Janie Morales And Terrie Secaida, Community Administrator of the Estate of Edward Secaida v. Chard Richard Craig Wheaton Van Lines, Inc. And Johnnie P. Williams

• Court: Court of Appeals of Texas
• Decided: June 7, 2001
• Docket: 03-99-00553-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00553-CV Janie Morales and Terrie Secaida, Community Administrator of the

Estate of Edward Secaida, Appellants

v.

Chard Richard Craig; Wheaton Van Lines, Inc.; and Johnnie P. Williams, Appellees

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT

NO. 96-442-C277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

Appellant Janie Morales sued appellees Chard Richard Craig, Wheaton Van Lines, Inc. ("Wheaton"), and Johnnie P. Williams for negligence. ⁽¹⁾ The district court granted summary judgment in favor of Craig, Wheaton, and Williams against Morales and appellant Terrie Secaida, a third-party defendant who also asserted claims against appellees. We will affirm the summary judgment in favor of Wheaton and Williams and reverse the summary judgment in favor of Craig.

FACTUAL BACKGROUND

Many of the underlying facts in this case are not in dispute, and where they are, it is appellants' summary-judgment proof that we must accept as true. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

This cause involves a multi-vehicle accident. Edward Secaida was driving a Buick Skylark automobile in which Victor Manuel Morales, Jr. (the son of Janie Morales) and two others were passengers. Williams, an employee of Wheaton, was driving a tractor-trailer ⁽²⁾ owned by Wheaton. Craig was driving a GMC Suburban.

At around 5:30 p.m. on a Friday in August 1996, the three vehicles were involved in a collision. The weather was cloudy, but the road was dry. The speed limit was seventy miles per hour for automobiles and sixty miles per hour for tractor-trailers. The Secaida vehicle was traveling south on Highway 195 near Florence and was behind Williams. Craig was traveling north on the same highway at an estimated speed of between fifty-five and sixty miles per hour. Williams estimated his speed at about forty-five or fifty miles per hour, but Morales's expert witness opined that the tractor-trailer was traveling at about eighty-five to ninety miles per hour. Edward Secaida, proceeding uphill, attempted to pass Williams in a no-passing zone. In order to pass, Secaida pulled into the northbound lane, where Craig was traveling. As Craig crested the hill, he saw the Secaida car in his lane. Craig and Secaida made two maneuvers in mirror fashion: first, Craig to his right toward the northbound paved shoulder and Secaida to his left toward the same shoulder, and then Craig to his left toward the southbound lane and Secaida to his right toward the southbound lane. Craig then started to turn back to his right when his vehicle and the Secaida vehicle collided head-on in the southbound lane of the highway. ⁽³⁾ There is no evidence that Craig at any time applied his brakes.

Meanwhile, Williams saw Secaida attempt to pass him and also saw Craig approaching in the same lane. Williams applied his brakes and drove off onto the paved right shoulder. The Secaida car rebounded from Craig's vehicle and collided with Williams's tractor-trailer. The Secaida car slid under the tractor's front wheels and caught fire. All four people in Secaida's car died at the scene of the accident. Craig was severely injured and spent about thirty days in the hospital. Williams was not injured.

Victor Manuel Morales, Jr. was a passenger in Secaida's car and died as a result of injuries he suffered in the collision. His mother, Janie Morales, sued Craig, Williams, and Wheaton for wrongful death. ⁽⁴⁾ All three defendants filed third-party petitions against Terrie Secaida, Edward Secaida's wife, in her capacity "as community administrator of the estate of Edward Secaida, [d]eceased," claiming that Edward Secaida's negligence was the sole proximate cause of the collision. Terrie Secaida answered, denying that Edward Secaida was responsible for the collision, and asserted "cross-claims" ⁽⁵⁾ against Craig, Williams, and Wheaton, alleging that their negligence was the cause of Edward's death. Craig, Williams, and Wheaton filed motions for summary judgment, generally alleging that there is no evidence that they were negligent and that they established various affirmative defenses as a matter of law. ⁽⁶⁾ The district court entered summary judgment in appellees' favor on both Morales's and Secaida's causes of action. ⁽⁷⁾ Morales and Secaida filed separate appellate briefs; however, their briefs are similar and their interests do not diverge. By five issues, they appeal the district court's summary judgment:

• Whether [appellants] raised more than a scintilla of summary judgment evidence to defeat [a] no evidence summary judgment on the issues of negligence and proximate cause.



