Opinion
Civil Action No. SA-04-CA-790-XR.
August 9, 2005
ORDER
On this date, the Court considered Defendant's motion for summary judgment (docket no. 11) and Plaintiff's response.
Facts and Procedural Background
Plaintiff alleges that he purchased roofing materials at a Home Depot store, and that Home Depot employees loaded the roofing materials onto his trailer. He further alleges that Home Depot employees improperly loaded the materials and, as a result of improper weight distribution, his trailer jack knifed. Plaintiff complains that he suffered bodily injuries as a result. Plaintiff originally filed this lawsuit in state court and thereafter Defendant timely removed to this federal court. Plaintiff asserts that Home Depot was negligent and also violated the Texas Deceptive Trade Practices Act, Tex. Bus. Comm. Code §§ 17.46, et seq.
On June 9, 2005, this Court granted Defendant's motion for summary judgment because Plaintiff filed no response and accordingly no genuine issues regarding any material fact were raised. On June 20, the Court reconsidered its Order at Plaintiff's request because the Plaintiff blamed the lack of any response to inattention by his former counsel. The Court granted Plaintiff until July 22 to file a response. Plaintiff secured new counsel and a response was timely filed.
Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
Analysis
The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Defendant argues that Plaintiff has failed to present any evidence that it breached any duty or that any alleged breach caused his injuries. Specifically, Defendant argues that Plaintiff has failed to present any evidence that any Home Depot employee (1) used an improper method to load the roofing materials, (2) improperly placed the load on the trailer, or (3) caused any imbalance in the trailer.
Plaintiff argues that in a "deposition" he "testified" that he was a self-employed general contractor, he took his customer (Helen Valdez) to a Home Depot store to purchase roofing materials needed for that roof job, he and Ms. Valdez rode in his 3/4 ton heavy duty truck, Ms. Valdez bought the roofing material, he handed an invoice to someone at the "Contractor's area," he offered to get off his truck (ostensibly to assist/supervise in the loading of the roofing materials) but was told twice to stay in his cab, and that an unknown employee said he knew what he was doing. A sixteen foot flatbed trailer was attached to Plaintiff's truck. Plaintiff did not see the trailer being loaded with the roofing material. Once the materials were loaded, he left the store and began to travel on IH 35. After traveling a short distance he noticed the trailer began to "fishtail," he thereafter lost control of his vehicle.
Defendant objects to Plaintiff's statements above as unsworn and hearsay. Defendant notes, and the Court agrees, that the statement is not a deposition, was not sworn to, and is merely a copy of an unsworn statement Plaintiff provided to an insurance adjustor. Plaintiff did not provide any sworn affidavit to his Response.
Plaintiff did, however, include in his Response a verification that states, in pertinent part as follows: "he said that he read the factual pleadings in his Original Petition . . . and the facts in it are within his personal knowledge and are true and correct." Notably, Plaintiff failed to verify that he had read the Response and the facts in the Response to Defendant's motion for summary judgment are within his personal knowledge and are true and correct.
The "Facts" paragraph of Plaintiff's Original Petition state, in pertinent part, as follows: "On or about April 21, 2002, Jose T. Maldonado went to the Home Depot . . . for the purpose of purchasing roofing materials. Once the materials were purchased, employees of Defendant . . . assumed the responsibility of, and provided the service, of loading the materials onto a small `low-boy' trailer which was attached to a pickup truck being driven by Plaintiff. . . . A substantial portion of the load, 93 bundles of composition roofing shingles on a wooden pallet, where [sic] negligently placed behind the trailer's axles. While on the way home with the materials, because of the improper loading of the bundles of composition roofing shingles which resulted in improper weight distribution, the trailer jackknifed and Plaintiff . . . was caused to suffer serious bodily injuries."
Plaintiff again fails to present competent summary judgment evidence that any Home Depot employee (1) used an improper method to load the roofing materials, (2) improperly placed the load on the trailer, or (3) caused any imbalance in the trailer. Plaintiff merely provides a conclusory statement that the 93 bundles of composition roofing shingles were negligently placed behind the trailer's axles. Plaintiff provides no competent summary judgment evidence as to how the quantity of roofing materials purchased that day should have been placed on a trailer such as his. As an aside, the Court notes that Plaintiff's unsworn statement stated he did not see the materials loaded onto the trailer and only noted the placement after the jackknife and accident occurred.
Accordingly, summary judgment in favor of Defendant on the negligence claim is proper. Defendant's objections to Plaintiff's Response are sustained. See e.g., Marshall on Behalf of Marshall v. East Carroll Parish Hosp. Service, 134 F.3d 319, 324 (5th Cir. 1998) ("It goes without saying that such conclusory, unsupported assertions are insufficient to defeat a motion for summary judgment; Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) ("Unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment."); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) ("conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment"); Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993) (summary judgment is appropriate if "nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation").
With regard to the DTPA claim, Plaintiff pled that Defendant violated the act by "representing that a service provided to consumers was within their area of expertise and they were fully capable of performing; and by representing that work or services were performed in a good and workmanlike manner when the work or services were not performed properly . . ., resulting in injury to the consumer."
Defendant first argues that Plaintiff has no standing to bring a DTPA suit because he fails to present any evidence that he purchased the roofing materials either for himself or for the benefit of another. It cannot be seriously contested that on the date of the accident (April 21, 2002), Helen Valdez purchased 23 rolls of No. 15 felt, 93 bundles of roofing shingles and other roofing materials. Further, it cannot seriously be contested that the materials were "customer pickup." See Invoice attached to Plaintiff's Notice of Compliance filed July 20, 2005. Plaintiff's verified facts establish that he was a consumer. Defendant's summary judgment on this point is denied.
Defendant also seeks summary judgment on the DTPA claim arguing that Plaintiff fails to present any evidence of any misrepresentation. The Court agrees that Plaintiff has failed to tender competent summary judgment evidence on this issue. Plaintiff's verified "facts" do not state what, if any, misrepresentation was made by Defendant's employees. The only discussion of this is found in the unsworn statement which fails to qualify as evidence. Defendant's summary judgment on this point is GRANTED.
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (Docket no. 11) is GRANTED. The Clerk is ORDERED to enter a judgment for Defendant. Defendant is awarded its costs of court.