In=20 The
This is a=20 premises-liability case in which appellants, Steven and Karen = Kipp, bring=20 five issues to challenge a no-evidence summary judgment rendered = in favor=20 of appellees, Dyncorp Technical Services, LLC (Dyncorp) and = Computer=20 Science Corporation (CSC). The Kipps contend (1) that Dyncorp and = CSC=20 filed a defective no-evidence motion for summary judgment, which = should,=20 therefore, be treated as a traditional motion for summary = judgment; (2)=20 that Dyncorp and CSC did not present a certain ground for summary = judgment=20 to the trial court and are thus precluded from prevailing on that = ground=20 on appeal; and (3) that the evidence produced in response to = Dyncorp's and=20 CSC's motion for summary judgment was sufficient to raise a fact = issue to=20 defeat the motion. We affirm.
In 2002,=20 Steven Kipp was an employee of United Space Alliance, which worked = under=20 contract with NASA. He worked as a software engineer in Building 5 = of the=20 Lyndon B. Johnson Space Center, where space simulation and = astronaut=20 training was conducted. Kipp is an epileptic.
Dyncorp was=20 the operations-support provider for the premises. Due to an = outbreak of=20 conjunctivitis, also known as pink eye, Dyncorp increased the = potable hot=20 water temperature in the lavatories in Building 5. Kipp = acknowledged=20 during discovery that he was aware that the hot water temperature = had been=20 elevated. He was also aware that the reason for the change was to = prevent=20 the astronauts training in Building 5 from contracting pink eye = and thus=20 delaying a launch.
On August=20 23, 2002, while he was taking a break outside Building 5, Kipp = experienced=20 an aura that he recognized, from his 30 years as an epileptic, as = a=20 symptom of an impending seizure. Having learned that running warm = water=20 over his hands sometimes alleviates onset of his seizures, Kipp = went to=20 the nearest sink. While manipulating the handles of the sink to = lower the=20 water temperature, Kipp experienced a seizure and lost = consciousness.=20 During the seizure, Kipp's hands remained under the flowing hot = water and=20 were scalded.
Kipp and=20 his wife filed a premises-liability action against Dyncorp, CSC, = and=20 others, seeking damages for the claimed injuries to Kipp's hands = and for=20 his wife's derivative claim for loss of consortium. Dyncorp and = CSC were=20 the sole remaining defendants when trial was reset for June 19, = 2006. On=20 May 2, 2006, they filed a no-evidence motion for summary judgment, = contending there was no evidence to show either that Dyncorp and = CSC=20 proximately caused Kipp's injury or that Dyncorp and CSC were = liable under=20 a premises liability theory. The trial court rendered a = no-evidence=20 summary judgment in favor of Dyncorp and CSC.
A =
party who=20
files a no-evidence summary judgment motion pursuant to rule =
166a(i) has=20
essentially requested a pretrial directed verdict. Mack =
Trucks, Inc.=20
v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant =
files its=20
motion in proper form, the burden shifts to the nonmovant to =
defeat the=20
motion by presenting evidence that raises an issue of material =
fact=20
regarding the elements challenged by the motion. Id. at =
582;=20
Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 =
(
When the=20 trial court's judgment does not specify which of several grounds = proposed=20 was dispositive, we affirm on any ground offered that has merit = and was=20 preserved for review. FM Props. Operating Co. v. City of = Austin,=20 22 S.W.3d 868, 872-73 (Tex. 2000) (stating general rule); see = Price v.=20 Divita, 224 S.W.3d 331, 336 (Tex. App.--Houston [1st Dist.] = 2006,=20 pet. denied) (applying rule to Tex. R. Civ. P. 166a(i) motion) = (citing=20 State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, = 380 (Tex.=20 1993) (applying rule to Tex. R. Civ. P. 166a(c) motion); = Taylor v.=20 Carley, 158 S.W.3d 1, 8 (Tex. App.--Houston [14th Dist.] = 2004, pet.=20 denied) (applying rule to Tex. R. Civ. P. 166a(i) motion)). If the = appealing party does not assert a broad challenge to rendition of = summary=20 judgment or fails to challenge a ground on which the movant = asserted a=20 right to summary judgment in the trial court, we must = affirm--without=20 considering whether the summary judgment was rendered properly or=20 improperly on the unchallenged ground. See Malooly Bros., Inc. = v.=20 Napier, 461 S.W.2d 119, 121 (Tex. 1970) (affirming summary = judgment=20 because "it may have been based on a ground not specifically = challenged"=20 on appeal and "there was no general assignment that the trial = court erred=20 in granting summary judgment") (supporting citations omitted); = Vawter=20 v. Garvey, 786 S.W.2d 263, 264 (Tex. = 1990)=20 (proscribing reversal of summary judgment without properly = assigned=20 error); Ellis v. Precision Engine Rebuilders, Inc., 68 = S.W.3d=20 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no = pet.).
