Court of Appeals of Texas, Dallas.

Carolyn FRANKLIN, Appellant

v.

LUMBERMENS MUTUAL CASUALTY COMPANY and Kemper National Services, Inc., Appellees.

No. 05-96-01234-CV.

|

June 17, 1998.

On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. 95-05577-K

Before Justices LAGARDE, KINKEADE and CHAPMAN

OPINION

Opinion By Justice KINKEADE.

*1 Carolyn Franklin appeals from a summary judgment granted in favor of Lumbermens Mutual Casualty Company (“Lumbermens”) and Kemper National Services, Inc. (collectively referred to as “appellees”). In three points of error, Franklin complains (1) the trial court erred in granting appellees’s motion for summary judgment because fact issues remain on her bad faith claim; (2) the summary judgment was not final because it did not address all claims asserted by Franklin; and (3) the trial court improperly considered certain affidavits as summary judgment evidence. Because we conclude the summary judgment evidence established appellees’s right to summary judgment, the judgment was final, and Franklin waived her right to complain that the affidavits should not have been admitted, we affirm the trial court’s judgment.

RELEVANT FACTS

In February of 1993, Carolyn Franklin slipped and fell while working at Sears Roebuck & Co., injuring her back. Lumbermens, the workers’ compensation carrier for Sears, began paying temporary income benefits to Franklin. Lumbermens’s payment of temporary income benefits to Franklin was dependent upon a medical determination of her “maximum medical improvement” (MMI). MMI occurs when, based on a reasonable medical probability, further material recovery from or lasting improvement to the injury is no longer reasonably anticipated. Tex. Lab.Code § 401.011(30)(A) (Vernon Supp.1998).

In January of 1994, Franklin’s treating physician, Dr. Stephen L. Brotherton, recommended that Franklin have spinal surgery. After Lumbermens’s requested a second opinion, another doctor examined Franklin and determined surgery was not necessary. From that point on, Franklin was examined by numerous doctors who gave conflicting reports. She changed her treating physician to Dr. Bruce L. Hinkley, who also recommended spinal surgery. Dr. Hinkley filed a recommendation for surgery with the Texas Workers’ Compensation Commission (TWCC). Lumbermens’ waived its right to a second opinion, thereby agreeing to pay the costs of Franklin’s spinal surgery.

Although Lumbermens agreed to pay the costs of the surgery, the issue of whether it was liable for temporary income benefits was still dependent on Franklin’s MMI rating. Because of the conflicting medical opinions as to whether surgery would improve Franklin’s condition, the TWCC appointed a “designated doctor” according to the statute governing workers’ compensation claims. The designated doctor, Dr. Myron Glickfeld, agreed with a prior physician, Dr. Phillip Osborne, who had determined Franklin reached MMI as of July 14, 1994 and had a 7% impairment rating. Shortly after receiving Dr. Glickfeld’s report, Lumbermens stopped payment of temporary income benefits and started payment of impairment income benefits based upon Dr. Glickfeld’s findings of Franklin’s MMI date and impairment rating.

In January of 1995, Dr. Hinkley performed the surgery on Franklin. Because Franklin disputed the MMI finding, the TWCC held benefit review conferences. Lumbermens contacted Dr. Glickfeld and inquired whether, after reviewing Franklin’s surgery records, he would change his opinion regarding her MMI and impairment rating. Dr. Glickfeld re-examined Franklin, reviewed the recent surgery records and, stating that there had been a substantial change in her condition since the time of his last examination as a result of the surgery, revised his original opinion, changing Franklin’s MMI date to a date that allowed her to receive the maximum statutory income benefits. Dr. Glickfeld also revised Franklin’s impairment rating to 15%, stating that because she had never cooperated fully during an examination, he had not been able to accurately assess her impairment rating. After receiving Dr. Glickfeld’s revised report, Lumbermens paid Franklin the maximum statutory amount of temporary income benefits and impairment income benefits in compliance with the 15% rating.

