A [Fl RNI ; Opinion issued Fehnaar 14, 2013.




                                                                   In ihe
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                                    .Fift1i thtrttt uf rxas at Ja11a6
                                                         No. 05-l1-01524-CV


                                            1)FZNIA CONERWAY, Appellant

                                                                      V.

                       CORRECTIONS CORPORATION OF AMERICA, Appdllee


                                On Appeal from the 193rd Judicial District Court
                                             Dallas County, Texas
                                    Trial Court Cause No. DC—i I—12407—L’


                                                             OPINION
                                   Bet’orc Justices FitzGerald, Fillmore, and Richter
                                                                              2
                                              Opinion By Justice Fillmore

       Appellant Dezma Gonerway appeals the trial court’s order granting summary judgment                                                   in


favor ot appellee Corrections Corporation ol’ America (CCJ\). In three issues, Gonerway                                               contends


the trial court erred by denying her motion for continuance of the hearing of CCA’s motion for

summary judgment and by granting summary judgment in favor of CCA, We affirm the trial court’s

judgment.




       This case was assigned cause number DC-       -   2107-L by a September21. 20 I I order of ses crance from cause number DC-OX-IS 5 -L.

  2
       Ehe   Iionoi   iblc Mitin E Richlcr Rctiicd Justice court ofAppeIs Fifth District of Fex is   it   D’sII is sitting by assignment
                                                              Background

            The record indicates that Gonerway’s fourth amended petition was the live pleading at the

 time the trial court granted summary judgment in favor of CCA. In that pleading, Gonerway sued

 CCA, the UniversityofTexas Medical Branch at Galveston (UTML3), Chong’s Beauty Supply. Theg.

 inc. (Theg), and R.Ol International Corporation (ROl). Gonerway asserted claims of negligence and

gross negligence against CCA.
                         3

           According to (ioncrway’s pleading, on or about October 2006. she was an inmate in the

 Daivson State Jail (Dawson), a private correctional facility operated and/or administered by CCA

under a contract with the Texas Department of Criminal Justice (TDCJ). UTMB “administered the

medical program” at Dawson. While in the “exclusive custody and control ofCCA” she ‘developed

a severe eye infection which required urgent, emergency medical treatment,” and after a delay of

several days, she was admitted to Parkland Hospital for medical treatment. Gonerway alleged CCA

and UTMB breached their non-delegable duty to insure that she received proper and timely medical

care during her incarceration, and their negligence and gross negligence in failing to provide

adequate emergency medical care proximately caused her eye injury. Gonerway further alleged CCA

was “negligent and grossly negligent in failing to follow their own, and [TDCJ] regulation” by

allowing Gonerway to wear non-corrective, cosmetic contact lenses, which proximately caused or

contributed to her injuries and damages.

           CCA filed a combined traditional and no-evidence motion for summary judgment and a

supplement thereto. See TEX. it Civ. P. l66a(c), (i). By order signed July 18,2011, the trial court

granted summaryjudgment in favor ofCCA. By subsequent order, Gonerway’s claims against CCA



            Although in huappdlntc briefGonenvay assails she nttcgcd a breach of contract claim against CCA, there is no allegation ofa breach
of contract claim against CCA in Gonerway’s pleading.




                                                                    —2—
 were    severed into a separate cause olaction. .Scc                         I \.    R     (‘Iv.   P. 4 I (“Any claim auanst a party may

 he severed and proceeded with separaIely.”) Lcpu/ni                                 t’.   ( ‘hi/drcii s 1I(’d. Ctr. o/ 1)allus. 7 S.W.3d

67 SO (1             \    \pp        Dali   i   00U no pu ) (II iii judct.. in n sinn in oidLi st u inc                            i   p n t caust.

oi action, or issue, thereby rendering otherwise interlocutory summary judgment final). The trial

court signed the final judgment in the severed action dismissing (ionerway’s claims against CCA

with prejudice. (ionerway filed this appeal of the summary judgment granted in favor of CCA.

                                            Motion br Continuance or Abatement


            in her fIrst issue. Gonerwa contends the trial court erred by fiuiling to grant a continuance

ot”the hearing and decision’ on (CA’s motion for traditional and noevidenee sulnlnary)udgment.

