                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00724-CV

                                            Jesse VEGA,
                                              Appellant

                                                   v.

                     AUTOZONE WEST, INC. d/b/a Autozone and Autozone,
                                      Appellee

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011-CI-07217
                             Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: June 5, 2013

REVERSED AND REMANDED

           Jesse Vega appeals the trial court’s grant of AutoZone West, Inc.’s no-evidence motion

for summary judgment. AutoZone’s motion for summary judgment alleged Vega could not

produce any evidence to establish AutoZone knew or reasonably should have known of a defect

on its premises. Vega attached his deposition testimony to his response as evidence to support

his claim. The trial court granted AutoZone’s motion for summary judgment. In a single point

of error, Vega asserts that his deposition testimony provided more than a scintilla of evidence as

to each element of his cause of action.
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                                          BACKGROUND

       One afternoon, Vega, his son, and his grandson visited an AutoZone store to buy new

brakes for Vega’s vehicle. When Vega stepped out of his vehicle, he slipped on an oil spill in

the AutoZone parking lot. As a result of his fall, Vega suffered injuries to his neck and back.

Thereafter, Vega filed a premises liability lawsuit seeking personal injury damages.

       As part of the discovery process, AutoZone took Vega’s deposition.              During his

deposition, Vega stated that another customer helped him up, and that Vega then proceeded to

enter the AutoZone store. Vega testified that immediately after he entered the store, another

customer told an AutoZone employee: “Didn’t I just tell you. I’m the fifth person to come in

here and tell you about that oil spill and you guys waited until somebody got hurt [to do

something].” The manager then hurried to cover the oil spill. Shortly thereafter, Vega spoke

with the manager about his fall and injuries.

       After taking Vega’s deposition, AutoZone filed a no-evidence motion for summary

judgment alleging there was no evidence that AutoZone knew or reasonably should have known

of the oil spill. Vega filed a response to AutoZone’s motion, citing his deposition testimony,

including the customer’s statement to the manager, as evidence of each of the elements of his

cause of action. Without stating the specific reasons for its decision, the trial court granted

AutoZone’s motion for summary judgment.

                                      SUMMARY JUDGMENT

   A. Standard of Review

       A party may move for a no-evidence summary judgment by alleging there is no evidence

of at least one essential element of a claim or defense of the opposing party. TEX. R. CIV. P.

166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). “[A] reviewing court

must examine the entire record in the light most favorable to the nonmovant, indulging every
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reasonable inference and resolving doubt against the motion.” City of Keller v. Wilson, 168

S.W.3d 802, 824 (Tex. 2005); see also IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004). We credit evidence favorable to the nonmovant if a

reasonable fact finder could, and we disregard contrary evidence unless a reasonable fact finder

could not. Gish, 286 S.W.3d at 310; City of Keller, 168 S.W.3d at 827.

          The nonmovant must produce more than a scintilla of evidence that raises a genuine issue

of material fact on the contested elements in order to avoid summary judgment. TEX. R. CIV. P.

166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “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.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc.,

650 S.W.2d 61, 63 (Tex. 1983)). “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. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)).

   B. Notice of Unreasonably Dangerous Condition

          When the plaintiff is an invitee on a premises, he must prove the following in order to

succeed on a premises liability claim:

          (1) a condition of the premises created an unreasonable risk of harm to the
              invitee;

          (2) the owner knew or reasonably should have known of the condition;

          (3) the owner failed to exercise ordinary care to protect the invitee from danger;
              and

          (4) the owner’s failure was a proximate cause of injury to the invitee.



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Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 883 (Tex. 2009) (per

curiam); see also CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

       The only element disputed in AutoZone’s no-evidence motion for summary judgment

was whether AutoZone had notice of the oil spill. In order for Vega to meet his burden of proof

on this element at trial, he would be required to prove that AutoZone had actual or constructive

notice of the oil spill. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). “A slip-

and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the

substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3)

it is more likely than not that the condition existed long enough to give the premises owner a

reasonable opportunity to discover it.” Id.

       In its motion for summary judgment, AutoZone merely stated that Vega had requested no

discovery and adduced no evidence that AutoZone knew or should have known of the oil spill.

In his response, Vega relied upon his deposition as evidence supporting his cause of action,

specifically alleging that the customer’s statement about being the fifth person to warn the

employees of the spill was evidence that AutoZone had notice of the dangerous condition.

AutoZone’s motion did not allege that Vega’s deposition testimony regarding the customer’s

statement was inadmissible hearsay, AutoZone did not object to the statement during Vega’s

deposition, nor did AutoZone file any objections to Vega’s reliance on the customer’s statement

in his response to AutoZone’s motion for summary judgment.

