Opinion issued March = 29,=20 2007
In=20 The
For=20 The
On =
Appeal from the=20
113th District Court Harris =
County,=20
Texas In her=20
first issue presented for review, Herrington contends that the =
trial court=20
should not have considered the Cotes' reply to her summary =
judgment=20
response or their objections to her summary judgment evidence =
because both=20
were untimely filed pursuant to rules 21, 21(a), and 166a of the =
Texas=20
Rules of Civil Procedure. Herrington asserts that the Cotes should =
have=20
filed their reply and objections at least three days before the =
summary=20
judgment hearing. Herrington contends that, because she did not =
receive=20
the Cotes' reply and objections until after the summary-judgment =
hearing,=20
the trial court should not have considered those items. A.=20
Reply Rule 166a=20
establishes the procedures for summary judgment proceedings. Rule =
166a(c)=20
sets a deadline of seven days prior to the summary judgment =
hearing as a=20
time limit for additional documents to be filed. Tex. R. Civ. P. =
166a(c);=20
Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex. =
App.--Houston [14th=20
Dist.] 1989, no pet.). This seven-day limit applies only to the =
response=20
of the non-movant to the summary judgment motion. Knapp, =
783=20
S.W.2d at 296. Rule 166a(c) does not impose a deadline by which =
the reply=20
of the moving party to the summary judgment response must be =
filed.=20
Id.; Shelton v. Sargent, 144 S.W.3d 113, 119 =
(Tex.=20
App.--Fort Worth 2004, pet. denied). Here, the Cotes moved for =
summary=20
judgment, and their reply to Herrington's response to their motion =
for=20
summary judgment is not governed by the seven-day requirement of =
rule=20
166a(c). See Tex. R. Civ. P. 166a(c). Therefore,=20
the trial court did not err in overruling Herrington's objection =
to the=20
Cotes' reply to Herrington's response to their motion for summary=20
judgment. B.=20
Objections The=20
timeliness of the Cotes' objections to Herrington's summary =
judgment proof=20
is governed by Texas Rule of Evidence 21, which provides, in =
relevant=20
part: Every . . .=20
application for an order . . . shall be filed with the clerk of =
the court=20
in writing, shall state the grounds therefor, shall set forth the =
relief=20
or order sought, and at the same time a true copy shall be served =
on all=20
other parties, and shall be noted on the docket. An application to =
the=20
court for an order . . . shall be served upon all other parties =
not less=20
than three days before the time specified for the hearing unless =
otherwise=20
provided by these rules or shortened by the court. Tex. R.=20
Civ. P. 21. Herrington=20
contends that she received the Cotes' objections to her summary =
judgment=20
evidence later the same day of the summary judgment hearing. The =
record,=20
however, reflects that the Cotes' objections were filed and =
delivered to=20
Herrington on August 30, 2002, four days before the hearing. As a =
result,=20
the trial court did not err in denying Herrington's objection to =
the=20
Cotes' objections to her summary judgment evidence on the basis of =
untimeliness. We overrule=20
Herrington's first issue. In her=20
second issue, Herrington contends that the trial court erred in =
denying=20
her objections to the Cotes' affidavits because the affidavits =
constituted=20
self-serving testimony that was neither free from contradiction =
nor=20
uncontroverted. A.=20
Self-Serving The first=20
prong of Herrington's argument is that the Cotes' affidavits were=20
self-serving and thus should not have been considered as proper =
summary=20
judgment evidence. Herrington objected below that the Cotes' =
affidavits=20
were self-serving, and the trial court overruled Herrington's =
objections.=20
B.=20
Contradictory and Controverted In the=20
second prong of her argument, and for the first time on appeal, =
Herrington=20
complains that the Cotes' affidavits were neither free from =
contradiction=20
nor uncontroverted. In her=20
third issue, Herrington contends that the trial court erred in =
granting=20
the Cotes' motion for summary judgment because an issue of =
material fact=20
remains regarding the duty owed by the Cotes to Charles.=20
A =
no-evidence summary judgment is improper if the respondent brings =
forth=20
more than a scintilla of probative evidence to raise a genuine =
issue of=20
material fact. Merrell Dow Pharm., Inc. v. Havner, 953 =
S.W.2d=20
706, 711 (Tex. 1997); Zapata, 997 S.W.2d at 747. Less =
than a=20
scintilla of evidence exists when the evidence is so weak as to do =
no more=20
than create a mere surmise or suspicion of a fact. Kindred v.=20
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a =
scintilla=20
of evidence exists when the evidence rises to a level that would =
enable=20
reasonable and fair-minded people to differ in their conclusions.=20
Merrell, 953 S.W.2d at 711. In a=20
premises liability case, the duty owed is determined by the status =
of the=20
complaining party at the time and place of the injury. Clayton =
W.=20
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997); =
Graham=20
v. Atlantic Richfield Co., 848 S.W.2d 747, 751 (Tex. =
App.--Corpus=20
Christi 1993, writ denied). A licensee is a person who is =
privileged to=20
enter or to remain on land only by virtue of the possessor's =
consent, thus=20
entering with permission of the landowner, but doing so for his =