On June 1, 2011, Gonerway filed her motion for continuance or abatement of proceedings,

According to her motion, Gonerway’s husband informed her attorney that Gonerway had been re

confined tojail. (ionerway moved to have all proceedings continued until herjail sentence had been

served. (jonerway alternatively moved to continue or abate proceedings until Theg and kOl, named

as defendants in Gonerway’s January 19, 2() II ft)urth amended petition, had been served with

citation.

            As a prerequisite to presenting a complaint lbr appellate review, the record must show the

complaint was made to the trial court by a timely request, objection, or motion, and the trial court

(1) ruled on the request, objection, or motion, either expressly or implicitly, or (2) refused to rule on

the request, objection, or motion, and the complaining                                     party objected to   the refusal. TEx. R. App.

P. 33.1(a). Here, although Gonerway states in her first issue that the trial court denied her motion



           In her initial notice of appeal, Gonerwav indicated she was appealing the trial court’s order of severance. In her seCond notice of appeal.
Gonerway appealed the summary judgment granted in favor of CCA. The first appeal, No. O5 II O I 452-CV, was consolidated in this appeal.
Gonerway’s appellate brief contains no argument concerning the propriety of the severance. At oral submission, Gonerway’s counsel acknowledged
that Gonerway had agreed to the severance and she was not asserting on appeal that the trial court erred in granting the severance of Gonerway’s
claims against CCA.
for continuance or abatement, the record does not show the trial court ruled on the motion, The

record does not show (ionerway called her motion to the attention of the trial coUrt. Moreover, even

if the trial court refused to rule on Gonerway’s motion, which is not reflected in the record, there is

nothing in the record to show Gonerway objected to such a refusal.

        Therefore, Gonerway has failed to preserve this issue for our review. See TEx. R. APP. P.

33 1(a) JJzghtoiu v Bailoi Unn Med Ct, 251 SW 3d 218, 224—25 (Icx App —Dallas 2008

pet. struck); see also Mitchell v. Bank ojArn., iVA., 156 S.W.3d 622, 626 (Tex. App.—Dalias 2004,

pet. denied) (party who failed to obtain ruling from trial court on motion for jury trial continuance

failed to preserve error); Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 690 (Tex.

App.—Tyler 1996, no writ) (party’s failure to obtain written ruling on motion for continuance of

summary judgment hearing waived any error). Accordingly, we resolve Gonerway’s first issue

against her. See Vela v. Manning, 314 S.W.3d 693, 694 (Tex. App.—Dallas 2010, pet. denied);

Hightower, 251 S.W.3d at 224—25.

                                       Summary Judgment

        In her second issue, Gonerway contends the trial court erred by granting summary judgment

in favor of CCA. In her third issue, Gonerway argues the trial court erred by granting CCA summary

judgment because she raised and “supported” genuine issues of material fact.

       The standards ofreview for traditional and no-evidence summary judgments are well known.

See Timpteindus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546, 548 (Tex.1985). With respect to a traditional motion for summary judgment, the

movant has the burden to demonstrate that no genuine issue of material fact exists and she is entitled

to judgment as a matter of law. See TEx. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548—49. We

review a no-evidence summary judgment under the same legal sufficiency standard used to review




                                                -4-
a directed verdict, (Jish, 286 S.W.3d at 310; see also Tux. R. Civ, P. 1 66a(i). To defeat a no-

evidence summary judgment, the non—movant is required to produce evidence that raises a genuine

issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also

TEx. R. Civ. P. l66a(i). In reviewing both a traditional and a no—evidence summary judgment, we

review the evidence in the light most favorable to the non—movant. Smith v. 0 73onnell, 288 S.W,3d

417,424 (Tex. 2009); 20801, inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We credit evidence

favorable to the non-movant if reasonable jurors could, and we disregard contrary evidence unless

reasonable jurors could not. Mann Frankjört Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009); Gish, 286 S.W.3d at 310. Every reasonable inference must be indulged in

favor of the non-movant and any doubts resolved in her favor. City of Keller v. Wilson, 168 S.W.3d

802, 824 (Tex. 2005).

       Where, as here, a party moves for summary judgment on multiple grounds and the trial

court’s order granting summary judgment does not specify the ground or grounds on which it was

based, the party appealing that order must negate all possible grounds upon which the order could

have been granted. See Star—Telegram, Inc. v. Doe, 915 S.W,2d 471, 473 (Tex.1995); Jarvis v.

Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). We must affirm

the summary judgment if any of the summary judgment grounds are meritorious. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

       Gonerway alleged CCA was negligent and grossly negligent. According to Gonerway, CCA

owed her a duty to insure she received proper and timely medical care during her incarceration and

CCA breached that duty by failing to provide emergency medical care, proximately causing

permanent and disabling injuries. Gonerway also alleged CCA failed to follow its own and TDCJ’s

regulation by allowing Gonerway to wear non-corrective, cosmetic contact lenses, which proximately
caused or conthbuted to her injuries. Finally, (ionerway alleged CCA’s breach of duty was made

eonsciously, willfully, wantonly, and with gross lack of regard for Gonerway’s condition.

       In its traditional motion for summary judgment, CCA asserted (I) it had no duty to provide

medical care to Cionerway, (2) to the extent CCA had a duty to notify medical personnel when an

inmate was in need of emergency medical attention, it fulfilled that duty and (3) because

Gonerway’s ordinary negligence claim fails as a matter of law, her gross negligence claim must also

Ibil. In its no-evidence motion for summary judgment, CCA asserted Gonerway has no competent

summaryjudgment evidence that (1) CCA owed Gonerway a duty to provide medical care, (2) CCA

breached any alleged duty to provide medical care or timely address her requests for medical

attention, (3) any alleged breach of duty proximately caused injury to Gonerway, (4) CCA acted or

failed to act in a situation involving an extreme degree of risk, or (5) CCA had actual, subjective

awareness of the alleged risk involved, but nevertheless, proceeded in conscious indifference to

Gonerway’s rights. When a party moves for a traditional summaryjudgment under nile l66a(c) and

a no-evidence motion for summary judgment under rule I 66a(i), we first review the trial court’s

judgment under the standards of rule l66a(i). AKB Hendrick, LP v. Musgrave Enters., Inc.. 380

S.W.3d 221,230—31 (‘rex. App.—Dallas 2012, no pet).

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

proximately caused by the breach of duty. Doe v. Boys Club of Greater Dallas. Inc., 907 S.W.2d

472,477 (rex. 1995). The threshold inquiry in a negligence case is whether the defendant owes a

legal dutyto the plaintiff. CenteqRealty, Inc. v. Siegler, 899 S.W.2d 195,197 (Tex.1995). Wbether

a duty exists is a question of law for the court Tat Home MgmL, Inc. v. Peavy, 89 S.W.3d 30,33

(Tex. 2002).




                                               -6-
          Once ( ‘C/\ tiled   its   noevidenee motion fllr summary judgment. the burden shifted to

(oncrwav to present evidence nusing a genuine ssue nt material              tact   as to whether (‘CA had a duty

to provide emergency medical care to (i mciwav .Si’’ :llack 1*ucks. Inc. m’ !thncz, 206 S,W.3d 572.

5<2 (1 cx. 2006 (once no—evidence motion br summary judament is tiled, the burden shills to

nonmoving party to present evidence        raising tii   siie of   material fact as to elements specified in the

motion);    see also TEx. R. Civ, P. 166a(i)     (to   rebate no—evidence motion        bar   summary judgment,

nonmovant required to produce “summary judgment evidence raising a genuine issue                     of material


fact”).

                                    Alleged Duty to Pro ride Medical cure

          Gonerway   alleged she was incarcerated at Dawson, a           private   correctional facility operated

and/or administered hy (‘CA. undera contract with TDCJ (the Dawson Contract). (ionerwav turther

alleged UTMB administered tile medical program at Dawson. I lowever, Gonerway relied on tile

following portion    of   the [)awson Contract as summary judgment evidence in responding to CCA ‘s

claim in its motions br traditional and no—evidence summary judgment tilat it had no duty to provide

emergency medical care to Gonerway:


          TDCJ will contract with the Correctional Managed Health Care Committee
          (CMHCC) to provide complete health care services including medical, dental, mental
          health, pharmaceutical, medical records, emergency care, and sick call services for
          offenders assigned to [Dawson). [CCAj shall be responsible for working
          cooperatively with the CMHCC’s designated health care staff to ensure the effective
          operation of the llealth care program at [Dawsonj. The TDCJ Division Director for
          Health Services will be the final authority in the event of a disagreement between
          [CCA] and CM FIC’C ‘s health care stati relating to the delivery of healtll care
          services. [CCA] will be responsible for providing security, general housekeeping and
          facility nlal ntcnailce !fl tile Illedical area of [Dawson].


