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Affirmed and Memorandum Opinion filed July 31,=20 2007.

 

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In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-01268-CV

____________

 

PAMELA K.=20 BERGMAN, = Appellant

 

V.

 

MINNIE=20 MARTIN DAUGHERTY, = Appellee

 

 

On Appeal from the = 280th District Court

Harris County, = Texas

Trial Court Cause = No. 2004-39290

 

 

M E M O R=20 A N D U M   O P I N I O N

In a=20 single issue, appellant Pamela K. Bergman appeals the trial=20 court=3Ds grant of=20 summary judgment in favor of appellee Minnie Martin Daugherty on=20 Bergman=3Ds premises=20 liability claims.  We affirm.

I. =20 Factual and Procedural Background

In July=20 2002, Bergman, an attorney, along with two of her colleagues = visited=20 Daugherty=3Ds home in=20 San Miguel de Allende, Mexico (known as ACasa=20 Carino@). =20 On the night of July 28, 2002, various pieces of = Bergman=3Ds jewelry=20 went missing, which she reported as stolen to the Mexican = police. =20 Bergman thereafter brought suit against Daugherty, claiming that = Daugherty=20 had a duty to warn of and protect her from the risk of theft by a = third=20 party, which she claimed was foreseeable to Daugherty based on two = recent=20 thefts at Casa Carino.

The=20 summary judgment evidence reveals the following primary factual=20 disputes:  (1) Bergman=3Ds purpose=20 for visiting Casa Carino and (2) whether items had been reported = as=20 stolen, instead of missing, at Casa Carino prior to = Bergman=3Ds=20 visit.  As to Bergman=3Ds purpose=20 for visiting Casa Carino, the parties agreed Daugherty hired=20 Bergman=3Ds law firm=20 to assist her with proceedings subsequent to her recent divorce, = but they=20 disagreed as to whether Bergman was a social guest during the July = 2002=20 visit.  Bergman contended she visited for purely = business-related=20 matters.  She asserted that Daugherty hired her firm for=20 representation in Apost-divorce=20 matters in general,@ = including=20 preparation for a post-divorce arbitration in which various issues = relating to marital property and interpretation of the divorce = decree were=20 to be resolved.  According to Bergman, she agreed upon=20 Daugherty=3Ds request=20 to meet at Casa Carino, rather than Daugherty=3Ds=20 residence in Houston, Texas, to accommodate Daugherty=3Ds vacation=20 schedule and Bergman=3Ds own=20 travel schedule, as she had already planned to visit a nearby = Mexican city=20 on other business.  During her stay at Casa Carino, Bergman = claimed=20 she performed many hours of legal work in preparation for the = arbitration,=20 including Apreparing=20 for different inventories, different appraisals of different=20 things.@ =20 While Bergman admitted attending social functions with Daugherty = during=20 the stay, she explained that Daugherty specifically requested her=20 attendance, suggesting attendance was mandatory.  She added = that she=20 did not maintain a social relationship with Daugherty prior or = subsequent=20 to her visit.

Daugherty,=20 on the other hand, contended Bergman visited Casa Carino for = purely social=20 reasons.  She claimed she hired Bergman=3Ds firm to=20 assist her only with the division of personal property located in = her=20 Houston residence and maintained she invited Bergman to Casa = Carino as a=20 courtesy, since she would already be in Mexico and wanted to see = the=20 house.  Although she admitted Athere was=20 some reference to the post-divorce proceedings,@ = she=20 denied Bergman performed any legal work at Casa Carino, including = any=20 inventorying of property.  Daugherty noted that the divorce = decree=20 awarded all of the property in Casa Carino to her, and, thus, a = trip to=20 the house to work on dividing such property would have been=20 unnecessary.  She further noted that the firm=3Ds billing=20 records during the time of Bergman=3Ds visit do=20 not explicitly refer to any work performed in or relating to = Mexico. =20 Regarding the social functions, she denied requiring = Bergman=3Ds=20 attendance, instead claiming she invited her to come along at her=20 discretion. 