In their=20 first and third issues, the Kipps contend that we must construe = Dyncorp's=20 and CSC's motion for summary judgment as a traditional motion, = filed=20 pursuant to rule 166a(b), rather than a no-evidence motion, = because the=20 motion did not state the grounds on which Dyncorp and CSC = contended there=20 was no evidence. See Weaver, 4 S.W.3d at 829 n.2 (ruling = that=20 conclusory motion did not comply with rule 166a(i) and declining = to apply=20 rule 166a(i) standard of review). Rule 166a does not prohibit = combining a=20 traditional motion for summary judgment as a matter of law = pursuant to=20 subsection (c) of the rule with a no-evidence motion that relies = on=20 subsection (i). Binur v. Jacobo, 135 S.W.3d 646, 650-51 = (Tex.=20 2004). A motion that combines both bases for summary judgment is=20 sufficient if it sets forth its grounds clearly and complies = otherwise=20 with rule 166a. See id. at 651.
A.=20 Requirements of Rule 166a(i)
A = no-evidence motion for summary judgment must state the elements as = to=20 which there is no evidence. Tex. R. Civ. P. 166a(i). As the = comment to=20 rule 166a(i) instructs, "The motion must be specific in = challenging the=20 evidentiary support for an element of a claim or defense; = paragraph (i)=20 does not authorize conclusory motions or general no-evidence = challenges to=20 an opponent's case." Tex. R. Civ. P. 166a, 1997 Comment; = see=20 Kadhum v. Homecomings Fin. Network, Inc., No. = 01-05-00705-CV,=20 2006 WL 1125240, *4 (Tex. App.--Houston [1st Dist.] April 27, = 2006, no=20 pet.) (noting that comment "is intended to inform the construction = and=20 application of the rule"; citing comment and Weaver, 4 = S.W.3d at=20 829 n.2). In Weaver, this Court applied the traditional = standard=20 of review for summary judgments, holding that the defendant's = motion for=20 summary judgment was insufficient under Texas Rule of Civil = Procedure=20 166(a)(i) for the following reasons: it was conclusory, it did not = allege=20 that Weaver lacked evidence, and it did not challenge a particular = element. Weaver, 4 S.W.3d at 829 & n.2.
A = no-evidence motion for summary judgment must, therefore, = explicitly state=20 that there is no evidence of one or more elements of the = opponent's claim=20 or claims, which the motion must also identify. See=20 Kadhum, 2006 WL 1125240 at *4 (citing Johnson v. = Felts,=20 140 S.W.3d 702, 706 (Tex. App.--Houston [14th Dist.] 2004, pet. = denied);=20 Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, = 279-80=20 (Tex. App.--El Paso 2004, no pet.)). The dispositive inquiry is = whether=20 the motion provides fair notice to the nonmovant of the basis on = which=20 summary judgment is sought. See Waite v. Woodward, Hall & = Primm,=20 P.C., 137 S.W.3d 277, 281 (Tex. App.--Houston [1st Dist.] = 2004, no=20 pet.) (holding that motion did not provide fair notice that movant = sought=20 traditional, as opposed to no-evidence summary judgment); = accord=20 Binur, 135 S.W.3d at 651 (holding that movant did not waive=20 no-evidence grounds asserted in motion for summary judgment, = either by=20 combining no-evidence and traditional grounds in same motion for = summary=20 judgment or by attaching proof to motion in support of traditional = grounds).
B.=20 Discussion
Dyncorp and=20 CSC entitled their motion a "no-evidence motion for summary = judgment." The=20 motion cited rule 166a(i) expressly and invoked the no-evidence = standard=20 of review. Though Dyncorp and CSC also argued that they were = entitled, in=20 the alternative, to summary judgment under traditional, rule = 166a(b)=20 standards, the motion concluded by asking the trial court to grant = the=20 no-evidence motion and to grant dismissal with prejudice. The = Kipps'=20 response acknowledged the motion as a no-evidence motion filed = pursuant to=20 rule 166a(i). In rendering summary judgment in favor of Dyncorp = and CSC,=20 moreover, the judgment of the trial court specified that it was = granted on=20 no-evidence grounds.
