                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00377-CV

RODOLFO LUNA, SR.
AND RODOLFO ARNULFO LUNA,
                                                         Appellants
v.

DARLA WOMACK CAPEHART,
                                                         Appellee



                          From the 13th District Court
                            Navarro County, Texas
                         Trial Court No. D15-24244-CV


                          MEMORANDUM OPINION


      In one issue, appellants, Rodolfo Luna Sr. and Rodolfo Arnulfo Luna, challenge a

traditional motion for summary judgment and a no-evidence motion for summary

judgment both granted in favor of appellee, Darla Womack Capehart, pertaining to an

automobile collision. Because we conclude that the trial court erred in granting both

summary judgments in favor of Capehart, we reverse the trial court’s judgment and

remand this case for further proceedings.
                                        I.     BACKGROUND

        In their original petition, appellants alleged that:

        On or about November 4, 2014[,] at approximately 7:10 a.m.[,] Plaintiff
        Rodolfo Luna, Sr. was driving a 2005 Chrysler 300, traveling southbound at
        the 700 block of South 7th Street on the inside lane in Corsicana, Navarro
        County, Texas[,] and Plaintiff Rodolfo Arnulfo Luna, Jr. was a passenger.
        Defendant Darla Womack Capehart was driving a 2013 Buick Enclave,
        traveling northbound at the 700 block of South 7th Street, in the wrong lane
        headed directly toward the Plaintiffs. The defendant was negligent in
        driving in the wrong lane, failing to control her speed, failing to timely
        apply her brakes, failing to stay attentive to her driving, and proceeding to
        carelessly strike Plaintiffs’ vehicle, causing the collision, and causing
        injuries to Plaintiffs . . . .

Appellants asserted a negligence claim against Capehart and sought exemplary damages,

as well as personal-injury and property damages.

        Capehart responded by filing special exceptions and an answer denying the claims

made by appellants in their original petition. Capehart also asserted that “the accident

in question was unavoidable as the result of a medical emergency which arose suddenly

and unexpectedly not caused in any way by the negligence of this Defendant.”

Thereafter, Capehart filed a no-evidence motion for summary judgment and a traditional

motion for summary judgment advancing her contention that the accident was

unavoidable due to a “sudden medical emergency.” In support of her traditional motion

for summary judgment, Capehart attached her deposition testimony and medical records

purportedly establishing that she suffered from a “syncopal episode” at the time of the

accident, which caused her to have double vision, become disorientated, and pass out.


Luna, et al. v. Capehart                                                                Page 2
        Without a hearing, the trial court granted Capehart’s no-evidence and traditional

motions for summary judgment and ordered that appellants take nothing in this lawsuit.

This appeal followed.

                                  II.    STANDARD OF REVIEW

        We review a grant of a motion for summary judgment de novo. KCM Fin., LLC v.

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).

In a traditional motion for summary judgment, a movant must state specific grounds,

and a defendant who conclusively negates at least one essential element of a cause of

action or conclusively establishes all the elements of an affirmative defense is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); see also KCM Fin., LLC, 457 S.W.3d

at 79. In a no-evidence motion for summary judgment, the movant contends that no

evidence supports one or more essential elements of a claim for which the non-movant

would bear the burden of proof at trial. TEX. R. CIV. P. 166a(i); see KCM Fin., LLC, 457

S.W.3d at 79. The trial court must grant the motion unless the non-movant raises a

genuine issue of material fact on each challenged element. Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008) (citing TEX. R. CIV. P. 166a(i)). If the order granting the motion for

summary judgment, such as the one in this case, does not specify the ground upon which

judgment was rendered, we must affirm the judgment if any of the grounds in the motion

for summary judgment is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d




Luna, et al. v. Capehart                                                              Page 3
868, 872 (Tex. 2000); Lotito v. Knife River Corp.-S., 391 S.W.3d 226, 227 (Tex. App.—Waco

2012, no pet.).

        “Further, if a no-evidence motion for summary judgment and a traditional motion

for summary judgment are filed which respectively asserts the plaintiff has no evidence

of an element of its claim and alternatively asserts that the movant has conclusively

negated that same element of the claim, we address the no-evidence motion for summary

judgment first.” Williams v. Parker, 472 S.W.3d 467, 469-70 (Tex. App.—Waco 2015, no

pet.) (citing Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004); Lotito, 391 S.W.3d

at 227). In both motions for summary judgment, Capehart challenged the proximate-

cause element of appellants’ negligence cause of action. As such, we will consider the

no-evidence motion for summary judgment first.

