Opinion
No. 05-04-01179-CV
Opinion Issued June 28, 2005.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-03-7129-a.
Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Karen Thomason appeals the trial court's summary judgment in favor of Dallas Casa Property Corporation (CASA Property). In two issues, Thomason argues the trial court failed to exclude improper summary judgment evidence. We affirm the trial court's summary judgment.
Thomason, an employee of Dallas CASA, Inc. (Dallas CASA), fell down a staircase at work on November 5, 2001, and she was injured as a result. Thomason subsequently received worker's compensation benefits through Dallas CASA. When Thomason learned the building in which she was injured was owned by an entity called Dallas CASA Property Corporation, she sued that entity, alleging negligence per se and premises liability. CASA Property filed a motion for summary judgment on the ground that Thomason had received worker's compensation benefits for her alleged injuries, and CASA Property was entitled to application of the exclusive remedy provision of the worker's compensation statute.
The motion was supported by the affidavit of Beverly Levy, the executive director of Dallas CASA and the registered agent for CASA Property. In her affidavit, Levy stated that, among other things, CASA Property was a wholly-owned subsidiary of Dallas CASA and was created to serve as Dallas CASA's agent by holding title to property for the benefit of Dallas CASA. The affidavit went on to state that CASA Property takes no action regarding the CASA building without direction from Dallas CASA, and CASA Property has no employees of its own. Thomason, in her response, argued Levy's affidavit merely presented legal conclusions and was not competent summary judgment establishing whether there was an agency relationship between Dallas CASA and CASA Property. The trial court granted CASA Property's motion for summary judgment, and this appeal followed.
In two issues, Thomason renews her argument that the trial court improperly refused to exclude the first and second paragraphs of Levy's affidavit. Specifically, Thomason complains the first paragraph consists of statements of a purported agent improperly used to establish an agency relationship, and the second paragraph is premised on the improper presumption that an agency relationship exists and constitutes a legal opinion as to the scope of the alleged agency relationship. Without the affidavit establishing an agency relationship between Dallas CASA and CASA Property, Thomason argues, she would have been eligible to pursue her causes of action against CASA Property, a third party not subject to the sole-remedy provision of the Texas worker's compensation statute.
Affidavits are competent summary judgment evidence if they are made on personal knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated therein. Tex. R. Civ. P. 166a(f); Abe's Colony Club, Inc. v. CW Underwriters, 852 S.W.2d 86, 88 (Tex.App.-Fort Worth 1993, writ denied). Summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c); McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). We review a trial court's rulings concerning the admission of summary judgment evidence under an abuse of discretion standard. Wolfe v. C.S.P.H., 24 S.W.3d 641, 646 (Tex.App.-Dallas 2000, no pet.).
Thomason first complains that the first paragraph of Levy's affidavit should have been excluded because an agency relationship must be proven by the acts and statements of the principal, rather than the agent itself, citing AS Electrical Contractors, Inc. v. Fischer, 622 S.W.2d 601 (Tex.Civ.App.-Tyler 1981, no writ) and Caprock Industries, Inc. v. Wood, 549 S.W.2d 430 (Tex.Civ.App.-Amarillo 1977, no writ). In fact, Levy's affidavit states that she is the executive director of Dallas CASA, the principal. As to the second paragraph of Levy's affidavit, Thomason complains it improperly details the scope of the agency relationship between Dallas CASA and CASA Property. On the contrary, the affidavit does not merely state that there is an agency relationship in the form of a legal conclusion. The affidavit states that CASA Property takes no action concerning the building without direction from Dallas CASA and has no employees of its own. Thomason points to no evidence controverting the statements in Levy's affidavit. See McIntyre, 109 S.W.3d at 749. Having reviewed Levy's affidavit, we conclude the first and second paragraphs constituted proper summary judgment evidence, and the trial court did not abuse its discretion in admitting them. See Wolfe, 24 S.W.3d at 646. We overrule Thomason's first and second issues.
We affirm the trial court's judgment.