                                   NO. 07-08-0133-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                      MAY 29, 2009

                          ______________________________

                          KENNETH HUFFAKER, APPELLANT

                                             V.

        WYLIE LP GAS, INC., INDIVIDUALLY, AND AS GENERAL PARTNER
             OF T&B, LTD., A TEXAS LIMITED PARTNERSHIP, AND
           T&B, LTD., A TEXAS LIMITED PARTNERSHIP, APPELLEES
                   _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-534,840; HONORABLE RUBEN REYES, JUDGE
                       _______________________________


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


                                MEMORANDUM OPINION


       Appellant, Kenneth Huffaker, appeals the granting of a no-evidence summary

judgment in favor of appellees, Wylie LP Gas, Inc. (individually, Wylie LP Gas), individually

and as General Partner of T&B, Ltd., and T&B, Ltd. (collectively, Wylie). We affirm the trial

court’s judgment.
                           Factual and Procedural Background


       On or about February 27, 2006, an explosion and fire occurred at Wylie LP Gas’s

propane gas business property that spread to adjacent property owned by Huffaker. The

fire damaged and destroyed real and personal property of Huffaker. Huffaker filed suit

against Wylie to recover damages resulting from this fire.1


       On January 10 and 11, 2008, Wylie filed a no-evidence motion for summary

judgment and a supplemental no-evidence motion for summary judgment in which Wylie

challenged, inter alia, whether Huffaker could produce evidence (1) that T&B, Ltd., or Wylie

LP Gas, as General Partner of T&B, Ltd., is a proper party to the suit; (2) of any of the

elements necessary to state claims for gross negligence, negligence per se, or res ipsa

loquitur; (3) of a breach of duty or that any breach of duty proximately caused Huffaker’s

damages in regard to the storage, maintenance, inspection, filling, or handling of propane

tanks; (4) Wylie’s implementation or monitoring of safety procedures was a breach of duty

or that any breach of duty proximately caused Huffaker’s damages; (5) Wylie had

knowledge of any person smoking in close proximity to the propane tanks or that such

smoking caused the explosion and fire; or (6) that Huffaker suffered compensable mental

or emotional anguish damages proximately caused by the explosion and fire.2 In response,



       1
       Other parties were involved in this lawsuit as plaintiffs, however, these other claims
have been settled and severed from the judgment before us.
       2
        A review of Huffaker’s live pleading, filed after Wylie’s no-evidence motions on
February 7, 2008, reveals that Huffaker abandoned his claims of gross negligence,
negligence per se, and res ipsa loquitur. As such, we will not address these claims as they
were no longer before the trial court when the trial court granted Wylie’s motions.

                                             2
Huffaker filed summary judgment evidence consisting of deposition transcripts of former

Wylie employee David Rebber, current Wylie manager Ronald Bridges, and Wylie

President William Tipton. In addition, Huffaker provided transcripts of recorded statements

taken from Rebber and Bridges. Wylie objected to this evidence because it was unverified

and, therefore, constituted inadmissible hearsay. No ruling on Wylie’s objections are

contained within the record.


       On February 25, 2008, the trial court granted Wylie’s no-evidence motions for

summary judgment. It is from this ruling that Huffaker now appeals.


       By one issue, Huffaker contends that the trial court erred in granting Wylie’s no-

evidence motions for summary judgment because Wylie did not preserve objections to

Huffaker’s summary judgment evidence and because that evidence constitutes more than

a scintilla of evidence to support Huffaker’s claim that Wylie was negligent. We affirm the

trial court’s judgment.


                          Wylie’s Objections to Huffaker’s Evidence


       In response to Huffaker’s presentation of summary judgment evidence, Wylie filed

objections to each of Huffaker’s six exhibits on the basis that the exhibits are unverified

and, therefore, constitute inadmissible hearsay. The trial court granted Wylie’s motions for

no-evidence summary judgment without ruling on Wylie’s objections to Huffaker’s summary

judgment evidence. On appeal, Huffaker contends that Wylie failed to preserve these

objections due to its failure to obtain a trial court ruling on them.



                                               3
       Deposition transcripts and excerpts are not required to be authenticated when

submitted as summary judgment evidence. McConathy v. McConathy, 869 S.W.2d 341,

341 (Tex.1994) (per curiam); McClure v. Attebury, 20 S.W.3d 722, 731 (Tex.App.–Amarillo

1999, no pet.). Thus, the issue of whether Wylie’s objections were preserved relates solely

to the recorded statements of Bridges and Rebber. Generally, documents submitted as

summary judgment evidence must be sworn to or certified. Llopa, Inc. v. Nagel, 956

S.W.2d 82, 87 (Tex.App.–San Antonio 1997, writ denied). Unauthenticated or unsworn

documents or documents not supported by affidavit are not entitled to consideration as

summary judgment evidence. Id. While defects in affidavits or attachments in response

to motions for summary judgment are generally waived unless properly preserved at trial,

a complete absence of authentication is a defect of substance that may be urged for the

first time on appeal. Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451

(Tex.App.–Dallas 2002, no pet.). Our review of the recorded statements reveals that none

of the three are certified, sworn, or supported by affidavit. Consequently, we conclude that

Wylie’s objection was an objection to a defect of substance that was not waived by Wylie’s

failure to obtain a ruling of the trial court. Id. Further, because there is a complete

absence of authentication of this evidence, neither the trial court nor this Court may

consider these statements as evidence in response to Wylie’s motions for summary

judgment. Llopa, Inc., 956 S.W.2d at 87.


