Court of Appeals of Texas, Dallas.

Douglas K. MOUNT, Appellant,

v.

TRINITY INDUSTRIES, INC., Appellee.

No. 05-91-01902-CV.

|

November 19, 1992.

Before STEWART, KINKEADE and WIGGINS, JJ.

O P I N I O N

WIGGINS, Justice.

*1 Douglas K. Mount appeals from a summary judgment granted to Trinity Industries, Inc. (“Trinity”) and the trial court’s denial of his motion for new trial. In his first two points of error, Mr. Mount contends that the trial court erred in granting Trinity’s motion for summary judgment because (1) a genuine issue of material fact exists; and (2) the evidence presented was insufficient as a matter of law to support the summary judgment. In a third and general point of error, Mr. Mount asserts that the trial court erred in granting Trinity’s motion for summary judgment. In his final point of error, Mr. Mount contends that the trial court erred in failing to grant his motion for new trial. Finding no merit in any of Mr. Mount’s points of error, we affirm.

FACTS

Mr. Mount was employed by Trinity as a welder. On March 2 and 11 of 1989, Mr. Mount sustained injuries in the course of his employment. On March 14, Trinity terminated his employment, and on March 28 he filed a workers’ compensation claim for work-related injuries. Thereafter, Mr. Mount filed suit against Trinity alleging that he had been discharged for filing a workers’ compensation claim, in violation of article 8307c, section 1 of the Texas Workers’ Compensation Act. Trinity filed a motion for summary judgment, contending that Mr. Mount was not terminated due to the institution of proceedings under the Texas Workers’ Compensation Act.

As summary judgment evidence, Trinity offered the affidavit of George M. Tompkins, Mr. Mount’s plant manager, and copies of excerpts from a deposition by James Whittington, Mr. Mount’s former supervisor. Mr. Tompkins stated that (1) he decided to lay off Mr. Mount because the project was near completion and there was not enough work to employ Mr. Mount; (2) Mr. Mount was laid off because one welder had to be laid off due to lack of work, and Mr. Mount was the least skilled welder; (3) Mr. Mount was not laid off because he had instituted a proceeding under the Texas Workers’ Compensation Act; and (4) Mr. Mount’s injuries were not factors in, and did not contribute to, the decision to lay him off.

Mr. Mount filed a verified response to Trinity’s motion for summary judgment, attaching as evidence copies of excerpts from his own deposition. The deposition excerpts, however, were not accompanied by a copy of the original court reporter’s certificate or by an affidavit from Mr. Mount’s attorney certifying the truthfulness and correctness of the copied excerpts. In his deposition, Mr. Mount stated that Mr. Whittington told him that he was being laid off because he had been injured on the job and had filed a workers’ compensation suit. The trial court subsequently granted Trinity’s motion for summary judgment. Thereafter, Mr. Mount filed a motion for new trial, and attached as evidence copies of different excerpts from the same deposition. The trial court denied Mr. Mount’s motion for new trial.

DISCUSSION

Mr. Mount’s first two points of error allege that the trial court erred in granting Trinity’s motion for summary judgment because (1) a genuine issue of material fact exists in the case; and (2) the evidence before the trial court was insufficient as a matter of law to support the summary judgment.¹

*2 Summary judgment is proper only when a moving party establishes that (1) there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989). In a summary judgment proceeding, the defendant, as movant, has the burden of either (1) disproving at least one element of each of the plaintiff’s theories of recovery, see Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991), or (2) pleading and conclusively establishing each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Once the movant has established a right to summary judgment, the non-movant should then respond and present to the trial court any genuine issue of material fact that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In reviewing a summary judgment to decide whether there is a genuine issue of material fact, this Court must take as true all evidence favorable to the non-movant. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in that party’s favor. See id.

Mr. Mount argues that his deposition excerpt, in which he states that Mr. Whittington told him he was being laid off because he had been injured on the job and had filed a workers’ compensation suit, controverts the assertion in Mr. Tompkins’ affidavit that he was laid off because there was not enough work. Thus, he contends there is a genuine issue of material fact as to whether he was laid off because of lack of work. In response, Trinity asserts that Mr. Mount’s deposition excerpt was not properly before the trial court at the hearing on the motion for summary judgment because the excerpt was not authenticated. Consequently, the only evidence before the trial court was the uncontroverted affidavit and deposition evidence, which established that Mr. Mount’s employment was terminated because there was not enough work to keep Mr. Mount employed.