                                         III.   ANALYSIS

        In their sole issue on appeal, appellants contend that the trial court erred in

granting summary judgment in favor of Capehart because the summary-judgment

evidence did not conclusively establish that the collision was unavoidable. We agree.

        In their original petition, appellants alleged that Capehart failed to exercise

ordinary care while operating a motor vehicle, which was a proximate cause of the

collision. Specifically, appellants asserted that Capehart failed to keep a proper lookout,

stay attentive to her driving, maintain a clear and reasonable distance between her vehicle




Luna, et al. v. Capehart                                                               Page 4
and another, operate her vehicle at a safe rate of speed, and apply the brakes in a timely

and prudent manner. As a result, appellants alleged a negligence cause of action.

        The elements of a negligence cause of action are the existence of a legal duty, a

breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment

Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). As stated above, the

focus of summary-judgment motions was the proximate-cause element of appellants’

negligence cause of action. The components of proximate cause are cause-in-fact and

foreseeability. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); see also Mason,

143 S.W.3d at 798.

A.      Capehart’s No-Evidence Motion for Summary Judgment

        In her no-evidence motion for summary judgment, Capehart argued that

appellants “have produced no evidence on the proximate cause element of [their] cause

of action.” In their response to Capehart’s summary-judgment motions, appellants

argued that there is a material fact question as to whether Capehart lost consciousness

before impact, and if she did lose consciousness, what was the likely cause of her passing

out, how much notice did she have of the problem, and did she act as an ordinary prudent

driver would have after having notice of a potential problem. Appellants attached

excerpts from Capehart’s deposition, as well as Capehart’s medical records, to their

response.




Luna, et al. v. Capehart                                                               Page 5
        In her deposition testimony, Capehart, a cardiology nurse, acknowledged that she

noticed dizziness and double vision prior to the collision. However, rather than stopping

her vehicle, slowing down, or pulling over, Capehart continued driving and called her

husband by pushing a button on her steering wheel. During the conversation with her

husband, Capehart described her double vision. Capehart’s husband advised that she

should pull over and stop driving. Capehart did not do so.

        Considering the evidence in the light most favorable to the non-movants,

appellants, crediting evidence a reasonable jury could credit, and discrediting contrary

evidence and inferences unless a reasonable jury could not, we conclude that the

aforementioned deposition testimony of Capehart amounted to more than a scintilla of

probative evidence that raised a genuine issue of material fact as to the proximate cause

element of appellants’ negligence cause of action. See Smith v. O’Donnell, 288 S.W.3d 417,

424 (Tex. 2009); see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006)

(noting that we review the evidence presented by a summary-judgment motion and

response in the light most favorable to the party against whom the summary judgment

was rendered, crediting evidence favorable to that party if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not).        Therefore, we

further conclude that the trial court erred in granting Capehart’s no-evidence motion for

summary judgment. See TEX. R. CIV. P. 166a(i); see also Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Smith, 288 S.W.3d at 424 (noting that a no-evidence summary


Luna, et al. v. Capehart                                                            Page 6
judgment is improper when the non-movant presents more than a scintilla of probative

evidence that raises a genuine issue of material fact).

B.      Capehart’s Traditional Motion for Summary Judgment

        Despite the foregoing, the crux of this dispute centers on the trial court’s granting

of Capehart’s traditional motion for summary judgment. Capehart contends that she

conclusively established the defense of “unforeseeable incapacity” or “unavoidable

accident”; thus, summary judgment was proper.

        An unavoidable accident is “‘an event not proximately caused by the negligence

of any party to it.’” Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995) (quoting Dallas Ry.

& Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952) (op. on reh’g)). In other

words, it is an accident “that ordinary care and diligence could not have prevented, or

one which could not have been foreseen or prevent by the exercise of reasonable

precautions.” Otis Elevator Co. v. Shows, 822 S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.]

1991, writ denied). Thus, unforeseen loss of consciousness is a complete defense to the

claim that a driver negligently caused a motor-vehicle accident. See First City Nat’l Bank

of Houston v. Japhet, 390 S.W.2d 70, 75 (Tex. Civ. App.—Houston [1st Dist.] 1965, writ

dism’d). Indeed, this Court has stated:

        “Unforeseeable incapacity as a bar to liability in negligence is based upon
        the principle that one is not negligent if an unforeseeable occurrence causes
        an injury. Under traditional negligence theory, it follows that [the
        defendant] was not negligent if he were incapacitated before the collision,
        the incapacity caused the collision, and his incapacitation was not
        foreseeable.”
Luna, et al. v. Capehart                                                                Page 7
Williams, 472 S.W.3d at 470 (quoting Piatt v. Welch, 974 S.W.2d 786, 788 (Tex. App.—El

Paso 1998, no pet.); Harvey v. Culpepper, 801 S.W.2d 596, 598 (Tex. App.—Corpus Christi

1990, no writ)).

