Opinion issued March 6,=20
2008
&=
nbsp; <=
BR>
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-07-00082-CV
SHAHNAZ KHAN,=20
Appellant
V.
FERHAT =
M. HASAN=20
AND MANZOOR HASAN, Appellees
On =
Appeal from the=20
190th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2006-02890
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
Shahnaz Khan, sued appellees, Ferhat M. Hassan and Manzoor Hasan, =
under=20
theories of general negligence and premises liability, after =
appellant=20
slipped and fell on the steps leading up to appellees=E2=80=99=20
house.
<=
/SPAN>In=20
three issues, appellant contends that the trial court erred by =
rendering a=20
no-evidence summary judgment in favor of appellees (1) =
=E2=80=9Cwithout first=20
advising [appellant] of the ruling on [appellant=E2=80=99s] =
challenges to the=20
sufficiency of [appellees=E2=80=99] Motion for Summary Judgment =
and allowing=20
[appellant] an opportunity to respond to the trial court=E2=80=99s =
ruling=E2=80=9D; (2)=20
=E2=80=9Cbecause [appellees] were aware of the condition . . . and =
failed to warn=20
[appellant]=E2=80=9D; and (3) =E2=80=9Cbecause whether . . . =
[appellees=E2=80=99] sidewalk is a=20
dangerous condition and/or whether [appellees=E2=80=99] were =
negligent in any=20
manner in failing to warn [appellant] of the condition of the =
sidewalk is=20
a question of fact, not law.=E2=80=9D
<=
/SPAN>We=20
affirm.
Facts =
and=20
Procedural History
<=
/SPAN>On=20
January 18, 2004, appellant, who was a guest at appellees=E2=80=99 =
house in=20
Houston, suffered injuries when she slipped and fell while walking =
up the=20
sidewalk and steps leading to appellees=E2=80=99 front =
door.
<=
/SPAN>On=20
January 17, 2006, appellant sued appellees, under theories of =
general=20
negligence and premises liability, contending that appellees had=20
negligently allowed ice to build up on the steps. Appellant =
alleged that=20
appellees had control of the premises, were aware of the icy =
condition,=20
and breached their duty to remove the ice, to provide adequate =
lighting,=20
or to warn appellant. Appellant contended that appellees=E2=80=99 =
breach was the=20
proximate cause of injuries to her wrist, hand, and back.=20
<=
/SPAN>On=20
October 4, 2006, appellees moved for a no-evidence summary =
judgment on the=20
basis that there was no evidence of certain essential elements of=20
appellant=E2=80=99s claims, namely, breach of duty and causation. =
In addition,=20
appellees specially excepted to appellant=E2=80=99s petition, =
contending that=20
appellant failed to specify the extent of her injuries, the =
maximum level=20
of damages sought, and how appellees knew of icy=20
conditions.
<=
/SPAN>On=20
October 13, 2006, appellant filed an amended petition in which she =
specified that her wrist, hand, and back were injured and that she =
would=20
seek up to $2,000,000 in damages. In addition, appellant dropped =
the=20
allegation that the steps had been icy and, instead, appellant =
contended=20
that she had =E2=80=9Ctripped on a sudden and unexpected rise in =
the sidewalk that=20
was unknown to [appellant] and which [appellant] could not have =
seen.=E2=80=9D=20
Appellant alleged that another person had fallen as a result of =
the same=20
condition three months prior to her own fall and that, although =
appellees=20
were aware of the prior incident, they had failed to remedy the =
condition.=20
Appellant sought exemplary damages on the basis that =
appellees=E2=80=99 omissions=20
involved an extreme degree of risk.
<=
/SPAN>Appellees=20
elected to proceed with their original motion for summary judgment =
and the=20
parties agreed that appellant would have additional time to file =
her=20
response. On October 25, 2006, in her response to the motion for =
summary=20
judgment, appellant objected to the sufficiency of =
appellees=E2=80=99 motion and=20
contended that she had =E2=80=9Cviable causes of action.=E2=80=9D =
Appellant=E2=80=99s summary=20
judgment evidence, as appended to her response, consisted of the =
parties=E2=80=99=20
agreement extending time to file the response, appellant=E2=80=99s =
amended=20
petition, and appellant=E2=80=99s answers to appellees=E2=80=99 =
requests for=20
disclosure.
