Opinion filed September 12, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-11-00274-CV
                                  __________

                        MARK WATSON, Appellant

                                         V.

                      REECE ALBERT, INC., Appellee


                    On Appeal from the 142nd District Court
                            Midland County, Texas
                       Trial Court Cause No. CV-47,092


                     MEMORANDUM OPINION
      Mark Watson sued the City of Midland and Reece Albert, Inc., for property
damage after his house was flooded due to a thunderstorm. Watson maintained
that the City and Reece Albert were negligent in building a dam that diverted the
rainwater onto his property.       The trial court dismissed the City for lack of
jurisdiction and granted Reece Albert’s no-evidence motion for summary
judgment.    In Watson’s appeal from the no-evidence summary judgment, he
contends in his first issue that the trial court erred in striking as hearsay Watson’s
deposition testimony that he was told by the City’s project manager that Reece
Albert built the dam. In his second issue, he contends that the trial court erred in
granting summary judgment. We affirm.
                                      Analysis
      Rule 166a(i) of the Texas Rules of Civil Procedure provides the following
standard for a no-evidence motion for summary judgment:
            After adequate time for discovery, a party without presenting
      summary judgment evidence may 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. The motion must state the elements as to which there is
      no evidence. The court must grant the motion unless the respondent
      produces summary judgment evidence raising a genuine issue of
      material fact.

      In its motion for summary judgment, Reece Albert stated that there was no
evidence that Reece Albert owed Watson a duty, breached that duty, or
proximately caused Watson’s damages by that breach, citing Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006). Watson’s response relied on the
following excerpt from his deposition testimony:
            Q. Did you at any point after the flooding incident learn who
      had built the dam?

             A. After the flood the project manager for the City had come
      out there, and he’s the one who told me it was Reece Albert who had
      built the dam.

Reece Albert objected to Watson’s testimony on the basis that it was inadmissible
hearsay. The trial court agreed.
      Summary judgment evidence must be presented in a form that would be
admissible in a conventional trial proceeding. Hidalgo v. Sur. Sav. & Loan Ass’n,

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462 S.W.2d 540, 545 (Tex. 1971). Hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. TEX. R. EVID. 801(d). The statement in question
was hearsay; it was offered to prove the truth of the assertion that Reece Albert
built the dam. Watson contends that the excluded statement was an admission by a
party-opponent; therefore, it was not hearsay under TEX. R. EVID. 801(e)(2) and
was admissible. The statement does not qualify as an admission by a party-
opponent. The statement by the City’s project manager was not shown to be a
statement authorized by Reece Albert as required by Rule 801(e)(2)(C). The
statement was not made by an agent or employee of Reece Albert as required by
Rule 801(e)(2)(D). The trial court correctly ruled that the statement by Watson
was inadmissible.
      The trial court also did not err in granting Reece Albert’s no-evidence
motion for summary judgment. Even if the statement had been admitted, it did not
suffice to show that Reece Albert owed a duty to Watson, how Reece Albert
breached that duty, or how any action by Reece Albert proximately caused
Watson’s damages. In its no-evidence motion for summary judgment, Reece
Albert asserted that there was no evidence on any of the elements. In granting the
motion for summary judgment, the trial court did not state on which ground it
granted the motion. Watson’s brief does not address the remaining two elements.
      A court should sustain a no-evidence point when “(a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact.” King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Without the inadmissible hearsay


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statement, there is no evidence of duty, breach, or causation. And the statement,
even if admitted, is no more than a scintilla of evidence to prove a duty.
      Watson states that negligent acts of a contractor can be imputed to the City
and that the duty of the City to keep its streets safe is transferred to Reece Albert.
No authority is cited for these assertions. And there is no discussion on how Reece
Albert was negligent.              An appellant’s brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record. TEX. R. APP. P. 38.1(i).
      We overrule Watson’s two issues.
                                            This Court’s Ruling
      We affirm the judgment of the trial court.




                                                                        PER CURIAM


September 12, 2013
Panel consists of: Wright, C. J.,
McCall, J., and Judge Herod.1

Willson, J., not participating.




      1
          Steven R. Herod, Judge, 91st District Court, Eastland, sitting by assignment.

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