Gonerway argued the contractual language stating that any disagreement between CCA and tile

medical provider relating to the delivery of health care services connotes CCA has tile authority to
 question the level of medical care provided to an inmate, and this is evidence CL’A has a duty to

 provide medical care to a Dawson inmate.

        “When the evidcnce offered to prove a vital fact is so weak as to do no more than create a

mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.” Kindred v. Con/Client, Inc. 650 S.W.2d 61,63 (‘rex. 1983). Conversely,

more than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” Transp. Ins. Ca v. Moriel, 879 S.W.2d 10,25 (Tn.

 1994). In reviewing this summary judgment evidence in the light most fhvorable to Gonerway, we

conclude the evidence does no more than create a mere sunnise or suspicion that CCA had a duty

to provide medical care to Gonerway as an inmate at Dawson. Because Gonerway did not meet her

burden under rule I 66a(i), the trial court did not err in granting summaryjudgment in flivor ofCCA.

        However, even assuming the language of the Dawson Contract relied upon by (onerway

constituted more than a scintilla of evidence that CCA had a duty to provide medical care to

Gonerway, we conclude CCA satisfied its burden to establish that no genuine issue ofmaterial fact

exists and CCA was entitled tojudgment as a matter oflaw under its motion for traditional summary

judgment See ‘ftx. R. Civ. P. 166a(e); City ofHouston v. Clear Creek Basin Auth., 589 S.W.2d

671,678 (Tex. 1979) (movant must establish his entitlement to a summary judgment on the issues

expressly presented to the trial court by conclusively proving all essential elements of his cause of

action or defense as a matter of law); see also Provident Ljfe & Accident Ins. Ca v. Knott, 128

S.W.3d 211, 215 (Ta. 2003) (we review trial court’s grant of traditional motion for summary

judgment de novo).

       In addition to portions of the Dawson Contract, CCA relied upon the affidavit of Erica

Russell as evidence in support of its motion for traditional summaryjudgment. By affidavit, Russell




                                                -8-
attested she had heen emploYed by CCA and orked at Dawson since 2004. and was employed as

 a   Public In flnuation ( )t fleer at the time otcxccntn                      her aitidavit. At the time of (tonerwa s 200(-t

 incarcerat on at Dawson. Russell was employed as a Case Manager and her ‘responsibilities included

 inmates who vere housed on the tenth hour” oh’ Dawson where (onerwav was housed. In her

affidavit, 1< ussel I attested that as Case Manaecr and l’ublic Information ( )flicer, she has personal

knowledge of the           Dawson       Contract. Russell indicated that since January 2004, CCA has managed

Dawson in accordance with the terms of the l)awson Contract. Russell attested CCA does not

provide medical services to Dawson inmates and does not employ any ofthe nurses, doctors, or other

medical staff who work at Dawson.                           Pursuant to the Dawson Contract, TDCJ contracts with

CMHCC “to provide complete health care services” to Dawson inmates, and LiTMI3 has provided

medical services to Dawson inmates since (CA began managing [)awson in 2004.

           The summary judgment proof established that TI)CJ contracted with CMHCC to provide

medical care to Dawson inmates. According to Gonerwav’s pleadings and the summary judgment

evidence, UTM H provided the medical care to Dawson inmates at all relevant times. We conclude

CCA established as a matter of law that it did not have a duty to provide medical care to Gonerway,

thereby entitling CCA to judgment on Gonerway’s allegation it was negligent for failing to provide

her emergency medical care. We conclude the trial court did not err in granting summary judgment

infavorofCCA on this negligenceclaim. See Clear CreekBasinAuth., 589 S.W.2dat678;seeaLo

Lear Siegler. Inc. v. f’ere, 819 S.W.2cl 470, 471 (Tex. 1991) (for defendant to be entitled to




            CC\ initially relied upon the affidavit of Rolanda \Vinficld iii support of its motion for sumtnary judgtnent. Winfield served as the
assistant warden at Dawson. ‘nor to that. Winfield was ChiefofSeciintv at Daivson forpart of2007 and 2005. Gonetvav’s causes ofaction against
C’(’z\ were alleged to has c accrued in 2006. Gonerwav moved to strike portiotis of Winfield’s affidavit as inadmissible hearsay because Winuield
did not explain how she had personal knowledge of matters prior to 2007. Th record contains no ruling on (ionerwav’s motion to strike portions
of Winfield’s affidavit Subsequent to (ionersvay’s motion to strike that summary idgment evidence, CCA filed Russell’s affidavit as sutntnary
judgment evidence itt which Russell attested to the same flatters as \Vinfield, and the record contains no objection or motion to strike Russell’s
affidavit by C;onerwiv.
summary judgment, it must disprove as a matter of law one ot the essential elements of each of

plaintiff’s causes of action).