own=20
convenience or on business for someone other than the owner. =
Knorpp v.=20
Hale, 981 S.W.2d 469, 471 (Tex. App.--Texarkana 1998, no =
pet.). The=20
duty owed a licensee is not to injure him willfully, wantonly, or =
through=20
gross negligence and, in cases in which the owner or occupier has =
actual=20
knowledge of a dangerous condition unknown to the licensee, to =
warn of or=20
to make safe the dangerous condition. Lower Neches Valley =
Auth. v.=20
Murphy, 536 S.W.2d 561, 563 (Tex. 1976). Assuming,=20
without deciding, that the Cotes did in fact confer licensee =
status on=20
Charles, they owed him a duty not to injure him willfully, =
wantonly, or=20
with gross negligence; also, if they had actual knowledge of a =
dangerous=20
condition created, they had a duty to warn him of the condition or =
to make=20
the condition safe. See id. A =
dangerous=20
condition is one that creates a substantial risk of injury when =
the=20
property is used with due care in a manner in which it is =
reasonably=20
foreseeable that it will be used. See Black's Law =
Dictionary 394=20
(6th ed.1990). For example, it is generally foreseeable that a =
floor will=20
be walked on, and, thus, a condition of the floor that creates a=20
substantial risk of injury to those walking in a careful manner on =
it is=20
foreseeable. Knorpp, 981 S.W.2d at 474. In the present =
case,=20
however, Herrington has not provided any evidence to show that it =
was=20
reasonably foreseeable that the Cotes' driveway would be used by a =
child=20
riding a bicycle so that the shrubs on the side of their driveway =
would=20
become a dangerous condition The primary=20
evidence upon which Herrington relies to create a fact issue is =
from the=20
affidavits of Virginia and Suzanne Elkins, next door neighbors of =
the=20
Cotes. They stated that children routinely rode their bicycles and =
skateboards in the Cotes' driveway and that the shrubs would make =
it=20
difficult to see a boy riding his bicycle from the Cotes' driveway =
into=20
the street. However, the Cotes objected to the Elkinses' =
affidavits, and=20
the trial court's order sustained the Cotes' objections, thereby =
rendering=20
the affidavits unavailable for summary judgment proof. Herrington =
does not=20
complain of this evidentiary ruling on appeal. Herrington=20
also relies on her testimony that the Cotes had given Charles =
permission=20
to walk across their yard because of the absence of sidewalks, but =
this=20
does not supply any proof that the Cotes should have reasonably =
foreseen=20
that Charles would ride his bicycle in their driveway. =
As occurred=20
in Fetty, Herrington has provided no evidence to raise a =
fact=20
issue that the Cotes knew or should have reasonably anticipated =
that their=20
shrubs created a dangerous condition or that the Cotes knew or =
should have=20
reasonably anticipated that a child such as Charles would be =
injured by=20
that condition. Finally,=20
Herrington relies on Hamric v. Kansas City Southern =
Railroad and=20
section 369 of the Restatement (Second) of Torts to support the =
contention=20
that the Cotes should have known that planting the shrubs created =
an=20
unreasonable risk of danger because an owner or occupant of =
premises=20
abutting a highway has a duty to exercise reasonable care not to=20
jeopardize or to endanger the safety of persons using the highway =
as a=20
means of passage or travel. See id., 718 S.W.2d 916, 917 =
(Tex.=20
App.--Beaumont 1986, write ref'd n.r.e.). Because Charles was not =
a=20
traveler on the highway, and because we have already concluded =
that the=20
Cotes did not know or have reason to know that the shrubs created =
a=20
dangerous condition for a child riding a bicycle on their =
driveway, we=20
decline to apply this rationale. In her fourth =
issue,=20
Herrington contends that the trial court erred in denying her =
motion for=20
rehearing or new trial. Herrington merely reurges her arguments =
with=20
respect to her third issue. Because we have concluded that the =
trial=20
court's summary judgment was proper, we also hold that the court =
did not=20
err in overruling Herrington's motion for rehearing or new trial.=20
We overrule =
Herrington's=20
fourth issue. We affirm the =
judgment of=20
the trial court. Tim Taft Justice Panel consists of Justices Taft, Keyes, and Hanks. 1. 1 2. We note that this objection partially =
misstates the=20
test for the invalidity of an affidavit offered as summary =
judgment proof.=20
The test is not whether the affidavit was uncontroverted, but =
whether it=20
is capable of being readily controverted. The fact that the Cotes' =
affidavits were controverted by Herrington's witnesses =
demonstrates that=20
they were capable of being readily controverted and, therefore, =
valid,=20
rather than invalid, as Herrington asserts.=20
3. Herrington also asks, this Court to apply =
sections=20
368 4. A possessor of land who =
creates or=20
permits to remain thereon an excavation or other artificial =
condition so=20
near an existing highway that he realizes or should realize that =
it=20
involves an unreasonable risk to others accidentally brought into =
contact=20
with such condition while traveling with reasonable care =
(a) are=20
traveling on the highway, or (b)=20
foreseeably deviate from it in the ordinary course of travel. =
RESTATEMENT=20
(SECOND) OF TORTS SECTION 368 (1965).