• Whether [appellants] raised a genuine issue of material fact to defeat [an] ordinary summary judgment on issues of negligence and proximate cause.



• Whether Craig, Wheaton, and Williams proved they were entitled to judgment as a matter of law on the affirmative defenses of sudden emergency and sole proximate cause.



• Whether [appellants] raised a genuine issue of material fact to defeat [an] ordinary summary judgment on the affirmative defenses of sudden emergency and sole proximate cause; and



• Whether sole proximate cause is available as a ground for summary judgment in this case.

DISCUSSION

Standard of Review

Because the propriety of summary judgment in this case is a question of law, we review the trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The function of summary judgment is not to deprive litigants of the right to trial by jury but to eliminate patently unmeritorious claims and defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972).

To prevail on a traditional motion for summary judgment, a party must conclusively establish that there is no genuine question of material fact and show that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Because the burden of proof is on the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant and resolve all doubts about the existence of a material fact against the movant. Nixon, 690 S.W.2d at 548-49.

After an adequate time for discovery, a party may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). Unlike a traditional motion for summary judgment, the movant in a no-evidence motion for summary judgment does not bear the burden of establishing each element of its own claim or defense. Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 772 (Tex. App.--Texarkana 2000, pet. granted). Instead, the nonmovant has the burden of presenting evidence raising a genuine fact issue on the challenged elements. Id. We view the proof in the light most favorable to the nonmovant, disregarding all contrary proof and inferences. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). If the nonmovant presents more than a scintilla of probative evidence so as to raise a genuine issue of material fact, it is improper to grant a no-evidence motion for summary judgment. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.); see also Moore, 981 S.W.2d at 269. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms. Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

When, as here, the trial court's order granting summary judgment does not specify the ground or grounds the court relied on for the ruling, we affirm the summary judgment if any theories presented in the motion are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

The Wheaton-Williams Summary Judgment

Wheaton and Williams jointly filed both a traditional and a no-evidence motion for summary judgment. They moved for summary judgment on three separate grounds: (1) there is no evidence of negligence on the part of Wheaton or Williams, (2) Williams had no duty to keep any lookout to the rear, and (3) the summary-judgment evidence establishes as a matter of law that Edward Secaida's negligence was the sole proximate cause of the accident. Wheaton and Williams presented each ground as an independent reason for the district court to grant them summary judgment. Appellants respond by arguing that they produced more than a scintilla of evidence relating to negligence and proximate cause, Wheaton and Williams did not conclusively negate the elements of negligence and proximate cause, and Wheaton and Williams did not conclusively establish its affirmative defense of sole proximate cause. Appellants failed to challenge the no-duty ground for summary judgment. It is not disputed that the summary judgment is intended to be, and is, a final judgment, disposing of all issues and parties before the district court. Wheaton and Williams urge this Court to affirm the district-court judgment because appellants failed to challenge all possible grounds on which the summary judgment could have been granted. We will do so.

In six sub-issues, styled "points of error," appellants detail their complaints concerning the Wheaton-Williams summary judgment. However, nowhere in their issues or points do they generally challenge the summary judgment. Instead, they assign specific error to several of the grounds for summary judgment urged by Wheaton and Williams. ⁽⁸⁾ When an appellant chooses this practice, the appellant must assign error to each possible ground of which the trial court could have granted the summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). If the record discloses that summary judgment may have been based on a ground not specifically challenged by the appellant, the summary judgment will stand in the absence of a general assignment of error. Id.

