Steven Hayden, D/B/A Stephen Lin Hayden Construction v. Scott Tractor & Equipment Co., Inc.

• Court: Court of Appeals of Texas
• Decided: September 27, 2005
• Docket: 07-04-00255-CV
• Status: Published

Opinion

NO. 07-04-0255-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 27, 2005

______________________________

STEVE HAYDEN, D/B/A STEPHEN LIN HAYDEN CONSTRUCTION, APPELLANT

V.

SCOTT TRACTOR & EQUIPMENT CO., INC., APPELLEE

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 89,710-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Steve Hayden, d/b/a Stephen Lin Hayden Construction, appeals a judgment notwithstanding the verdict in favor of appellee Scott Tractor & Equipment Co., Inc. ordering that he take nothing by his counterclaim and awarding Scott Tractor damages and attorney's fees. By two issues, Hayden contends the trial court erred in disregarding the jury's findings because (1) there was sufficient evidence that Scott Tractor was negligent on the occasion in question, and (2) there was evidence of the market value of the damaged equipment immediately before and after the accident. We affirm.

Hayden was transporting a backhoe recently purchased from Scott Tractor on a flatbed trailer. Shortly after leaving Scott Tractor, the trailer detached from his pickup and toppled onto the roadway, damaging the backhoe.

Hayden purchased the flatbed trailer from another Amarillo equipment dealer just prior to obtaining the backhoe from Scott Tractor. Although he had pulled "many large trailers," Hayden had never loaded or pulled a backhoe on a trailer, and requested that Robert White, a salesman at Scott Tractor with prior experience loading heavy machinery, load the machine and secure it for transport. White agreed and informed Hayden he would need to purchase the proper booms and chains to secure the load.

In order to position the machine, White drove the backhoe up two large ramps and onto the rear of the trailer. During this maneuver, the immense weight of the backhoe caused the rear wheels of Hayden's pickup to rise off the ground and created a "hinge effect," allowing the pickup to pivot on its front wheels. As the backhoe was driven further forward, the trailer leveled off, and the pickup lowered back to the ground. This movement caused Hayden and his wife some concern; however, White assured the couple that he had experienced this type of movement before and that it was "natural" given the design of the trailer. White then proceeded to secure the backhoe to the trailer with booms and chains.

Once the backhoe was properly secured, Hayden and his wife left Scott Tractor and merged onto Interstate 40. Suddenly, the trailer began rocking uncontrollably, causing the rear wheels of Hayden's pickup to momentarily lose contact with the roadway. Eventually, the trailer detached from the vehicle and rolled over onto the interstate, damaging both the backhoe and the roadway.

Immediately following the incident, Hayden stopped payment on the $17,965.85 check he had tendered to Scott Tractor for the purchase price of the backhoe. Scott Tractor filed a breach of contract action to recover the amount. In response, Hayden filed a counterclaim for negligence asserting damages for the purchase price of the backhoe and the $869.03 he paid to reimburse the State of Texas for damages to the interstate. Following a hearing, the trial court granted partial summary judgment in favor of Scott Tractor and submitted Hayden's counterclaim to a jury. At the conclusion of the jury trial, Hayden recovered a judgment against Scott Tractor in the amount of $16,946.89. Scott Tractor then filed a motion to disregard the jury's finding asserting (1) there was no evidence that Scott Tractor was negligent on the occasion in question, and (2) there was no evidence of the market value of the backhoe immediately before or after the accident. Concluding there was no evidence of probative force to sustain the verdict, the trial court granted Scott Tractor's motion notwithstanding the verdict and ordered that they recover the full purchase price of the backhoe in addition to $2,500 in attorney's fees.

By his first issue, Hayden contends the court erred in granting the motion notwithstanding the verdict because there was sufficient evidence to allow a jury to conclude that Scott Tractor was either negligent in loading the backhoe or negligent in assuring him that the trailer he had purchased was sufficient for the purpose of hauling the backhoe. We disagree.

A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict only when there is no evidence upon which the jury could have made its findings. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). In other words, a court may render a judgment notwithstanding the verdict if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991).