As to=20 whether items had been previously reported as stolen or missing, = the=20 parties generally agreed Daugherty=3Ds previous=20 guests had reported both a pair of expensive sunglasses and a = digital=20 camera missing, but they differed over the circumstances = surrounding the=20 reports.  Pamela Ferguson, the owner of the sunglasses who = had=20 visited Casa Carino shortly before Bergman, came to the house = after=20 Bergman=3Ds jewelry=20 was stolen to report the sunglasses as missing.  Bergman = claims=20 Ferguson specifically said she left her sunglasses on a coffee = table at=20 the house, asked if anyone had found them, and stated that if = someone=20 found them or if Asomebody=20 puts them back, . . . I=3Dd like to=20 have them.@ =20 Bergman did not recall hearing Ferguson allege the sunglasses were = stolen,=20 but she claimed Daugherty later told her she was Asure@ = her=20 driver had stolen them.  According to Bergman, Daugherty = added that=20 she was Aconvinced@ = her=20 driver had also stolen a digital camera that went missing earlier = that=20 summer after a guest left it in Daugherty=3Ds car, she=20 Abelieved@ = he stole=20 Bergman=3Ds jewelry,=20 and she Asuspected@ = him=20 generally of Astealing=20 from her and her guests.@ =20 Bergman Asurmised,@ = based on=20 Daugherty=3Ds alleged=20 statements, that the camera disappeared a few weeks to a month = before her=20 jewelry was stolen.  

Daugherty=20 generally denied that any criminal acts ever occurred at Casa = Carino, that=20 she ever suspected any theft or criminal activity at Casa Carino, = and that=20 she ever told Bergman anything to that effect.  Daugherty = stated that=20 neither she nor Ferguson could recall whether Ferguson left the = sunglasses=20 at Casa Carino and maintained they were never alleged to have been = stolen.  She further contended the camera was reported stolen = after=20 Bergman=3Ds visit=20 and was later recovered under a sofa in the house.

Daugherty=3Ds motion=20 for summary judgment[1]=20 challenged the element of duty on three grounds.  First, = Daugherty=20 alleged that because Bergman was a social guest, Daugherty owed = her no=20 greater duty of protection against third-party criminal conduct = than=20 Daugherty owed to herself, which Daugherty claimed she provided = through=20 various security measures.  Bergman responded that her status = was=20 irrelevant to the issue of duty, but nonetheless maintained the = evidence=20 showed she was a business invitee.  Second, Daugherty = contended that,=20 even if Bergman was an invitee, Bergman could not establish a duty = arising=20 from the foreseeable risk of theft because the two incidences of = prior=20 Atheft@ = were=20 merely reports of missing items and thus not Acrimes@ = as=20 required under Timberwalk.[2] =20 Third, Daugherty maintained that, even if the reports of missing = items=20 resulted from thefts, they otherwise lacked sufficient frequency, = recency,=20 similarity, and publicity to establish foreseeability under=20 Timberwalk.  Bergman countered that Daugherty admitted = knowledge of the recent thefts by relaying her suspicions that her = driver=20 took the missing items, and, as such, foreseeability had been = established=20 under Timberwalk.

The trial=20 court granted Daugherty=3Ds motion=20 without specifying its grounds.  Bergman now appeals, = claiming=20 material fact issues remain on the issue of duty.  =20

II. =20 Standard of Review

The=20 standard of review for a traditional motion for summary judgment = is=20 whether the successful movant at the trial level carried its = burden of=20 showing that there is no genuine issue of material fact and that = judgment=20 should be granted as a matter of law.  See Tex. R. Civ. P. = 166a(c); KPMG=20 Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d = 746, 748=20 (Tex. 1999).  A defendant who either conclusively negates at = least=20 one of the essential elements of each of the plaintiff=3Ds causes=20 of action or conclusively establishes all elements of an = affirmative=20 defense is entitled to summary judgment.  Johnson v. = Felts,=20 140 S.W.3d 702, 706 (Tex. App.CHouston=20 [14th Dist.] 2004, pet. denied).  In order to conclusively = negate at=20 least one of the requisite elements, the motion must identify or = address=20 the cause of action or defense and its elements.  = Id. =20 Evidence is conclusive only if reasonable people could not differ = in their=20 conclusions.  City of Keller v. Wilson, 168 S.W.3d = 802, 816=20 (Tex. 2005).  Under this traditional standard, this court = must take=20 as true all evidence favorable to the nonmovant and must make all=20 reasonable inferences in the nonmovant=3Ds=20 favor.  See id. 

Moreover,=20 when the trial court does not specify the basis for its summary = judgment,=20 we will affirm the judgment if any one of the theories advanced in = the=20 motion is meritorious.  Joe v. Two Thirty Nine Joint = Venture,=20 145 S.W.3d 150, 157 (Tex. 2004).  In other words, the = appealing party=20 must show that each independent ground alleged is insufficient to = support=20 the summary judgment granted.  See Star‑Telegram, = Inc. v. Doe,=20 915 S.W.2d 471, 473 (Tex.=20 1995).        