Appellants have failed to assign error to the no-duty ground. "Negligence, a common law doctrine, consists of three essential elements--a legal duty owed by one person to another, a breach of that duty, and damages proximately resulting from the breach." El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) (citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 531 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.)). To establish liability in tort, a plaintiff must prove the violation of a duty owed to him by the defendant. Id. (citing Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976)). In their motion for summary judgment, Wheaton and Williams asserted that "Williams had no duty, as a matter of law, to keep any lookout in his rear-view mirror." They also claimed entitlement to summary judgment because "there is no evidence of any alleged negligence of Wheaton or Williams" and because "[Edward] Secaida's negligence was the sole proximate cause of [Victor] Morales'[s] death."

The district court did not state the basis on which he granted summary judgment for Wheaton and Williams. "The judgment must stand, since it may have been based on a ground not specifically challenged by [appellants] and since there was no general assignment that the trial court erred in granting summary judgment." Malooly Bros., 461 S.W.2d at 121. Because the summary judgment may have been granted, properly or improperly, on a ground not challenged by appellants, we must affirm it. See Warner v. Orange County, 984 S.W.2d 357, 358 (Tex. App.--Beaumont 1999, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.--Dallas 1992, writ denied); King v. Texas Employers' Ins. Ass'n, 716 S.W.2d 181, 182 (Tex. App.--Fort Worth 1986, no writ).

At oral argument and in a post-submission letter, Morales argues that the no-duty ground for summary judgment "could not be the basis for summary judgment as to alleged negligence based on facts other than Williams['s] failure to keep a proper lookout, such as failure to apply brakes, failure to drive at a prudent speed, etc." and that she alleged other breaches of duty in her third amended petition in the district court. Thus, according to Morales, this Court cannot affirm the entire summary judgment on the no-duty ground because this ground is "not legally sufficient" to sustain the judgment. However, the supreme court has recently held, in a summary-judgment context, that "[a]n express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and reversed." Lehmann v. Har-Con Corp., 44 Tex. Sup. Ct. J. 364, 376 (Feb. 1, 2001). Appellants failed to challenge a ground upon which summary judgment may have been granted and thereby waived any error. Because summary judgment may have been granted, properly or improperly, on a ground not challenged by appellants in an issue on appeal, we overrule appellants' issues insofar as they apply to the summary judgment in favor of Wheaton and Williams. See Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.--Austin 1982, no writ); see also Warner, 984 S.W.2d at 358; Holloway, 840 S.W.2d at 23 (citing Malooly Bros., 461 S.W.2d at 121).

The Craig Summary Judgment

Craig filed a motion for summary judgment that combined traditional and no- evidence grounds and alleged:

1. After an adequate time for discovery, [appellants have] no evidence of [Craig's] negligence;

2. The incident made the basis of this lawsuit is what is defined in Texas law as an "emergency," for which [Craig] cannot be held to have acted unreasonably under the undisputed facts;

3. [Craig] committed no act of negligence as that term is defined in Texas law;

4. [Craig] committed no act or omission that was a proximate cause of the accident made the basis of this lawsuit.

On appeal, appellants respond that (1) they presented more than a scintilla of evidence relating to negligence and proximate cause, (2) Craig did not conclusively negate the elements of negligence and proximate cause, (3) Craig failed to meet his burden in proving his affirmative defense of sudden emergency, and (4) Craig failed to meet his burden in proving his affirmative defense of sole proximate cause.

A. No-Evidence Motion

A no-evidence motion for summary judgment is improperly granted if the nonmovant has presented more than a scintilla of evidence that raises a genuine issue of material fact. Jackson, 979 S.W.2d at 70-71. Appellants presented some evidence that Craig drove left of the center of the highway and that the collision with Secaida's vehicle occurred left of center. Two Texas Department of Public Safety officers placed the collision in the southbound lane of Highway 195, which was left of center for Craig. Appellants also presented evidence that Craig's failure to continue right, toward the shoulder of the roadway, was both negligent and a proximate cause of the accident. One of the Department of Public Safety officers, as well as Craig himself, testified that there was nothing inherently dangerous about the shoulder or surrounding terrain that would have prevented Craig from driving off of the road in order to avoid a collision. In viewing this evidence in the light most favorable to the nonmovant, we hold that it raises a genuine issue of material fact on which reasonable, fair-minded persons might differ in their conclusions. See Havner, 953 S.W.2d at 711. It is, therefore, more than a mere scintilla of evidence, and summary judgment was improper. We sustain appellants' issues insofar as they relate to the no-evidence portion of Craig's motion for summary judgment.

