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Peavy v. Texas Home Management11/30/1999
Appellants, Edith Carol Peavy and O.L. Peavy, individually and as personal representative of the estate of Elizabeth Ann Peavy, deceased, appeal the rendition of summary judgment in favor of appellee, Texas Home Management, Inc. ("THM"), on their negligence and breach-of-contract causes of action. We affirm in part and reverse in part.
Factual and Procedural Background
Anthony Tyrone Dixon shot and killed Elizabeth Ann Peavy in Houston, Texas while stealing her car. Dixon was on weekend leave to visit his mother from his court-mandated residence at Lakewood House ("Lakewood") in Nacogdoches. Dixon was a resident at Lakewood pursuant to a contract between THM and the Texas Department of Human Services ("DHS"). Lakewood was owned and managed by THM.
The Peavys sued THM for negligence and gross negligence. THM moved for summary judgment on the basis that it did not owe the Peavys a duty under Texas law. After responding to the motion for summary judgment, the Peavys amended their petition to assert a breach-of-contract claim, alleging they were third-party beneficiaries of the contract between THM and DHS, as well as beneficiaries of the court's order committing Dixon to the control of the Texas Department of Mental Health and Mental Retardation ("MHMR").
On June 4, 1997, the trial court granted THM's motion for summary judgment. The summary judgment did not address the Peavys' breach-of-contract claim. THM moved to sever the Peavys' claims against Dixon from those against THM, and the court granted the severance. The Peavys then filed their notice of appeal. After the notice of appeal was filed, the Peavys filed their brief asserting their third-party-beneficiary claim had not been addressed by the summary judgment and, therefore, that summary judgment was interlocutory. In response, THM filed a motion for summary judgment on the Peavys' third-party-beneficiary claim. Eight months after the notice of appeal was filed, on April 13, 1998, the trial court signed a summary judgment, which disposed of Peavys' third-party-beneficiary claim, thereby resulting in all of Peavys' claims against THM becoming final and appealable.
Points of Error
The Peavys contend the trial court erred in rendering summary judgment because there were issues of material fact which precluded summary judgment on their negligence cause of action. The Peavys further contend the trial court erred in rendering summary judgment because THM's motion failed to address the Peavys' third-party-beneficiary claim.
Standard of Review
A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we accept the evidence that favors the nonmovants as true and indulge all reasonable inferences and resolve all doubts in favor of the nonmovants. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When the defendant produces competent evidence to negate a necessary element of the plaintiffs' cause of action, to preclude summary judgment, the plaintiffs must introduce evidence sufficient to raise a fact issue with respect to the element the defendant seeks to negate. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We must affirm the judgment if any theory advanced by the defendant in its motion is meritorious. Cincinnati Life Ins., Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).
The Summary Judgment Evidence
The summary jud
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