The Kipps'=20 live pleadings assert claims for negligence under a = premises-defect theory=20 of liability and allege that Dyncorp and CSC owed Kipp a duty as = their=20 invitee. To prevail on their premises-liability claim, the Kipps = had to=20 prove that (1) Dyncorp and CSC had actual or constructive = knowledge of=20 some condition on the premises, (2) the condition posed an = unreasonable=20 risk of harm, (3) Dyncorp and CSC did not exercise reasonable care = to=20 reduce or eliminate the unreasonable risk of harm, and (4) their = failure=20 to use reasonable care to reduce or eliminate the unreasonable = risk of=20 harm proximately caused the Kipps' injuries. See LMB, = Ltd., 201=20 S.W.3d at 688. The proximate cause element has two components,=20 cause-in-fact and foreseeability. Id.
At the=20 conclusion of the introductory portion of their motion for = no-evidence=20 summary judgment, Dyncorp and CSC argued there was "no evidence = that has=20 been produced or developed by [the Kipps] that [Dyncorp and CSC = were]=20 negligent or even owe[d the Kipps] a duty." Dyncorp and CSC = further=20 specified additional no-evidence contentions, in two differently = numbered=20 sections of the argument portion of their motion. In the first = section,=20 they argued that the Kipps "cannot establish" that Dyncorp and CSC = proximately caused the Kipp's injuries under the "substantial = factor"=20 standard for either the cause-in-fact element of proximate cause = or the=20 foreseeability element of proximate cause. See generally Lear = Siegler,=20 Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991) (adopting=20 Restatement (Second) of Torts =A7 431 cmt. a (1965) (substantial = factor test=20 for cause-in-fact analysis)); Doe v. Boys Clubs. Inc., = 907 S.W.2d=20 472, 477 (Tex. 1995) (addressing foreseeability element of = proximate=20 cause).
In the=20
second section of their argument section, Dyncorp and CSC focused =
on all=20
elements of proof that the Kipps would have to establish to =
prevail on=20
their premises-liability claim, as follows: that a condition on =
the=20
premises posed an unreasonable risk of harm; that Dyncorp and CSC =
knew or=20
should have known of the danger;
We hold=20 that Dyncorp's and CSC's motion complied with rule 166a, clearly = stated=20 the no-evidence grounds asserted in the motion, and sufficiently=20 challenged the existence of any material issue of fact on all = elements of=20 the Kipps' premises-liability claim, including both components of = probable=20 cause, to a degree sufficient to provide fair notice to the Kipps = that=20 Dyncorp and CSC had invoked rule 166a(i) and sought to prevail on = that=20 basis. See Binur, 135 S.W.3d at 651; Waite, 137 = S.W.3d=20 at 281. At that point, therefore, the burden shifted to the Kipps = to=20 present summary judgment evidence to defeat Dyncorp's and CSC's=20 no-evidence motion. Tex. R. Civ. P. 166a(i); Mack Trucks, = 206=20 S.W.3d at 582; Weaver, 4 S.W.3d at 829-30.
We overrule=20 the Kipps' first and third issues.
In their second, fourth, and =
fifth=20
issues, the Kipps contend that they provided sufficient summary =
judgment=20
evidence to raise an issue of fact to defeat Dycorp's and CSC's =
motion=20
concerning the following: proximate cause and whether Dyncorp and =
CSC=20
actually knew or should have known of the dangerous condition in =
building=20
D. Yet, Dyncorp and CSC moved for no-evidence summary judgment by=20
challenging whether evidence existed as to all elements =
of the=20
Kipps' premises-liability claim and not solely the dual components =
of=20
proximate cause and whether Dyncorp and CSC had actual or =
constructive=20
knowledge of the alleged danger. In addition to challenging those =
elements=20
on no-evidence grounds, Dyncorp's and CDC's motion for summary =
judgment=20
also challenged the two additional elements that the Kipps would =
have to=20
prove in order to prevail, specifically, whether any evidence =
existed=20
regarding a condition on the premises that created an unreasonable =
risk of=20
harm and whether they breached any duty to Kipp, either by failing =
to warn=20
him of the alleged danger or make the condition safe. See =
generally=20
LMB, Ltd., 201 S.W.3d at 688; Comm. on Pattern Jury Charges, =
State=20
Bar of Tex. Premises Tex. Pattern Jury Charges PJC 66.3 =
(2000=20
ed.).
DTS and CSC=20
alleged that the Kipps had no evidence of any elements of their =
premises=20
liability claims, and the trial court did not specify the =
no-evidence=20
grounds on which it relied in rendering no-evidence summary =
judgment.=20
Accordingly, the Kipps must
We affirm=20 the judgment of the trial court.
Panel=20
consists of Chief Justice Radack and Justices Alcala and Bland.=20
1. In their fourth issue, the Kipps contend =
that=20
Dyncorp's and CSC's motion did not challenge the alternative =
"should have=20
known of the danger" element of the Kipps' premises-liability =
claim. The=20
record contradicts the Kipps' contention; accordingly, we overrule =
the=20
fourth issue.