Soodeen v. Rychel

802 S.W.2d 361, 1990 Tex. App. LEXIS 3039, 1990 WL 215764
CourtCourt of Appeals of Texas
DecidedDecember 20, 1990
Docket01-89-00787-CV
StatusPublished
Cited by31 cases

This text of 802 S.W.2d 361 (Soodeen v. Rychel) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soodeen v. Rychel, 802 S.W.2d 361, 1990 Tex. App. LEXIS 3039, 1990 WL 215764 (Tex. Ct. App. 1990).

Opinions

OPINION

DUGGAN, Justice.

This is an appeal from a take-nothing summary judgment in a negligent entrustment action growing out of an automobile collision.

Appellant, Dianand Vijay Soodeen, was injured in a collision between his car and one owned by appellee, Ronald Rychel, which was being driven by either Angela Fontenot, or Diana (Dina) Thomas. After passing an intended freeway exit ramp, the operator of Rychel’s vehicle stopped, put the car in reverse, drove against the legal flow of traffic, and collided with Soodeen’s car when it crested a hill.

Soodeen filed suit against Fontenot, Thomas, and Rychel, alleging negligence on the part of Fontenot, or Thomas, as driver, and negligent entrustment on the part of Rychel. Fontenot and Thomas were not located for service of citation., Rychel answered and filed a motion for summary judgment, attaching an affidavit which recited in pertinent part:

2. On the date of the accident in question i.e., October 15, 1985 as alleged in Plaintiff’s Original Petition, I was the owner of a 1983 Toyota Célica ... which is the vehicle which I understand was involved in this accident.
3. I was not operating the vehicle at the time of the accident nor was I in the vehicle. It is my understanding Diana Thomas and/or Angela Fontenot were in the vehicle at the time of the accident with the plaintiff. I believe Diana Thomas was driving. Both of these ladies operated my vehicle without my knowledge, consent or permission. Further, these women did not request or ask permission to operate my vehicle prior to the time of this accident.

Rychel’s answer and deposition testimony, consistent with his summary judgment affidavit, alleged that Rychel, a high school football coach, was an acquaintance of Fon-[362]*362tenot. On the day of the collision, Fonte-not came to the school where Rychel was employed as a coach and asked Rychel, who was preparing to leave Galveston for a football game, if he would take her to Houston. Rychel testified that, as far as he knew, Fontenot had no other transportation available to her, and suggested she might have come to the school in a taxi. ■Rychel told Fontenot that he could not take her at that time, that he had a game to coach that evening, but that if she wanted to wait until he returned at about 8:30 or 9:00 p.m., some five to six hours away, he would then drive her to Houston. He told her she could sit inside his car to wait for him, and he unlocked one of the car doors so that she could do so. When he returned from the game, Rychel found that his car was gone. He called the Galveston police, but decided not to report the car stolen because Fontenot was a friend, and he thought that she might be involved in some way. Late that evening, Fontenot telephoned Rychel and told him that she and Thomas had been in an accident while driving Rychel’s car.

After a hearing, the trial court granted defendant Rychel’s motion for summary judgment, severed the cause of action against him from the remaining unserved defendants, and entered a take-nothing judgment as to Rychel. This appeal follows.

In two points of error, Soodeen asserts that the trial court abused its discretion: (1) in holding that Rychel’s affidavit was sufficient as a matter of law to support a summary judgment; and (2) in refusing to recognize other genuine issues of material fact that would preclude summary judgment.

The liability of the driver of Rychel’s car is virtually uncontested. The only question before us is whether Rychel’s affidavit and deposition conclusively negate Soodeen’s claim of Rychel’s negligent entrustment as a matter of law.

To obtain a summary judgment, a mov-ant must establish that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Drooker v. Sacilo Motors, 756 S.W.2d 394, 396 (Tex.App.—Houston [1st Dist.] 1988, writ denied); Tex.R.Civ.P. 166a(c). A defendant/movant must provide summary judgment evidence showing that at least one element of the plaintiff’s cause of action is established conclusively against the plaintiff. See Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex.1987). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant, who must then respond and present any issues to the trial court that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Drooker, 756 S.W.2d at 396. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Rule 166a(c) permits the granting of a summary judgment on the basis of uncon-troverted testimonial evidence of an interested witness, such as Rychel, if that evidence is clear, positive and direct, otherwise credible, and free from contradictions and inconsistencies, and could have been readily controverted. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989).

To establish negligent entrustment in his suit against Rychel, Soodeen must prove: (1) Rychel’s entrustment of the vehicle, as the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) whom Rychel knew or should have known was unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s negligence proximately caused the accident. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987); Williams v. Steves Indus. Inc., 699 S.W.2d 570, 571 (Tex.1985).

Whether Rychel entrusted his vehicle to either Fontenot or Thomas is an element of Soodeen’s negligent entrustment cause of action against Rychel, and is therefore a material fact in this case. If Rychel, as-movant for summary judgment, conclusive[363]*363ly proves that he did not entrust his automobile to either Angela Fontenot or Diana Thomas, he has negated one element of Soodeen’s negligent entrustment cause of action against him, and he is entitled to a take-nothing summary judgment unless Soodeen presents controverting summary judgment evidence.

Soodeen asserts that Rychel’s affidavit is insufficient to support a summary judgment in that it: (1) is not based on personal knowledge; (2) merely states conclusions; and (3) is not clear, direct, and positive. He further asserts that genuine issues of fact still exist as to: (1) whether Rychel had given Fontenot authorization to use his vehicle, and (2) Rychel’s credibility in his deposition testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
802 S.W.2d 361, 1990 Tex. App. LEXIS 3039, 1990 WL 215764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soodeen-v-rychel-texapp-1990.