Yeimi Fernandez, as Mother and Guardian of J.J.M., a Minor Child v. Heartland Co-Op, Corp.

• Court: Court of Appeals of Texas
• Decided: January 6, 2026
• Docket: 07-24-00362-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00362-CV

YEIMI FERNANDEZ, AS MOTHER AND GUARDIAN OF J.J.M., A MINOR CHILD, APPELLANT

V.

HEARTLAND CO-OP, CORP., APPELLEE

On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 11668, Honorable Kathryn H. Gurley, Presiding

January 6, 2026 MEMORANDUM OPINION Before PARKER and DOSS and YARBOROUGH, JJ.

Yeimi Fernandez, as mother and guardian of J.J.M., appeals the trial court’s

judgment granting no-evidence summary judgment in favor of Heartland Co-op, Corp.,

and order denying Fernandez’s motion for new trial. We affirm the judgment and order

of the trial court. BACKGROUND

This case involves Fernandez’s claims against Heartland for gross negligence and

wrongful death arising out of the on-the-job death of Michael Molden. Molden worked for

Heartland as a grain bin cleaner in Bovina, Texas. On September 7, 2021, Molden

entered a running grain bin to recover a grain vac hose and was engulfed by corn causing

his death.

Fernandez, the mother of Molden’s child, brought suit against Heartland seeking

exemplary damages pursuant to Texas Labor Code section 408.001(b). Heartland filed

a no-evidence motion for summary judgment. Fernandez responded and attached

evidence. During a hearing on the motion, the trial court granted Heartland’s objections

to some of the evidence submitted by Fernandez. Following the hearing, the trial court

granted Heartland’s motion and entered final judgment. Fernandez subsequently filed a

motion for new trial that included a claim that she had newly discovered evidence that

justified a new trial. During the hearing on Fernandez’s motion, Heartland objected to the

newly discovered evidence and the trial court sustained Heartland’s objection. After the

hearing, the trial court overruled Fernandez’s motion for new trial. Fernandez timely

appealed the summary judgment and the denial of her motion for new trial.

STANDARD OF REVIEW

We employ a de novo review of a trial court’s ruling on a motion for summary

judgment. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A no-

evidence summary judgment motion is essentially a motion for a pretrial directed verdict.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006). We review the entire

2 record in the light most favorable to the party against whom the no-evidence summary

judgment was rendered and we indulge every reasonable inference and resolve any

doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

To prevail on a defensive no-evidence motion for summary judgment, the movant must

prove that there is no evidence of at least one essential element of each of the plaintiff’s

causes of action. Pena v. Harp Holdings, LLC, No. 07-20-00131-CV, 2021 Tex. App.

LEXIS 7685, at *8–9 (Tex. App.—Amarillo Sept. 16, 2021, no pet.) (mem. op.). If the

party against whom the summary judgment was rendered brings forth more than a

scintilla of probative evidence to raise a genuine issue of material fact, a no-evidence

summary judgment motion cannot properly be granted. Id. at *9.

Applying the traditional legal sufficiency standard of review, a no-evidence point

will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the

court is barred by rules of law or evidence from giving weight to the only evidence offered

to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. McAllen

Hosps., L.P. v. Lopez, 576 S.W.3d 389, 392 (Tex. 2019). When a movant files a proper

no-evidence summary judgment motion, the burden shifts to the nonmovant to defeat the

motion by presenting at least a scintilla of probative evidence raising a genuine issue of

material fact as to each element challenged in the no-evidence motion. Pena, 2021 Tex.

App. LEXIS 7685, at *9.

Because the order granting Heartland summary judgment did not specify the

grounds on which the trial court relied, we must affirm the judgment if any of the grounds

3 asserted are meritorious. Inwood Nat’l Bank v. Fagin, 706 S.W.3d 342, 346 (Tex. 2025)

(per curiam).

APPLICABLE LAW

There is no dispute that Heartland was, at all relevant times, a subscriber under

the Texas Workers’ Compensation Act. It is also undisputed that Molden was an

employee of Heartland at the time of his death and that his death occurred in the course

and scope of his employment. Consequently, the exclusive remedy provision contained

in the Texas Labor Code applies to this suit. TEX. LABOR CODE § 408.001(a). Under that

provision, to prevail in a wrongful death suit against an employer who subscribes to

workers’ compensation insurance, the legal representative of a deceased employee must

prove the employer was grossly negligent in causing the employee's death. Id.

§ 408.001(b).

The test for gross negligence contains two components, one objective and one

subjective. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Gross

negligence means an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

TEX. CIV. PRAC. & REM. CODE § 41.001(11). In evaluating the sufficiency of the evidence

to establish gross negligence pursuant to this standard, circumstantial evidence is

sufficient to prove either component. Lee Lewis Constr., 70 S.W.3d at 785. However, it 4 is important to note that these requirements are not satisfied through proof of ordinary

negligence or even bad faith. TEX. CIV. PRAC. & REM. CODE § 41.003(b); Agrium U.S., Inc.

v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, pet. denied).

