     Case: 17-50031      Document: 00514140929         Page: 1    Date Filed: 09/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                    No. 17-50031                                    FILED
                                  Summary Calendar                          September 1, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
ELIZABETH FRET,

              Plaintiff – Appellant,

v.

MELTON TRUCK LINES, INCORPORATED; DARRELL EDMOND,

              Defendants – Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CV-710



Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       In this appeal, Elizabeth Fret (“Fret”) contends the district court erred
in granting summary judgment in favor of Melton Truck Lines (“Melton”) and
Darrel Edmond (“Edmond”). Because the summary judgment burden never
shifted to Fret with regard to Fret’s simple negligence claim, we REVERSE the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-50031
judgment on the simple negligence and respondeat superior claims and
REMAND those claims only.
                                I.     FACTUAL BACKGROUND
       This is a personal injury and negligence lawsuit resulting from a motor
vehicle accident that occurred when Edmond, an employee of Melton, struck a
vehicle driven by Fret. Fret alleges that she sustained personal injuries as a
result of the collision. Fret has appealed the district court’s grant of summary
judgment in favor of Edmond and the trucking company that employed
Edmond on Fret’s simple negligence and respondeat superior claims. 1
       Fret and Edmond were both driving on a two-lane portion of Interstate
410 in San Antonio, Texas. While attempting to change from the right to the
left lane, Edmond collided with Fret, who was driving in the left lane. Edmond
was operating a commercial vehicle while in the course and scope of his
employment with Melton and with the permission and consent of Melton.
       Fret timely filed suit in Texas state court. Fret asserted causes of action
against Edmond for negligence, gross negligence, and negligence per se for
violation of Section 545.401 and 545.351 of the Texas Transportation Code. In
addition, Fret asserted that Melton was liable under the doctrine of respondeat
superior and asserted claims for gross negligence, as well as negligent hiring,
entrustment, supervision, training, retention, and qualification.
       Melton and Edmond removed the state civil action to the United States
District Court for the Southern District of Texas, and they filed a motion to
transfer venue to the Western District of Texas, San Antonio Division. The
district court granted the motion and transferred the case.




       1Fret does not appeal the district court’s granting of summary judgment in regard to
the negligence per se, gross negligence, negligent hiring, entrustment, supervision, training,
retention and qualification claims.
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                                     No. 17-50031
      In the district court, Melton and Edmond filed a “Partial Hybrid Motion
for Summary Judgment” seeking summary judgment on the negligent hiring,
training, supervision, qualification, retention, entrustment; negligence per se;
and gross negligence claims. They did not seek summary judgment on either
the simple negligence claim against Edmond nor the respondeat superior claim
against Melton. Fret filed a motion requesting an extension to file a response
to Melton and Edmond’s partial hybrid summary judgment motion which the
district court granted, setting her deadline to respond twenty days after the
close of discovery deposition. Upon the close of discovery, Fret did not file a
timely response to Melton and Edmond’s partial hybrid motion for summary
judgment. Twenty-five days after the deadline to respond to the partial hybrid
summary judgment, the district court entered an order granting Melton and
Edmond’s motion for summary judgment. Without notice to the parties, the
district court sua sponte granted summary judgment on the simple negligence
claim. 2 Fret failed to respond to the partial hybrid summary judgment at any
point before the district court granted summary judgment. The district court
stated that it granted Melton and Edmond’s motion because Fret lacked
evidence to support her claims. The district court dismissed all of Fret’s claims
and concluded that Fret failed to set forth specific facts showing that there was
a genuine issue for trial.
      After the trial court granted Melton and Edmond’s summary judgment
on all their claims, Fret filed three post-judgment motions seeking relief under
Federal Rules of Civil Procedure 59(e) and 60(b). Fret timely filed a “Motion
for Reconsideration and to Reopen,” seeking relief under Rules 59(e) and
60(b)(1) as to her simple negligence claims. Fret requested that the district



