 NUMBER 13-10-00351-CV AND NUMBER 13-10-00352-CV

                  COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI—EDINBURG
____________________________________________________

FRANCES RUBIO, INDIVIDUALLY,
AND AS REPRESENTATIVE OF THE
ESTATE OF HER DECEASED HUSBAND,
JOSE HINOJOSA RUBIO AND PAULA ESCOBAR,
PAM FLORES & MARY HERNANDEZ,                           Appellants,

                             v.

GUADALUPE MARTINEZ,                                    Appellee.


           On appeal from the 135th District Court
                 of Victoria County, Texas
____________________________________________________

                MEMORANDUM OPINION

         Before Justices Benavides, Vela, and Perkes
          Memorandum Opinion by Justice Perkes
       Appellants, Frances Rubio, Paula Escobar, Pam Flores and Mary Hernandez

(hereinafter referred to as “the Rubios” collectively),1 appeal from the trial court’s

summary judgments in favor of appellee, Guadalupe Martinez (hereinafter “Martinez”).

Because there is no evidence that Martinez negligently entrusted her vehicle to Juan

Lopez, the driver of her vehicle, and because Martinez has established the affirmative

defense of suicide as a matter of law, we affirm the trial court’s judgments.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On or about June 2, 2006, the decedent Jose Rubio was rear ended by a car

driven by Juan Lopez (hereinafter “Lopez”), but owned by Martinez. Martinez was not in

the vehicle at the time of the accident. Lopez left the scene of the accident and his

whereabouts remain unknown to Martinez. A police officer from the Victoria Police

Department investigated the accident, reporting that Jose Rubio was not injured in the

accident. On or about June 28, 2006, Jose Rubio committed suicide. The Rubios filed

a lawsuit on July 28, 2008, bringing causes of action for wrongful death, a survivor

action, negligent entrustment, and negligence against Lopez and Martinez.2                    The

Rubios alleged that Martinez negligently entrusted her vehicle to an incompetent,

untrained, and unlicensed driver. Martinez asserted the affirmative defense of suicide.

On June 1, 2009, Martinez filed both a traditional and no-evidence motion for summary

judgment with respect to her suicide defense. On April 30, 2010, the trial court granted

Martinez’s summary judgment as to the Rubios’ wrongful death and survival claims.


       1
         Frances Rubio is the surviving spouse and executrix of the estate of the deceased Jose
Hinojosa Rubio. Paula Escobar, Pam Flores and Mary Hernandez are the surviving children of Jose
Hinojosa Rubio.
       2
         The Rubios also alleged that Lopez was in the course and scope of employment with Martinez
and that the doctrine of respondeat superior applies, but the Rubios supplied no evidence in their
responses to Martinez’s motions for summary judgment that Lopez was employed by Martinez.

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The trial court severed the wrongful death and survival causes of action from the

remaining claims of negligent entrustment and negligence, and assigned cause number

08-6-67436-BB. An appeal ensued from this order under cause number 13-10-00351-

CV.

        On April 29, 2010, Martinez filed a no-evidence motion for summary judgment on

the Rubios’ negligent entrustment claim.3 The trial court granted Martinez’s motion and

ordered that the negligent entrustment issue be severed from the remaining negligence

claim, and assigned cause number 08-6-67436-BBB. An appeal from this order ensued

under cause number 13-10-00352-CV.4

                                II. NEGLIGENT ENTRUSTMENT

        In one issue in cause number 13-10-00352-CV, the Rubios contend that the trial

court erred in granting Martinez’s no-evidence motion for summary judgment because

she failed to demonstrate entitlement thereto as a matter of law.

        A. Standard of Review

        In a no-evidence summary judgment motion under rule 166a(i), the movant must

specifically state the elements for which there is no evidence. Tex. R. Civ. P. 166a(i).

The burden then shifts to the non-movant to bring forth evidence that raises a fact issue

on the challenged elements. Id.             When reviewing the granting of a no-evidence

summary judgment motion, we review the evidence in the light most favorable to the


        3
          A conclusion that Martinez did not negligently entrust her vehicle to Lopez would have resolved
all issues in this case through summary judgment. However, Martinez’s summary judgment as to the
negligent entrustment issue did not contain the wrongful death and survivor causes of action. We will
address these issues accordingly.
        4
          There being two orders and two records, separate cause numbers were assigned to each case
on appeal. These appeals, however, arise from a single case and a single set of facts in the trial court.
Although neither party has sought to consolidate these appeals, in the interest of judicial economy, we
issue a single opinion disposing of both appeals.

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non-movant, disregarding all contrary evidence and inferences. Macias v. Fiesta Mart,

Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A no-

evidence summary judgment motion is improperly granted if the non-movant brings forth

more than a scintilla of evidence to raise a genuine issue of material fact. Tex. R. Civ. P.

166a(i). Less than a scintilla of evidence exists when the evidence is “so weak as to do

no more than create a mere surmise or suspicion.” Macias, 988 S.W.2d at 317 (citing

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conversely, 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.” Id. (citing Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).              We will not consider

evidence attached to a no-evidence motion unless it creates a fact issue. See Binur v.

Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).           Because the propriety of granting a

summary judgment is a question of law, we review the trial court's decision de novo.

Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

       B. Analysis

       To establish negligent entrustment of an automobile, a plaintiff must show the

following: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent,

or reckless driver; (3) whom the owner knew or should have known to be unlicensed,

incompetent, or reckless; (4) the driver was negligent on the occasion in question; and

(5) the driver's negligence proximately caused the accident. Schneider v. Esperanza

Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).

       Express permission is that which is affirmatively stated, while implied permission

may be inferred from conduct between the parties in which there is acquiescence or



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lack of objection signifying consent which is shown by usage and practice of the parties

over a period of time preceding the occasion on which the automobile was being used.

Royal Indem. Co. v. H.E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex. 1966).

       In their response to the no-evidence motion for summary judgment, the Rubios

asserted that Martinez gave implied permission to Lopez to drive her vehicle by virtue of

their dating relationship and that Martinez was not credible because of certain

inconsistent statements.    See Tex. R. Civ. P. 166a.       However, the Rubios brought

forward no evidence that raised a fact issue on the challenged elements of whether

Martinez expressly or impliedly entrusted her vehicle to Lopez. Royal Indemnity, 399

S.W.2d at 347. Accordingly, we overrule the Rubios’ sole issue pertaining to negligent

entrustment.

                           II. AFFIRMATIVE DEFENSE OF SUICIDE

       By four issues in cause number 13-10-00351-CV, the Rubios argue that (1) the

trial court erred in granting Martinez’s motion for summary judgment because she failed

to establish the affirmative defense of suicide as a matter of law; (2) the trial court erred

by striking Paula Escobar’s affidavit; (3) the trial court erred by granting more relief than

appropriate or prayed for; and (4) the trial court erred by not enforcing the terms of a

Rule 11 agreement. See Tex. R. Civ. Proc. 11.

       A. Standard of Review

       Martinez filed both a no-evidence and traditional motion for summary judgment

on her defensive issue of suicide.         See TEX. CIV. PRAC. & REM. CODE ANN. §

93.001(a)(2) (West 2011). Only when a party conclusively proves every element of its




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affirmative defense is it entitled to summary judgment. Tex. R. Civ. P. 166(a); Science

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

       Here, we will review this as a traditional motion because a party may never

properly urge a no-evidence summary judgment on the claims or defenses on which it

has the burden of proof, such as an affirmative defense. Nowak v. DAS Inv. Corp., 110

S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see also Michael v.

Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus Christi 2001, no pet.); Judge David

Hittner & Lynn Liberato, Summary Judgments in Texas: State and Federal Practice, 46

Houston L. Rev. 1379, 1388-9 (2010).

       We review the grant of a traditional summary judgment de novo. Alejandro v.

Bell, 84 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2002, no pet.).            A trial court

properly grants summary judgment for a defendant if the defendant establishes all the

elements of an affirmative defense, Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,

425 (Tex. 1997), and if the moving party establishes that no genuine issue of material

fact exists and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In deciding whether there

is a genuine issue of material fact, evidence favorable to the non-movant will be taken

as true, and all reasonable inferences made, and all doubts resolved, in favor of the

non-movant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Property Mgmt. Co.,

Inc., 690 S.W.2d 546, 548-9 (Tex. 1985). The non-movant has no burden to respond to

a traditional summary judgment motion unless the movant conclusively establishes its

cause of action or defense. Swilley, 488 S.W.2d 64, 68 (Tex. 1972).




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      B. Analysis

      By their first issue, the Rubios claim that the trial court erred in granting

Martinez’s motion for summary judgment since she failed to demonstrate entitlement

thereto as a matter of law based on an affirmative defense of suicide. TEX. CIV. PRAC. &

REM. CODE ANN. § 93.001(a)(2). Section 93.001 Texas Civil Practice and Remedies

Code Annotated provides in pertinent part:

             (a) It is an affirmative defense to a civil action for damages for personal
             injury or death that the plaintiff, at the time the cause of action arose, was:

             …

                    (2) committing or attempting to commit suicide, and the plaintiff's
             conduct in committing or attempting to commit suicide was the sole cause
             of the damages sustained; provided, however, if the suicide or attempted
             suicide was caused in whole or in part by a failure on the part of any
             defendant to comply with an applicable legal standard, then such suicide
             or attempted suicide shall not be a defense.

Id.

      To be entitled to summary judgment on the affirmative defense of suicide,

Martinez had the burden of proving as a matter of law that at the time the wrongful

death claim cause of action arose (1) Jose Rubio was committing or attempting to

commit suicide and (2) that this conduct was the sole cause of damages. See TEX. CIV.

PRAC. & REM. CODE ANN. § 93.001(a)(2); Galindo v. Dean, 69 S.W.3d 623, 625-626

(Tex. App.—Eastland 2002, no pet.); Bracy v. Wal-Mart Stores, Inc., No. 2-06-223-CV,

2007 WL 1228642, at *3 (Tex. App.—Fort Worth April 26, 2007, no pet.) (mem. op.).

Once Martinez established that Jose Rubio’s suicide was the sole cause of his

damages, the burden then shifted to the Rubios to bring forth evidence that raised a

genuine issue of material fact as to whether Martinez or Lopez failed to comply with an

applicable legal standard. See Bracy, No. 2-06-223-CV, 2007 WL 1228642, at *3.

