                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-16-00712-CV

                                Luis BATRES and Nelda Ojeda-Batres,
               Individually and as Parents and Next Friend of Brandon Batres, Deceased,
                                               Appellants

                                                   v.

                     ALAMO CITY HARLEY DAVIDSON, INC.
   a/k/a Cowboy Motorsports of San Antonio, LLC d/b/a Alamo City Harley Davidson/Buel,
                                        Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014-CI-15792
                            The Honorable Renée Yanta, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: January 17, 2018

AFFIRMED

           Luis Batres and Nelda Ojeda-Batres, individually and as parents and next friend of Brandon

Batres, deceased, appeal the trial court’s order granting summary judgment in favor of Alamo City

Harley Davidson, Inc. a/k/a Cowboy Motorsports of San Antonio, LLC d/b/a Alamo City Harley

Davidson/Buel (“ACHD”). The Batreses contend the trial court erred in granting ACHD’s motion

for summary judgment and in denying their motion for continuance. We affirm the trial court’s

order.
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                                          BACKGROUND

       On December 11, 2013, Brandon Batres lost control of his motorcycle while driving on a

highway. Brandon was thrown from the motorcycle and died at the scene after being struck by

three vehicles. The police department’s accident report stated Brandon lost control “for an

unknown reason.”

       The Batreses sued ACHD alleging numerous causes of action primarily relating to

allegations that ACHD failed to properly repair the motorcycle. Brandon took the motorcycle to

ACHD for repairs in September of 2013, after he lost control of the motorcycle at a stop light and

damaged the motorcycle. The work order for those repairs noted that Brandon expressed a concern

about the front brake locking up. The Batreses alleged ACHD failed to repair that problem, and

Brandon lost control of the motorcycle in the December accident because the front brake locked

up.

       ACHD moved for a no evidence and traditional motion for summary judgment on all of

the Batreses’ claims. The Batreses filed numerous responses and supplemental responses to the

motion, and ACHD filed objections to some of the evidence the Batreses attached to their

responses. One of the objections related to the timeliness of some of the evidence because the

evidence was filed less than seven days before the summary judgment hearing. In response to that

objection, the Batreses filed a motion seeking leave of court to file the late evidence, or, in the

alternative, a continuance so the evidence could be considered by the trial court.

       After a hearing, the trial court granted the Batreses’ motion for leave to file the late

evidence, sustained some of ACHD’s objections to the Batreses’ summary judgment evidence,

and granted ACHD’s no evidence and traditional motion. The Batreses appeal.




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                                     STANDARD OF REVIEW

       We review a trial court’s order granting summary judgment de novo. Cmty. Health Sys.

Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). To prevail on a traditional

motion for summary judgment, the movant must show “there is no genuine issue as to any material

fact and the [movant] is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); see also

Hansen, 525 S.W.3d at 681. “A [no evidence] motion for summary judgment must be granted if:

(1) the moving party asserts that there is no evidence of one or more specified elements of a claim

or defense on which the adverse party would have the burden of proof at trial; and (2) the

respondent [fails to produce more than a scintilla of] summary judgment evidence raising a

genuine issue of material fact on those elements.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.

2006). Whether reviewing a traditional or no evidence summary judgment, we consider all the

evidence in the light most favorable to the nonmovant and resolve any doubts in the nonmovant’s

favor. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).

       “Where, as here, a trial court does not specify the grounds on which it granted the motion

for summary judgment, we must affirm if any of the grounds asserted in the motion are

meritorious.” Hansen, 525 S.W.3d at 680. “Further, when the motion asserts both no-evidence

and traditional grounds, we first review the no-evidence grounds.” Id. “If the nonmovant fails to

produce more than a scintilla of evidence on the essential elements of a cause of action challenged

by a no-evidence motion, there is no need to analyze the movant’s traditional grounds for summary

judgment.” Id. at 680-81.

                                CLAIMS PRESENTED FOR REVIEW

       As previously noted, the Batreses alleged numerous causes of action against ACHD. In

their brief, however, the Batreses only challenge the trial court’s order granting summary judgment

on their claim that ACHD negligently failed to repair the motorcycle and that negligence can be
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inferred by applying the doctrine of res ipsa loquitor. Accordingly, we only address those claims.

See Flutobo, Inc. v. Holloway, 419 S.W.3d 622, 638 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied) (addressing theory of liability the appellants briefed and holding theories of liability that

were not briefed were waived).

