Cantu v. Peacher

ANGELINI, Justice,

concurring.

I concur in the judgment only because I do not agree with the majority’s analysis of this case. If, as the majority concludes, Dr. Miller’s deposition testimony and affidavit testimony are materially consistent, then the only question we need to address is whether a genuine issue of material fact exists, thereby precluding entry of summary judgment. Tex.R. Crv. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).

If, on the other hand, Dr. Miller’s deposition testimony and affidavit testimony do materially conflict, then we need look no further than Randall v. Dallas Power & Light Co., 752 S.W.2d 4 (Tex.1988). In Randall, the Texas Supreme Court held that “if conflicting inferences may be drawn from a deposition and from an affidavit filed by the same party in opposition to a motion for summary judgment, a fact issue is presented.”1 Id. at 5. I cannot agree with the majority’s reliance on Farroux v. Denny’s Restaurants, Inc., 962 S.W.2d 108 (Tex.App.—Houston [1st Dist.] 1997, no pet.) because, in that case, the Houston court, without reference to Randall, holds that unexplained conflicting deposition and affidavit testimony offered by the same party will not defeat summary judgment. This is directly contrary to the Supreme Court’s holding in Randall.2

Based on my review of Dr. Miller’s deposition testimony and his affidavit, I would hold that they do materially conflict. In his deposition, Dr. Miller testified that Dr. Peacher sutured Mrs. Cantu’s obturator nerve and, when she began experiencing symptoms, he should have re-operated to remove the suture. Dr. Miller went so far as to say that if he were one hundred percent certain that the obturator nerve had not been sutured, he would find no fault with Dr. Peacher. Dr. Peacher’s summary judgment motion established that he used permanent sutures on Mrs. Cantu, and no suture was found on the obturator nerve during the subsequent surgery.

*13In response to the motion for summary judgment, Dr. Miller, by affidavit, stated that the obturator nerve was stretched and Dr. Peacher should have re-operated to release the pressure on the nerve. Although Dr. Miller states, in both his deposition and affidavit, that Dr. Peacher breached the standard of care, he nevertheless reaches two different conclusions regarding how the standard of care was breached. This is a material conflict. I would find that the Supreme Court’s holding in Randall requires this court to reverse the summary judgment.

. The Randall case has been cited and followed in numerous cases since it was decided in 1988. See, e.g., Sosebee v. Hillcrest Baptist Med. Ctr., 8 S.W.3d 427, 435 (Tex.App.— Waco 2000, pet. denied); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex.App.—Corpus Christi 1997, no pet.); Rios v. Baptist Mem’l Hosp. Sys., 935 S.W.2d 799, 801 (Tex.App.—San Antonio 1996, writ denied).

. The majority characterizes the Randall and the Farroux cases as representing two lines of cases. Randall is a Supreme Court case, however, while Farroux is a court of appeals case. We are duty-bound to follow the holdings of the Texas Supreme Court, not those of our sister courts of appeals.