                                     NO. 12-15-00121-CV

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

GARRY L. ROLLINS AND CARLA D.                   §      APPEAL FROM THE 7TH
ROLLINS,
APPELLANTS

V.                                              §      JUDICIAL DISTRICT COURT

TEXAS COLLEGE AND MPF
INVESTMENTS, LLC D/B/A "A-1
RENT ALL",
APPELLEES                                       §      SMITH COUNTY, TEXAS

                                             OPINION

       Garry L. Rollins and Carla D. Rollins appeal the trial court’s summary judgments granted
against them in favor of Texas College and MPF Investments, LLC d/b/a “A-1 Rent All.” They
present three issues on appeal. We affirm.


                                         BACKGROUND
       Garry Rollins was employed by Texas College as a maintenance technician and
supervisor. In October 2013, the college rented two scissor lifts to be used in performing repairs
in the gymnasium. One of those lifts was rented from MPF. Garry fell while dismounting one of
the lifts following completion of the repair work. After the fall, Garry sought medical treatment
and had surgery for a neck injury.
       The Rollinses sued Texas College and MPF for damages they assert are a result of
Garry’s fall from the scissor lift’s platform. They alleged Texas College was a nonsubscriber to
worker’s compensation and was negligent. Specifically, the Rollinses claimed Texas College
failed in its duty to (1) provide a reasonably safe workplace; (2) furnish reasonably safe
machinery or reasonably safe personal protective equipment for use with the scissor lift; (3)
provide adequate help in the performance of the work; (4) train and/or properly supervise Garry
while using the lift; and (5) ensure that Garry was fit to perform work on a scissor lift. Garry
alleged that he was diagnosed with syncope, an illness that causes blackouts, following an
incident in which he coughed and sneezed while attempting to lift a marble slab in September
2013. According to Garry, he was ordered to use the scissor lift to patch the gymnasium ceiling
even though he told his supervisor that he was afraid of heights and his supervisor knew about
his syncope.
        The Rollinses alleged MPF was negligent in failing to train Texas College’s employees
regarding use of the scissor lift and by failing to include an owner’s manual in the scissor lift’s
compartment box. They also alleged MPF was liable for negligent entrustment.1 Carla Rollins
asserted derivative claims against both Texas College and MPF.
        Texas College and MPF each moved for traditional and no evidence summary judgments.
They also moved to strike portions of the summary judgment evidence attached to the Rollinses’
responses. The trial court sustained the objections and granted the motions without a hearing.
The Rollinses filed a motion to reopen the evidence, which was denied. This appeal followed.


                                               MOTIONS TO STRIKE
        As part of their first and second issues, the Rollinses allege that certain summary
judgment evidence was improperly stricken.2
Standard of Review
        Evidence offered in response to a motion for summary judgment must be admissible
under the rules of evidence to the same extent that would be required at trial. See TEX. R. CIV. P.
166a(f); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Decisions about the
admissibility of evidence are left to the sound discretion of the trial court. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 42 (Tex. 1998). We gauge abuse of discretion by
whether the trial court acted without reference to any guiding rules or principles. Longoria, 938
S.W.2d at 30.

        1
            The Rollinses are not asserting negligent entrustment on appeal.
        2
          The Rollinses complain that several pieces of summary judgment evidence were improperly stricken.
However, we address only the evidence pertinent to our review. See TEX. R. APP. P. 44.1 (reversible error if
probably caused rendition of improper judgment); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex.
1995) (exclusion of evidence only harmful if probably caused rendition of improper judgment), 47.1.


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Analysis
       The Rollinses’ response to Texas College’s no evidence motion for summary judgment
included a letter to the Rollinses’ attorney from Dr. Samuel Barnett, the physician who
performed Garry’s neck surgery. The letter described Dr. Barnett’s evaluation of Garry and his
diagnosis. The Rollinses offered no other causation evidence in response to the college’s no
evidence motion for summary judgment. Texas College objected that the letter was inadmissible
hearsay, and the trial court sustained the objection. On appeal, Garry argues the letter is
admissible under Texas Rule of Evidence 803(4).
       Hearsay is any statement, other than one made while testifying at trial, that is offered to
prove the truth of the matter asserted. TEX. R. EVID. 801(d). Rule 803(4) is an exception to this
general rule that permits admission of statements (1) made for, and reasonably pertinent to,
medical diagnosis or treatment; and (2) describing medical history; past or present symptoms or
sensations; their inception; or their general cause. TEX. R. EVID. 803(4). Letters written for the
purpose of advising as to a doctor’s findings on examination and evaluation of a patient are
hearsay. Nw. Nat’l Ins. Co. v. Garcia, 729 S.W.2d 321, 325 (Tex. App.—El Paso 1987, writ
ref’d n.r.e.). Rule 803(4) makes admissible the history the patient gave the doctor, not letters
based upon that history. See Garcia, 729 S.W.2d at 325; see also TEX. R. EVID. 803(4).
Therefore, Dr. Barnett’s letter was inadmissible hearsay, and the trial court did not abuse its
discretion in striking it. We overrule the portions of the Rollinses’ first and second issues that
pertain to the exclusion of Dr. Barnett’s letter.