                              Huffaker’s Negligence Claims


       We now turn to the central issue in this appeal, which is whether the deposition

testimony of former Wylie LP Gas employee David Rebber, current Wylie LP Gas manager

                                             4
Ronald Bridges, and Wylie LP Gas President William Tipton was more than a scintilla of

evidence to raise a genuine issue of material fact as to the elements of Huffaker’s

negligence claims challenged by Wylie’s motions for summary judgment.


Standard of Review


       Because a no-evidence motion for summary judgment is, in essence, the same as

a pretrial directed verdict, we apply the same legal sufficiency standard. See Kelly v.

Demoss Owners Ass’n, 71 S.W.3d 419, 423 (Tex.App.–Amarillo 2002, no pet.). A no-

evidence motion for summary judgment is properly granted unless the non-movant brings

forth more than a scintilla of evidence to raise a genuine issue of material fact on the

elements challenged by the motion. See TEX . R. CIV. P. 166a(i); Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when

the evidence “rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

On the other hand, less than a scintilla of evidence has been described as evidence “so

weak as to do no more than create a mere surmise or suspicion.” King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In reviewing a summary judgment, we must

view all of the summary judgment evidence in the light most favorable to the non-movant.

See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.–Amarillo 1999,

pet. denied). However, when the summary judgment does not specify the grounds

asserted in the motion that it was premised upon, it will be affirmed if any of the grounds

presented are meritorious. Kelly, 71 S.W.3d at 422.



                                             5
Applicable Law


       The elements of a negligence claim are duty, breach of that duty, and damages

proximately caused by the breach of duty. See Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 477 (Tex. 1995).


       In assessing whether a duty exists, a reviewing court should consider factors such

as the risk, foreseeability, and likelihood of injury weighed against the social utility of the

actor’s conduct; the magnitude of the burden in guarding against injury; and the

consequences of placing the burden on the defendant. Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523, 525 (Tex. 1990). When the defendant distributes a dangerous

article or agent, the defendant owes the public the degree of care proportionate to and

commensurate with the dangers involved. McAfee v. Travis Gas Corp., 137 Tex. 314, 153

S.W.3d 442, 447 (1941). When the defendant distributes a dangerous article or agent, it

owes a nondelegable duty to take all reasonable precautions to effectually protect third

parties from injury. Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944).3


Analysis


       In its motions, Wylie contended that Huffaker could produce no evidence that either

T&B, Ltd., or Wylie LP Gas, in its capacity as General Partner of T&B, Inc., were proper



       3
        Because we conclude that Huffaker failed to produce more than a scintilla of
evidence to raise a genuine issue of material fact as to the duty Wylie owed Huffaker or
that Wylie breached that duty, it is not necessary for us to address Wylie’s summary
judgment ground that Huffaker could produce no evidence that any breach of duty
proximately caused Huffaker’s damages.

                                              6
parties to this suit. According to the deposition transcript of Tipton, T&B, Ltd., owns the

real property and some of the equipment that Wylie LP Gas leases. Wylie LP Gas is the

General Partner of T&B, Ltd., and holds a one percent ownership interest in T&B, Ltd.

However, this is all of the evidence presented in regard to these two defendants. Huffaker

presented no evidence nor even alleges how T&B, Ltd., or Wylie LP Gas, as General

Partner of T&B, Ltd., owed a duty to Huffaker, breached that duty, or caused the damages

suffered by Huffaker as a result of the breach. Therefore, we affirm the trial court’s no-

evidence summary judgment as it relates to claims against T&B, Ltd., and Wylie LP Gas,

in its capacity as General Partner of T&B, Ltd. See TEX . R. CIV. P. 166a(i); Ford Motor Co.,

135 S.W.3d at 600.


       As to Huffaker’s claims against Wylie LP Gas, individually, Wylie contends that

Huffaker is unable to present more than a scintilla of evidence to raise a genuine issue of

material fact as to the duty, or standard of care, Wylie LP Gas owed to Huffaker or that

Wylie LP Gas breached that duty.


       Expert testimony is necessary when the alleged negligence is of such a nature as

not to be within the experience of a layperson. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738

(Tex.App.–Amarillo 1999, pet. denied) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex.

1982)). The expert testimony must establish both the standard of care and the violation

of that standard. Id. However, even expert testimony that a particular action would be

prudent, beneficial, recommended, or desirable cannot be taken as evidence of the

standard of care or that the failure to take the action constituted a breach of that standard.

Id. at 739.

