Bryan S. Hall v. Xcel Energy, Inc., Southwestern Public Service Company D/B/A Xcel Energy And Dwayne Marchbanks

• Court: Court of Appeals of Texas
• Decided: September 14, 2009
• Docket: 07-08-00451-CV
• Status: Published

Opinion

NO. 07-08-0451-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 14, 2009

______________________________

BRYAN S. HALL,

                                                                                                           Appellant

v.

XCEL ENERGY, INC., SOUTHWESTERN PUBLIC SERVICE

COMPANY d/b/a XCEL ENERGY and DWAYNE MARCHBANKS,

                                                                                                           Appellees

_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 94392-A; HON. RICHARD DAMBOLD, PRESIDING

_______________________________

Memorandum Opinion

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          Bryan S. Hall (Hall) appealed from a summary judgment denying him relief against Xcel Energy, Inc. (Xcel). The suit involved the recovery of damages arising from a fall that occurred during Hall’s employment as a linesman. Hall sued not only Xcel but also Southwestern Public Service Co. (SPS) and Dwayne Marchbanks, his supervisor. Though summary judgment was granted in favor of each of the defendants, only that aspect of the judgment involving Xcel’s liability was appealed. We affirm the summary judgment.

 

          The record before us discloses that Xcel, SPS, and Marchbanks jointly moved for summary judgment. In their motion and under the heading “Factual Background and Basis of the Motion,” the movants stated that “Defendants bring this Motion . . . seeking dismissal of the Plaintiff’s case in its entirety on the basis that his claims are barred by the exclusivity provision of the Texas Workers’ Compensation Act . . . .” (Emphasis added). This passage was followed by another that read: “[i]n addition, Xcel Energy, Inc. moves for judgment on the basis that there is no evidence that it committed any act or omission connected in any way to Plaintiff’s accident.” To the foregoing, we add that the movants also described, in the motion, what they meant by the word “Defendants”; it encompassed all three of them (i.e. Xcel, SPS, and Marchbanks). Given this definition, we conclude that Xcel sought insulation from liability on at least two grounds. The first concerned the allegation that the Worker’s Compensation Act provided Hall with his exclusive remedy, while the second involved the matter of Xcel committing any act or omission upon which liability could be based. This is of import because the trial court did not state the basis upon which it awarded summary judgment to Xcel.

             Where multiple grounds for summary judgment are alleged and the trial court does not specify the particular one underlying its decision, the appellant’s burden is heightened. He must illustrate why none support the ruling. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Thus, Hall was obligated to show why none of the grounds we noted above entitled Xcel to relief. However, the three appellate issues before us omit discussion about the Worker’s Compensation Act providing Hall his exclusive means of redress against Xcel. Thus, he not only failed to carry the burden imposed upon him by the Texas Supreme Court in Star-Telegram but also failed to prove that the trial court erred in granting Xcel the relief it sought.

          Accordingly, we affirm the trial court’s summary judgment.

                                                                           Brian Quinn

                                                                          Chief Justice

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John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).

2. We need not address whether a record made without knowledge that it might be used in litigation is inadmissible under the business records exception to the hearsay rule. Tex. R. App. P. 47.1.

3. Texas Rule of Evidence 803(1) says that a present sense impression is a statement describing an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

4. There are two exceptions to that requirement but these exceptions are inapplicable to the present case. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).