lowe and Harris acted, a question which is irrelevant to the determination of whether they proximately caused Bonk=s injuries. Nevertheless, given the breadth of Hintz=s statement of issue two, in an abundance of caution we address the specificity of Lowe and Harris=s summary judgment allegations.

^[4]  Lowe and Harris, in their motion objecting to Hintz=s summary judgment evidence, also complained about Hintz=s failure to refer specifically to the relevant portions of the exhibits.  In her reply brief on appeal, Hintz contends Lowe and Harris waived their objections to her summary judgment evidence by not obtaining a ruling on the objections.  See Dolcefino v. Randolph, 19 S.W.3d 906, 925B26 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  The cases Hintz cites involve objections on evidentiary or competency grounds.  None of the cases concern complaints about failure to specify relevant portions of the summary judgment proof.  We therefore do not view Hintz=s waiver arguments as extending to a failure to specify portions of the summary judgment proof.