III. =20 Analysis

Bergman=20 first contends Daugherty has failed to negate the element of duty = because=20 the evidence shows she was a business invitee at Casa Carino and = thus=20 Daugherty owed her a duty under Timberwalk to warn or = protect her=20 against the jewelry theft, a foreseeable third-party criminal = act. =20 She alternatively contends she is owed the same duty even if her = status=20 constitutes a social guest-licensee.  Under either status, = Bergman=20 claims the jewelry theft was foreseeable to Daugherty because the = evidence=20 demonstrates she had knowledge of two prior, recent thefts at Casa = Carino.  Daugherty disputes Bergman=3Ds status=20 as a business invitee and challenges whether Timberwalk = applies but=20 contends that, even under Timberwalk, the jewelry theft was = unforeseeable because the evidence at best reveals only two prior=20 incidents of missing items at Casa Carino, not specific thefts or=20 crimes.

In a=20 premises liability case, the duty owed to the plaintiff generally = depends=20 upon the plaintiff=3Ds status=20 at the time the incident occurred.  See M.O. Dental Lab v. = Rape, 139 S.W.3d 671, 675 (Tex. 2004).  An invitee is one = who=20 enters another=3Ds land=20 with the owner=3Ds=20 knowledge and for the mutual benefit of both.  Am. Indus. = Life=20 Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. = App.CHouston=20 [14th Dist.] 2001, pet. denied).  An owner or occupier of = land has a=20 duty to use reasonable care to protect an invitee from conditions = that=20 create an unreasonable risk of harm of which the owner or occupier = knows=20 or by the exercise of reasonable care would discover. =20 Id.  Additionally, although one generally has no duty = to=20 protect another against criminal acts of a third person, = A[o]ne who=20 controls . . . premises [has] a duty to use ordinary care to = protect=20 invitees from criminal acts of third parties if he knows or has = reason to=20 know of an unreasonable and foreseeable risk of harm to the=20 invitee.@ =20 Timberwalk, 972 S.W.2d at 756 (internal quotation marks=20 omitted).  A licensee, on the other hand, enters and remains = on the=20 land with the owner=3Ds consent=20 and for his own convenience or on business with someone other than = the=20 owner.  Ruvalcaba, 64 S.W.3d at 134.  Under Texas = law, a=20 social guest is generally classified as a licensee.  See = Knorpp v.=20 Hale, 981 S.W.2d 469, 472 (Tex. App.CTexarkana=20 1998, no pet.); Dominguez v. Garcia, 746 S.W.2d 865, 867 = (Tex.=20 App.CSan=20 Antonio 1988, writ denied).  An owner or occupier of land = owes a=20 licensee a duty to refrain from injuring the licensee willfully, = wantonly,=20 or through gross negligence and, in cases in which the owner or = occupier=20 has actual knowledge of a dangerous condition unknown to the = licensee, to=20 warn of or make safe the dangerous condition.  = Ruvalcaba, 64=20 S.W.3d at 134.

We=20 conclude a fact issue exists as to Bergman=3Ds status=20 at Casa Carino.  The parties dispute whether Bergman came to = the=20 house purely for social or business reasons, providing substantial = evidence supporting each position, which directly relates to = whether=20 Bergman was a business invitee or social guest-licensee.  = See=20 id.; Knorpp, 981 S.W.2d at 472.  This fact issue, = however,=20 does not affect our decision because even if we assume, as Bergman = suggests, that Timberwalk applies regardless of her status, = her=20 claim still fails.[3]

Under=20 Timberwalk, the Aforeseeability=20 of an unreasonable risk of criminal conduct is a prerequisite to = imposing=20 a duty of care on a person who owns or controls premises to = protect others=20 on the property from risk.@  972=20 S.W.2d at 756.  To establish foreseeability in this context, = the=20 evidence must reveal specific previous crimes on or near the=20 premises.  See id.  We consider the following = factors in=20 determining foreseeability:  Awhether=20 any criminal conduct previously occurred on or near the property, = how=20 recently it occurred, how often it occurred, how similar the = conduct was=20 to the conduct on the property, and what publicity was given the=20 occurrences to indicate that the landowner knew or should have = known about=20 them.@ =20 Id. at 757. 