In reviewing a judgment notwithstanding the verdict, we must determine whether there is any evidence upon which the jury could have made its finding. We review the record in the light most favorable to the finding, considering only the evidence and inferences that support the finding and rejecting any evidence and inferences to the contrary. See Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex. 1998). If more than a scintilla of evidence supports the finding, the jury's verdict must be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in their conclusions. See Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). However, evidence that creates only a mere surmise or suspicion is no more than a scintilla and, thus no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). See also Williams v. Gaines, 943 S.W.2d 185, 193 (Tex.App.-Amarillo 1997, writ denied) (holding that "[p]robative evidence . . . must be more than a surmise or suspicion").

In the present case, the only evidence presented regarding Scott Tractor's negligence was the testimony of Hayden and his wife Kathleen. Hayden testified that when the backhoe was driven onto the trailer and his pickup lifted off the ground, he became "real concerned." He testified he was concerned as to whether his pickup was heavy enough to handle the load. When he confronted Robert White with his concerns, White told him "you'll be fine" and repeatedly assured him, "it wouldn't be a problem." Regarding the cause of the accident, Hayden testified the trailer "began rocking wildly out of control" and caused the rear wheels of his truck to lift off the ground. He stated, "I guess, that the load of the backhoe caused it to flip and turn loose from the trailer. It broke the hitch." Kathleen testified she too became concerned when the truck lifted during loading and said White assured them it was normal. She recalled that as they were driving on the interstate, "the trailer started bouncing and swerving, and it just eventually-it just flipped."

Although this testimony constitutes some evidence that the trailer was behaving abnormally and that the incident resulted in damages, it does not suffice as evidence for a jury finding that Scott Tractor was negligent. In order for a jury to find negligence, there must be evidence of a duty, a breach of that duty, and damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Proximate cause consists of both cause in fact and forseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The jury was instructed that proximate cause is "that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred." They were further instructed that "[i]n order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom."

We do not find any evidence of proximate cause in the record which would support a verdict that an act or omission by Scott Tractor or any of its employees resulted in damages to Hayden. In the absence of probative evidence of proximate cause, a jury is left only to surmise or speculation. As we have previously held, the mere occurrence of an accident is no evidence of negligence. See Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 436 (Tex.App.-Amarillo 1996, writ denied). Here, considering only the evidence and inferences in the record that tend to support the finding, we fail to find a scintilla of evidence which would support a finding of negligence on behalf of Scott Tractor. Hayden's first issue is overruled. Our disposition of this issue pretermits consideration of Hayden's remaining issue. Tex. R. App. P. 47.1.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Priority="65" Name="Medium List 1 Accent 4"/>

NO. 07-10-0446-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 15, 2011

_____________________________

M & B ASSOCIATES, INC. and WILLIAM LOHMAN,  

                                                                                         Appellants

v.

WELLS FARGO BANK, N.A., 

                                                                                         Appellee

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B37339-1007; HONORABLE EDWARD LEE SELF, PRESIDING

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

            Summary judgment was granted in favor of Wells Fargo Bank, N.A. (Wells Fargo) on its suit to recover on a promissory note executed by M & B Associates, Inc. and guaranteed by William Lohman (collectively referred to as M & B).  The sole basis upon which M & B opposed the motion for summary judgment and the only issue raised on appeal involves arbitration.  That is, the promissory note and the guaranty contained arbitration clauses which clauses prevented the trial court from rendering a summary judgment.   We disagree and affirm the judgment.

            In response to the original petition of Wells Fargo, M & B filed a general denial.  Nothing was said of arbitration in the pleading.  Nor did anyone move the trial court to stay the proceedings or compel the parties to submit to arbitration.  Two months later, Wells Fargo moved for summary judgment upon the note and guaranty.  M & B filed a response mentioning the arbitration provisions and accompanied it with an affidavit allegedly documenting the fact that arbitration had been demanded pursuant to the agreements.  The response concluded with a prayer requesting “that this Court . . . deny Plaintiff’s Motion for Final Summary Judgment, or order such other relief as may be appropriate.”  But, again, neither defendant moved the court to either stay litigation or compel arbitration.  

