GRACIELA B DURAN Appellant v FURR S SUPERMARKETS INC d b a FURR S SUPERMARKET NO 939 and STEVE ROMERO Appellees No 08 95 00169 CV COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO 921 S W 2d 778 1996 Tex App LEXIS 1345 April 4 1996 Decided SUBSEQUENT HISTORY 1 Application for Writ of Error Denied March 21 1997 PRIOR HISTORY Appeal from 34th District Court of El Paso County Texas TC 92 12971 TRIAL COURT JUDGE Hon Herbert E Marsh Jr Judge Presiding COUNSEL For Appellant Hon Evelina Ortega Caballero Ortega L L P El Paso TX For Appellees Hon Mark C Walker Mounce Galatzan El Paso TX Hon E K Peticolas Peticolas and Shapleigh El Paso TX JUDGES Before Panel No 4 Barajas C J Larsen and McClure JJ OPINIONBY ANN CRAWFORD McCLURE OPINION 783 OPINION Graciela B Duran Duran appeals from a summary judgment entered in favor of Appellees Furr s Supermarkets Inc d b a Furr s Supermarket No 939 Furr s and Steve Romero Romero We reverse and remand for trial FACTUAL SUMMARY Duran s causes of action against Furr s and Romero arose out of an incident which occurred in the parking lot of a Furr s supermarket Duran alleges that Romero an off duty police officer working as a security guard for Furr s became verbally abusive towards her when he asked her to move a vehicle in which she was a passenger from the fire lane located in front of the store After moving 2 the vehicle Duran returned to where Romero was standing and asked Romero for his name Romero walked over to the vehicle opened the door and while repeatedly threatening to arrest Duran pulled and twisted on her left arm in an apparent effort to forcibly remove her from the vehicle Duran suffered injuries to her arm which required surgery She further alleges that the Furr s store manager watched the assault and did nothing to stop it Romero on the other hand asserts that Duran became extremely upset and directed vulgar language at him because he asked her to move the car out of the fire lane Romero admits opening the door to the vehicle and placing his hand on Duran s arm but said that he did so only in an effort to calm her Alleging that Romero is an employee or agent of Furr s Duran filed suit against Furr s for negligent hiring and supervision of Romero She also made claims against 784 Furr s and Romero for assault and battery false imprisonment and defamation of character The trial court granted Furr s and Romero s motions for summary judgment STANDARD OF REVIEW In Point of Error No One Duran contends that the trial court erred in granting 3 summary judgment in favor of Furr s The standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law Lear Siegler Inc v Perez 819 S W 2d 470 471 Tex 1991 Nixon v Mr Property Mgmt Co Inc 690 S W 2d 546 548 Tex 1985 Victory v Bills 897 S W 2d 506 508 Tex App El Paso 1995 no writ Hernandez v Kasco Ventures Inc 832 S W 2d 629 631 Tex App El Paso 1992 no writ Thus the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant s cause or claim but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more elements of the movant s cause or claim Gibbs v General Motors Corp 450 S W 2d 827 828 Tex 1970 Victory 897 S W 2d at 508 In resolving the issue of whether the movant has carried this burden all evidence favorable to the nonmovant must be taken as true and all reasonable inferences including any doubts must be resolved 4 in the non movant s favor Nixon 690 S W 2d at 548 49 Victory 897 S W 2d at 508 Stoker v Furr s Inc 813 S W 2d 719 721 Tex App El Paso 1991 writ denied When the defendant is the movant and submits summary evidence disproving at least one essential element of each of the plaintiffs causes of action then summary judgment should be granted Perez 819 S W 2d at 471 Victory 897 S W 2d at 508 Hernandez 832 S W 2d at 633 Where the summary judgment order does not state the specific grounds on which it was granted the non movant on appeal must show that each ground alleged in the motion is insufficient to support the granting of summary judgment Southerland v Northeast Datsun Inc 659 S W 2d 889 891 Tex App El Paso 1983 no writ GENERAL GROUNDS FOR SUMMARY JUDGMENT Romero s Status as a Police Officer Furr s moved for summary judgment on the ground that it cannot be held liable because the alleged acts of Romero were committed in his sole capacity as a police officer of the El Paso Police Department Citing City of Dallas v Half Price Books Records Magazines Inc 883 S W 2d 374 377 Tex App Dallas 5 1994 no writ Half Price I Leake v Half Price Books Records Magazines Inc No 05 95 00005 CV 1996 Tex App LEXIS 526 Tex App Dallas February 7 1996 Half Price II and City of Phoenix v Industrial Commission of Arizona 154 Ariz 324 742 P 2d 825 Ariz App 1987 Furr s argues that when Romero observed the vehicle illegally parked in the fire lane or saw Duran committing disorderly conduct by using vulgar language in a public place Romero ceased being an independent contractor or employee of Furr s and acted solely in his capacity as a police officer The summary judgment evidence does not support Furr s contention that a violation of law occurred and Furr s authorities are thus distinguishable n1 Footnotes n1 We note that in Half Price II Leake claimed that a fact issue existed as to whether the officer actually saw a crime being committed Concluding that Leake had not raised that contention in Half Price I the Court declined to revisit their earlier opinion and applied the law of the case doctrine End Footnotes 6 Furr s first argues that parking in a fire lane is a violation of El Paso Municipal Ordinance 9 76 050 According to Furr s Ordinance 9 76 050 states that it is unlawful to park any vehicle other than an authorized emergency vehicle in any fire lane established pursuant to this chapter Furr s offered no summary judgment evidence to show that the fire lane in question is established pursuant to the Municipal Code Thus it failed to establish that a violation of 785 the Municipal Code occurred n2 Further in approaching Duran and asking her to move the vehicle Romero was carrying out one of the functions …
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