RODRIGUEZ v. BOERJANNo. 04-11-00336-CV.

399 S.W.3d 223 (2012)

J. Jesus RODRIGUEZ and M. Carmen Negrete, Individually, as Co-Representatives of the Estates of Nicolas Landeros-Anguiano, Angelina Rodriguez-Negrete and Claudia Laura Landeros Rodriguez, and as Next Friends of Angel Landeros Rodriguez, a Minor, Appellants
v.
Philip BOERJAN, Mestena Operating, LLC, formerly known as Mestena Operating, Ltd., Mestena Inc., and Mestena Uranium, LLC, Appellees.

Court of Appeals of Texas, San Antonio.
August 31, 2012.
Karen L. Watkins, Carlos R. Soltero, McGinnis Lochridge & Kilgore, L.L.P., Austin, TX, for Appellants.
Will W. Pierson, Royston, Rayzon, Vickery & Williams, L.L.P., San Antonio, TX, Thomas C. Wright, R. Russell Hollenbeck, Bradley Snead, Jessica Zavadil, Wright & Close, L.L.P., Houston, TX, Jack Partridge, Corpus Christi, TX, John R. Griffith, Oscar Lopez, Griffith, Sullivan, Ochoa & Garza, L.L.P., Pharr, TX, for Appellees.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by: REBECCA SIMMONS, Justice.

Appellants J. Jesus Rodriguez and M. Carmen Negrete (the Rodriguezes) sued appellees Philip Boerjan, Mestena Inc., Mestena Operating, LLC, and Mestena Uranium, LLC (the Mestenas) for the wrongful deaths of their daughter Angelina and her husband and daughter. The three undocumented aliens were killed in a rollover accident on the Jones Ranch. The Rodriguezes assert the accident was caused by the Mestenas' personnel. All four appellees moved for traditional summary judgment on the ground that the unlawful acts rule barred any recovery. Boerjan and Mestena Uranium also moved for a no evidence summary judgment on the Rodriguezes' claims of negligence, gross negligence, assault, and negligent entrustment. The trial court granted the Mestenas' traditional and no evidence motions. For the reasons given below, we affirm the trial court's judgment in part, reverse the judgment in part, and remand this cause to the trial court for further proceedings consistent with this opinion.

BACKGROUND1

According to deposition testimony from Oscar Vasquez-Lara, in 2007, before sunrise, Jose Francisco Maciel was transporting Vasquez-Lara and at least three other undocumented aliens in his pickup truck across the Jones Ranch in Brooks County. Boerjan, a Mestena Uranium security officer, saw Maciel's vehicle approaching his truck. He flashed his lights at Maciel, who stopped his truck, and Boerjan talked with Maciel "in a very hard tone." After a brief conversation, Maciel sped away down a dirt road with Boerjan's vehicle pursuing Maciel's vehicle. According to Vasquez-Lara, Boerjan maintained a high speed chase over a caliche road, and his pursuit caused the fatal accident. The Mestenas dispute the Rodriguezes' account of the facts. It is undisputed that Maciel drove away at high speed, he eventually lost control of the vehicle, the vehicle rolled over, and Vasquez-Lara was ejected and injured. Angelina, her husband, and her seven-year-old daughter (the decedents) were also ejected from the vehicle and all three were fatally injured.

The Rodriguezes sued the Mestenas for wrongful deaths; negligence; gross negligence; assault; and negligent entrustment, retention, and supervision. Appellees Mestena Operating, LLC and Mestena Inc. filed a joint traditional motion for summary judgment solely on the basis of the unlawful acts rule.2 Likewise, appellees Mestena Uranium and Philip Boerjan filed their own joint traditional motion for summary judgment based on the unlawful acts rule; they also filed a no evidence motion for summary judgment. The trial court granted the Mestenas' traditional and no evidence motions and rendered a final judgment that dismissed all of the Rodriguezes' claims against all the Mestenas. The Rodriguezes appeal the final judgment.

STANDARDS OF REVIEW

The Mestenas sought and obtained traditional summary judgments based on the unlawful acts rule. We review the grant of a traditional summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). A defendant asserting an affirmative defense is not entitled to summary judgment unless it conclusively establishes each essential element of its defense. See Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex.2000); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995).

Two of the Mestenas also sought and obtained a no evidence summary judgment based on the Rodriguezes' claims. We review a no evidence summary judgment using a legal sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)). A no evidence summary judgment may not be granted if the nonmovant's summary judgment evidence contains "more than a scintilla of probative evidence to raise a genuine issue of material fact." Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex.2009); see TEX.R. CIV. P. 166a(i).

TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT

The Rodriguezes sued the Mestenas asserting five causes of action pertaining to the deaths of their daughter, granddaughter, and son-in-law: negligence; gross negligence; assault; negligent entrustment, retention, and supervision; and wrongful death.

A. Wrongful Death Statute

Under the wrongful death statute "[a] person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default." TEX. CIV. PRAC. & REM. CODE ANN. § 71.002(b) (West 2008); see Star Enter. v. Marze, 61 S.W.3d 449, 457 (Tex.App.-San Antonio 2001, pet. denied). The surviving parents of a decedent can assert a claim on behalf of the decedent. See TEX. CIV. PRAC. & REM.CODE ANN. § 71.004; Star Enter., 61 S.W.3d at 457. But the defenses that would have been available against the decedent if she had survived may also be raised against her estate's claims. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex.1992).

In this case, the Mestenas acknowledge that the decedents were killed as a result of the rollover accident, but they assert that the Rodriguezes' claims "are inextricably intertwined with the decedents' illegal activities and accordingly, are barred under the Unlawful Acts Rule." The Rodriguezes argue the common law unlawful acts rule does not bar their claims because the alleged illegal activities were not inextricably intertwined with their causes of action. Alternatively, they contend that the unlawful acts rule has been superseded by Chapter 93 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 93.001(c) (West 2011).

B. Unlawful Acts Rule

1. Elements of the Rule

In Texas, the unlawful acts rule is a common law affirmative defense. See Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466, 469 (Tex.App.-San Antonio 1994, writ denied). The Rule provides that "`no action will lie to recover a claim for damages, if to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party.'" Id. (quoting Gulf, Colo., & Santa Fe Ry. Co. v. Johnson, 71 Tex. 619, 621, 9 S.W. 602, 603 (1888)). If the defendant