            Next, the arbitration clauses read as follows: “Lender and each party to this agreement hereby agree, upon demand by any party, to submit any Dispute to binding arbitration in accordance with the terms of this Arbitration Program.”  So too did the document define the term “Dispute.”  The latter consisted of “any dispute, claim or controversy of any kind, whether in contract or tort, legal or equitable, . . .  relating in any way to this Agreement or any related agreement incorporating this Arbitration Program . . . or any past, present, or future loans, transactions, contracts . . . of any kind . . . .” 

            To compel arbitration, a party must apply to the court for it.  See 9 U.S.C.A. §3 (2009) (giving a court the right, upon application of a party, to stay the trial of the action until arbitration has been had in accordance with the agreement).^[1]   Moreover, a party seeking to enforce an arbitration agreement must establish the existence of a valid arbitration agreement and that a dispute falls within the scope of it.  In re Bank One, N.A., 216 S.W.3d 825, 826 (Tex. 2007) (orig. proceeding); Haddock v. Quinn, 287 S.W.3d 158, 169 (Tex. App.–Fort Worth 2009, pet. denied).  As already noted, the record contains neither a motion to stay litigation nor to compel arbitration.  This is of import because a party having a right to arbitration need not invoke it.  Instead, this alternative means of resolving a dispute may be waived.  See In re Fleetwood Homes of Tex., L.P., 257 S.W.3d 692, 694 (Tex. 2008) (orig. proceeding) (discussing waiver of arbitration). Therefore, the mere presence of an arbitration clause in an agreement subject to litigation does not ipso facto require the trial court to sua sponte send the controversy to arbitration.  This is especially so when, as here, the clause itself requires someone to demand arbitration.  See Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366, 377 (Tex. App.–El Paso 2010, no pet.) (finding the failure to order the parties to arbitration waived even though a motion to compel arbitration was filed when no ruling on it appeared in the record).     

            It is true that the record contains an affidavit executed by M & B’s attorney indicating that arbitration had been requested.  Yet, the sum and substance of the information provided consisted of the statement that the affiant “demanded arbitration of the Dispute regarding the Promissory Note and Commercial Guaranty as per the arbitration clause of the Promissory Note and Commercial Guaranty sued upon in the Lawsuit.”  Nothing was said about when the demand was made, by what means it was made, the specific person or entity to whom it was made, and whether demand was refused.  Omitting such information is fatal for an affidavit must set forth facts which would be admissable in evidence.  Tex. R. Civ. P. 166a(f).  Conclusory statements, that is, those that do not provide the underlying facts to support it, Winchek v. Am. Exp. Travel Related Servs. Co., 232 S.W.3d 197, 206 (Tex. App.–Houston [1^st Dist.] 2007, no pet.), are insufficient to defeat summary judgment.  Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (finding an affidavit should be struck when it merely stated that an agreement had been modified but did not state the time, place, and exact nature of the modification).     

            Nor did the affiant disclose the particular “Dispute,” if any, sought to be arbitrated.  Whether it was of the ilk contemplated by the definition of “Dispute” is unknown.  And, unless it is, arbitration is unavailable.  See In re Bank One, N.A., 216 S.W.3d at 826 (requiring a party seeking to enforce an arbitration agreement to establish the existence of a valid arbitration agreement and that a dispute falls within the scope of it). It may well be that we could easily guess at the dispute’s nature, but the rules underlying  summary judgment practice do not afford that freedom.  It was incumbent upon M & B to provide facts (as opposed to conclusory allegations) describing the particular dispute, and it did not.  So, we are unable to say that arbitration was an appropriate avenue of relief at bar, which determination would be a condition precedent to reversing the judgment. 

            In short, M & B failed to carry its appellate burden of establishing that the trial court erred in concluding that Wells Fargo was entitled to summary judgment as a matter of law.  So, we affirm the judgment.

                                                                        Brian Quinn

                                                                        Chief Justice

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^[1]It is undisputed that the Federal Arbitration Act controls.