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NUMBER 13-02-290-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROSA MARIA MORENO,
JOSE M. MORENO, MARIA
J. VELA, JORGE LUIS MORENO,
MARY A. GARCIA, ET AL., Appellants,
v.
LMB, LTD., D/B/A UNIVERSITY
PLAZA, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Castillo
Dissenting Memorandum by Justice Castillo
The claim below was presented on a theory of premises liability. Appellee, LMB, Ltd., as premises owner, filed a no-evidence motion for summary judgment based on a lack of evidence regarding causation. LMB, Ltd., asserted that there was no evidence to show that its conduct (1) proximately caused the car-pedestrian accident which allegedly led to Rosa Moreno's injuries, or (2) caused her injuries or death. The trial court granted summary judgment on both traditional and no-evidence grounds. The majority opinion reverses and remands summary judgment. Because I would affirm summary judgment, I respectfully dissent.
The live pleading cites various alleged failures on the part of LMB, Ltd., which allegedly resulted in an unsafe parking lot on which Mrs. Moreno was walking when struck by a passing car. I agree with the majority's analysis of the applicable test for cause-in-fact.[1] However, applying the test under relevant summary judgment standards, I reach the opposite result. Respectfully, I conclude that the non-movant's summary-judgment evidence is conclusory[2] and, thus, insufficient to create a question of fact as to causation because the evidence does not[3] (1) address the condition of the premises; (2) support the conclusion that LMB, Ltd.'s conduct (a) "substantially caused" injury and death, or (b) "produced the condition which directly caused . . . untimely death;" or (3) link the injuries or the accident to the condition of the premises or the premises owner's conduct.[4]
Because we may affirm the summary judgment if any one of the movant's theories has merit,[5] I would sustain the summary judgment on no‑evidence grounds because the non-movants did not bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to the challenged element of the claims, causation. See Tex. R. Civ. P. 166a(i).
ERRLINDA CASTILLO
Justice
Dissenting Opinion delivered and filed
this 16th day of June, 2005.
[1] See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).
[2] Conclusory affidavits are insufficient to raise a fact issue in response to a motion for summary judgment. See Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). In fact, unsupported conclusions are not competent summary judgment evidence. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.BHouston [1st Dist.] 1997, no pet.) ("A conclusory statement is one that does not provide the underlying facts that support the conclusion. Conclusory statements in affidavits are not proper as summary judgment proof if there are no facts to support the conclusions.").
[3] See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004); McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003).
[4] See Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998); Leitch v. Hornsby, 935 S.W.2d 114, 118‑19 (Tex. 1996).
[5] Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex. 1989); Mulvey v. Mobil Producing Tex. & N.M. Inc., 147 S.W.3d 594, 605 (Tex. App.BCorpus Christi 2004, pet. denied) (citing AMS Constr. Co. v. Warm Springs Rehab. Found., 94 S.W.3d 152, 159 (Tex. App.BCorpus Christi 2002, no pet.)).