B. Traditional Motion--Negating Elements of Morales's Cause of Action

Appellants also argue that the trial court erred in granting Craig's traditional summary judgment on the elements of negligence and proximate cause because appellants raised an issue of material fact as to both elements, which Craig failed to negate as a matter of law. For Craig to prevail on this ground, he must conclusively disprove at least one element of appellants' cause of action. Because the elements of negligence and proximate cause are inherently factual, they are not ordinarily disposed of by summary judgment. See Snellenberger v. Rodriguez, 760 S.W.2d 237, 239 (Tex. 1988); Rodriguez v. Moerbe, 963 S.W.2d 808, 814 (Tex. App.--San Antonio 1998, pet. denied); Hennessy v. Estate of Perez, 725 S.W.2d 507, 509 (Tex. App.--Houston [1st Dist.] 1987, no writ); see, e.g., Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 862 (Tex. Aiv. App.--Fort Worth 1980, writ ref'd n.r.e.) (stating general rule that summary judgment is not appropriate for cases involving contributory negligence); Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330, 332 (Tex. Civ. App.--El Paso 1972, no writ) (noting obstacles to availability of summary judgment procedure where proximate cause is the issue). We will adhere to the general rule.

Negligence is "the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances." Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249, 250-51 (Tex. 1943). Appellants claim that Craig failed to use reasonable care because he drove left of center when he should have continued driving to his right. Again, it is appellants' summary-judgment evidence that we must take as true. Nixon, 690 S.W.2d at 548-49. We believe that appellants have raised an issue of material fact from which more than one reasonable inference could be drawn. Therefore, Craig failed to negate the element of negligence as a matter of law. We sustain appellants' issues relating to Craig's failure to negate the elements of their cause of action.

Proximate cause consists of both cause in fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Although Craig presented evidence to negate proximate cause, appellants presented controverting evidence, which we take as true. See Nixon, 690 S.W.2d at 548-49. Appellants claim that because the collision occurred left of center for Craig, he was a cause in fact of the accident. Appellants also claim that a reasonable person would have foreseen that driving left of center could contribute to an accident. Taking appellants' evidence as true leads us to the conclusion that there is an issue of material fact. Additionally, the question of proximate cause is one of fact and is particularly within the province of the jury. Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 425 (Tex. App.--Houston [1st Dist.] 1990, no writ). We hold that Craig failed to negate the element of proximate cause as a matter of law and sustain appellants' issues in that regard.

C. Traditional Motion--Establishing Affirmative Defenses

Because we have held that appellants have produced more than a scintilla of evidence and that Craig has not conclusively negated any elements of the negligence claim, Craig may only prevail on his motion for summary judgment if he establishes an affirmative defense. Craig has asserted two affirmative defenses: sudden emergency and sole proximate cause.

Appellants argue that Craig did not establish the elements of sudden emergency. Specifically, appellants contend that Craig's actions after the emergency arose were not those of an ordinary prudent person. Craig cites Moughon v. Wolf, 576 S.W.2d 603 (Tex. 1978), for the proposition that a sudden emergency is a legally acceptable excuse for driving on the left side of the road. In Moughon, the supreme court held that the defendant failed to produce evidence of an excuse. Id. at 606. Craig attempts to distinguish this case by showing that he has produced a great deal of evidence to establish his affirmative defense of sudden emergency. Although the undisputed facts may show that an emergency did indeed arise, the critical question is whether Craig acted reasonably once the emergency arose. See Del Bosque v. Heitmann Berring-Cortes Co., 474 S.W.2d 450, 452-53 (Tex. 1971). Because reasonable minds could differ as to the reasonableness of Craig's actions, he failed to conclusively establish his affirmative defense of sudden emergency and summary judgment should not be granted on that basis. We sustain appellants' issues insofar as they relate to the affirmative defense of sudden emergency.

