## NO. 12

- 15

- 00121

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GARRY L. ROLLINS AND CARLA D. ROLLINS, APPELLANT

S

V.

TEXAS COLLEGE AND MP F INVE STMENTS, LLC D/B/A " A

- 1 RENT ALL", APPELLEE S §

§

§ APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

OPINION Garry L. Rollins and Carla D. Rollins appeal the trial court’s summary judgments granted against them in favor of Tex as College and MPF Investments, LLC d/b/a “A

- 1 Rent All.” They present three issues on appeal. We affirm.

B ACKGROUND Garry Rollins was employed by Texas College as a maintenance technician and supervisor. In October 2013, the college rented two scissor lifts to be used in performing repairs in the gymnasium. One of those lifts was rented from MPF. Garry fell while dismounting one of the lifts following completion of the repair work. After the fall, Garry sought medical treatment and had surgery for a neck injury. The Rollinses sued Texas College and MPF for damages they assert are a result of Garry’s fall from the scissor lift’s platform. They alleged Texas College was a nonsubscriber to worker’s compensation and was negligent. Specifically, the Rol linses claimed Texas College failed in its duty to (1) provide a reasonably safe workplace; (2) furnish reasonably safe machinery or reasonably safe personal protective equipment for use with the scissor lift; (3)2

provide adequate help in the performance o f the work; (4) train and/or properly supervise Garry while using the lift; and (5) ensure that Garry was fit to perform work on a scissor lift. Garry alleged that he was diagnosed with syncope, an illness that causes blackouts, following an
incident in w hich he coughed and sneezed while attempting to lift a marble slab in September 2013. According to Garry, he was ordered to use the scissor lift to patch the gymnasium ceiling even though he told his supervisor that he was afraid of heights and his superv isor knew about his syncope. The Rollinses alleged MPF was negligent in failing to train Texas College’s employees regarding use of the scissor lift and by failing to include an owner’s manual in the scissor lift’s compartment box. They also alleged MPF was liable for negligent entrustment. 1 Carla Rollins asserted derivative claims against both Texas College and MPF. Texas College and MPF each moved for traditional and no evidence summary judgment s

. They also moved to strike portions of the summary judgment evidence attached to the Rollinses’ responses. The trial court sustained the objections and granted the motions without a hearing. The Rollinses filed a motion to reopen the evidence, which was denied. This appeal followed.

M OTIONS TO S TRIKE As part of their first and second issues, the Rollinses allege that certain summary judgment evidence was improperly stricken. 2
Standard of Review Evidence offered in response to a motion for summary judgment must be admissible
under the rules of evidence to the same extent that would be required at trial. See T EX

. R. C IV

. P. 166a(f); United Blood Servs. v. Longoria , 938 S.W.2d 29, 30 (Tex. 1997). Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens

- Co rning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 42 (Tex. 1998). We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. Longoria , 938
S.W.2d at 30.

1 The Rollinses are not asserting negligent entrustment on appeal.

2 The Rollinses complain that several pieces of summary judgment evidence were improperly stricken. However, we address only the evidence pertinent to our review. See T EX

. R. A PP

. P. 44.1 (reversible error if probably caused rendition of improper judgment ); City of Brownsville v. Alvarado , 897 S.W.2d 750, 753

- 54 (Tex. 1995) (exclusion of evidence only harmful if probably caused rendition of improper judgment) , 47.1

.3

Analysis The Rollinses’ response to Texas Col lege’s no evidence motion for summary judgment included a letter to the Rollinses’ attorney from Dr. Samuel Barnett, the physician who performed Garry’s neck surgery. The letter described Dr. Barnett’s evaluation of Garry and his diagnosis. The Rollinses offered no other causation evidence in response to the college’s no evidence motion for summary judgment. Texas College objected that the letter was inadmissible hearsay, and the trial court sustained the objection. On appeal, Garry argues the letter is admissible under Texas Rule of Evidence 803(4). Hearsay is any statement, other than one made while testifying at trial, that is offered to prove the truth of the matter asserted. T EX

. R. E VID

. 801(d). Rule 803(4) is an exception to this general rule th at permits admission of statements (1) made for, and reasonably pertinent to, medical diagnosis or treatment; and (2) describing medical history; past or present symptoms or sensations; their inception; or their general cause. T EX

. R. E VID

. 803(4). Lette rs written for the purpose of advising as to a doctor’s findings on examination and evaluation of a patient are hearsay. Nw. Nat’l Ins. Co. v. Garcia , 729 S.W.2d 321, 325 (Tex. App.

