Court of Appeals of Texas, Beaumont.
Pauline ADAMS, Individually and as Independent Executrix of the Estate of Troy L. Adams, Deceased, and Troy L. Adams, Jr., Dwayne E. Adams, and Carroll J. Adams, Surviving Children, Appellants
E. I. DUPONT DE NEMOURS AND COMPANY, Mobile Oil Corporation, Chevron U.S.A. Inc., Texaco Refining & Marketing, Inc., Union Oil of California, Atlantic Richfield Company, Beazer East, Inc., Bethlehem Steel Corporation, B.F. Goodrich Company,Gulf States Utilities Company, Bridgestone/Firestone, inc., and Uniroyal, Inc., Appellees.
No. 09-92-172 CV.
Jan. 13, 1994.
Rehearing Overruled Feb. 10, 1994.
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-126,445.
Before BURGESS, JJ. OPINION
*1 This is a summary judgment appeal. The plaintiffs below appear as appellants herein. They present in a single argument four points of error, to-wit:
Point of error one: The trial court erred in granting the motions for summary judgment.
Point of error two: The trial court erred in granting all appellees a summary judgment on the grounds that the statutes of limitations had run on all appellants’ causes of action prior to appellees being sued.
Point of error three: The trial court erred in striking the affidavit of Pauline Adams.
Point of error four: The trial court erred in striking Plaintiffs’ Second Amended Petition.
On April 30, 1987, Troy L. Adams and wife, Pauline Adams, filed suit against E.I. duPont de Nemours and Company (“duPont”), Gulf Oil Corporation (now known as Chevron U.S.A. Inc.)(“Chevron”), Mobil Chemical Company, Inc. (since nonsuited and not a party to this appeal), Mobil Oil Corporation (“Mobil”), Texaco Refining & Marketing, Inc. (“Texaco”), and Union Oil of California (“Union Oil”). The petition alleged that Troy Adams was injured by asbestos exposure on the defendants’ premises due to the negligence and gross negligence of the defendants. A suggestion of the death of Troy Adams was filed on June 13, 1991. On June 25, 1991, Pauline Adams, acting individually and as executrix of her deceased husband’s estate, Troy L. Adams, Jr., Dwayne E. Adams, and Carroll Adams, filed Plaintiffs’ First Amended Petition. The amended petition added as parties-defendant Atlantic Richfield Company (“Atlantic”), Koppers Company, Inc. (now known as Beazer East, Inc.)(“Beazer”), B.F. Goodrich Company (“Goodrich”), Bethlehem Steel Corporation (“Bethlehem”), Firestone Tire and Rubber Company d/b/a Firestone Synthetic Rubber & Latex Co. (now known as Bridgestone/Firestone, Inc.)(“Firestone”), Gulf States Utilities Company (“GSU”), Neches Butane, Inc. (since severed from the case and not a party to this appeal)(“Neches Butane”), and Uniroyal, Inc. (“Uniroyal”). The amended petition alleged Troy worked at the defendants’ facilities and developed lung disease from asbestos exposure on the defendants’ premises as a result of the negligence and gross negligence of the defendants. The petition further alleged the negligence and gross negligence of the defendants damaged “Mr. Adams wrongful death beneficiaries.” On May 4, 1992, appellants filed a second amended petition which added a paragraph to the effect that Adams had been an employee of the defendants (except that it did not mention Bethlehem, Mobil Chemical, and Neches Butane) that Adams sustained injuries while in their employ, that the defendants were negligent and grossly negligent in causing his exposure to asbestos, and that he first learned that he had contracted asbestos-related lung cancer on November 1, 1989. This second amended petition was struck by the trial court as untimely filed.
MOTIONS AND NOTICES
*2 On February 4, 1992, Goodrich filed a motion for summary judgment alleging limitations expired before it was joined in the suit in 1991. GSU filed a motion for summary judgment which joined Goodrich’s motion. Uniroyal filed its own motion for summary judgment urging the same basis. The record contains no notice of hearing for these three motions. On February 28, 1992, Atlantic and Beazer filed a motion for summary judgment based upon limitations. A late-filed notice of hearing for April 13, 1992, appears in the record.
On March 13, 1992, Texaco and Union Oil filed a motion for summary judgment alleging the statute of limitations expired before the original suit was filed, and attached an affidavit from a doctor who stated that he had examined Troy Adams on April 25, 1985, and informed Adams of his diagnosis of asbestosis. A notice by the attorney stated a hearing on the motion was set for April 6, 1992, although no hearing was had on that date. Texaco and Union Oil supplemented their motion on March 18 and attached another notice by counsel that a hearing on the motion was set for April 13. Mobil, Chevron, and duPont filed motions joining Texaco and Union Oil’s motion for summary judgment. Notices by counsel for these parties noted the hearing was set for April 13, although none of the notices were filed 21 days before the hearing. On March 24, Atlantic and Beazer supplemented their motion to join the motions of both Goodrich and of Texaco and Union Oil. Late notice again appears with the supplemental motion.