        By pleading that the collision was an unavoidable accident, Capehart raised an

inferential-rebuttal defense. See Lemos v. Monez, 680 S.W.2d 798, 800 (Tex. 1984); see also

Bed, Bath & Beyond v. Urista, 211 S.W.3d 753, 756 (Tex. 2006). An inferential-rebuttal

defense seeks to establish the truth of a theory that is contrary to or inconsistent with the

plaintiff’s theory, thereby disproving a factual element of the plaintiff’s claim. See Select

Ins. Co. v. Boucher, 561 S.W.2d 475, 477 (Tex. 1978). Because she is the summary-judgment

movant relying on an inferential-rebuttal defense, Capehart bears the burden to produce

evidence establishing the defense as a matter of law. See, e.g., Gomez v. Cooke, No. 14-15-

00010-CV, 2016 Tex. App. LEXIS 2264, at *4 (Tex. App.—Houston [14th Dist.] Mar. 3, 2016,

no pet.) (mem. op.).

        In the trial court and on appeal, Capehart argues that there is no more than a

scintilla of evidence to defeat her traditional motion for summary judgment because the

evidence presented shows that she lost consciousness while driving; that the loss of

consciousness was unforeseeable; and that the “unforeseeable incapacity” defense

applied.

        Other than her own ipse dixit, Capehart does not offer any summary-judgment

evidence demonstrating that she experienced a “sudden medical emergency”
Luna, et al. v. Capehart                                                               Page 8
immediately before the collision that prevented her from taking action to avoid the

collision. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.

2004) (“‘[I]t is the basis of the witness’s opinion, and not the witness’s qualifications or

his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand

or fall on the mere ipse dixit of a credentialed witness.’” (quoting Burrow v. Arce, 997

S.W.2d 229, 235 (Tex. 1999))). As mentioned earlier, Capehart admitted in her deposition

testimony that she noticed dizziness and double vision prior to the collision. However,

she did not stop her vehicle, slow down, or pull over. Instead, she continued driving and

called her husband. Capehart’s husband advised that she should pull over, but she did

not do so.

        Additionally, nowhere in Capehart’s medical records does it state that she

experienced a “syncopal episode.” Rather, it appears that Capehart was in good health

prior to the collision. Gregory Meador, M.D., the ED Physician who examined Capehart,

noted that that: “At their worst[,] the symptoms were very mild, just prior to arrival[;] in

the emergency department[,] the symptoms have improved.” Additionally, Capehart

acknowledged that medical tests at her follow-up appointments revealed normal results,

and that no medical provider has ever determined what could have caused her so-called

“syncopal episode.”

        Nevertheless, Capehart attempts to analogize these facts to those in three other

cases—all of which are distinguishable and unpersuasive. See generally Evans v. Allwhite,


Luna, et al. v. Capehart                                                              Page 9
111 S.W.3d 282 (Tex. App.—Texarkana 2003, no pet.); Japhet, 390 S.W.2d 70; Gomez, 2016

Tex. App. LEXIS 2264.

        First, we note that both Evans and Japhet involved jury trials. Only Gomez was a

summary-judgment case. This is significant because the plaintiffs in Evans and Japhet

both had the opportunity to present their cases to a jury, whereas the appellants in this

case will not be able to do so should the summary judgments stand.

        In any event, in Evans, the Texarkana Court of Appeals outlined the elements of

sudden emergency and noted that the trial court did not abuse its discretion by giving a

sudden emergency instruction to the jury where the evidence demonstrated that:

        Again, the actual distance from the time Allwhite first became ill to the
        point of the accident was approximately two blocks. At forty miles per
        hour, the time lapse from the first onset of illness to the point of the accident
        was, of necessity, a very short one. Moreover, Allwhite has never lost
        consciousness like this before. He testified that, had he known he was going
        to “pass out,” he would have pulled over. Considering the short period of
        time between when Allwhite said he began to feel ill and when the accident
        occurred, plus the fact that Allwhite has never lost consciousness like this
        before, we cannot say it was an abuse for the trial court to instruct the jury
        on sudden emergency.

