Affirmed in Part; Reversed and Remanded in Part; and Majority Opinion and Dissenting and Concurring Opinion filed August 16, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00195-CV
Charles Seber and Barbara Seber, Appellants
v.
Union Pacific Railroad Company, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2008-64372
DISSENTING AND CONCURRING OPINION
Because I disagree with the majority’s conclusion that Union Pacific conclusively negated the Sebers’ claim of malice, I respectfully dissent on the issue of whether traditional summary judgment was properly granted on the Sebers’ request for exemplary damages. I concur with the remainder of the majority’s analysis and disposition.
The majority is correct in its recitation of the standards and law governing our review. In the context of a traditional motion for summary judgment, which the trial court granted in this case, the movant carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).[1] To be entitled to a final traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If, and only if, the movant satisfies its initial burden, will the burden shift to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). We consider a grant of summary judgment under a de novo standard of review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
The Sebers sought exemplary damages based solely on their claim that Union Pacific acted with malice in removing the Sebers’ private railroad crossing. See Tex. Civ. Prac. & Rem. Code § 41.003(a) (governing recovery of exemplary damages). The Civil Practice and Remedies Code defines malice as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Id. § 41.001(7). “Specific intent” in this context means that the actor must have desired to cause the consequences of his act or believed the consequences were substantially certain to result from the act. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985).
The majority misapplies these standards as to the Sebers’ claim of malice. In a brief paragraph, the majority finds that Union Pacific’s evidence conclusively negates specific intent to cause substantial injury or harm because Charles Seber and Doug Woods testified at their depositions that Union Pacific verified that the Sebers had alternative access before it closed the crossing at issue in this lawsuit.[2] Apparently finding such testimony conclusive, the majority then proceeds to consider and reject the Sebers’ responding arguments that they had made it clear to Union Pacific that their property would be harmed by the closing of the crossing and that they opposed such closing.
In its motion, Union Pacific likewise placed undue emphasis on the Sebers’ alleged failure to produce evidence in support of their exemplary damages claims. Indeed, the only point at which Union Pacific states that the evidence was conclusive in its favor is in the heading of the section on exemplary damages. In contrast, the text of the section is replete with allegations that the Sebers had produced “no evidence” to support an award of exemplary damages. Specifically, Union Pacific asserted that there was no evidence of either (1) a likelihood that serious harm would result from its actions or (2) a specific intent to cause such harm. Before the burden could be shifted to the Seber’s to produce argument and evidence, however, Union Pacific as movant had the primary (and considerably higher) burden of proving that no material fact issue existed and that it was entitled to judgment as a matter of law. See, e.g., Willrich, 28 S.W.3d at 23. In other words, the Sebers did not have to present any evidence to defeat the traditional motion for summary judgment unless and until Union Pacific provided conclusive evidence in support of the motion. See Walker, 924 S.W.2d at 377.[3]
Neither case cited by the majority in support of its analysis involves a summary judgment. Both cases, Shed, L.L.C. v. Edom Wash ‘N Dry, L.L.C., No. 12-07-00431-CV, 2009 WL 692609 (Tex. App.—Tyler Mar. 18, 2009, pet. denied) (mem. op.), and Kinder Morgan North Texas Pipeline, L.P. v. Justiss, 202 S.W.3d 427 (Tex. App.—Texarkana 2006, no pet.), involved legal sufficiency challenges to the evidence produced by a plaintiff at a jury trial. The focus in those cases was clearly on the evidence produced by the plaintiff, as would also be proper in a no-evidence summary judgment context, and not on the evidence presented by the movant/defendant, as would be proper in a traditional summary judgment context. See Tex. R. Civ. P. 166a (governing summary judgments); City of Keller, 168 S.W.3d at 823 (“[T]he test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review.”); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 & n.4 (Tex. 2002) (discussing standard of review for no-evidence summary judgments).[4] In a traditional summary judgment, the focus should at least initially be on the evidence presented by the movant. See Walker, 924 S.W.2d at 377.
Because Union Pacific failed to conclusively negate at least one essential element of the Sebers claims for exemplary damages based on malice, I would reverse the grant of traditional summary judgment on the exemplary damages issue. I agree with the remainder of the majority’s analysis and disposition.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Brown, Boyce, and Jamison. (Boyce, J. Majority)
[1] Union Pacific also filed a “Motion for No-Evidence Summary Judgment”; however, as the majority clearly states, there is no indication in the record that the trial court ruled on it. Accordingly, we review the trial court’s action only under traditional summary judgment standards.
[2] Since the evidence indicates that Union Pacific knew, at the time of the crossing’s closure, the likely consequences alleged by the Sebers, it appears that the inquiry boils down to whether the alleged harm is “insubstantial” as a matter of law.
[3] In its motion, Union Pacific also cited testimony from Union Pacific manager Doug Woods that (1) the decision to close the Sebers’ access was made only after an investigation revealed that they had an alternative access to their property, (2) he met and discussed the closure with the Sebers, (3) the closure was pursuant to a federal mandate to close unnecessary crossings, and (4) it only took a couple of minutes to drive between the original access and the alternative access. Additionally, Union Pacific cited to evidence that the Sebers admitted that they had not been threatened, harassed, or intimidated by Union Pacific and that Union Pacific had offered to contribute to improving the alternative access. Lastly, Union Pacific pointed out that Charles Seber had made no investigation into the cost to improve the alternative access and had not had the property appraised so as to establish the reduction in value that the Sebers claimed occurred from the access closure.
The evidence cited by Union Pacific, while potentially relevant to the issue of malice, does not conclusively establish that Union Pacific did not possess a specific intent to cause substantial injury or harm to the Sebers when it closed their private railroad crossing. Simply establishing that the Sebers had alternative access, or that Union Pacific had offered to contribute to improve that access, does not conclusively disprove substantial harm would result from closure; it would depend on the nature of the two points of access and the actual nature of the resulting harm (the suggestion that the two points were within two minutes of each other may also be relevant but is likewise not conclusive). Similarly, evidence that a meeting took place before the closure and that the Sebers did not feel threatened, harassed, or intimidated does not conclusively negate malice. The meeting may have been perfunctory, and such feelings are not requirements for proving malice. Further, the existence of a general interest in closing crossings does not establish as a matter of law that no malice was involved in the decision to close this particular crossing. Lastly, the allegation that the Sebers had not established the exact amount of harm to their property challenges the sufficiency of the evidence to support their claims but does not negate them.
[4] The Shed case can be further distinguished on its facts. The Shed at all times provided Edom Wash ‘N Dry’s occupants access for ingress and egress across the Shed’s property and maintained an opening in the fence for vehicular traffic. The Sebers had no such immediate relief.