                                              7
       In the present case, Huffaker provided no expert testimony as to any of the theories

of liability asserted in his live pleading. Thus, we must analyze each of Huffaker’s theories

of liability and the evidence presented as to each to determine whether a layperson would

be able to ascertain the applicable standard of care in the absence of expert testimony.


       Huffaker contends that Wylie LP Gas was negligent in the manner in which it stored

propane tanks at its facility. In support of this theory, Huffaker offered the testimony of

Tipton that, at the time of the fire, Wylie LP Gas was storing 11,000 full 20 pound propane

tanks at its facility. This factual testimony provides no insight into what the applicable

standard of care would have been for Wylie LP Gas. In fact, the only evidence relating to

the manner of storage of the propane tanks was Tipton’s testimony that the tanks were

stored in a manner that did not violate any rule or regulation of the Texas Railroad

Commission and that Wylie LP Gas took the additional step of using dividers to ensure that

the tanks did not touch one another, even though such a step was not required by any law.

As such, we do not find the evidence sufficient to allow an ordinary layperson to conclude

what the applicable standard of care was in regard to Wylie LP Gas’s storage of its

propane tanks nor that Wylie LP Gas breached this standard.


       Huffaker also contends that Wylie LP Gas was negligent in failing to properly

maintain, handle, and inspect the propane tanks in its storage.          In support of this

contention, Huffaker cites Bridges’s testimony that there were times when employees of

Wylie LP Gas did not properly check the tanks for leaks. However, Bridges also testified

that he began working for Wylie LP Gas sometime in the late 1980s. There is no evidence

of the frequency with which employees failed to properly check the tanks and, further, there

                                             8
is no evidence as to how often a reasonable propane dealer would be expected to inspect

the tanks in its storage. While the testimony does establish that Bridges felt that there

were times when proper inspections were not performed, because the basis for his opinion

is not shown, we cannot conclude what the applicable standard of care was in regard to

Wylie LP Gas’s maintenance, handling, and inspection of the tanks nor does the evidence

raise a genuine issue of fact about that standard having been breached.


       Huffaker contends that Wylie LP Gas was negligent in its filling of the propane

tanks, particularly in that it would overfill the tanks which would then require that some of

the liquid propane gas be bled off. Huffaker cites testimony of both Rebber and Bridges

that there were times when tanks would be overfilled and the tanks would then have to be

bled off. However, nothing in this testimony or in any evidence offered by Huffaker

establishes that the applicable standard of care would be that no tanks ever be overfilled

or that, if a tank was overfilled, that it should not be bled off. Because the filling of liquid

propane gas tanks lies beyond the experience of an ordinary layperson, we conclude that

Huffaker has provided no evidence of what the applicable standard of care is as it relates

to filling propane tanks and, even more so, whether bleeding off the excess propane in an

overfilled tank falls below the applicable standard of care.


       Huffaker also contends that Wylie LP Gas failed to implement and monitor proper

safety procedures. The evidence that Huffaker relies on in support of this contention is that

Wylie LP Gas had not held fire drills, three employees were performing their work without

supervision, and that there were times when employees did not properly check for leaks

in the stored tanks. However, there is no evidence that a reasonable liquid propane dealer

                                               9
would conduct fire drills or that, had Wylie held fire drills, the fire would have been

contained. Further, there is no indication why employees needed to be supervised at all

times or how the lack of supervision of these particular employees fell below the applicable

standard of care. As to the failure to properly inspect the stored tanks, that issue was

addressed above. Thus, there was no evidence presented that would allow a reasonable

layperson to identify the applicable standard of care in relation to Wylie LP Gas’s safety

procedures nor that Wylie LP Gas’s safety procedures fell below that standard.


       Finally, Huffaker contends that Wylie LP Gas knowingly allowed smoking in close

proximity to the propane tanks. Rebber testified that he has seen employees “walk right

to the gate [of Wylie LP Gas’s facility] and throw a cigarette down” and that it “was

possible” that an employee was smoking just east of the propane tank storage area where

the fire started.4 Bridges testified that he was aware that the fire marshal found cigarette

butts inside the yard and that the employees were allowed to smoke inside the confines

of the gate of Wylie LP Gas’s facility. However, because there was no evidence offered

of the proximity of the area where smoking occurred to the propane tanks, we would have

to speculate that it was an unsafe distance. While we believe that a layperson could

conclude that smoking in close proximity to liquid propane gas tanks was a breach of the

applicable standard of care, Huffaker offered no evidence to raise a genuine issue of

material fact as to how close to the propane tanks employees were smoking.




       4
       Rebber further testified that he had no way of knowing whether someone was
smoking in that area at the time the fire started.

                                            10
       Because there is no expert evidence establishing the applicable standard of care

owed by Wylie LP Gas and because a layperson would not be able to determine the

applicable standard of care in regard to the theories of liability asserted by Huffaker, we

conclude that the trial court was correct in granting Wylie’s no-evidence summary judgment

motions.


                                       Conclusion


       For the foregoing reasons, we affirm the trial court’s judgment.




                                                 Mackey K. Hancock
                                                     Justice




                                            11
