Judy Weirich v. IESI Corporation and Southside Wrecker, Inc.
03-14-00819-CV
Tex. App.Apr 16, 2015Background
- On Jan. 9, 2012 an IESI garbage truck being towed by Southside Wrecker lost an entire wheel, which struck Judy Weirich’s car; Weirich suffered property damage and personal injuries.
- Weirich filed suit alleging negligence and gross negligence; seven days before the summary‑judgment hearing she amended to add negligence per se and res ipsa loquitur.
- Defendants IESI and Southside each filed no‑evidence motions for summary judgment challenging Weirich’s claims.
- Weirich submitted a sworn affidavit recounting the accident as summary‑judgment evidence; defendants objected that the affidavit was conclusory.
- The trial court struck Weirich’s affidavit and granted both defendants’ no‑evidence motions for summary judgment (one order later styled as final/severance), prompting this appeal seeking reversal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction/standing when plaintiff amended pleadings shortly before hearing to add negligence per se and res ipsa loquitur | Weirich: amendment was timely under Tex. R. Civ. P. 63; defendants’ no‑evidence motions did not address the added theories, so the trial court’s orders are not final and this Court lacks standing | Defendants: (implicit) orders are final judgments disposing of claims | Trial court granted no‑evidence MSJs and entered orders; appellant contends lack of final disposition and seeks remand (issue presented on appeal) |
| Whether the trial court erred by striking Weirich’s affidavit | Weirich: affidavit was sworn, based on personal knowledge, admissible summary‑judgment evidence that raises fact issues | Defendants: affidavit is conclusory and incompetent | Trial court struck the affidavit; appellant argues striking was erroneous and that affidavit creates genuine issues of fact |
| Whether the trial court erred by granting no‑evidence MSJs on negligence/gross negligence | Weirich: affidavit and pleadings establish duty, breach, and proximate cause (including alleged failure to secure lug nuts; violation of transportation statutes), so more than a scintilla of evidence exists | Defendants: (implicit) plaintiff produced no evidence on essential elements | Trial court granted the no‑evidence MSJs; appellant argues the evidence suffices to defeat the motions |
| Whether plaintiff’s alternative theories (negligence per se; res ipsa loquitur) survive MSJ | Weirich: statutes cited protect motorists like her (negligence per se); wheel loss “speaks for itself” and truck was under defendants’ control (res ipsa) | Defendants: did not address these added theories in their no‑evidence motions | Trial court did not address those theories; appellant contends the theories were not adjudicated and/or are supported by the evidence |
Key Cases Cited
- Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (affidavit cannot state legal conclusions)
- Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003) (no‑evidence MSJ requires more than a scintilla to defeat)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (nonmovant must raise genuine fact issue on elements challenged)
- Ryland Group v. Hood, 924 S.W.2d 120 (Tex. 1996) (statement in affidavit must be susceptible to being readily controverted)
- Sosa v. Central Power & Light, 909 S.W.2d 893 (Tex. 1995) (timely amendment seven days before hearing may be considered)
- Mansions in the Forest, LP v. Montgomery County, 365 S.W.3d 314 (Tex. 2012) (affidavits are commonly accepted summary‑judgment evidence)
- Nabors Drilling USA, Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009) (existence of duty is generally a question of law)
- Western Investments v. Urena, 162 S.W.3d 547 (Tex. 2005) (elements of negligence action)
- Omega Contracting, Inc. v. Torres, 191 S.W.3d 828 (Tex. App.—Fort Worth 2006) (motor carrier’s duty to ensure lug nuts are secure)