                                          Alleged Duty to (ornply With Regulation

           (ionerway further alleged that by allowing her to wear non-corrective, cosmetic contact

lenses, CCA was negligent in failing to follow its own and TDCJ’s “regulation,” which proximately

caused or contributed to Gonerway’s injuries and damages. in its traditional and no-evidence motion

for summary judgment, CCA asserted there was no evidence of a duty owed to Gonerway by CCA,

a breach of an alleged duty by CCA, or that a breach by CCA of an alleged duty to Gonerway caused

her injuries or damages.

           In response to CCA’s no-evidence motion for summary judgment, Gonerway relied on the

TDCJ Offender Orientation Handbook provided to Gonerway at the time she was transferred to

Dawson, That orientation handbook provides:

           Newly-received offenders are permitted to bring the following items:.

           b. Health Care Devices and supplies, medically prescribed items will be evaluated
           by TDCJ Health Services staff, contact lenses shall be allowed only until state-issued
           eyeglasses are provided to the offender.

           However, the orientation handbook is that of TDCJ, not CCA. Moreover, the orientation

handbook provides that health care devices and supplies will be evaluated by TDCJ Health Services

staff, not CCA. A review of the record shows Gonerway did not present any competent summary

judgment evidence in response to CCA’s no-evidence motion for summary judgment raising a

genuine issue of material fact on the allegation CCA failed to follow its own “regulation.”
                                                                              6 Further,

Gonerway produced no competent summary judgment evidence that CCA had an obligation to



    6
            Indeed, Gonevay did not argue in her response to CCA’s motion for traditional and no-evidence summai judgment that CCA failed
to adhere to its own “regulation” Instead, Gonerway argued that “CCA, contrary to TDCJ regulations. pemiitted [hen to wear the Contact lenses,”




                                                                   —10—
implement the provision of the TDCJ Offender Orientation Handbook upon which she relies,
                                                                                 7 While

we take as true all evidence favorable to the nonmovant and indulge reasonable iniCrences and

resolve doubts in the nonmovant’s favor, (ionerway did not meet her summary judgment burden

undu rift. I 66a(i) 5cc fronl Moto, Co r l?’dguar, 135 S W 3d 598, 600 (1 e 2004) (under rule

166a(i), nonmovant must produce summary judgment evidence raising a genuine issue of material

fact to defeat summary judgment under that provision, and genuine issue of material fact exists if

more than a scintilla of evidence establishing the existence of the challenged element is produced).

Because Gonerway did not meet her burden under rule 1 66a(i), we conclude the trial court did not

err in granting summary judgment in favor of CCA on Gonerway’s claim that CCA was negligent

in allegedly failing to follow its own “regulation,” or the “regulation” of TDCJ.

                                       Alleged Duty to iVorif.’ Medical Personnel

        Gonerway alleged that CCA owed her a duty to insure she received proper and timely

medical care. Gonerway alleged this duty was breached because CCA failed to provide emergency

medical care.    Even    ifGonerway’s allegations could be broadly construed to include a complaint that

CCA had a duty to notifj’ medical personnel when it became aware of her condition and breached

that duty, her complaint cannot survive CCA’s no-evidence motion for summary judgment.

        Portions of Gonerway’s deposition testimony transcript were attached to CCA’s motion for

traditional and no-evidence summary judgment. Gonerway testified that on the morning of October

4, 2006, the first full day of her incarceration at Dawson, she placed a contact lens in her right eye



       We note that in Russell’s affidavit, she attested:

       The TDCJ Offender Operation Handbook addresses inmates wearing contact lenses. CCA is not responsible for assessing
       whether inmates are wearing contact lenses. Instead, that is done by TDCJ during initial intake. Because inmate Gonerway
       arrived from another TDCJ facility, the Woodman State Jail, her initial intake interview was done by Woodman and not
       Dawson. If I)ezma Gonerway had been questioned about contact lens use at Dawson, that questioning or evaluation would
       have been done by medical personnel who are not CCA employees. CCA employees do not have the responsibility for
       dcterminmg whether inmates are wearing contact lenses or providing them with eye glasses.