       On appeal, AutoZone argues for the first time that the customer’s statements were

inadmissible hearsay that could not be considered by the trial court as evidence of notice. At oral

argument, AutoZone stated that the only issue discussed at the summary judgment hearing was

whether or not the customer’s statement was inadmissible hearsay. Consequently, AutoZone

argued, this issue was properly put before the trial court in a manner functionally equivalent to
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an objection to Vega’s summary-judgment proof. While we understand this argument and the

likely reasoning of the trial judge’s decision, the summary judgment hearing is not part of the

appellate record and there is no other evidence in the appellate record to show any objection to

Vega’s offer of proof as inadmissible hearsay. Thus, as discussed below, we are bound to

conclude the hearsay complaint has been waived.

       1. Hearsay Complaint Waived

       Texas Rule of Appellate Procedure 33.1 permits a complaint to be raised on appeal only

if “the complaint was made to the trial court by a timely request, objection, or motion.” TEX. R.

APP. P. 33.1(a); see also Mansions in the Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317

(Tex. 2012). The complaint must be sufficiently specific and made in accordance with Texas

Rules of Evidence and Texas Rules of Civil and Appellate Procedure.            TEX. R. APP. P.

33.1(a)(1). Texas Rule of Evidence 802 states that “[i]nadmissible hearsay admitted without

objection shall not be denied probative value merely because it is hearsay.” TEX. R. EVID. 802.

This portion of Rule 802 has been applied to summary judgment proceedings. Casas v. Gilliam,

869 S.W.2d 671, 673 (Tex. App.—San Antonio 1994, no writ); see also Drew v. Harrison Cnty.

Hosp. Ass’n, 20 S.W.3d 244, 247–48 (Tex. App.—Texarkana 2000, no pet.); Morrison v.

Pinkerton Inc., 7 S.W.3d 851, 855 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Additionally,

Texas Rule of Civil Procedure 166a provides that “[t]he motion for summary judgment shall

state the specific grounds therefor,” and “[i]ssues not expressly presented to the trial court by

written motion, answer, or other response shall not be considered on appeal as grounds for

reversal.” TEX. R. CIV. P. 166a(c); see also Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26

(Tex. 1993).

       Further, many courts have distinguished between defects of substance, which can be

raised for the first time on appeal, and defects of form, which require an objection and
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                                                                                                  04-12-00724-CV


opportunity to amend before being raised on appeal. 1 Rockwall Commons Assocs., Ltd. v. MRC

Mortg. Grantor Trust I, 331 S.W.3d 500, 507 (Tex. App.—El Paso 2010, no pet.); Cooper v.

Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 697–98 (Tex. App.—Dallas 2008, no

pet.); cf. Moritz v. Bueche, 980 S.W.2d 849, 854 (Tex. App.—San Antonio 1998, no pet.) (using

the type-of-defect analysis to dispose of one complaint, but relying on rules of evidence to decide

another). Numerous appellate courts have expressly determined that hearsay is a defect of form,

and thus waived if no objection is made in the trial court. Rockwall Commons Assocs., 331

S.W.3d at 507; Willis v. Nucor Corp., 282 S.W.3d 536, 547–48 (Tex. App.—Waco 2008, no

pet.); Cooper, 254 S.W.3d at 697; Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166

S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied); EOG Res., Inc. v. Wall, 160

S.W.3d 130, 134 (Tex. App.—Tyler 2005, no pet.); McMahan v. Greenwood, 108 S.W.3d 467,

498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Drew v. Harrison Cnty. Hosp. Ass’n,

20 S.W.3d 244, 247–48 (Tex. App.—Texarkana 2000, no pet.); Harris By and Through Harris v.

Spires Council of Co-Owners, 981 S.W.2d 892, 897 (Tex. App.—Houston [1st Dist.] 1998, no

pet.); cf. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex. 1962) (stating that

the defects raised “appear to be purely formal” and “not obviously based on hearsay,” and

indicating reliance on the requirement that special exceptions be made to avoid waiver of defects

of form). But see Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex.

App.—Amarillo 1999, pet denied). This analysis is ordinarily applied to hearsay statements

made in affidavits; however, we see no reason to treat hearsay statements in depositions any


1
  Determining which issues are defects of form and which are defects of substance can produce inconsistent results.
See TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 6.10(1)(b) (3d ed. 2012). Thus, we believe it is better to
follow the general rules for preservation absent an exception recognized by the Texas Supreme Court. See
Montgomery Cnty., 365 S.W.3d at 317; see also TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 6.10(1)(d)
(3d ed. 2012) (explaining that Montgomery County was based on Rule 33.1 instead of the type of defect); cf. Casas
v. Gilliam, 859 S.W.2d 671, 673 (Tex. App.—San Antonio 1994, no writ) (relying on Rule 802 when refusing to
deny probative value to hearsay statements made without objection).

