Danny R. "Danny" Collinsworth v. Eller Media Company

• Court: Court of Appeals of Texas
• Decided: June 5, 2003
• Docket: 01-01-00749-CV
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00749-CV

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DANIEL R. “DANNY” COLLINSWORTH, Appellant

V.

ELLER MEDIA COMPANY; ELLER MEDIA CORPORATION; CLEAR CHANNEL COMMUNICATIONS, INC.; PATRICK MEDIA GROUP, INC.; PATRICK MEDIA GROUP OF HOUSTON, INC.; CLEAR CHANNEL HOLDINGS, INC.; BROADSTREET COMMUNICATIONS CORPORATION; FOSTER & KLEISER CORP.; ELLER OUTDOOR ADVERTISING CO. OF TEXAS; AND ELLER OUTDOOR; BOS OUTDOOR ELECTRICAL PRODUCTS, INC. D/B/A RELIABLE ELECTRIC PRODUCTS, (INCORRECTLY NAMED AS RELIABLE ELECTRIC COMPANY); AND WEISNER STEEL PRODUCTS, INC., Appellees

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On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 1999-27487

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MEMORANDUM OPINIONThis is a personal injury case. Plaintiff/appellant, Daniel R. “Danny” Collinsworth, sued the following defendants/appellees: (1) Eller Media Company; Eller Media Corporation; Clear Channel Communications, Inc.; Patrick Media Group, Inc.; Patrick Media Group of Houston, Inc.; Clear Channel Holdings, Inc.; Broadstreet Communications Corporation; Foster & Kleiser Corp.; Eller Outdoor Advertising Co. of Texas; and Eller Outdoor (“the Media defendants”); (2) BOS Outdoor Electrical Products, Inc. d/b/a Reliable Electric Products, (incorrectly named as Reliable Electric Company) (“Reliable”); and (3) Weisner Steel Products, Inc. (“Weisner”). The trial court rendered summary judgment in favor of defendants. We affirm.

Background

          On June 12, 1997, Collinsworth slipped and fell while performing work on an elevated billboard sign. He was using a rachet strap tool to secure a vinyl skin to the billboard. The webbing on the ratchet broke and Collinsworth fell to the ground approximately 20 feet. He alleged injuries such as permanent scarring, disability, and disfigurement.

          The Media defendants filed a traditional and no-evidence motion for summary judgment arguing that (1) Collinsworth’s employer (collectively the Media defendants) is exempt from suit under the exclusive remedy provision of the Texas Workers Compensation Act and (2) Collinsworth failed to present evidence demonstrating liability. The trial court granted the Media defendants’ motion for summary judgment without stating the basis of its ruling. In his first issue, Collinsworth contends that (1) Texas law does not allow corporations to disregard their own separate identities and (2) an insufficient amount of time had passed to discover evidence.

          Weisner filed a traditional and no-evidence motion for summary judgment arguing that (1) Collinsworth’s claims were barred by the statute of limitations and (2) there was no evidence that Weisner designed, manufactured, or marketed the ratchet strap. The trial court granted Weisner’s motion for summary judgment without stating the basis of its ruling. In his second issue, Collinsworth contends that the trial court erred in rendering summary judgment for Weisner because an insufficient amount of time had passed to discover evidence.

          Reliable filed a traditional and no-evidence motion for summary judgment arguing that (1) Collinsworth’s claims were barred by the statute of limitations, (2) Reliable affirmatively established that it did not design, manufacture, market, distribute, sell, or assemble the ratchet strap, and (3) there is no evidence that Reliable designed, manufactured, sold, distributed or otherwise placed into the stream of commerce the ratchet strap made the basis of Collinsworth’s claims. The trial court granted Reliable’s motion for summary judgment without stating the basis of its ruling. In his third issue, Collinsworth contends that the trial court erred in rendering summary judgment for Reliable because an insufficient amount of time had passed to discover evidence.

Standard of Review

          We review the traditional summary judgment under the usual standard of review. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review the no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. See Tex R. Civ. P. 166a(i); Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

          When the trial court does not state the specific grounds on which it granted summary judgment, we will affirm if any of the theories advanced is meritorious. State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex. 1993). When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, appellant must negate all grounds on appeal. Id. at 381. If the appellant fails to negate each ground on which the judgment may have been rendered, the appellate court must uphold the summary judgment. Id.

Adequate Time for Discovery

          Collinsworth filed his original petition on May 27, 1999. The trial court signed the summary judgment for the Media defendants on June 22, 2000, for Reliable on May 21, 2001, and for Weisner on June 6, 2001. Collinsworth contends that the trial court erred in rendering summary judgments for the Media defendants, Reliable, and Weisner because an insufficient amount of time had passed to discover evidence. He argues that the trial court should have refrained from ruling until his experts had an opportunity to inspect the ratchet.

          Texas Rule of Civil Procedure 166a(i) states that summary judgment is proper only after the parties have had adequate time for discovery. Tex. R. Civ. P. 166a(i). The rule does not require that discovery be complete, only that an adequate time for discovery has passed. Lattrell v. Chrysler Corp., 79 S.W.3d 141, 146 (Tex. App.—Texarkana 2002, pet. denied). When a party contends it has not had adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Green v. City of Friendswood, 22 S.W.3d 588, 594 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

          Collinsworth did not file a sworn motion for continuance as permitted by Tex. R. Civ. P. 252. Nor did he file an affidavit stating why he needed additional time for discovery or that he exercised due diligence in seeking production of the ratchet strap. Tex. R. Civ. P. 166a(g). Accordingly, he waived any argument that the motions for summary judgment were premature. See Tenneco, 925 S.W.2d at 647; Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 450-51 (Tex. App.—Dallas 2002, no pet.); Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 304 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

          Collinsworth did not introduce any evidence to raise a material issue of fact. Because he failed to produce a scintilla of evidence regarding the challenged elements of his causes of action, the trial court properly rendered summary judgments for the Media defendants, Reliable, and Weisner.

          We overrule the first, second, and third issues.

Lost Record

          In his fourth issue, Collinsworth contends that he is entitled to a reversal because he is prejudiced due to the loss from the trial court’s record of Reliable’s motion for summary judgment.

          Reliable’s motion for summary judgment was included in the fourth supplemental clerk’s record filed in this Court on April 25, 2003. Also included in the record is a stipulation letter signed by counsel for both Reliable and Collinsworth that Reliable’s motion for summary judgment is a true and correct copy of the motion filed in the trial court.

          We overrule the fourth issue.

Conclusion

          The judgment of the trial court is affirmed.

                                                                                  Adele Hedges

                                                                                  Justice

Panel consists of Justices Hedges, Nuchia, and Keyes.