*2 In June of 1995, Franklin sued Lumbermens and Kemper for breach of a workers’ compensation insurance agreement, breach of the duty of good faith and fair dealing, gross negligence, and violations of the Deceptive Trade Practices Act and the Texas Insurance Code. She alleged that because her income benefits were erroneously terminated for a period of about seven months, she was forced to place her five children and guardian children in foster care and sell all her belongings. Lumbermens and Kemper moved for summary judgment. After a hearing, the trial court granted Lumbermens’s and Kemper’s motion and dismissed all causes of actions asserted against them. Franklin appealed.

APPLICABLE LAW

Summary Judgment Review

We review summary judgments according to well-established principles. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant moving for summary judgment may defeat the plaintiff’s cause of action by either negating at least one essential element of each theory of recovery, or conclusively proving all the elements of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If the trial court’s order granting the motion for summary judgment does not state the specific grounds on which it was based, we affirm the summary judgment if any of the movant’s grounds support the judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Texas Stadium Corp. v. Savings of Am., 933 S.W.2d 616, 618 (Tex.App.-Dallas 1996, writ denied).

Bad Faith

Relying on Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex.1988), Franklin bases her bad faith cause of action on allegations that Lumbermens had no reasonable basis for denying her claim. See Aranda, 748 S.W.2d at 213 (to prevail on a bad faith claim, a workers’ compensation claimant must establish (1) there was no reasonable basis for denying the claim or delaying payment of the claim and (2) the carrier knew or should have known there was no reasonable basis for denying the claim or delaying payment of the claim). The Texas Supreme Court recently attempted to clarify the standard for recovery in bad faith cases. In Universe Life Insurance Company v. Giles, the court held that an insurer will be liable for a breach of its duty of good faith and fair dealing if it denies a claim after knowing or if it should have known it was reasonably clear that the claim was covered. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex.1997); see also State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998). Recognizing the difficulties appellate courts have when applying a traditional “no evidence” review to a standard requiring the absence of evidence, the court reworded the prior standard that imposed bad faith liability when “the insurer had no reasonable basis for denying or delaying payment of [a] claim, and [the insurer] knew or should have known that fact.” (emphasis added). The plurality of the court concluded that replacing the “no reasonable basis” standard for the “when liability has become reasonably clear” standard will eliminate the conflict with the “no evidence” standard of review by recasting the standard in positive terms. Giles, 950 S.W.2d at 55-56.

*3 Practically, the change articulated by the Supreme Court does little to provide appellate courts with badly needed guidance in reviewing bad faith claims. See Universal Life Ins. Co. v. Miles, 923 S.W.2d 803, 810 (Tex.App.-El Paso 1996, writ denied) (“the Supreme Court, in its attempt to clarify the legal sufficiency standard for bad-faith claims against insurance companies, has ultimately done little to provide lower courts with any guidance for conducting a legal sufficiency review”). Under the old standard, an insured had to show no reasonable basis for the denial. Under the new standard, the insured must show the insurer denied the claim after liability became reasonably clear. To show that liability was reasonably clear, the insured must show that the insurer had no reasonable basis for the denial. As noted by a majority of the justices on the Supreme Court, the change is merely semantic. See Giles, 950 S.W.2d at 59 (Hecht, J., concurring); Giles, 950 S.W.2d at 80 (Enoch, J., concurring). Semantics aside, we apply the standard.

Under the new standard as articulated in Giles, a bad faith claimant has the burden of proving the insurer knew or should have known it was reasonably clear the claim was covered. See id. at 56. As movant for summary judgment, the insurer may negate an essential element of the plaintiff’s claim by showing its liability under the policy was not reasonably clear, i.e., there was a reasonable basis for believing the claim was not covered. Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 258 (Tex.App.-Corpus Christi 1997, no writ) (citing State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 446 (Tex.1997); Lyons v. Millers Casualty Ins. Co., 866 S.W.2d 597, 601 (Tex.1993); Aranda, 748 S.W.2d at 213)). Whether a reasonable basis to deny a claim exists must be judged by the facts before the insurer at the time the claim was denied. Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex.1990).