Additionally, Heartland will only be liable for exemplary or punitive damages

because of the actions of its employee if: (1) the principal authorized the doing and the

manner of the act, or (2) the agent was unfit and the principal was reckless in employing

him, or (3) the agent was employed in a managerial capacity and was acting in the scope

of employment, or (4) the employer or a manager of the employer ratified or approved the

act. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967).

ANALYSIS

Fernandez presents one issue: the trial court erred in granting Heartland’s no-

evidence summary judgment motion. However, she argues both that the trial court erred

in granting summary judgment and in denying her motion for new trial. Liberally

construing her pleadings, as we must, we will address both arguments. TEX. R. APP. P.

38.1(f); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam).

No-Evidence Summary Judgment

Fernandez does not challenge the trial court’s rulings sustaining objections to

portions of her summary judgment evidence. Consequently, our review will only consider

that evidence which was properly before the trial court at the time it granted Heartland

summary judgment. Wieler v. United Sav. Ass’n, 887 S.W.2d 155, 157 (Tex. App.—

Texarkana 1994, writ denied). Based on this evidence, we must render the judgment that

should have been granted by the trial court. Id. Specifically, the trial court sustained 5 objections to a group of employee interviews 1 and evidence relating to the OSHA

investigation into Molden’s death. Fernandez does not challenge these rulings so we will

not consider this evidence in our review of the trial court’s ruling. Brown v. Hensley, 515

S.W.3d 442, 446 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“In reviewing whether

a summary judgment was properly granted, we are precluded from considering

arguments on appeal that refer to evidence the trial court has excluded, unless the

appealing party also challenges the ruling that excluded that evidence.”). The properly

considered evidence consists of OSHA guidelines and Heartland policies regarding grain

bin cleaning, the police report of the incident with pictures, and a transcript of the

deposition of Bill Chizek. Notably, none of this evidence is from any direct eyewitnesses

to the incident resulting in Molden’s death.

Fernandez contends that both OSHA guidelines and Heartland policies require

Heartland to employ safety measures before an employee may enter a grain bin and that

safety equipment was not properly utilized by Molden when he entered the grain bin.

However, the evidence before the trial court establishes, as a matter of law, that Heartland

had policies in place to protect employees who might enter into a grain bin but that Molden

failed to follow these policies before entering the grain bin. There is no evidence that

Molden obtained a required grain bin entry permit before entering the bin. The evidence

establishes that Molden entered the grain bin without utilizing safety equipment. Further,

Molden entered the grain bin without ensuring that the bin was stopped and the auger

was locked out as is required by Heartland policy. There is record evidence that Molden

had been trained on Heartland policies regarding entry into a grain bin. In his deposition,

1 Notably, these employee interviews are not part of the appellate record.

6 Bill Chizek, the executive vice president of Heartland, testified that Molden was not

authorized to enter the grain bin when he did. There is no evidence that anyone in a

managerial position directed Molden to enter the grain bin. Thus, there is no evidence

that Heartland violated any duty to Molden when Molden made the unilateral decision to

enter the grain bin in violation of Heartland policy.

Fernandez also contends that Heartland was grossly negligent because other

members of Molden’s crew were not properly trained in emergency and rescue operations

and there was no cellular phone service at the bin. However, neither of these claims is

supported by the evidence that was before the trial court when it granted Heartland’s no-

evidence summary judgment motion.

Considering all of the evidence properly before the trial court, there is no genuine

issue of material fact regarding whether Heartland acted with subjective or objective

indifference to Molden’s safety when Molden entered the grain bin and was killed. Thus,

we conclude that the trial court did not err in granting Heartland’s no-evidence summary

judgment motion.

Motion for New Trial

Fernandez contends that the trial court erred in denying her motion for new trial

because newly discovered evidence raised a genuine issue of material fact. Fernandez’s

entire argument relating to the denial of her motion for new trial is premised on her

contention that the newly discovered evidence of Sergio Soto’s translated statement

requires a new trial.

7 When Fernandez offered Soto’s translated statement, Heartland objected on the

basis that it was hearsay and that it was not sworn to by either Soto or the translator. The

trial court sustained Heartland’s objections and, as with the summary judgment motion,

Fernandez does not challenge the propriety of this ruling by her appeal. Rather, her

argument attempts only to establish that Soto’s statement constitutes newly discovered

evidence. Because Fernandez does not challenge the trial court’s exclusion of Soto’s

statement, she has waived any error in the trial court’s ruling and that ruling is not properly

before this Court. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591,

598 n.1 (Tex. 2001) (unbriefed issue is not before a reviewing court).

Because Fernandez failed to challenge the trial court’s ruling excluding the claimed

newly discovered evidence upon which Fernandez premises her claim that the trial court

erred in denying her motion for new trial, we cannot review this evidence to determine

whether it would justify a new trial. Consequently, we must affirm the trial court’s ruling

denying the new trial motion.

CONCLUSION

Concluding that the trial court did not err in granting Heartland’s no-evidence

summary judgment motion or denying Fernandez’s new trial motion, we overrule

Fernandez’s sole issue and affirm the judgment of the trial court.

Judy C. Parker Justice