Court of Appeals of Texas,

Corpus Christi-Edinburg.

Lucy Mae SPARKS

v.

PETROSURANCE CASUALTY INSURANCE COMPANY.

No. 13-96-125-CV.

|

May 22, 1997.

Attorneys & Firms

Bradford M. Condit, for Lucy Mae Sparks.

Timothy D. McMurtrie and Myra K. Morris, for Petrosurance Casulty Insurance Company.

Before Chief Justice SEERDEN and Justices HINOJOSA and YAÑEZ.

OPINION

Opinion by Justice HINOJOSA.

*1 This is an appeal from a summary judgment in a workers’ compensation suit. By a single point of error, appellant contends that the trial court erred in granting appellee’s motion for summary judgment. We affirm.

Appellant’s husband, William Earl Sparks (“Sparks”), was employed as an electrical superintendent and foreman for Bay, Inc. Because Sparks had a history of coronary artery disease dating back to 1980, his duties involved no heavy labor or lifting. Sparks’ daily morning routine consisted of arriving at work at approximately 7:00 a.m., giving his work crew their job assignments between 7:30 and 8:30 a.m., taking material requisitions to the purchasing office, and delivering time cards to the accounting office on the third floor.¹ On December 13, 1993, Sparks was following his usual routine. At approximately 9:45 a.m., he complained of discomfort and chest pain and was taken to a hospital. He died on December 14, 1993, from complications arising from the treatment of a myocardial infarction.

Appellant filed a claim with the Texas Workers’ Compensation Commission (“the Commission”) seeking death benefits. Appellant claimed that Sparks’ fatal heart attack resulted from the physical exertion of climbing three flights of stairs while in the performance of his duties. The Commission’s Hearing Officer and Appeals Panel found that the evidence failed to prove what activity or event triggered Sparks’ heart attack, and appellant was denied any compensation under the Texas Workers’ Compensation Act (“the Act”) for Sparks’ death. Thereafter, appellant filed suit in district court seeking recovery under the Act. Appellee moved for summary judgment and presented evidence negating an essential element of appellant’s cause of action. In her response to the motion, appellant criticized the sufficiency of appellee’s summary judgment proof and attached summary judgment evidence purporting to establish the existence of a material fact issue. The district court granted appellee’s motion for summary judgment. Appellant then perfected this appeal.

The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable claims. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). A motion for summary judgment must stand or fall on the grounds expressed therein. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 618 (Tex.App.-Corpus Christi 1995, no writ). If the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law. McConnell, 858 S.W.2d at 342; Freedom Communications, 907 S.W.2d at 618. In determining whether grounds are presented, the Court cannot place reliance on briefs or summary judgment evidence. McConnell, 858 S.W.2d at 341.

*2 The standards for reviewing a motion for summary judgment are well established. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 814 (Tex.App.-Corpus Christi 1996, writ denied). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 549; Rios, 930 S.W.2d at 814.

A defendant who moves for summary judgment may meet the burden of showing that the plaintiff has no cause of action by either (1) negating at least one essential element of each theory of recovery, or (2) conclusively proving all of the elements of an affirmative defense. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 877 (Tex. App .-Corpus Christi 1996, writ denied). Once the movant establishes that it is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso, 776 S.W.2d at 556; Neuhaus v. Richards, 846 S.W.2d 70, 77 (Tex.App.-Corpus Christi 1992, writ dism’d judgm’t cor.).

The trial court’s order granting the motion for summary judgment does not state the specific grounds on which it was granted. When a party moves for summary judgment on several theories and the trial court enters summary judgment without specifying the ground relied upon, we affirm the summary judgment if any one of the theories advanced is meritorious. Martinez v. Corpus Christi Area Teachers Credit Union, 758 S.W.2d 946, 950 (Tex.App.-Corpus Christi 1988, writ denied).

In her original petition, appellant asked for death benefits under the Workers’ Compensation Act. Tex Lab.Code Ann. § 408.001 et seq. (Vernon 1994). She alleged that her husband had been climbing stairs in the course of his duties and that the strain of this activity led to his death.

The following elements must be proved to make a heart attack a compensable injury under the Act:

(1) the attack can be identified as:

(A) occurring at a definite time and place; and

(B) caused by a specific event occurring in the course and scope of the employee’s employment;

(2) the preponderance of the medical evidence regarding the attack indicates that the employee’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and

(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.

*3 Tex. Lab.Code Ann. § 408.008 (Vernon 1994).