On April 13, 1992, Bethlehem and Firestone filed motions joining Texaco’s and Union Oil’s motion for summary judgment based upon limitations. The motions also alleged that limitations expired upon a wrongful death claim through the workers compensation statute because the claim was derivative of Troy’s late-filed claim. These two motions contained a notice from counsel that a hearing on the motion was scheduled for May 5, 1992.
Appellants filed their initial response on March 16, 1992, urging: “Because Troy L. Adams could not sue his employers because of the immunity granted to them by the Texas Workers Compensation Act, his heirs could not sue those employers until after his death. The plaintiffs brought their suit against the movants within two years after the death of Troy Adams.” The response noted that the intermediate court of appeal’s decision in Russell v. Ingersoll-Rand Company1, was pending before the Texas Supreme Court on writ of error. On April 24, 1992, appellants filed the affidavit of Pauline Adams, which stated that the doctor did not inform Troy Adams that he had asbestosis and they did not realize he had the disease until they received a letter from attorney Wayne Reaud after May 1, 1985.2 Mobil filed a motion to strike the affidavit based upon time of filing, and objecting to the conclusion and hearsay nature of the affidavit.
HEARINGS AND ORDERS
On June 1, 1992, the trial court struck the affidavit of Pauline Adams as to the motions of all of the defendants.
*3 The docket sheet contains no settings for any summary judgment hearings. The record contains no court orders setting a hearing on the motions for summary judgment. It appears that the trial court conducted two hearings on the various motions for summary judgment, the first on April 13 and the second on May 5. Counsel for appellants admits to considerable confusion concerning which motions were heard and when; and further relates that counsel did not appear at all of the hearings. Of all of the appellees, only Texaco, Union Oil, Bethlehem Steel and Uniroyal have filed presubmission briefs with the Court. These appellees all admit that some of the motions were heard in April and some in May. Counsel for Texaco and Union Oil presents the following rationalization for the action of the trial court in striking Pauline Adams’ affidavit:
Although the affidavit was filed more than seven days before the May 5, 1992 hearing on the remaining Defendants’ Motions for Summary Judgment, it is apparent from the record that these Motions were simply “me-too” joinders in the Motions which were represented and heard by the court on April 13, 1992.
Counsel refers to the notices of hearing appearing in the record to support its contention that the trial court heard the motions of Texaco, Union Oil, Atlantic, Beazer, Mobil, duPont and Chevron on April 13. We note that it is obvious from the record that some of the hearings were reset, and as noted before, the docket sheet does not mention that any hearings were set.3 Furthermore, Texaco’s claim is contradicted elsewhere in the record. In determining when the motions were actually heard, we will follow the only written indication entered by the trial court, and that which we believe must be paramount: the court’s order itself. We have reviewed each of the orders granting summary judgment; the orders granting the motions of Texaco, Union Oil, Mobil, Chevron, duPont, Bethlehem, Firestone and Uniroyal all state without qualification that particular motion came on the be heard on May 5, 1992. The orders granting summary judgment to Atlantic, Beazer, Goodrich and GSU all state that the motion came on to be heard on April 13, although the motion was not granted until May 5.
It seems that counsel for many or perhaps all of the appellees participated in the April 13 hearing. Texaco and Union Oil seem to argue to the Court that this somehow created a waiver by appellants. Some of the movants filed motions or notices outside the time limits set by Lofthus v. State, 572 S.W.2d 799, 800 (Tex.Civ.App.-Amarillo 1978, writ ref’d n.r.e.). However, it is preposterous to suggest the actions of opposing counsel at a hearing on the motion of a co-defendant determine the seven-day-before-hearing time limit for filing the non-movant’s responsive affidavit on a motion yet to be heard by the court. We hold that the responsive affidavit filed April 24, 1992, was timely filed as to the motions of Texaco, Union Oil, Mobil, Chevron, duPont, Bethlehem, Firestone and Uniroyal. Furthermore, Atlantic and Beazer joined the motion of Texaco and Union Oil, whose motion was not heard until May 5. This supplement is what Texaco refers to as a “me-too” joinder. We find that by virtue of this joinder Atlantic and Beazer were also bound over to the May 5 hearing and the affidavit was timely filed as to them as well.
*4 Appellants’ motion for rehearing related to the trial court that the affidavit was timely filed. That the trial court refused to consider the summary judgment evidence before it at the time of the May 5 hearing is evident from its order striking the affidavit as to all defendants, and from the judge’s handwritten notation on the docket sheet, which reads:
June 1, 1992 Motion for rehearing on Summary Judgment was held, Plaintiff failed to appear. Facts presented by Defendants verified that Statute of Limitation had run on cause of action. Having no contriverting [sic] Summary Judgment evidence at original hearing and in the absence of Plaintiff’s attorney the Summary Judgment was granted. The motion for rehearing is denied. Orders entered: Striking the tardy affidavit of Pauline Adams. Striking the second amended Petition Denying the Plaintiff’s motion for rehearing.