In Deerfield Land Joint Venture v. Southern Union Realty, 758 S.W.2d 608 (Tex. App.-Dallas 1988, writ denied) this Court stated:

If an attorney has only a copy of a deposition or wishes to rely only on excerpted portions of a deposition (so that the excerpted pages are copies), he or she can nonetheless attach the copy or the page copies as an exhibit to the motion for summary judgment, together with a copy of the court reporter’s certificate, and his or her own original affidavit certifying the truthfulness and correctness of the copied material. The deposition material is then filed, as an exhibit to the motion for summary judgment itself, and placed before the court; it has been authenticated by the court reporter’s original certificate or by the attorney’s original affidavit.

*3 Id. at 610. To constitute competent summary judgment proof, Mr. Mount had to authenticate the deposition excerpts with either a copy of the original court reporter’s certificate or an affidavit from his attorney certifying the truthfulness and correctness of the copied excerpts. Where a deposition excerpt is not authenticated, it is not properly before the trial court as summary judgment evidence, and cannot be considered on appeal. See Deer Creek Ltd. v. North Am. Mortgage, 792 S.W.2d 198, 201 (Tex. App.-Dallas 1990, no writ); Kotzur v. Kelly, 791 S.W.2d 254, 255-56 (Tex. App.-Corpus Christi 1990, no writ). Furthermore, in considering whether to grant or deny a motion for summary judgment, the trial court may consider the record only as it appears when the hearing on the motion for summary judgment is held. See Marek v. Tomoco Equip. Co., 738 S.W.2d 710, 712 (Tex. App.-Houston [14th Dist.] 1987, no writ).

Consequently, the trial court, at the hearing on the motion for summary judgment, had before it only the Tompkins affidavit and Whittington deposition. To establish there was no genuine issue of material fact in the case Trinity had to disprove at least one element of Mr. Mount’s cause of action under article 8307c, section 1. See Anderson, 808 S.W.2d at 55. To maintain a successful action under article 8307c, section 1, Mr. Mount had to establish a causal connection between his termination and his workers’ compensation claim. See Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ).

In his affidavit, Mr. Tompkins stated that Mr. Mount was laid off because there was not enough work and because he was the least skilled welder. He also testified that Mr. Mount was not laid off because he had instituted a proceeding under the Texas Workers’ Compensation Act, and that Mr. Mount’s injuries were not factors in, and did not contribute to, the decision to lay him off. This evidence tended to disprove an essential element of Mr. Mount’s cause of action-namely, the causal connection between his termination and his injury and workers’ compensation claim. By negating this element of Mr. Mount’s cause of action, Trinity met its burden of establishing that there was no genuine issue of fact concerning whether Mr. Mount’s employment was terminated due to lack of work.

At oral argument, Mr. Mount asserted for the first time that even if the unauthenticated deposition excerpts were not properly before the trial court at the hearing on the motion for summary judgment, his verified response to Trinity’s motion was before the trial court and the response established that a genuine issue of material fact exists in the case. We disagree. Motions for summary judgment and the responses to motions for summary judgment are not competent summary judgment proof. See Triland Inv. Group v. Tiseo Paving Co., 748 S.W.2d 282, 284 (Tex. App.-Dallas 1988, no writ); Anders v. Brown and Root, Inc., 817 S.W.2d 95, 97 (Tex. App.-Houston [1st Dist.] 1991, no writ). Since Mr. Mount’s response to Trinity’s motion for summary judgment was not competent summary judgment proof, it could not serve to controvert Trinity’s summary judgment evidence, and cannot be considered on appeal. See Deer Creek, 792 S.W.2d at 201.

*4 Because Mr. Mount had no competent summary judgment proof before the trial court with which to controvert Trinity’s evidence, and Trinity met its burden of disproving one element of Mr. Mount’s cause of action, the trial court could have properly concluded there was no genuine issue of material fact that Mr. Mount’s employment was terminated because of lack of available work. We also find that the evidence offered by Trinity, which negated an element of Mr. Mount’s cause of action, was sufficient as a matter of law to support a summary judgment in Trinity’s favor. Accordingly, we overrule Mr. Mount’s first two points of error.