                                 NEGLIGENT FAILURE TO REPAIR

       In order to prevail on their negligent failure to repair claim, the Batreses were required to

prove “the existence of a legal duty, a breach of that duty, and damages proximately caused by the

breach.” Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). The Batreses

alleged ACHD undertook to repair Brandon’s motorcycle; therefore, it had a duty to exercise

reasonable care in performing those services. See Torrington Co. v. Stutzman, 46 S.W.3d 829,

838-39 (Tex. 2000) (citing Restatement (Second) of Torts § 323). The Batreses further contend

ACHD’s failure to exercise reasonable care in repairing the motorcycle’s front brake caused it to

lock up resulting in Brandon’s loss of control.

       As previously noted, the evidence established ACHD performed repairs on Brandon’s

motorcycle in September of 2013, and the work order noted Brandon voiced a concern regarding

the front brake locking up. In their no evidence motion for summary judgment, ACHD asserted

there is no evidence that: (1) the front brake locked up on Brandon’s motorcycle on the date of the

accident; or (2) in the alternative, that the front brake locking up was the cause of the accident.

       “An expert’s failure to explain or adequately disprove alternative theories of causation

makes his or her own theory speculative and conclusory.” Wal-Mart Stores, Inc. v. Merrell, 313

S.W.3d 837, 840 (Tex. 2010). If an expert fails to rule out alternative theories, the expert’s

testimony amounts to no evidence of causation. See id.; Hess v. McLean Feedyard, Inc., 59 S.W.3d

679, 687 (Tex. App.—Amarillo 2000, pet. denied); Martinez v. City of San Antonio, 40 S.W.3d

587, 595 (Tex. App.—San Antonio 2001, pet. denied).
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          Attached to the Batreses’ response to ACHD’s no evidence motion were an affidavit and

deposition testimony from Daniel R. Rodriguez, a motorcycle mechanic, who the Batreses retained

as an expert witness. Rodriguez opined that ACHD failed to repair Brandon’s motorcycle and

testified that dirt collected on scuff marks on the front tire of Brandon’s motorcycle established

that the front brake locked up causing Brandon to lose control. 1 Rodriguez conceded, however,

that a motorcycle’s front brake can lock up due to operator error. And, Rodriguez did not rule out

operator error as a cause for the front brake locking up. In his preliminary report, Rodriguez

opined,

          There is no magic bullet, ie. [sic], that any one thing (brakes locking up) or anything
          else caused the accident, the forensic investigation evidence by the San Antonio
          Police Department may not support the “brakes locking up” and causing the
          accident. However, neither does the SAPD report pinpoint the “exact” cause of the
          accident.

In his deposition, Rodriguez testified as follows:

               Q. Right. And isn’t it true that single-vehicle motorcycle accidents — in other
          words, where — where there’s not another vehicle involved — the leading cause
          is, one, inexperience on the top of — part of the operator. True?
               A. Yes.
               Q. And, two, not knowing how to stop correctly. True?
               A. That’s true.
                                                    ***
               Q. . . . And do you know if the brakes were locked up by the operator in
          attempting to stop?
               A. That, I don’t know. I was not there. I’m just going by the photo.
                                                    ***
               Q. . . . Do you know if the bike operator locked up the wheels in attempting to
          make a panic stop?
               A. That, I cannot determine. I can just determine by what I see in the pictures.
               Q. All right. So you cannot say that the brakes locked up by themselves on the
          motorcycle. True?
               A. I don’t think the brakes locked up by themselves. There would have to be
          some pressure applied to the master cylinder at the lever. But how much pressure.
          I don’t know.

1
  We note ACHD challenged Rodriguez’s qualifications because he was not an accident reconstructionist and did not
undertake to reconstruct Brandon’s accident. We also note ACHD’s expert, an accident reconstructionist, opined that
the front brake did not lock up.

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                                                                                      04-16-00712-CV


           Q.   All right.
           A.   Or how much pressure was needed to lock up the wheel.
           Q.   And can a motorcycle lock up their brakes if they are making a panic move?
           A.   Yes. If they grab — grab it real hard, yes.

       From the foregoing, it is clear that Rodriguez failed to rule out operator error as a cause of

the brake allegedly locking up. Accordingly, because Rodriguez failed to rule out operator error

as a cause of the accident, his opinion that ACHD’s failure to repair the front brake was the cause

of accident is speculative and conclusory and amounts to no evidence of causation. Wal-Mart

Stores, Inc., 313 S.W.3d at 840; Hess, 59 S.W.3d at 687; Martinez, 40 S.W.3d at 595.