SUMMARY JUDGMENT IN FAVOR OF KEMPER

Franklin sued both Lumbermens and Kemper. However, all her claims arise from an alleged breach of the duty of good faith and fair dealing. The summary judgment record shows that Kemper is not Franklin’s workers’ compensation carrier and that Kemper had no contractual relationship with Franklin. Kemper was the excess carrier and did not provide workers’ compensation coverage. Therefore, Kemper owed no duty to Franklin. See Natividad v. Alexsis, Inc., 875 S.W.2d 695 (Tex.1994) (duty of good faith and fair dealing arises only when there is a “special relationship” arising between parties to a contract-the existence of a contract is a necessary element in a bad faith claim); see also Aetna Cas. & Sur. Co. v. Garza, 906 S.W.2d 543, 551 (Tex.App.-San Antonio 1995, writ dism’d by agr.) (the duty of good faith and fair dealing does not extend to the carrier’s agents or contractors). Because Kemper owed no duty of good faith and fair dealing to Franklin, the trial court did not err in granting summary judgment in favor of Kemper on Franklin’s claims.

FRANKLIN’S BAD FAITH CLAIMS AGAINST LUMBERMENS

*4 In her first point of error, Franklin contends a fact issue exists as to whether Lumbermens breached its duty of good faith and fair dealing. The key issue in this case is whether Lumbermens’s reliance on Dr. Glickfeld’s report as the basis for denying Franklin’s claim raised a fact issue as to whether that denial was reasonable. Lumbermens’s argues its actions were reasonable as a matter of law. Franklin responds that there is still at least a fact issue as to reasonableness.

An insurer may escape bad faith liability if it had a reasonable basis for believing the claim was not covered, but the mere fact that the insurer relied upon an expert’s report in denying a claim does not automatically foreclose bad faith recovery as a matter of law. Nicolau, 951 S.W.2d at 448. An insurer’s reliance on an expert’s report, standing alone, will not necessarily shield the carrier if there is evidence that the report was not objectively prepared or the insurer’s reliance on the report was unreasonable. Id. (citing Lyons v. Millers Casualty Ins. Co., 866 S.W.2d 597, 601 (Tex.1993); National Union Fire Ins. Co. v. Dominguez, 873 S.W.2d 373, 376-77 (Tex.1994)).

Franklin argues her summary judgment evidence raises a fact issue on the reasonableness of Lumbermens’s reliance on Dr. Glickfeld’s report. Specifically, she points to the affidavit of George Black, an insurance industry expert, who testified that Lumbermens’s reliance on Dr. Glickfeld’s report was unreasonable in light of Franklin’s imminently scheduled surgery. He further stated that Lumbermens’s failure to investigate whether Dr. Glickfeld knew of the scheduled surgery was unreasonable, inadequate and contrary to the custom and standard in the industry. She argues that this evidence raises a fact issue as to the reasonableness of Lumbermens’s reliance on the report in denying the claim and on the reasonableness of Lumbermens’s investigation before it stopped paying Franklin’s income benefits. We disagree.

Black’s Opinions Based on Incorrect Information

In his affidavit, Black first concludes Lumbermens’s reliance on Dr. Glickfeld’s report was unreasonable because Lumbermens had waived its right to a second opinion, thereby agreeing that surgery was reasonable and necessary. He also states that Lumbermens’ reliance on the report was unreasonable in light of the fact that Lumbermens authorized spinal surgery. However, the summary judgment evidence does not show Lumbermens authorized surgery or agreed that it was necessary and reasonable.

Lumbermens’s adjuster testified that simply because Lumbermens’ waived its right to a second opinion and agreed to pay the costs of surgery did not mean that Lumbermens authorized the surgery or agreed that surgery was reasonable and necessary. The waiver itself simply provided that the carrier would be liable for payment of the cost of the surgery; nothing in the language indicated the carrier agreed that surgery would result in an improvement of Franklin’s medical condition. In fact, the summary judgment evidence shows that the determination of whether Franklin’s medical condition would be improved by surgery was a medical determination Lumbermens was not authorized to make. Dr. Black’s conclusory statements to the contrary do not constitute summary judgment evidence that Lumbermens’s waiver constituted an authorization for surgery or an agreement that surgery was reasonable and necessary. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (conclusory affidavits not enough to raise fact issues).