Finally, Craig has asserted as an "affirmative defense" that the alleged negligence of a third party, Edward Secaida, was the sole proximate cause of the accident. Appellants argue that the district court erred in granting summary judgment to Craig on the affirmative defense of proximate cause because (1) Craig failed to establish that Edward's conduct was the sole proximate cause as a matter of law, (2) they raised a genuine issue of material fact, and (3) Edward Secaida was a party to the suit. Sole proximate cause does not fit within the mold of an affirmative defense. Indeed, courts view it as "an inferential rebuttal issue which, when invoked by the defendant, purports to negate an element of the plaintiff's cause of action." Walzier v. Newton, 27 S.W.3d 561, 563-64 (Tex. App.--Amarillo 2000, no pet.); accord Reid v. Best Waste Sys., Inc., 800 S.W.2d 644, 646 (Tex. App.--Houston [14th Dist.] 1990, writ denied). In other words, sole proximate cause does not operate as an independent basis for, in this case, affirming summary judgment. It only serves to negate an element of the prima facie case. See Walzier, 27 S.W.3d at 564. We have held that Craig failed to disprove as a matter of law that he was a proximate cause of the accident; therefore, he cannot prevail by claiming that Edward Secaida was the sole proximate cause. We sustain appellants' issues insofar as they relate to whether Craig established sole proximate cause.

CONCLUSION We affirm the district court's summary judgment as to Wheaton and Williams. The summary judgment in favor of Craig is reversed and this cause is remanded to the district court for further proceedings.

Lee Yeakel, Justice

Before Justices Yeakel, Patterson and Jones; Justice Jones Not Participating

Affirmed in Part; Reversed and Remanded in Part

Filed: June 7, 2001

Do Not Publish

1. Williams is referred to from time to time in the district-court pleadings as "Johnny" Williams. We use the spelling found in Williams's original answer and motion for summary judgment in the district court and brief in this Court.

2. Williams's vehicle was referred to variously in the record as a "truck/tractor-trailer," "semi," "eighteen-wheeler," and "large tractor/trailer rig."

3. In his deposition, Craig stated that in the first maneuver, at least his front two tires went into the northbound shoulder and in the second maneuver, his car did not cross the yellow line into the southbound lane. However, two Texas Department of Public Safety investigators placed the point of impact of the Secaida and Craig vehicles in the southbound lane.

4. Morales describes the capacity in which she sues as follows:

[] Plaintiff JANIE MORALES brings this suit both in her individual capacities as a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and as an heir at law of VICTOR MANUEL MORALES, JR., deceased. Plaintiff also brings this suit in her representative capacity as a statutory beneficiary on behalf of all other statutory beneficiaries . . . and on behalf of VICTOR MORALES, an heir at law of VICTOR MANUEL MORALES, JR., deceased.

[] VICTOR MORALES is an heir at law of VICTOR MANUEL MORALES, deceased, a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and is a statutory beneficiary on whose behalf Plaintiff JANIE MORALES sues.

[] There are no other surviving parents, children, or spouses of VICTOR MANUEL MORALES, JR., deceased.

5. Secaida's claims are also referred to as "counterclaims" in the pleadings and briefs.

6. Terrie Secaida's brief contains the following statement:

There were in fact no motions for summary judgment, no supporting affidavits, nor any answers to summary judgment regarding Terrie [Secaida]'s counterclaims. Several weeks after the ruling regarding Janie [Morales]'s claims, Terrie and defendants agreed that the trial court's ruling regarding Janie's claims would most probably be applied to Terrie's claims, as "the law of the case." The parties agreed, and the court ordered, that summary judgments against Terrie's claims could be entered while preserving the right of Terrie to appeal.