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differently. See Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio

2000, no pet.); TEX. R. CIV. P. 166a(f); TIMOTHY PATTON, SUMMARY JUDGMENTS             IN   TEXAS

§ 6.03(7)(b) (3d ed. 2012).

       Accordingly, AutoZone’s failure to lodge a hearsay objection in the trial court waived its

complaint for appellate review.

       2. Vega’s Deposition Testimony Was Proper Summary-Judgment Evidence

       On appeal, AutoZone also appears to assert that Vega’s deposition testimony was

improper summary-judgment evidence because it was uncorroborated self-serving testimony. In

Morgan v. Anthony, the Texas Supreme Court provided guidance on this issue. 27 S.W.3d 928

(Tex. 2000) (per curiam). In Morgan, the defendant moved for summary judgment and, in

response, the plaintiff presented summary-judgment evidence consisting of excerpts from the

plaintiff’s deposition and the plaintiff’s answer to an interrogatory. Id. at 929. The court

recognized that a party generally cannot rely on its own answers to interrogatories as

summary-judgment evidence, but concluded that such evidence became competent when it was

affirmed in her deposition. Id.; see also Evans v. MIPTT, L.L.C., No. 01-06-00394-CV, 2007

WL 1716443, at *5 (Tex. App.—Houston [1st Dist.] June 14, 2007, no pet.) (recognizing that a

party’s interrogatories cannot be considered as its summary-judgment evidence, but stating that

the court could properly consider excerpts from the party’s deposition as that party’s evidence

opposing summary judgment). The court’s opinion indicates that a party’s deposition testimony

is more reliable than other forms of self-serving statements and is proper summary-judgment

evidence, even without independent corroboration. Morgan, 27 S.W.3d at 929. Likewise, it is

important to note that the court determined the plaintiff had presented more than a scintilla of

evidence of each element of her cause of action even though the court looked only to statements

made by the plaintiff (her interrogatory answer and deposition). Id. at 931.
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                                                                                   04-12-00724-CV


       Further, it is sensible for a party’s deposition to be properly considered as

summary-judgment evidence because a deposition has guarantees of trustworthiness that other

discovery responses lack. For instance, a deposition is taken under oath and with penalty of

perjury, similar to an affidavit. See Well Solutions, 32 S.W.3d at 317 (citing TEX. GOV’T CODE

ANN. § 312.011(1) (West 1998)). Additionally, the deponent is subject to cross-examination.

Morgan, 28 S.W.3d at 929. Indeed, in the case at bar, Vega was questioned only by AutoZone’s

attorney, and AutoZone’s attorney questioned Vega extensively on the customer’s statement.

Such questioning provided AutoZone an opportunity to reveal any inconsistencies or doubts

about what Vega overheard the customer say.

       The question becomes whether Vega’s deposition testimony regarding the customer’s

statement is more than a scintilla of evidence that AutoZone had notice of the oil spill. See TEX.

R. CIV. P. 166a(i); Mack Trucks, 206 S.W.3d at 582. This court must consider the evidence in

the light most favorable to Vega and, thus, we will assume Vega’s deposition testimony is true.

City of Keller, 168 S.W.3d at 824. “To raise a genuine issue of material fact, however, the

evidence must transcend mere suspicion. Evidence that is so slight as to make any inference a

guess is in legal effect no evidence.” Ford Motor Co., 135 S.W.3d at 601. In Farrar v. Sabine

Mgmt. Corp., the court of appeals determined there was a fact issue of whether the defendant had

notice of a slippery ramp based on the plaintiff’s deposition testimony that an employee told him

another person had slipped on the ramp earlier that same day. 362 S.W.3d 694, 700–01 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). Additionally, in Strandberg v. Spectrum Office Bldg.,

this court determined that the defendant had notice of a slick walkway based on the plaintiff’s

deposition testimony that she had previously warned the defendant of the condition and that the

defendant knew other people had previously slipped on the walkway. 293 S.W.3d 736, 741–42

(Tex. App.—San Antonio 2009, no pet.). Under these two cases, as well as Morgan, we
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conclude that Vega’s deposition testimony provides more than a scintilla of evidence that

AutoZone had or reasonably should have had notice of the spill.

                                         CONCLUSION

         AutoZone waived its complaint regarding the alleged hearsay statement in Vega’s

summary-judgment evidence.         Additionally, Vega’s deposition testimony is proper

summary-judgment evidence, and the trial court erred in determining that Vega failed to present

more than a scintilla of evidence to defeat AutoZone’s motion for summary judgment.

Accordingly, the judgment of the trial court is reversed and this cause is remanded to the trial

court.


                                                Catherine Stone, Chief Justice




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