<=
/SPAN>On=20
October 30, 2006, the trial court granted appellees=E2=80=99 =
motion for=20
no-evidence summary judgment, without stating its basis, and =
ordered that=20
appellant take nothing on her claims. Appellant moved for a new =
trial,=20
which the trial court denied.
No-Evidence=20
Summary JudgmentA.Standard of=20
Review
<=
/SPAN>After=20
an adequate time for discovery, the party without the burden of =
proof may=20
move for summary judgment, with or without presenting evidence, on =
the=20
basis that there is no evidence to support an essential element of =
the=20
non-moving party=E2=80=99s claim. Tex. R.=20
Civ. P. 166a(i); Johnson v. Brewer & Pritchard, =
P.C., 73=20
S.W.3d 193, 207 (Tex. 2002). First, the movant must specifically =
state the=20
element as to which there is no evidence. Tex. R. Civ. P. 166a(i). =
The=20
burden then shifts to the non-movant to produce competent evidence =
that=20
raises a genuine issue of material fact on the challenged =
elements. See=20
Johnson, 73 S.W.3d at 207; Dolcefino v. Randolph, 19 =
S.W.3d=20
906, 916 (Tex. App.=E2=80=94Houston [1st Dist.] 2000, pet. =
denied). To=20
defeat a no-evidence motion, =E2=80=9Cthe respondent is not =
required to marshal=20
its proof; its response need only point out evidence that raises a =
fact=20
issue on the challenged elements.=E2=80=9D Tex. R. Civ. P. 166a(i) =
cmt. If=20
the non-movant brings forward more than a scintilla of probative =
evidence=20
to raise a genuine issue of material fact, then summary judgment =
is not=20
proper. Forbes, Inc. v. Granada Biosciences Inc., 124 =
S.W.3d 167,=20
172 (Tex. 2003); Flameout Design & Fabrication, Inc. v. =
Pennzoil=20
Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.=E2=80=94Houston =
[1st Dist.]=20
1999, no pet.). When determining if more than a scintilla of =
evidence has=20
been produced, the evidence must be viewed in the light most =
favorable to=20
the non-movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, =
601=20
(Tex. 2004). More than a scintilla exists when the evidence =
=E2=80=9Crises=20
to a level that would enable reasonable and fair-minded people to =
differ=20
in their conclusions.=E2=80=9D Id. On the other hand, =
=E2=80=9C[w]hen the evidence=20
offered to prove a vital fact is so weak as to do no more than =
create a=20
mere surmise or suspicion of its existence, the evidence is no =
more than a=20
scintilla and, in legal effect, is no evidence.=E2=80=9D=20
Id.
<=
/SPAN>Because=20
the trial court=E2=80=99s order granting summary judgment does not =
specify the=20
basis for the ruling, we must affirm the trial court=E2=80=99s =
judgment if any of=20
the theories advanced has merit. W. Invs., Inc. v. Urena, =
162=20
S.W.3d 547, 550 (Tex. 2005); Ben E. Keith Co. v. Aleman, =
227 S.W.3d=20
304, 309 (Tex. App.=E2=80=94Houston [1st Dist.] 2007, no =
pet.).
B. Applicable=20
Law
<=
/SPAN>Prevailing=20
on a negligence cause of action requires proof that (1) the =
defendant owed=20
a legal duty to the plaintiff, (2) the defendant breached that =
duty, and=20
(3) the breach proximately caused the plaintiff=E2=80=99s injury. =
Kroger Co. v.=20
Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Doe v. Boys Clubs =
of=20
Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.=20
1995).
<=
/SPAN>Premises=20
liability is a special form of negligence in which the duty owed =
to the=20
plaintiff depends upon her status as an invitee, licensee, or =
trespasser=20
on the premises. ![3DFootnote](3D"")
See Urena, 162 S.W.3d at 550. =
Whether an=20
entrant is an invitee or a licensee depends on that =
person=E2=80=99s purpose in=20
coming to the property. Motel 6 G.P., Inc. v. Lopez, 929 =
S.W.2d 1,=20
3 (Tex. 1996). Generally, an invitee is someone who enters the =
premises on=20
the business of or for the mutual benefit of both parties. =
McClure v.=20
Rich, 95 S.W.3d 620, 625 (Tex. App.=E2=80=94Dallas 2002, no =
pet.).=20
Guests invited to the property for social purposes are generally =
regarded=20
as licensees. Id. at 624.