*5 Furthermore, the fact that Lumbermens waived its right to a second opinion as to surgery was not relevant to the medical determination of when Franklin reached MMI and ultimately whether Lumbermens had a reasonable basis to deny payment of temporary income benefits to Franklin. See, e.g., Commission Appeals Panel Decision No. 94045, 1994 WL 53961 at 2-3 (Feb. 17, 1994) (MMI may be reached even if surgery has been recommended if designated doctor determines that surgery may not result in further material recovery from claimant’s injury).

Franklin further claims that Black’s affidavit raises a fact question as to whether Lumbermens conducted an adequate investigation into Franklin’s claims before denying her benefits. Specifically, Black states that Lumbermens relied on Dr. Glickfeld’s report before determining whether the scheduled surgery would affect Dr. Glickfeld’s opinion regarding Franklin’s MMI or even if Dr. Glickfeld knew Franklin was scheduled for surgery. However, the summary judgment record shows this contention is incorrect. Dr. Glickfeld’s report expressly states he was aware that Dr. Brotherton, Dr. Sarris, and Dr. Hinkley had recommended surgery, and that Dr. Hinkley, her treating physician at the time of the report, was planning on performing surgery. In his affidavit, Dr. Glickfeld states he was aware at the time he gave Franklin’s MMI that surgery was planned in the near future. Whether Dr. Glickfeld knew the exact date of the surgery is irrelevant in light of the evidence that he knew the surgery had been recommended and planned. Consequently, because Black’s opinions were based on facts not shown to be true in the record, his opinions do not constitute evidence sufficient to raise a fact question as to these issues. See Ryland Group, 924 S.W.2d at 122 (to support summary judgment, affidavits must be credible and present probative evidence of the facts at issue).

Imminently Scheduled Surgery

Franklin also argues that Black’s affidavit raises a fact issue as to the reasonableness of Lumbermens’s reliance on Dr. Glickfeld’s report in light of the fact that surgery was imminently scheduled. However, while the fact that surgery was scheduled could be some evidence of coverage, it is not evidence that the insurer’s liability was reasonably clear because a patient could reach MMI even if surgery was recommended. An examining doctor could decide that surgery, even though recommended by another doctor, would not result in material recovery from or lasting improvement to the injury. See Tex. Lab.Code § 401.011(30)(A) (Vernon Supp.1998). MMI occurs when, based on a reasonable medical probability, further material recovery from or lasting improvement to the injury is no longer reasonably anticipated.

The summary judgment evidence shows Dr. Glickfeld was aware that surgery was planned when he made his report that Franklin had reached MMI. In his affidavit, Dr. Glickfeld testified that the fact that surgery was scheduled or even performed would not guarantee that her condition would improve, and thus the mere fact of a planned surgery did not require him to revise his MMI. Because MMI may be reached even if surgery is planned, whether the surgery would change Franklin’s MMI is a medical decision that Lumbermens’ could not make without a medical opinion. The record shows that Lumbermens followed TWCC rules and procedures in requesting a designated doctor, and Lumbermens was required to consider the designated doctor’s opinion as to MMI. In fact, under the statute, “the report of the designated doctor shall have presumptive weight and the commission shall base the impairment rating on that report unless the great weight of other medical evidence is to the contrary.” Tex. Labor Code § 408.125(e) (Vernon 1996). In light of the fact that the statute governing the workers’ compensation system mandates that a designated doctor’s report is to be given presumptive weight by the TWCC, and in the absence of evidence that the doctor’s report was unreasonable or based on incomplete or incorrect information, we fail to see how it would be unreasonable for an insurer to rely on a designated doctor’s report for a decision requiring a medical determination.