In his third point of error, Mr. Mount contends that the trial court erred in granting Trinity’s motion for summary judgment. Mr. Mount provides no argument or authority in support of this general point of error. Rather, he asks us to review the record and find that the trial court committed error based upon any unspecified ground that we might find.

As support for his contention that this Court may entertain a general point of error unsupported by argument and authority, Mr. Mount relies upon Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970), and Cassingham v. Lutheran Sunburst Hosp. Serv., 748 S.W.2d 589 (Tex. App.-San Antonio 1988, no writ). While Malooly and Cassingham do permit an appellant to bring forth a general point of error alleging that the trial court erred in granting a motion for summary judgment, such a general point of error merely allows a party to argue under that point all the possible grounds upon which summary judgment should have been denied. See Malooly, 461 S.W.2d at 121; Cassingham, 748 S.W.2d at 590. A party must still provide argument and authorities to support all of the possible grounds upon which the trial court could have erred. See A. C. Collins Ford, Inc. v. Ford Motor Co., 807 S.W.2d 755, 760 (Tex. App.-El Paso 1990, writ denied); Inpetco, Inc. v. Texas Am. Bank, 722 S.W.2d 721, 722 (Tex. App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.). An appellate court is not required to search the record and analyze all the affidavits, depositions, and other evidence in an effort to discover a possible fact issue on appeal. See Inpetco, 722 S.W.2d at 722. Since Mr. Mount’s general point of error is not properly briefed with supporting argument and authorities, he has waived this point of error.² See A. C. Collins Ford, 807 S.W.2d at 760; Inpetco, 722 S.W.2d at 722.

*5 In his fourth point of error, Mr. Mount contends that the trial court erred in denying his motion for new trial. Mr. Mount argues that the excerpts from his deposition, which he attached to his motion for new trial, establish that his employment was terminated because he was injured on the job and had filed a workers’ compensation claim.

The denial of a motion for new trial is a matter within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987); Ferguson & Co. v. Roll, 776 S.W.2d 692, 695 (Tex. App.-Dallas 1989, no writ). When a motion for new trial is filed after summary judgment has been granted, the trial court may only consider the record as it existed prior to the granting of summary judgment. See Marek v. Tomoco Equip. Co., 738 S.W.2d 710, 715 (Tex. App.-Houston [14th Dist.] 1987, no writ). Thus, in determining whether to grant Mr. Mount a new trial, the trial court could base its decision only upon the evidence that was before it when it granted Trinity’s motion for summary judgment. As we have already discussed, Mr. Mount had no competent evidence before the court at the hearing on the motion for summary judgment. Furthermore, the deposition excerpts that he attached to his motion for new trial are different excerpts from those he attached to his response to Trinity’s motion for summary judgment. These new deposition excerpts were not in the record prior to the grant of summary judgment, so the trial court could not consider them at the hearing on the motion for new trial. See Marek, 738 S.W.2d at 715. Consequently, at the hearing, the trial court had before it only the uncontroverted affidavit and deposition testimony offered by Trinity. As we have previously determined, this evidence was sufficient to allow the trial court to find there was no genuine issue of fact that Mr. Mount’s employment was terminated because of lack of work. Accordingly, we find that the trial court did not err in denying Mr. Mount’s motion for new trial. We overrule Mr. Mount’s fourth point of error. The judgment of the trial court is affirmed.

Do Not Publish

Tex. R. App. P. 90

	Footnotes
1		In his brief, Mr. Mount combines the arguments and authorities for his first two points of error. Therefore, we address both points of error in this discussion.
2		In Inpetco, the court of appeals found that Inpetco had waived its general point of error by failing to comply with Texas Rule of Appellate Procedure 74. See 722 S.W.2d at 722. The Texas Supreme Court, in an opinion refusing Inpetco’s application for writ of error, concluded that the appellate court erred in finding that Inpetco waived its general point of error without first affording Inpetco an opportunity to rebrief the point of error to comply with rule 74. See Inpetco, Inc., v. Texas Am. Bank, 729 S.W.2d 300, 300 (Tex. 1987). We think Inpetco is distinguishable from the instant case because Inpetco’s general point of error was also its sole point of error. In contrast, Mr. Mount alleges two specific points of error in addition to his general point of error. We conclude that these two additional specific points of error adequately represent the basis for Mr. Mount’s appeal. Accordingly, we find it unnecessary to allow Mr. Mount the opportunity to rebrief his general point of error to comply with rule 74.