                                                               —Il—
and imniediately felt pain. According to (ionerway. other inmates were aware ofher discomlbrt and

alerted the “picket officer” that medical attention was necessary to address (3onerway’s pain.

Gonerway testified that the “picket officer” contacted “medical” with a “code blue,” an emergency

code, and two nurses arrived within twenty to thirty minutes. The nurses placed (Jonerway in a

wheelchair and took her to the medical clinic on the second floor of the Dawson thcility. The nurses

treated Gonerway’s eye and returned her to her dorm.

        Gonerway testified that later that same day, a fellow inmate helped her write a request to be

seen by a doctor on a form described as an “1-60,” and the form was deposited in the “sick call box.”

Gonerway was taken to the medical clinic at the Dawson facility for follow-up observation and

treatment by nursing staff three times on October 5. (3onerway continued to place “1-60” forms in

the sick call box and was observed and treated by nursing staff three times a day on October 6,

October 7, and October 8. During Gonerway’s visit to the Dawson medical clinic on October 9, she

was seen by an opthalmologist, who arranged for Gonerway to be transferred to Parkland Hospital

for further treatment

       Gonerway provided legally insufficient evidence that CCA did not promptly notifr medical

personnel of her requests for medical treatment In lict the evidence supplied by Gonerway

indicates the opposite. On the day Gonerway first experienced pain in her right eye, the “picket

officer” responded immediatelyby initiating a “code blue” request for medical treatment. Gonerway

was taken to the medical clinic at Dawson within twenty to thirty minutes after the “code blue”

notification was made. Gonerway testified that she was taken to the medical clinic at Dawson for

observation and freatment three times a day each of the next four days, and was transferred to

Parkland Hospital on the sixth day. Assuming, without deciding, that Gonerway has alleged a duty

on the part ofCCA to notil& medical personnel ofthe pain in her right eye and that such a legal duty



                                               —12--
cx ists   (;Cnerwav   has tailed to   produce   more than a scintilla ol evidence that the duty   as breached

by (‘(‘A     Ridr’wu’. I 35 S.W 3d at (IOU. Because (ioncrway did not meet her burden under rule

I (iCa( i), the trial court did not err in granting summary )udgment in favor of CC’A.

                                          Alleged Gross Vegizgence

          (Jonerway alleged that CCA ‘s breaches of duty “were made consciously, willfully, wantonly,

and with gross disregard for [herj physical and emotional condition,” constituting gross negligence

that proximately caused her injuries. Other than in workers compensation cases in which exemplary

damages are sought ftr the death of an employee covered by’ workers compensation insurance, see

Wright v. (Ji//ordJIjIl & Co., 725 S.W.2d 712, 714 (‘l’ex. I 97). a finding of ordinary negligence is

a prerequisite to a finding of gross negligence. See FirstAssemhlv of God, Inc. v. Thx. Utilities Lice.

Co., 52 S.W.3d 482, 494 (Tex. App.—Dallas 2001, no pet.) (although gross negligence refers to a

clitlerent character of conduct than ordinary negligence, one cannot he grossly negligent without

being negligent). Because we have concluded (ionerway’s negligence claims against CCA must fail.

it follows that Gonerway’s claims that (‘CA was grossly negligent also must fijI.                    See id.

Accordingly, we conclude the trial court did not err in granting summary judgment in favor ofCCA

on Gonerway’s gross negligence claims.

          We resolve Gonerway’s second and third issues against her,

                                                   Conclusion

          Having concluded the trial court did not err in granting summaryjudgment in flivor of CCA,

we affirm the trial court’s judgment.


                                                             ROBERT M. FILLMORE
                                                             JUSTICE

ii 1524F.P05
                                   L11Itt     øf Aiah
                        3Tiftt! OhürItt tif          xa at Oa1ta
                                       JUDGMENT
[)EZMA GONERWAY, Appellant                          Appeal from the 193rd Judicial District Court
                                                    of Dallas County, Texas. (Tr.Ct.No. DC-Il
No. 05-I l-01524-CV           V.                    I 2407-L).
                                                    Opinion delivered by Justice Fillmore,
CORRECTIONS CORPORATION                  OF         Justices FitzGerald and Richter participating.
AMERICA. Appellee

         In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee Corrections Corporation of America recover its costs
of this appeal from appellant Dezma Gonerway.

Judgment entered February 14, 2013.




                                                   ROBERT M. FILLMORE
                                                   JUSTICE