Bergman=20 cites the purported Athefts@ = of the=20 sunglasses and digital camera from Casa Carino as evidence of = prior crimes=20 that establish the theft of her jewelry was foreseeable under=20 Timberwalk.  However, the summary judgment record = fails to=20 support this characterization.  As to the sunglasses, it is=20 undisputed that Ferguson reported them missing, but it is further=20 undisputed that she never alleged to the police or others that = they were=20 stolen.  Daugherty=3Ds alleged=20 statement that she was Asure@ = her=20 driver stole the sunglasses constitutes the only evidence they = were=20 stolen.  As to the camera, the record does not reflect = whether the=20 owner alleged it was stolen, and Daugherty claimed the camera = later turned=20 up in her sofa at the house.  Like the sunglasses,=20 Daugherty=3Ds alleged=20 statement that she was Aconvinced@ = her=20 driver stole the camera constitutes the only evidence it was = stolen. =20 Even if we take as true Daugherty=3Ds alleged=20 comments about theft, they do not elevate these incidents to the = level of=20 a Aspecific=20 previous crime@ = required=20 under Timberwalk to establish foreseeability.  See = id.=20 at 756; see also Nichols v. Tanglewood Manor = Apartments, No.=20 14‑04‑00864‑CV, 2006 WL 278282, at *4 (Tex. = App.CHouston=20 [14th Dist.] Feb. 7, 2006, no pet.) (mem. op.) (holding that = police call=20 reports, including calls to report suspected criminal activity, = are not=20 necessarily probative of actual crime under Timberwalk); = Ramirez=20 v. AHP Mut. Hous. Ass=3Dn,=20 Inc., No.=20 14‑04‑00159‑CV, 2005 WL 425486, at *2 (Tex. = App.CHouston=20 [14th Dist.] Feb. 24, 2005, no pet.) (mem. op.) (holding similarly = in=20 refusing to consider call reports in foreseeability analysis under = Timberwalk and noting that Timberwalk considered = only the=20 police report involving actual crime in its foreseeability=20 analysis).  Moreover, assuming the missing sunglasses and = camera=20 constituted prior actual thefts, two similar incidents of theft in = the=20 month preceding the incident do not create a fact issue on = foreseeability=20 under Timberwalk.  See Timberwalk, 972 S.W.2d = at 758=20 (noting that Asignificant@ = number of=20 crimes within short time period strengthens claim of = foreseeability and=20 citing following examples: (1) ten incidents within three years, = (2) 394=20 incidents within two and one‑half years, (3) approximately = forty incidents=20 within one year, (4) eighty-five incidents within three or four = years, (5)=20 seven incidents within one year, and (6) seventy-five to = one-hundred=20 incidents within three years); Benitez v. Benmac, Inc., No. = 08-99-00348-CV, 2000 WL 799069, at *5 (Tex. App.CEl Paso=20 June 22, 2000, no pet.) (not designated for publication) (holding = one=20 prior crime occurring on premises in three years prior to incident = insufficient to establish foreseeability under = Timberwalk). =20 Accordingly, we hold that Daugherty negated the element of duty in = Bergman=3Ds premises=20 liability claims as a matter of law and summary judgment was = properly=20 granted on this ground.

 

 

We=20 overrule appellant=3Ds sole=20 issue and affirm the trial court=3Ds=20 judgment. 

 

 

 

 

 

/s/     =20 Leslie B. Yates

Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed July 31, 2007.

Panel=20 consists of Justices Yates, Anderson, and Hudson.


[1]  Daugherty labeled her motion as a = AMotion for Summary Judgment@ and attached various evidence in = support. =20 However, she did not cite either of the summary judgment rules or=20 otherwise specify whether she moved under traditional or = no-evidence=20 grounds, and Bergman responded only on traditional grounds.  = See=20 Tex. R. Civ. P.=20 166a(c), (i).  We will thus treat = Daugherty=3Ds motion as traditional.  See = J.M.K. 6,=20 Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 195 (Tex.=20 App.CHouston [14th Dist.] 2006, no pet.) = (treating=20 motion for summary judgment as traditional where movant failed to = specify=20 whether it brought motion on traditional or no-evidence grounds = and thus=20 provided insufficient notice it sought no-evidence summary = judgment under=20 Rule 166a(i)); McArdle v. Stahl, No. = 03‑04‑00817‑CV, 2006 WL=20 1648988, at *1 n.1 (Tex. App.CAustin June 15, 2006, no pet.) (mem. = op.)=20 (treating motion for summary judgment as traditional where movant = failed=20 to specify whether he brought motion on traditional or no-evidence = grounds, and movant attached evidence to motion but also argued = there was=20 no evidence of certain elements non-movants=3D claims).

[2]  See Timberwalk Apartments, = Partners,=20 Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998).

[3]  Because her claim fails in any = event, we=20 need not decide whether the duty described in Timberwalk = applies to=20 licensees as well as invitees.  See Ynclan v. Valdez, = No.=20 14‑99‑00404‑CV, 2000 WL 854847, at *2 n.4 (Tex. = App.CHouston [14th Dist.] 2000, no pet.) (not = designated for publication) (citing duty to invitees described in=20 Timberwalk in premises liability case based on third-party = criminal=20 conduct but declining to address appellant=3Ds alleged status as Asocial guest@ because appellant=3Ds status as such was not basis on which = summary=20 judgment was sought).   =20

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_000E_01C7D77D.8A9A99A0--