Blake v. Intco Investments of Texas, Inc.

ALMA L. LÓPEZ, Chief Justice,

dissenting.

The majority relies on case law stating that an appellate court is not required to search through a voluminous record for evidence raising a material fact issue. See Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 81 (Tex.1989) (noting reference to voluminous record insufficient); Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex.App.—Houston [1st Dist.] 1996, no writ) (court not required to sift through 500 page deposition); Hall v. Stephenson, 919 S.W.2d 454, 466 (Tex.App.—Fort Worth 1996, writ denied) (reference to 1,000 pages of enclosures and schedules insufficient). The majority also relies on case law stating that an appellate court is not free to search an entire record for materials that are not cited. See Nicholson v. Naficy, 747 S.W.2d 3, 4 n. 1 (TexApp.—Houston [1st Dist.] 1987, no writ) (refusing to consider page of deposition that was not attached to any motion or response). What the majority fails to explain, however, is why this court, under a de novo standard of review, should not at least look at the deposition excerpts cited in Intco’s motion in context to determine whether the trial court properly granted summary judgment, particularly when the response states, “The excerpts of witnesses’ testimonies discussed *527in Defendant’s motion, show Plaintiff was walking down the stairs when she fell.”

Intco’s motion cites the trial court to lines 19-22 on page 25 of the deposition of Willard Blake, the plaintiffs son; however, Intco fails to cite the trial court to the excerpt in its proper context. Simply reviewing the remainder of that single page of deposition testimony is sufficient to raise a genuine issue of material fact in this case. Placing lines 19-22 in context by reviewing lines 7-25 on that same page of deposition testimony reveals the following testimony:

Q. (BY MS. HOBBS) When is the last time that you saw those photographs before today?
A. It would be a couple years ago.
Q. And where did you see those photographs when you saw them a couple years ago?
A. I honestly don’t know if I was at my mother’s house or my house. She just happened to show them to me.
Q. And did she tell you why she was showing them to you?
A. At that time she just said this is where I fell.
Q. She never pointed out to you on any of the photographs, this is the step where I began my fall, did she?
A. Not that I remember.
Q. And what were your comments to her when she showed you the photographs.
A. The carpet was installed improperly-

Similarly, reviewing lines 1-20 of page 18 of the testimony of David Deadson, the plaintiffs grandson-in-law, puts the excerpt from lines 11-14 cited in Intco’s motion into proper context. Lines 1-20 of the same page of deposition testimony contain the following testimony:

Q. Did she tell you why?
A. She mentioned from all the pain and the problems that she’s experienced since the accident that she felt she was going to — like I say, she was going to look into the possibility of, you know, holding the place we stayed liable.
Q. Did she say why she was going to do that?
A. I believe because she felt that it was because of the condition that existed on the stairs, that it was their fault that she was injured.
Q. Ruth Blake has never told you that the stairs or the condition of the stairs is what caused her to fall, has she?
A. No.
Q. And you’re not here to offer any testimony that the condition of the stairs is what caused her to fall, are you?
A. I personally believe it was.
Q. Did you witness her fall?
A. Yes, I did.

Finally, reviewing lines 2-8 of page 35 of Deadson’s deposition in conjunction with the excerpt cited by Intco from lines 22-24 reveals the following testimony:

A. Going down the stairs there are several places that have — where the carpet overlaps the end of the beginning of the step, there were several places that gave a false foothold, approximately one to two inches over the end of the step, so it would be if you went to step on it, you would not have a firm wooden platform underneath the carpet to stand on.

I disagree that reviewing the eleven pages of deposition testimony attached to Intco’s motion was beyond the scope of what is required of this court in a de novo review. We would not be searching the entire record for materials not cited to the trial court. We would be reviewing the pages of deposition testimony cited by Int-co in its motion in proper context.

*528The trial court’s order states that the court considered the motion, response, and “supporting evidence.” Just as I would expect the trial court to have taken the time to read the eleven pages of deposition excerpts attached to Intco’s motion and referenced by Blake in her response, I also expect the same of this court. See Berry v. City of Reno, 107 S.W.3d 128, 134 (Tex.App.-Fort Worth 2003, no pet.) (conducting close review of 90 pages of summary judgment evidence in reviewing whether summary judgment was properly granted); Barraza v. Eureka Co., 25 S.W.3d 225, 229-30 (Tex.App.-El Paso 2000, pet. denied) (distinguishing Guthrie which is cited by majority where record totaled 278 pages and reviewing record de novo). After reviewing these excerpts, I would hold that the deposition excerpts raise a genuine issue of material fact on the challenged elements. Because the majority holds to the contrary, I respectfully dissent.