7. The district court signed four separate summary judgments: (1) Morales take nothing against Craig; (2) Secaida take nothing against Wheaton and Williams; (3) Secaida take nothing against Craig; and (4) Morales take nothing against Wheaton and Williams. None of the judgments specifically address the third-party claims of Craig, Wheaton, and Williams against Secaida, but all contain a "Mother Hubbard" clause. See Mafrige v. Ross, 866 S.W.2d 590, 590 n.1 (Tex. 1994) ("A Mother Hubbard clause generally recites that all relief not expressly granted is denied."). A review of the district-court record reveals that the parties and the court intended the four judgments to constitute a final, appealable judgment, and no party has questioned either the finality of the district court's action or this Court's jurisdiction. See Lehmann v. Har-Con Corp., 44 Tex. Sup. Ct. J. 364, 375-76 (Feb. 1, 2001).

8. As germane to Wheaton and Williams, appellants' "points of error" are as follows:

[ 9.] The trial court erred in granting Wheaton/Williams an ordinary summary judgment on the affirmative defense of sole proximate cause because Edward Secaida was a party to the suit.

[10.] The trial court erred in granting Wheaton/Williams a no-evidence summary judgment on the elements of negligence and proximate cause because [appellants] produced more than a scintilla of evidence on each of the elements.

[11.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams based on the elements of negligence and proximate cause because Wheaton/Williams did not conclusively negate those elements as a matter of law.

[12.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams on the elements of negligence and proximate cause because [appellants] raised a genuine issue of a material fact on both of those elements.

[13.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams on the affirmative defense of sole proximate cause because Wheaton/Williams failed to establish every element of the affirmative defense as a matter of law.

[14.] The trial court erred in granting [an] ordinary summary judgment to Wheaton/Williams on the affirmative defense of sole proximate cause because [appellants] raised a genuine issue of material fact on whether the negligence of a party to the suit was a proximate cause of the collisions.

N_4_">4. Morales describes the capacity in which she sues as follows:

[] Plaintiff JANIE MORALES brings this suit both in her individual capacities as a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and as an heir at law of VICTOR MANUEL MORALES, JR., deceased. Plaintiff also brings this suit in her representative capacity as a statutory beneficiary on behalf of all other statutory beneficiaries . . . and on behalf of VICTOR MORALES, an heir at law of VICTOR MANUEL MORALES, JR., deceased.

[] VICTOR MORALES is an heir at law of VICTOR MANUEL MORALES, deceased, a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and is a statutory beneficiary on whose behalf Plaintiff JANIE MORALES sues.

[] There are no other surviving parents, children, or spouses of VICTOR MANUEL MORALES, JR., deceased.

5. Secaida's claims are also referred to as "counterclaims" in the pleadings and briefs.

6. Terrie Secaida's brief contains the following statement:

There were in fact no motions for summary judgment, no supporting affidavits, nor any answers to summary judgment regarding Terrie [Secaida]'s counterclaims. Several weeks after the ruling regarding Janie [Morales]'s claims, Terrie and defendants agreed that the trial court's ruling regarding Janie's claims would most probably be applied to Terrie's claims, as "the law of the case." The parties agreed, and the court ordered, that summary judgments against Terrie's claims could be entered while preserving the right of Terrie to appeal.

7. The district court signed four separate summary judgments: (1) Morales take nothing against Craig; (2) Secaida take nothing against Wheaton and Williams; (3) Secaida take nothing against Craig; and (4) Morales take nothing against Wheaton and Williams. None of the judgments specifically address the third-party claims of Craig, Wheaton, and Williams against Secaida, but all contain a "Mother Hubbard" clause. See Mafrige v. Ross, 866 S.W.2d 590, 590 n.1 (Tex. 1994) ("A Mother Hubbard clause generally recites that all relief not expressly granted is denied."). A review of the district-court record reveals that the parties and the court intended the four judgments to constitute a final, appealable judgment, and no party has questioned either the finality of the district court's action or this Court's jurisdiction. See Lehmann v. Har-Con Corp., 44 Tex. Sup. Ct. J. 364, 375-76 (Feb. 1, 2001).