      2 A district court may sua sponte grant summary judgment so long as the losing party
has notice. HS Res., Inc. v. Wingate, 327 F.3d 432, 441 (5th Cir 2003).
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                                  No. 17-50031
court grant relief by setting aside the judgment. Fret argued that Edmond and
Melton’s partial hybrid motion for summary judgment did not include the
simple negligence claim, and the failure to respond to the motion for summary
judgment was due to a misunderstanding between the parties and the district
court. Fret alleged that the parties had agreed to extend the deadline for
responding to the summary judgment motion but had failed to seek the district
court’s approval. The district court entered an order denying Fret’s motion for
reconsideration.
      Fret subsequently filed two similar motions for reconsideration. The
latter motion for reconsideration included over one thousand pages of evidence
and other exhibits. In her motions, Fret argued that the district court’s decision
to grant summary judgment without consideration of the miscommunication
regarding the agreement between the parties was manifestly unjust. Fret also
argued it was manifestly unjust for the district court to dismiss in toto all of
Fret’s claims. Fret argued that the sua sponte dismissal of her simple
negligence and vicarious liability claims were inappropriate. The district court
denied both motions to reconsider. Fret timely filed a notice to appeal of the
district court’s order granting Melton and Edmonds motion for summary
judgment.
                            II.    STANDARD OF REVIEW
      We review grants of summary judgment de novo, applying the same
standard as the district court. Templet v. Hydrochem Inc., 367 F.3d 473, 477
(5th Cir. 2004). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue
of material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008). “[W]here the non-movant
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bears the burden of proof at trial, the movant may merely point to an absence
of evidence, thus shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact
warranting trial. Only when ‘there is sufficient evidence favoring the
nonmoving party for a jury trial to return a verdict for that party’ is a full trial
on the merits is warranted.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618
(5th Cir. 1994) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). All reasonable inferences must be viewed in the light most favorable
to the party opposing summary judgment, and any doubt must be resolved in
favor of the non-moving party. Hillman v. Loga, 697 F.3d 299, 302 (5th Cir.
2012). The non-movant must adduce affirmative evidence to defeat summary
judgment. Anderson, 477 U.S. at 257.
                                    III.       ANALYSIS
      In her complaint, Fret asserts simple negligence, negligence per se, gross
negligence, and respondeat superior claims. Fret only challenges the district
court’s dismissal of the simple negligence and respondeat superior claims. Even
though Melton only specifically moved for summary judgment on the negligent
hiring, training, supervision, entrustment, negligence per se, and gross
negligence claims, the district court also granted summary judgment on Fret’s
simple negligence claim. Fret argues that the district court’s grant of summary
judgment on her simple negligence claim was inappropriate because the
burden never shifted from the defendants to Fret. We conclude that the district
court erred in granting summary judgment with respect to the simple
negligence claim.
      Under Texas law, to prevail on a negligence cause of action, the plaintiff
must prove “the existence of a legal duty, a breach of that duty, and damages
proximately caused by the breach.” IHS Cedars Treatment Ctr. of Desoto,
Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Fret alleges that
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                                  No. 17-50031
Edmond was negligent because he: (1) drove at a speed greater than a
reasonable person would, (2) failed to timely apply his breaks; (3) took faulty
evasive action; (4) failed to drive defensively; (5) failed to make safe decisions;
(6) failed to blow his horn to warn of imminent collision, and (7) drove
recklessly.
      Melton and Edmond’s motion for partial hybrid summary judgment does
not specifically address the claim of simple negligence. The motion only states,
in a conclusory manner, that “Defendants respectfully request summary
judgment on Plaintiffs causes of action because Plaintiff has no evidence to
support these allegations.” Fret argues, and we agree, that this allegation of
“no evidence,” without pointing to a specific element, is not enough to shift the
burden from the defendants to Fret. See Austin v. Kroger Texas L.P.,—F.3d—,
2017 WL 1379453, *8 (5th Cir. 2017).
      Federal Rule of Civil Procedure 56 requires that the party “asserting that
a fact cannot be . . . genuinely disputed” support its assertion by either “(A)
citing to particular parts of materials in the record,” or “(B) showing that the
materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B) (emphasis added). Subsection B is
disjunctive, allowing the moving party to support its position either by
reference to materials in the record or by “showing” that the other party does
not have admissible evidence supporting the fact at issue.
      This showing does not require the party moving for summary judgment
“to produce evidence showing the absence of a genuine issue of material fact,
even with respect to an issue on which the nonmoving party bears the burden
of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(c)
advisory committee’s note to 2010 amendment (“Subdivision (c)(1)(B)
recognizes that a party need not always point to specific record materials.”).
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But it is also true that even when the non-movant bears the burden of proof at
trial, “[s]imply filing a summary judgment motion does not immediately
compel the party opposing the motion to come forward with evidence
demonstrating material issues of fact as to every element of its case.” Russ v.
Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991). It is not enough for the
moving party merely to make a conclusory statement that the other party has
no evidence to prove his case. See Celotex, 477 U.S. at 328 (White, J.,
concurring).
      Here, because the defendants did not move for, argue, or brief the simple
negligence claim in its partial hybrid motion for summary judgment, it is
impossible for him to satisfy the movant’s burden as set out in Celotex and
Russ. See Celotex 477 U.S. at 325; Russ, 943 F.2d at 591. Melton and Edmond’s
motion for summary judgment failed to identify an absence of any specific
element of simple negligence. In fact, the motion raised no fact issues with
regards to simple negligence nor did it identify any absence of evidence
pertaining to any specific theory of Fret’s simple negligence claim. A mere
conclusory statement that the other side has no evidence is not enough to
satisfy a movant’s burden. See Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993).
As a result, the burden never shifted to Fret to go beyond the pleadings to come
forward with specific facts creating a genuine issue for trial on the simple
negligence claims. Therefore, it was inappropriate for the district court to grant
summary judgment on that claim.
      Further, the district court’s brief analysis on the simple negligence issue
also highlights why summary judgment was inappropriate. The district court
concluded that there was no evidence from which a reasonable jury could find
that Edmond breached a legal duty it owed Fret and therefore no damages
were proximately caused by the breach. In support of this finding, the district
court pointed to Edmond’s deposition where he testified that he believed the
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                                   No. 17-50031
accident was not preventable because he looked in his mirrors, turned on his
blinkers, and moved slowly before changing lanes. The district court held that
because Fret submitted no evidence to contradict the precautionary measures
taken by Edmond and because Fret never amended her original petition, no
issues of material fact remained regarding Fret’s simple negligence claim.
      We respectfully disagree with the district court and believe there are
genuine issues of material fact as to whether a reasonable jury could have
determined that Edmond’s breach of duty proximately caused Fret’s injuries.
The facts relied upon by the district court are not sufficient to overcome Fret’s
theories of negligence. For example, the fact that Edmond may have looked
before turning on his blinker and changing lanes does not defeat Fret’s theory
of negligence based on the allegation that Edmond did not timely apply his
breaks, or that he drove at an unreasonable speed. Further, Edmond’s
deposition itself—relied upon by the district court—demonstrates there is an
issue of fact. Specifically, in the very portion of the deposition the district court
cites, Edmond repeatedly testified that he said the collision was his fault at the
scene immediately following the crash. Edmond’s testimony itself creates a fact
issue that defeats summary judgment with respect to the simple negligence
claim.
      Therefore, because the summary judgment burden did not shift to Fret,
and because there is a genuine issue of material fact, we REVERSE the district
court’s grant of summary judgment with respect to simple negligence. We also
REVERSE the district court’s sua sponte grant of summary judgment in
respect to respondeat superior claim to the extent those claims are related to
the simple negligence claim.
                                   IV.   CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s order that
sua sponte grants summary judgment in respect to the simple negligence and
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                                  No. 17-50031
respondeat superior claims in favor of Melton and Edmond and REMAND to
the district court for proceedings consistent with this opinion, and we AFFIRM
in all other respects.




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