111 S.W.3d at 286.

        The facts in Evans differ from the case at bar because Capehart admitted that she

had time to call her husband and discuss her symptoms after she began experiencing

dizziness and double vision. At the very least, unlike the situation in Evans, Capehart’s

admission presents a question of fact as to whether she had time to deliberate after the

emergency situation arose.
Luna, et al. v. Capehart                                                                    Page 10
        In Japhet, C.M. Dow had a heart attack and lost control of his vehicle. 390 S.W.2d

at 71. The Court of Appeals held that the trial court erred by holding, as a matter of law,

that Dow was negligent by instructing a verdict in favor of the plaintiff. Id. at 74. Japhet

is distinguishable from the case at bar because the Japhet court did not render a take-

nothing judgment for the defendant simply because he offered evidence that the accident

may have been unforeseeable. Instead, the Japhet court remanded the case for a jury trial

to determine, among other things, whether a momentary loss of consciousness was

foreseeable and acts as a complete defense to an action against the driver based on

negligence or gross negligence. Id. at 74-75. Stated differently, the relief granted in Japhet

is the same as that requested by appellants—a jury trial on their negligence claim that

necessarily includes issues on reasonableness and foreseeability.

        The Gomez case, though a summary-judgment case involving the “unavoidable-

accident” defense, is also distinguishable.      Unlike the instant case, the Gomez case

involved a much more extensive summary-judgment record. Id. at *6. Importantly, the

Gomez summary-judgment record included the crash report, the defendant’s medical and

hospital records, and excerpts from the depositions of the defendant, his wife, and his

treating physician, who was designated as an expert. Id. In contrast, the summary-

judgment record in this case only includes excerpts from Capehart’s deposition and some

medical records that do not conclusively establish her “unforeseeable incapacity” or

“unavoidable accident” defense.


Luna, et al. v. Capehart                                                               Page 11
        It is also of particular importance that the Gomez Court mentioned that

“determining the effect and foreseeable course of a medical condition is a matter for

experts.” Id. at *8 (citing Nat’l Life & Accident Ins. Co. v. Shern, 389 S.W.2d 726, 729-30 (Tex.

Civ. App.—Austin 1965, no writ)). However, in this case, the summary-judgment record

contains no expert testimony establishing the effect and foreseeable course of Capehart’s

purported “syncopal episode.”1 In fact, Capehart herself admitted that no physician

could substantiate the condition she claims she had just prior to the collision.

Accordingly, we are not persuaded by Capehart’s reliance on Gomez.

        Based on a review of the summary-judgment record, Capehart did not establish as

a matter of law her “unforeseeable incapacity” or “unavoidable accident” defense. See

Reinhart, 906 S.W.2d at 472; Williams, 472 S.W.3d at 470; Japhet, 390 S.W.2d at 75; see also

Gomez, 2016 Tex. App. LEXIS 2264, at *4. As such, the trial court erred in granting

Capehart’s traditional motion for summary judgment. See TEX. R. CIV. P. 166a(c); see also

KCM Fin., LLC, 457 S.W.3d at 79. We sustain appellants’ sole issue on appeal.


        1   On the other hand, the Gomez Court noted the following:

        Dr. Fairbanks, on the other hand, is an expert. He testified that stroke is predicted based
        on risk factors, and Calvin had no risk factors other than hypertension. Consequently, Dr.
        Fairbanks concluded that Calvin’s risk was “minimal,” and he neither told Calvin that
        there was a risk of stroke nor foresaw a risk that Calvin would suffer a stroke and become
        incapacitated while driving.

                Calvin is not required to know more than an expert, or to foresee what his treating
        physician could not.

Gomez v. Cooke, No. 14-15-00010-CV, 2016 Tex. App. LEXIS 2264, at *8 (Tex. App.—Houston [14th Dist.]
Mar. 3, 2016, no pet.) (mem. op.).

Luna, et al. v. Capehart                                                                              Page 12
                                      IV.      CONCLUSION

        We reverse the trial court’s judgments and remand this case to the trial court for

further proceedings.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring with a note)*
Reversed and remanded
Opinion delivered and filed June 12, 2019
[CV06]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.
He notes, however, that he does not join the Court’s opinion as to Section III(B) as it is
unnecessary to a disposition of the issues that results in a reversal of the trial court’s
judgments. Specifically, by determining there is a fact issue presented on causation in
connection with the review of the no-evidence motion for summary judgment, there is
no need to discuss whether Capehart conclusively negated causation in her traditional
motion for summary judgment. See Ford Motor Co. v. Ridgeway, 135 S.W.3d 598 (Tex.
2004). Moreover, Chief Justice Gray cannot join some of the nuances of the discussion in
this unnecessary discussion, specifically including that an expert witness is necessary for
Capehart to negate causation.)




Luna, et al. v. Capehart                                                            Page 13