/s/ Jack R. King
The briefs of both appellants and appellees cite a number of defects in the opposing parties’ summary judgment pleadings and proof. The reality is few of the myriad technical arguments urged on appeal were presented to the trial court. For instance, appellants complain for the first time on appeal that several of the defendants filed tardy notices of hearing, and Mobil’s motions to strike Pauline’s affidavit and the second amended petition were late, but the record does not reflect that such a complaint was directed to the trial court. Likewise, appellants’ complaint directed to the hearsay nature of the doctors’ affidavits does not appear in the record. Equally lacking a trial level objection is any complaint to the affidavit of Pauline Adams, other than that made by Mobil. The other defendants did not object to the affidavit or otherwise register their dissatisfaction by joining Mobil’s motion. Had the affidavit been untimely filed, we would assume the trial court did not grant leave and this omission would be moot. Conversely, we have found that the affidavit was not untimely as to the May 5 hearing, and in the absence of a timely objection the hearsay nature of an affidavit shall not deprive it of probative effect. TEX.R. CIV. EVID. 803, for the affidavit describes the absence of an event before a certain date, and the occurrence of that event thereafter, the event being Troy’s discovery that he had a terminal illness. Although Texaco and Union Oil did not object to the affidavit before the trial court, they now claim it is incompetent summary judgment evidence because it is “conclusory in nature.” This affidavit was given not to establish right to judgment without a trial, but to preclude it. The facts stated therein are no more conclusory than those proffered by the non-movant in Hennigan v. IP Petroleum, ---S.W.2d 371 (Tex.1993), where the non-movant’s affidavit stating that her employer fired her because she was a woman held sufficient to raise a fact issue even though she had admitted to the contrary in her deposition.
*5 We find the trial court erred in failing to consider the affidavit in its determination of the motions of those defendants whose motions were heard on May 5. We further find that the trial court erred in granting the motion of those defendants without considering the evidence properly before the court. Points of error one and three are sustained as to Texaco, Union Oil, Mobil, Chevron, duPont, Bethlehem, Firestone, Uniroyal, Atlantic and Beazer. The affidavit was not filed before the April 13 hearing when the court entertained the motions of Goodrich and GSU. Even if the hearing was continued over into the May 5 hearing, the affidavit was not filed within the deadline established by Rule 166a and therefore was not properly before the court. Point of error three is overruled as to Goodrich and GSU.
Goodrich and GSU were not joined as parties until June 25, 1991, more than four years after the Adams initiated their personal injury suit against some of the appellees. The pleadings establish the Adams discovered their cause of action more than two years before they sued Goodrich and GSU. The Adams offered two related reasons why they waited until 1991 to add the parties named in the first amended petition: 1) until Troy died there was no cause of action for wrongful death pursuant to Nabours v. Longview Savings & Loan Ass’n., 700 S.W.2d 901 (Tex.1985), contained therein. However, Mr. Adams is described as an “invitee” of the defendants. This description is consistent with third-party premise defect litigation rather than employee-employer litigation.
The summary judgments as to Goodrich and GSU are affirmed, as to all other defendants they are reversed and remanded.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
841 S.W.2d 343 (Tex.1992).
This position was not manufactured for purposes of defeating the motion for summary judgment. DuPont attached a portion of Pauline Adams’ deposition to its response to appellants’ motion for rehearing. The deposition was taken July 15, 1991, long before the motions for summary judgment were filed. It included the following colloquy:
Q....Do you remember him going in to see some doctor on April 25, 1985?
A. He went in to see some doctors in ‘85, yes.
Q. That is the first time that it was found that he had asbestosis?
A. As far as I know.
* * *
Q....Well, when-when he returned from that doctor’s visit, did he come back up to Troup-
A. Yes, he-
Q. -and tell you, “Listen, I just saw a doctor, and he told me I had asbestosis”?
A. No, because he didn’t tell him he had asbestosis right the day he saw him. I don’t know when he told him that he had asbestosis. I don’t know what date, sometime that year.
Q. How do you know that he didn’t tell him on that visit?
A. Well, if he did, he didn’t tell me. He just said he had a lung-went for a lung screen. (emphasis added)
The movant must comply with all the terms of Williams v. Carpentier, 767 S.W.2d 953 (Tex.App.-Beaumont 1989, no writ). Without a setting on a date certain, the non-movant cannot calculate his time to file his response. Id. Obviously, the best means of accomplishing this duty is to obtain an order setting hearing date copied to opposing counsel. This case had already been on file for four years. Judicial economy would have been better served by setting the hearing far enough in advance to give the other defendants an opportunity to file their own motions and have them set for hearing on the same date without violating the twenty-one day rule.