Appellee served appellant with interrogatories seeking the identities of witnesses and persons with knowledge of relevant facts. Appellant responded with a detailed list of names, addresses, and telephone numbers However, when appellee asked appellant to identity all of the persons who saw Sparks riding in the elevator at Bay, Inc. on the day of his death, appellant replied, “None to my knowledge.” When appellee asked appellant for the identities and addresses of persons who saw Sparks climbing stairs on the day of his death, she responded with a vague answer: “Probably the clerical workers on that floor.” Appellant did not provide the names of the “clerical workers” that saw Sparks climbing stairs, nor did she specify which “floor.”²

In the motion for summary judgment, appellee sought to negate the element that Sparks’ heart attack was caused by a specific event that occurred in the course and scope of his employment, i.e., stair climbing. Appellee presented succinct and conclusive summary judgment evidence. Sparks’ fellow employees uniformly declared that they had not seen Sparks climbing any stairs on the day of his death.

Appellant responded by criticizing the quality of the affidavits submitted with appellee’s summary judgment evidence. Appellant alleged that the affiants were “interested parties,” but failed to show how any of the affiants could be biased against her. Because appellant did not obtain a ruling from the trial court on these objections, we hold that they are waived and cannot be considered on appeal. Tex.R. Civ. P. 166a(f); Tex.R.App. P. 52(a).

Appellant produced the expert opinions of two physicians concerning the cause of Sparks’ death and the testimony of two witnesses at the hearing held by the Commission. We note that the expert opinions are based on the supplied presumption that decedent had climbed several flights of stairs on the day of his death. Neither physician has any personal knowledge of such activity nor does either state that no other physical activity or event could have brought on the fatal attack. One physician, Dr. Mihalick, stated that either emotional stress or physical exertion could trigger a myocardial infarction. Appellant acknowledged her husband was “a nervous or hypertensive type of personality.”

David Carlin, Bay Inc.’s Director of Human Resources, testified on behalf of appellant before the Commission. He testified that the only time he saw Sparks on the day of his death was when he rode in the elevator with Sparks from the third floor to the first floor. However, Carlin did not know how Sparks had gotten to the third floor. According to Carlin, if Sparks had climbed the stairs on the day of his death, a female clerk in the accounting office would have seen him because her desk was only three or four feet away from the door of the staircase. Appellant obtained no statement from this clerk and her identity is unknown.³

*4 Appellant identifies only one person, Arthur Burns, as having specific knowledge of Sparks’ activities. Burns was Sparks’ supervisor at Bay, Inc. In his deposition testimony, Burns stated that he was a good friend of appellant and had no bias towards protecting his employer against appellant’s claim because “workmen’s comp works for the people.” Burns described Sparks’ normal workday routine, but admitted he lacked actual knowledge of Sparks’ activities between 8:30 a.m. and 9:45 a.m. on the day of Sparks’ death. Burns named several people who probably saw Sparks that day, but Burns could not say who, if anyone, might have seen Sparks climbing stairs.

Appellant’s own testimony failed to establish that Sparks was in the habit of routinely using stairs instead of the elevator. Appellant testified that her husband “did not like to wait on anything” and she thought he would use the stairs if he became impatient waiting for an elevator. Her statements are not made with certainty, and she describes no pattern of conduct which would support her assumption that he must have used the stairs at Bay, Inc. on the day of his death. Appellant offered no actual knowledge that her husband had ever used the stairs at work or any basis for her assumption other than Sparks’ personality traits. Even if we take it as true that Sparks grew impatient waiting for elevators, this is not circumstantial evidence that Sparks actually used the stairs at Bay, Inc. on the day of his death.

Appellant produced no evidence that Sparks climbed the stairs at Bay, Inc. on the day of his death. Appellee submitted uncontroverted affidavits and depositions from Bay, Inc. personnel uniformly declaring that they did not see Sparks using the stairs. Appellant did not depose or obtain statements from any persons controverting those affidavits and depositions.

From the foregoing evidence, we cannot reasonably infer that Sparks used the stairs on the day of his death. Appellant has brought forth no evidence of this essential element of her claim, while appellee has presented uncontroverted evidence defeating the element. We hold that the trial court did not err in granting appellee’s motion for summary judgment.

We affirm the trial court’s order granting appellee’s motion for summary judgment.

	Footnotes
1		In their briefs, appellant and appellee repeatedly refer to “three” flights of stairs. The record reflects that Sparks’ office was on the ground floor and that the accounting office was two stories above Sparks’ office. The whole building is four stories, but it is nowhere suggested that Sparks’ duties took him to the fourth floor.
2		The record reflects that Sparks’ duties took him to the purchasing department on the second floor and the timekeeping department on the third floor.
3		We note that two of appellee’s affiants are female, but we do not know if one of them is this accounting clerk.