                               MOTIONS FOR SUMMARY JUDGMENT
       Also in their first and second issues, the Rollinses allege the trial court erred in granting
Texas College’s and MPF’s motions for summary judgment.
Standard of Review
       The standard for reviewing a traditional summary judgment is well-established. The
movant for traditional summary judgment has the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c). When the movant seeks summary judgment on a claim in which the nonmovant bears
the burden of proof, the movant must either negate at least one essential element of the
nonmovant’s cause of action or prove all essential elements of an affirmative defense. See



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Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has
established a right to summary judgment, the burden shifts to the nonmovant to respond to the
motion and present to the trial court any issues that would preclude summary judgment. See City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Generally, a trial
court may not consider summary judgment evidence not referenced in or incorporated into the
motion. Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236 (Tex. App.—Houston
[14th Dist.] 2014, no pet.).
        Additionally, after an adequate time for discovery has passed, a party without the burden
of proof at trial may move for summary judgment on the ground that the nonmoving party lacks
supporting evidence for one or more essential elements of its claims. See TEX. R. CIV. P. 166a(i).
Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to
the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no evidence
motion for summary judgment under the same legal sufficiency standards as a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is
properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence
to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on
which the nonmovant would have the burden of proof at trial. Id. at 751. If the evidence
supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in
their conclusions, then more than a scintilla of evidence exists. Id. 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 of a fact, and the legal effect is that there is no evidence. Id.
        In determining whether an appellant has raised more than a scintilla of evidence
regarding the grounds on which a no evidence motion for summary judgment was based, we are
limited to the summary judgment proof produced in the response. DeGrate v. Exec. Imprints,
Inc., 261 S.W.3d 402, 408 (Tex. App.—Tyler 2008, no pet.).                When presenting summary
judgment proof in response to a no evidence motion, a party must specifically identify the
supporting proof on file that it seeks to have considered by the trial court. Id. Referencing
attached documents only generally does not relieve a respondent of directing the trial court to
where in such documents the issues set forth in the response are raised. Id. Neither this court
nor the trial court is required to wade through a voluminous record to marshal a respondent’s



                                                   4
proof. Id. We also are not free to search the entire record, including materials not cited to or
relied on by the trial court. Id.
        In both traditional and no evidence summary judgment motions, we review the record de
novo and in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.
2006). All theories in support of or in opposition to a motion for summary judgment must be
presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s order does
not specify the grounds on which it granted summary judgment, we affirm the trial court’s ruling
if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S.,
858 S.W.2d 374, 380 (Tex. 1993).
        When a party moves for both a traditional and no evidence summary judgment, we first
review the trial court’s summary judgment under the no evidence standards of Rule 166a(i).
Ridgway, 135 S.W.3d at 600. If the no evidence summary judgment was properly granted, we
do not reach the arguments made in the traditional motion for summary judgment. See id. at 602.
Applicable Law
        Texas College is a nonsubscriber to workers’ compensation. Therefore, the Rollinses
must establish Texas College was negligent. See TEX. LAB. CODE ANN. § 406.033(d); Kroger
Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The Rollinses also alleged that MPF was
negligent. To establish negligence, a party must establish a duty, a breach of that duty, and
damages proximately caused by the breach. Kroger, 197 S.W.3d at 794. Proximate cause
consists of cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 477 (Tex. 1995). Proximate cause cannot be established by mere conjecture, guess,
or speculation. Id.
        Lay testimony is sufficient to establish causation in those cases in which general
experience and common sense will enable a layman to determine, with reasonable probability,
the causal relationship between the event and the condition. Morgan v. Compugraphic Corp.,
675 S.W.2d 729, 733 (Tex.1984). Lay testimony that establishes a sequence of events providing
a “strong, logically traceable connection between the event and the condition is sufficient proof
of causation.” Id. This type of evidence supports a causation finding between the accident and
basic physical conditions when the conditions (1) are within the common knowledge and
experience of laypersons, (2) did not exist before the accident, (3) appeared after and close in