*6 Further, the mere fact that conflicting opinions existed as to whether surgery was necessary does not mean the insurance company acted in bad faith in denying Franklin’s claim. See Nicolau, 951 S.W.2d at 448 (evidence showing only a bona fide coverage dispute does not, standing alone, demonstrate bad faith). In fact, part of the role of the TWCC and the statute governing it is to guide the insurance company in making coverage decisions when conflicting evidence exists. At the time Lumbermens stopped paying Franklin’s temporary benefits, it was in possession of numerous medical reports and evaluations of Franklin’s condition and need for surgery. Two of Franklin’s treating physicians and a doctor hired by the TWCC concluded that surgery was medically necessary. A doctor hired by Lumbermens’ concluded surgery was not necessary. Lumbermens then requested an independent medical exam by Dr. Osborne, who concluded Franklin had reached maximum medical improvement (i.e., in his opinion, surgery would not improve her condition) as of July 14, 1994 and assessed a 7% impairment rating. When Franklin disputed Dr. Osborne’s conclusions, the TWCC appointed Dr. Glickfeld as the designated doctor. Dr. Glickfeld examined Franklin and reached the same conclusions as to MMI and impairment as Dr Osborne-that Franklin had reached maximum medical improvement as of July 14, 1994 and had a 7% impairment rating. Shortly after it received Dr. Glickfeld’s report, Lumbermens terminated Franklin’s income benefits. Later, Dr. Glickfeld revised his determination of Franklin’s MMI and impairment rating after he received new medical records after surgery and determined there had been a substantial change in Franklin’s condition since the time of his prior examination. Dr. Glickfeld’s report came after surgery was actually performed. Lumbermens then paid the benefits owing to Franklin.

We conclude that under either the “reasonably clear” or the “no reasonable basis” standard, there is no evidence in this record that Dr. Glickfeld’s reports were not reasonably prepared or that Lumbermens’s reliance on them was not reasonable. See Lyons, 866 S.W.2d at 601.

Reliance on Commission Rule 130.6(h)

Finally, Franklin argues that Lumbermens’ reliance on Commission Rule 130.6 in stopping payment of benefits was unreasonable because rule 130.6 mandates when the insurer shall begin paying benefits but does not address when the insurer should stop paying benefits. See Commission Rule 130.6(h) (“The insurance carrier shall pay any accrued income benefits, and shall begin to pay weekly income benefits, in accordance with the designated doctor’s report, no later than ten days after receipt of the report”) 16 Tex. Reg. 177-78 (1991) (codified at Tex. Admin. Code § 130.6(h)) (amended 20 Tex. Reg. 7505 (1995)). However, because we have concluded Lumbermens’s reliance on Dr. Glickfeld’s report was a reasonable basis for Lumbermens to stop Franklin’s income benefits, and because nothing in rule 130.6 prohibits an insurer from stopping payments, we need not address whether Lumbermens could reasonably rely on rule 130.6 in stopping Franklin’s income benefits.

*7 Because the summary judgment evidence shows Lumbermens had a reasonable basis for denying the claim, the trial court did not err in granting summary judgment. We overrule Franklin’s first point of error.

FINALITY OF TRIAL COURT’S SUMMARY JUDGMENT

In her second point of error, Franklin complains that appellees’s motion for summary judgment failed to address all causes of action asserted by her and thus, the judgment granting the motion was a partial judgment. However, all of Franklin’s claims arise from her allegations that Lumbermens’s breached its duty of good faith and fair dealing. See Stewart Title Guaranty Co. v. Aiello, 941 S.W.2d 68, 72 (Tex.1997) (because claimant’s bad faith claims failed, their claims for treble damages predicated on bad faith pursuant to article 21.21 of the Insurance Code and section 17.46 of the DTPA also fail); see also Moriel, 879 S.W.2d at 23-24 (insurer is liable for punitive damages only if bad faith was done with gross negligence). Because we have concluded that the summary judgment evidence establishes no bad faith, Franklin would not be entitled to recover on any of her other claims arising from her bad faith allegations. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995) (because all the plaintiffs’ causes of action were predicated on the bad faith allegation that failed as a matter of law, plaintiffs were not entitled to recover on any cause of action). The summary judgment was final. We overrule Franklin’s second point of error.

ADMISSIBILITY OF AFFIDAVITS

In her third point of error, Franklin contends the trial court erred in considering the affidavits of Patricia Costley and Benita Creag, Lumbermens’s adjusters who handled Franklin’s claim. Franklin argues that she objected on various grounds to these affidavits but the trial court refused to strike the affidavits. Lumbermens argues that because Franklin never obtained a written ruling from the trial court on these objections, she waived her right to complain on appeal that the trial court should have excluded the affidavits.