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       Because the statute requires that a plaintiff must be committing or attempting to

commit suicide at the time the cause of action arose, we note that a cause of action for

wrongful death accrues on the death of the injured person. See also Galindo v. Dean,

69 S.W.3d 623, 626 (Tex. App.—Eastland 2002, no pet.). Thus, the Rubios’ cause of

action for wrongful death accrued upon the death of Jose Rubio.

       The next question under section 93.001(a) (2) is whether Jose Rubio’s suicide

was the sole cause of the damages sustained. Jose Rubio’s death certificate, which is

attached in support of Martinez’s motion, indicates that the cause of death was

“asphyxia due to hanging” and that “deceased . . . fashioned a noose with coat hanger

[sic] and hung himself.”    Martinez also included the accident report as summary

judgment evidence, which reflects that Jose Rubio was not injured from the accident.

Thus, Martinez met her burden of establishing that Jose Rubio’s suicide was the sole

cause of the damages sustained. Galindo, 69 S.W.3d at 626-27.

       Once Martinez established her entitlement to summary judgment based on the

affirmative defense of section 93.001(a)(2), to avoid summary judgment under section

93.001, the burden shifted to the Rubios to establish that Jose Rubio’s suicide was

caused by Martinez’s failure to comply with an applicable legal standard. TEX. CIV.

PRAC. & REM. CODE ANN. § 93.001(a) (2); Galindo, 69 S.W.3d at 628. The Rubios

argued that Juan Lopez violated legal standards by rear ending Jose Rubio’s vehicle

and by failing to stop and render aid without establishing how those violations constitute

liability upon Martinez.

       Because the proximate cause of the underlying accident or occurrence was

Lopez’s negligence, not Martinez’s, see Rodgers v. McFarland, 402 S.W.2d 208, 210



                                            8
(Tex. Civ. App.—El Paso 1966, writ ref’d n.r.e.), the evidence relied upon by the Rubios

does not raise a fact issue that Martinez violated an applicable legal standard. Bracy,

No. 2-06-223-CV, 2007 WL 1228643, **3-4; Galindo, 69 S.W.3d at 628. We hold that

Martinez has affirmatively established each element of the affirmative defense of suicide

that no genuine issue of material fact exists, and that Martinez is entitled to judgment as

a matter of law. Id. As such, we overrule the Rubios’ first issue.

       By her second issue, the Rubios claim that the trial court erred by striking Paula

Escobar’s affidavit. The affiant, Paula Escobar is the decedent’s daughter and she

holds a license as a licensed vocational nurse. The essence of her affidavit attempted

to establish causation—that her father’s death was caused by the underlying automobile

accident. However, this affidavit addressed nothing with respect to Martinez’s liability.

Because we have previously held that Martinez did not negligently entrust her vehicle to

Lopez, the affidavit, even if allowed, would not have raised a fact issue. We overrule

the Rubios’ second issue.

       By her third issue, the Rubios claim that the trial court erred by granting more

relief than appropriate or prayed for.    Specifically, the Rubios claim that the order

granting summary judgment in this case only disposed of the wrongful death and

survival causes of actions, but did not dispose of “normal” damages that a person might

suffer in a car accident such as pain and suffering, mental anguish, physical

impairment, and medical expenses. We consider this issue to be moot. After the trial

court granted summary judgment on Martinez’s suicide defense, which covered the

Rubios’ wrongful death and survival causes of action, a subsequent summary judgment

on the negligent entrustment issue was granted, disposing of all remaining issues that



                                             9
pertained to Martinez.    The proximate cause of the accident or occurrence is the

negligence of the driver and not that of the owner. Rodgers, 402 S.W.2d at 210. Thus,

the remaining negligence cause of action referred to Lopez, the driver, and not to

Martinez. We overrule the Rubios’ third issue.

      By their fourth issue, the Rubios argue that the trial court erred by not enforcing

the terms of a Rule 11 agreement that would prevent a summary judgment hearing until

after Guadalupe Martinez had been deposed.          Martinez responded that the court

granted a continuance and that the Rubios did in fact have sufficient time to complete

discovery. The record before this court did not contain the Rule 11 agreement to which

the Rubios refer, nor did it include the motion for continuance.           Under these

circumstances, we must presume that the missing portions of the record support the

trial court's judgment. In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.—Dallas 2006, no

pet.) (citing Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2003)).         As such, we

overrule the Rubios’ fourth issue.

                                     IV. CONCLUSION

      Having overruled the Rubios’ issues on appeal, we affirm the trial court’s

judgments in both cause numbers 13-10-00351-CV and 13-10-00352-CV.



                                                 ______________________________
                                                 GREGORY T. PERKES
                                                 Justice


Delivered and filed the
28th day of July, 2011.




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