— El Paso 1987, writ ref’d n.r.e.). Rule 803(4) makes admissible the histo ry the patient gave the doctor, not letters based upon that history. See Garcia , 729 S.W.2d at 325; see also T EX

. R. E VID

. 803(4). Therefore, Dr. Barnett’s letter was inadmissible hearsay, and the trial court did not abuse its discretion in striking it. We overrule the portions of the Rollinses’ first and second issues that pertain to the exclusion of Dr. Barnett’s letter.

M OTIONS FOR S UMMARY J UDGMENT Also in their first and second issues, the Rollinses allege the trial court erred in granting
Texas Col lege’s and MPF’s motions for summary judgment.
Standard of Review The standard for reviewing a traditional summary judgment is well

- established. The movant for traditional summary judgment has the burden of showing that there is no genuine
issue of materi al fact and that it is entitled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c). When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of t he nonmovant’s cause of action or prove all essential elements of an affirmative defense. See4

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 burden shifts to the no nmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678

- 79 (Tex. 1979). Generally, a trial court may not consider summary judgmen t evidence not referenced in or incorporated into the
motion. Fed. Home Loan Mortg. Corp. v. Pham , 449 S.W.3d 230, 236 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). Additionally, after an adequate time for discovery has passed, a party without the bur den of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claims. See T EX

. R. C IV

. P. 166a(i).
Once a no evidence motion has been filed in accordance wit h Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750

- 51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence
to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. Id

. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair minde d persons to differ in their conclusions, then more than a scintilla of evidence exists. Id

. Less than a scintilla of
evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id

. In determining whether an appellant has raised more than a scintilla of evidence regarding the grounds on which a no evidence motion for summary judgment was based, we are limited to the summary judgment proof produced in the response. DeGrate v. Exec. Imprints,
Inc. , 261 S.W.3d 402, 408 (Tex. App.

— Tyler 2008, no pet.). When presenting summary judgment proof in response to a no evidence motion, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court. Id

. Referencing attached documents only generally does not relieve a respondent of directing the trial court to where in such documents the issues set forth in the response are raised. Id

. Neither this court

nor the trial court is required to wade through a voluminous record to marshal a respondent’s5

proof. Id

. We also are not free to search the entire record, including materials not cited to or relied on by the trial court. Id

. In both traditional and no evi dence summary judgment motions, we review the record de novo and in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006). All theo ries in support of or in opposition to a motion for summary judgment must be present ed in writing to the trial court. See T EX

. R. C IV

. P. 166a(c). If the trial court’s order does not specify the grounds on which it granted summary judgment, we affirm the trial court’s ruling if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S.
, 858 S.W.2d 374, 380 (Tex. 1993). When a party moves for both a traditional and no evidence summary judgment, we first
review the trial court’s summary judgment under the no evidence standards of Rule 166a(i). Ridgway , 135 S.W.3d at 600. If the no evidence summary judgment was properly granted, we do not reach the arguments made in the traditional motion for summary judgment. See id

. at 602. Applicable Law Texas College is a nonsubscriber to workers’ compensation. Therefore, the Rollinses must establish Texas College was negligent. See T EX

. L AB

. C ODE A NN

. § 406.033(d); Kroger Co. v. Elwood , 197 S.W.3d 793, 794 (Tex. 2006). The Rollins es also alleged that MPF was negligent. To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately caused by the breach. Kroger , 197 S.W.3d at 794. Proximate cause consists of cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477 (Tex. 1995). Proximate cause cannot be established by mere conjecture, guess, or speculation. Id

. Lay testimony is sufficient to establish causation in those cases in which general experi ence and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Morgan v. Compugraphic Corp.
, 675 S.W.2d 729, 733 (Tex.1984). Lay testimony that establishes a sequence of e vents providing a “strong, logically traceable connection between the event and the condition is sufficient proof
of causation.” Id

. This type of evidence supports a causation finding between the accident and basic physical conditions when the conditions (1) are within the common knowledge and experience of laypersons, (2) did not exist before the accident, (3) appeared after and close in6

time to the accident, and (4) are within the common knowledge and experience of laypersons.
Guevara v. Ferrer , 247 S.W .3d 662, 667 (Tex. 2007). However, expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors. Id

. at 665. Analysis As part of its no evidence motion, Texas College alleged the Rol linses had no evidence supporting causation. Specifically, the college contended there was no evidence that Garry’s injuries were caused by his fall from the scissor lift. It is undisputed that Garry suffered from a neck injury and underwent neck surger y prior to his fall. It is also undisputed that the previous injury is similar to the injury complained of in this suit. Therefore, the Rollinses were required to present expert testimony linking Garry’s latest neck injur y and neck surgery to his fall fr om the scissor lift. See State Office of Risk Mgmt. v. Adkins , 347 S.W.3d 394, 400

- 01 (Tex. App.