                                       RES IPSA LOQUITUR

       Having determined Rodriguez’s testimony did not present a scintilla of evidence on the

causation element of the Batreses’ negligence claim, we turn to the Batreses contention that

summary judgment was improperly granted based on the doctrine of res ipsa loquitur. Under that

doctrine, the Batreses argue negligence can be inferred.

       Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may

be inferred from the mere fact that the accident happened, provided (1) the character of the accident

is such that it would not ordinarily have occurred in the absence of negligence, and (2) the

instrumentality which caused the injury is shown to have been under the management and control

of the alleged wrongdoer. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Trejo v.

Laredo Nat’l Bank, 185 S.W.3d 43, 47 (Tex. App.—San Antonio 2005, no pet.); Aguilar v.

Trujillo, 162 S.W.3d 839, 850 (Tex. App.—El Paso 2005, pet. denied). “The effect of successfully

invoking the res ipsa doctrine is that the plaintiff can survive no-evidence procedural challenges.”

Aguilar, 162 S.W.3d at 850.

       In order to rely on the doctrine of res ipsa loquitur to defeat ACHD’s no evidence motion,

the Batreses were required to produce evidence on both the “type of accident” and “control”


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factors. Trejo, 185 S.W.3d at 47. With regard to the “control” factor, “[t]he doctrine of res ipsa

loquitur applies only where the instrumentalities causing the injury are shown to have been wholly

in the care of the defendant and not to have been meddled with by the person injured or third

parties.” Id. at 48. “Although the possibility of other causes does not have to be completely

eliminated, their likelihood must be so reduced that the jury can reasonably find by a

preponderance of the evidence that the negligence, if any, lies at the defendant’s door.” Id.

       We reject the application of the doctrine of res ipsa loquitur in this case for the same reason

we hold the Batreses failed to produce more than a scintilla of evidence on their negligent failure

to repair claim. The evidence does not so reduce the possibility that operator error caused the

accident that a jury could reasonably find the accident was caused by ACHD’s failure to repair the

front brake. See id.; see also Turbines, Inc. v. Dardis, 1 S.W.3d 726, 743 (Tex. App.—Amarillo

1999, pet. denied) (holding res ipsa loquitur doctrine not applicable where plaintiff “failed to show

that negligence by [the defendant], as opposed to his own negligence, was the most probable

explanation of the crash”). The Batreses’ first issue is overruled.

                                          CONTINUANCE

       In their second issue, the Batreses contend the trial court erred in denying their motion for

a continuance to supplement their expert’s findings with a finding that he observed debris in the

master cylinder after his deposition.

       As previously noted, one of the objections ACHD made to the evidence attached to two of

the Batreses’ supplemental responses was that the evidence was not timely filed because the

evidence was filed less than seven days before the summary judgment hearing. In response to that

objection, the Batreses filed a motion seeking leave of court to file the late evidence, or, in the

alternative, a continuance so the evidence could be considered by the trial court. The trial court

granted the Batreses leave to file the late evidence and denied the Batreses’ alternative request for
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a continuance. Because the trial court granted the Batreses’ request for leave of court to consider

the late-filed evidence, the Batreses cannot complain on appeal that the trial court should have

granted their alternative request for a continuance. Tittizer v. Union Gas Corp., 171 S.W.3d 857,

862 (Tex. 2005) (noting “a party cannot complain on appeal that the trial court took a specific

action that the complaining party requested”); Meredith v. Rose, No. 05-15-00054-CV, 2016 WL

4205686, at *7 (Tex. App.—Dallas Aug. 9, 2016, no pet.) (mem. op.) (holding trial court does not

err in granting party relief requested).

       In their brief, the Batreses appear to be complaining about the trial court striking the

sentence in Rodriguez’s supplemental affidavit stating, “My inspection also discovered dust

particles in [the] master cylinder that fact can also cause the brakes to fail ….” ACHD objected to

the statement on the ground that it contradicted Rodriguez’s deposition testimony and therefore

constituted a sham affidavit. In response to ACHD’s objection, the trial court struck the sentence.

The Batreses motion for continuance did not seek a continuance in the event the trial court

sustained ACHD’s objections to their evidence but only in the event the trial court did not grant

the Batreses’ motion for leave to consider the late-filed evidence. Because the Batreses do not

separately challenge the trial court’s ruling on ACHD’s objection, they have waived any complaint

regarding that ruling.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                       Rebeca C. Martinez, Justice




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