                                                 5
time to the accident, and (4) are within the common knowledge and experience of laypersons.
Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex. 2007). However, expert testimony is necessary
to establish causation as to medical conditions outside the common knowledge and experience of
jurors. Id. at 665.
Analysis
       As part of its no evidence motion, Texas College alleged the Rollinses had no evidence
supporting causation. Specifically, the college contended there was no evidence that Garry’s
injuries were caused by his fall from the scissor lift. It is undisputed that Garry suffered from a
neck injury and underwent neck surgery prior to his fall. It is also undisputed that the previous
injury is similar to the injury complained of in this suit. Therefore, the Rollinses were required
to present expert testimony linking Garry’s latest neck injury and neck surgery to his fall from
the scissor lift. See State Office of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 400-01 (Tex. App.—
Dallas 2011, no pet.) (expert testimony required to establish aggravation of preexisting medical
condition). However, the Rollinses provided only a letter from Garry’s treating physician, Dr.
Barnett. Texas College objected that the letter was inadmissible hearsay.          The trial court
sustained the objection and struck the letter. Because the only evidence linking Garry’s neck
injury and neck surgery to the fall was stricken by the trial court, the Rollinses presented no
evidence of causation. Therefore, the trial court did not err in granting Texas College’s no
evidence motion for summary judgment.
       MPF asserted, in part, in its no evidence motion for summary judgment that the Rollinses
had no evidence that Garry fell from the lift Texas College rented from MPF. On appeal, the
Rollinses failed to challenge this summary judgment ground in their brief. When the trial court
does not specify the basis for its summary judgment, the appealing party must show it is error to
base it on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995). If an appellant does not challenge each possible ground on which summary
judgment could have been granted, we must uphold the summary judgment on the unchallenged
ground.    Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet.
denied). However, even if the Rollinses had challenged this ground on appeal, they could not
prevail because they presented no summary judgment evidence that Garry fell from the lift Texas
College rented from MPF. In fact, the only evidence presented to the trial court demonstrates




                                                6
that Garry fell from a lift other than the one rented from MPF. Because there is no evidence that
Garry fell from MPF’s scissor lift, there is no evidence that MPF caused any of Garry’s injuries.
       We overrule the remaining portions of the Rollinses’ first and second issues.


                                       MOTION TO REOPEN
       In their third issue, the Rollinses contend the trial court erred when it denied their motion
to reopen the evidence.
Standard of Review
       We review the denial of a motion to reopen the evidence under an abuse of discretion
standard. Poag v. Flories, 317 S.W.3d 820, 827 (Tex. App.—Fort Worth 2010, pet. denied).
Texas Rule of Civil Procedure 270 allows a trial court to permit additional evidence when it
clearly appears necessary to the administration of justice. TEX. R. CIV. P. 270. However, the
rule does not require a court to permit additional evidence. Poag, 317 S.W.3d at 828. In
determining whether to permit additional evidence, a court should consider whether (1) the
moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is
decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will
cause injustice. Id. The decision to reopen a case is within the trial court’s sound discretion. Id.
A “trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if
the party seeking to reopen has not shown diligence in attempting to produce the evidence in a
timely fashion.” Id. (citing Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex. App.—Corpus Christi
2001, no pet.)).    To show diligence, a party must establish either that the evidence was
previously unavailable or that the party had no opportunity to present the proof to the court
before judgment. See Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 201-02 (Tex. App.—
Texarkana 2010, no pet.); Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex. App.—Fort
Worth 2006, pet. denied).
Analysis
       After the no evidence summary judgments were granted, the Rollinses moved to reopen
the evidence and sought to introduce an affidavit from Dr. Barnett because his letter had been
stricken by the court. The Rollinses urge that they were diligent in obtaining the affidavit
because they did so a mere six days following the granting of summary judgment. Therefore,
they contend the trial court abused its discretion in denying their motion to reopen the evidence.



                                                 7
         The Rollinses’ request to reopen the evidence was an attempt to remedy the exclusion of
Dr. Barnett’s letter because of its inadmissibility—a fact they admit in their motion to reopen.
However, the Rollinses have not shown that the information contained in the affidavit was
unavailable prior to the granting of the no evidence summary judgments. The Rollinses also
failed to show that they did not have an opportunity to present the evidence to the trial court. To
the contrary, Dr. Barnett’s affidavit contains the same information as his letter. And the letter
itself demonstrates that the information was available eight months prior to the granting of the
summary judgments. Therefore, the trial court did not abuse its discretion when it denied the
Rollinses’ motion to reopen the evidence to allow the introduction of Dr. Barnett’s affidavit. We
overrule the Rollinses’ third issue.


                                                   DISPOSITION
         Having overruled the Rollinses’ three issues, we affirm the judgment of the trial court.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered July 12, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            JULY 12, 2016


                                        NO. 12-15-00121-CV


               GARRY L. ROLLINS AND CARLA D. ROLLINS,
                              Appellant
                                 V.
     TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL",
                              Appellee


                                 Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 13-3353-A)

                      THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, GARRY L. ROLLINS AND CARLA D. ROLLINS, for which
execution may issue, and that this decision be certified to the court below for observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