8. As germane to Wheaton and Williams, appellants' "points of error" are as follows:

[ 9.] The trial court erred in granting Wheaton/Williams an ordinary summary judgment on the affirmative defense of sole proximate cause because Edward Secaida was a party to the suit.

[10.] The trial court erred in granting Wheaton/Williams a no-evidence summary judgment on the elements of negligence and proximate cause because [appellants] produced more than a scintilla of evidence on each of the elements.

[11.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams based on the elements of negligence and proximate cause because Wheaton/Williams did not conclusively negate those elements as a matter of law.

[12.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams on the elements of negligence and proximate cause because [appellants] raised a genuine issue of a material fact on both of those elements.

[13.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams on the affirmative defense of sole proximate cause because Wheaton/Williams failed to establish every element of the affirmative defense as a matter of law.

[14.] The trial court erred in granting [an] ordinary summary judgment to Wheaton/Williams on the affirmative defense of sole proximate cause because [appellants] raised a genuine issue of material fact on whether the negligence of a party to the suit was a proximate cause of the collisions.

N_4_">4. Morales describes the capacity in which she sues as follows:

[] Plaintiff JANIE MORALES brings this suit both in her individual capacities as a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and as an heir at law of VICTOR MANUEL MORALES, JR., deceased. Plaintiff also brings this suit in her representative capacity as a statutory beneficiary on behalf of all other statutory beneficiaries . . . and on behalf of VICTOR MORALES, an heir at law of VICTOR MANUEL MORALES, JR., deceased.

[] VICTOR MORALES is an heir at law of VICTOR MANUEL MORALES, deceased, a surviving parent of VICTOR MANUEL MORALES, JR., deceased, and is a statutory beneficiary on whose behalf Plaintiff JANIE MORALES sues.

[] There are no other surviving parents, children, or spouses of VICTOR MANUEL MORALES, JR., deceased.

5. Secaida's claims are also referred to as "counterclaims" in the pleadings and briefs.

6. Terrie Secaida's brief contains the following statement:

There were in fact no motions for summary judgment, no supporting affidavits, nor any answers to summary judgment regarding Terrie [Secaida]'s counterclaims. Several weeks after the ruling regarding Janie [Morales]'s claims, Terrie and defendants agreed that the trial court's ruling regarding Janie's claims would most probably be applied to Terrie's claims, as "the law of the case." The parties agreed, and the court ordered, that summary judgments against Terrie's claims could be entered while preserving the right of Terrie to appeal.

7. The district court signed four separate summary judgments: (1) Morales take nothing against Craig; (2) Secaida take nothing against Wheaton and Williams; (3) Secaida take nothing against Craig; and (4) Morales take nothing against Wheaton and Williams. None of the judgments specifically address the third-party claims of Craig, Wheaton, and Williams against Secaida, but all contain a "Mother Hubbard" clause. See Mafrige v. Ross, 866 S.W.2d 590, 590 n.1 (Tex. 1994) ("A Mother Hubbard clause generally recites that all relief not expressly granted is denied."). A review of the district-court record reveals that the parties and the court intended the four judgments to constitute a final, appealable judgment, and no party has questioned either the finality of the district court's action or this Court's jurisdiction. See Lehmann v. Har-Con Corp., 44 Tex. Sup. Ct. J. 364, 375-76 (Feb. 1, 2001).

8. As germane to Wheaton and Williams, appellants' "points of error" are as follows:

[ 9.] The trial court erred in granting Wheaton/Williams an ordinary summary judgment on the affirmative defense of sole proximate cause because Edward Secaida was a party to the suit.

[10.] The trial court erred in granting Wheaton/Williams a no-evidence summary judgment on the elements of negligence and proximate cause because [appellants] produced more than a scintilla of evidence on each of the elements.

[11.] The trial court erred in granting an ordinary summary judgment to Wheaton/Williams based on the elements of negligence and proximate cause because Wheaton/Williams did not conclusively negate those elements as a matter of law.

[12.] The trial court erred in granting an ordinary summary judgment to Wheaton