— Dallas 2011, no pet.) (expert testimony required to establish aggravation of preexisting medical condition). However, the Rollinses provided only a letter fro m Garry’s treating physician, Dr. Barnett. Texas College objected that the letter was inadmissible hearsay. The trial court sustained the objection and struck the letter. Because the only evid ence linking Garry’s neck injury and neck surgery to the fall was stricken by the trial court, the Rollinses presented no evidence of causation. Therefore, the trial court did not err in granting Texas College’s no evidence motion for summary judgment. MPF asserted, in part, in its no evidence motion for summary ju dgment that the Rollinses
had no evidence that Garry fell from the lift Texas College rented from MPF. On appeal, the Rollinses failed to challenge this summary judgment ground in their brief. When the trial court does not specify the basis for its summa ry judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Star

- Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995). If an appellant does not challenge each possible ground on which summary judgment could h ave been granted, we must uphold the summary judgment on the unchallenged ground. Jarvis v. Rocanville Corp. , 298 S.W.3d 305, 313 (Tex. App.

— Dallas 2009, pet. denied). However, even if the Rollinses had challenged this ground on appeal, they could not

pr evail because they presented no summary judgment evidence that Garry fell from the lift Texas College rented from MPF. In fact, the only evidence presented to the trial court demonstrates7

that Garry fell from a lift other than the one rented from MPF. Be cause there is no evidence that Garry fell from MPF’s scissor lift, there is no evidence that MPF caused any of Garry’s injuries. We overrule the remaining portions of the Rollinses’ first and second issues.

M OTION TO R EOPEN In their third issue, the R ollinses contend the trial court erred when it denied their motion to reopen the evidence.
Standard of Review We review the denial of a motion to reopen the evidence under an abuse of discretion
standard. Poag v. Flories , 317 S.W.3d 820, 827 (Tex. App.

— Fo rt Worth 2010, pet. denied). Texas Rule of Civil Procedure 270 allows a trial court to permit additional evidence when it clearly appears necessary to the administration of justice. T EX

. R. C IV

. P. 270. However, the rule does not require a court to perm it additional evidence. Poag , 317 S.W.3d at 828. In determining whether to permit additional evidence, a court should consider whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) recept ion of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Id

. The decision to reopen a case is within the trial court’s sound discretion. Id

. A “trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion.” Id

. (citing Lopez v. Lopez , 55 S.W.3d 194, 201 (Tex. App.

— Corpus Christi 2001, no pet.)). To show diligence, a pa rty must establish either that the evidence was previously unavailable or that the party had no opportunity to present the proof to the court before judgment. See Moore v. Jet Stream Invs., Ltd. , 315 S.W.3d 195, 201

- 02 (Tex. App.

— Texarkana 2010, no pet.); Hernandez v. Lautensack , 201 S.W.3d 771, 779 (Tex. App.

— Fort Worth 2006, pet. denied). Analysis After the no evidence summary judgments were granted, the Rollinses moved to reopen the evidence and sought to introduce an affidavit from Dr. Barnett bec ause his letter had been stricken by the court. The Rollinses urge that they were diligent in obtaining the affidavit because they did so a mere six days following the granting of summary judgment. Therefore, they contend the trial court abused its discr etion in denying their motion to reopen the evidence.8

The Rollinses’ request to reopen the evidence wa s an attempt to remedy the exclusion of Dr. Barnett’s letter because of its inadmissibility

— a fact they admit in their motion to reopen. However, the Ro llinses have not shown that the information contained in the affidavit was unavailable prior to the granting of the no evidence summary judgments. The Rollinses also failed to show that they did not have an opportunity to present the evidence to the trial court. To the contrary, Dr. Barnett’s affidavit contains the same information as his letter. And the letter itself demonstrates that the information was available eight months prior to the granting of the summary judgments. Therefore, the trial court d id not abuse its discretion when it denied the Rollinses’ motion to reopen the evidence to allow the introduction of Dr. Barnett’s affidavit. We
overrule the Rollinses’ third issue.

D ISPOSITION Having overruled the Rollinses’ three issues, we affirm the judgment of the trial court.

G REG N EELEY Justice
Opinion delivered July 12, 2016

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 12 , 2016

NO. 12

- 15

- 00121

- CV

GARRY L. ROLLINS AND CARLA D. ROLLINS,

Appellant V. TEXAS COLLEGE AND MP F INVESTMENTS, LLC D /B/A "A

- 1 RENT ALL", Appellee

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct. No. 13

- 3353

- A)

THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREE D that the judgment
of the court below be in all things affirmed , and that all costs of this appeal a re hereby adjudged against the A ppellant s , GARRY L. ROLLINS AND CARLA D. ROLLINS , for which execution may issue, and that this decision be certified to the court below for observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.