Defects in the form of an affidavit will be waived on appeal if the objecting party did not obtain a written ruling by the trial court on its objections. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App.-Waco 1995, no writ). A defect in substance, however, cannot be waived by failing to object or obtain a written order. Id. Hearsay in an affidavit is a defect in form. Wilson v. General Motors Acceptance Corp., 897 S.W.2d 818, 821-22 (Tex.App.-Houston [1st Dist.] 1994, no writ). Contentions that an affidavit is not readily controvertible is also a defect in form that is waived by failure to obtain a written ruling. Patterson v. Mobiloil Federal Credit Union, 890 S.W.2d 551, 554 (Tex.App.-Beaumont 1994, no writ) (rule of civil procedure 166a(c), which contains the requirement that summary judgment evidence must be readily controvertible, also contains the proviso that issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal). Therefore, Franklin’s hearsay objections and her contentions that the affidavits are not readily controvertible are waived by her failure to obtain a written ruling from the trial court on her objections.

*8 Even assuming Franklin did not waive her objection by failing to obtain a written ruling from the trial court, Franklin’s complaints as to the admissibility of portions of the affidavit are waived because her brief contains no discussion, argument, or citation to authority to support her arguments. Bare assertions of error, without argument or authority, waive error. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied); see also Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex.1994) (appellate court has discretion to waive point of error due to inadequate briefing).

Although Franklin cites authority to support her argument that the affidavits are not readily controvertible on the issues of reasonableness, she does not specifically refer to any portion of Costley’s seven-page affidavit and Creag’s five-page affidavit she considers defective. Testimony from an interested witness may support a summary judgment if the evidence is “clear, postive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). If the credibility of the affiant is critical to the outcome of the case, summary judgment is not appropriate. Id.

From our review of the Costley and Creag affidavits, we conclude the facts and explanations contained therein are clear, positive, direct, and readily controvertible. See Packer v. Travelers Indem. Co., 881 S.W.2d 172, 175 (Tex.App.-Houston [1st Dist.] 1994, no writ) (material evidence in affidavit of claims adjuster explaining facts surrounding denial of claim and reasons for denying claim held to be readily controvertible). Further, the credibility of Costley and Creag “is not so intertwined with the facts sought to be proved as to render the affidavit[s] incompetent summary judgment evidence.” See id.

The cases Franklin relies on are distinguishable. In Stimpson v. Plano Independent School District, 743 S.W.2d 944, 947 (Tex.App.-Dallas 1987, writ denied), the court held affidavits of potentially liable parties stating their actions were done in good faith with no ill will toward the claimant were self-serving denials that were not readily controvertible. Stimpson, 743 S.W.2d at 947. In Ward v. Dallas Texas National Title Co., 735 S.W.2d 919 (Tex.App.-Dallas 1987, writ ref’d n.r.e.), the court held affidavits of parties charged with civil conspiracy denying involvement in the conspiracy were self-serving denials that were not readily controvertible. Ward, 735 S.W.2d at 921. Here, neither Costley nor Creag are potentially liable in Franklin’s suit. In fact, at the time of the affidavit, Costley was no longer employed by Lumbermens. Unlike in Stimpson and Ward, Costley’s and Creag’s credibility would not be dispositive in determining the reasonableness of Lumbermens’s delay in paying Franklin’s claim. See Packer, 881 S.W.2d at 175.

*9 Finally, even assuming the portions of the affidavits Franklin objected to as not readily controvertible should have been stricken, the relevant evidence in those portions of the affidavits is found in other portions of the record not under attack, i.e., Costley and Creag’s supplemental affidavits, deposition testimony and exhibits. If the basis for granting summary judgment does not depend on a deficient affidavit, the summary judgment will not be reversed on appeal. Brown v. Owens, 663 S.W.2d 30, 34 (Tex.App.-Houston [14th Dist.] 1983), aff’d in part, rev’d in part on other grounds, 674 S.W.2d 748 (Tex.1984). Thus, if the evidence appears elsewhere in the record, the error is harmless. See id. We overrule Franklin’s third point of error.

We affirm the trial court’s judgment.