<=
/SPAN>When=20
a premises liability suit is brought by an invitee, the plaintiff =
must=20
show that (1) the plaintiff was an invitee; (2) the defendant was =
a=20
possessor of the premises; (3) a condition on the premises posed =
an=20
unreasonable risk of harm; (4) the defendant knew or reasonably =
should=20
have known of the danger; (5) the defendant breached its duty of =
ordinary=20
care by both failing to make the condition reasonably safe and =
failing to=20
adequately warn the plaintiff; and (6) the defendant=E2=80=99s =
breach proximately=20
caused the plaintiff=E2=80=99s injury. CMH Homes, Inc. v. =
Daenen, 15 S.W.3d=20
97, 99 (Tex. 2000); Wal-Mart Stores, Inc. v. Gonzalez, 968 =
S.W.2d=20
934, 936 (Tex. 1998).
<=
/SPAN>When=20
a premises liability suit is brought by a licensee, the elements =
are the=20
same as those enumerated above for an invitee, except that the =
plaintiff=20
must instead show that she was a licensee, that the defendant had =
actual=20
knowledge of the danger, and that the plaintiff lacked such =
knowledge.=20
Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.=20
2003).
C. Appellant=E2=80=99=
s=20
Objections to Appellees=E2=80=99 Motion for Summary=20
Judgment
<=
/SPAN>In=20
her first issue, appellant contends that the trial court erred by =
granting=20
summary judgment in favor of appellees =E2=80=9Cwithout first =
advising [appellant]=20
of the ruling on [appellant=E2=80=99s] challenge to the =
sufficiency of=20
[appellees=E2=80=99] Motion . . . and allowing [appellant] an =
opportunity to=20
respond to the trial court=E2=80=99s ruling.=E2=80=9D Appellant =
complains that =E2=80=9C[i]f the=20
trial court were inclined to grant summary judgment in favor of=20
[appellees], it should have also made written findings on =
[appellant=E2=80=99s]=20
objections and challenges to the sufficiency of =
[appellees=E2=80=99] motion prior=20
to granting the relief.=E2=80=9D
<=
/SPAN>In=20
her response to the motion for summary judgment, appellant =
objected to the=20
first three paragraphs of appellees=E2=80=99 motion, entitled =
=E2=80=9COpening Statement,=E2=80=9D=20
=E2=80=9CBackground Facts,=E2=80=9D and =E2=80=9CSummary Judgment =
Standard,=E2=80=9D on the grounds that=20
they =E2=80=9Cconsisted of unsubstantiated opinions and conclusory =
legal=20
statements which could not be considered competent summary =
judgment=20
evidence.=E2=80=9D (Emphasis added.) In addition, appellant =
objected that=20
appellees =E2=80=9Cfailed to identify or offer any evidence =
to challenge=20
one element of [appellant=E2=80=99s] causes of action or theories =
of recovery.=E2=80=9D=20
(Emphasis added.)
<=
/SPAN>There=20
is no evidentiary burden imposed on a movant seeking summary =
judgment=20
under Rule 166a(i). See Tex.=20
R. Civ. P. 166a(i); see also Heiser v. Eckerd Corp., =
983=20
S.W.2d 313, 316 (Tex. App.=E2=80=94Fort Worth 1998, no pet.). =
Hence, here,=20
appellees were required only to specifically state in their motion =
the=20
element or elements as to which there is no evidence. See =
id. In=20
their motion, appellees enumerated the elements of the causes of =
action=20
alleged by appellant, that of general negligence and of premises=20
liability. As to appellant=E2=80=99s general negligence claim, =
appellees expressly=20
asserted in their motion that =E2=80=9C[appellant] has no evidence =
of breach of=20
duty or of proximate cause.=E2=80=9D As to appellant=E2=80=99s =
premises liability claim,=20
appellees expressly asserted that appellant =E2=80=9Chas no =
evidence of the=20
elements described.=E2=80=9D Appellees met their burden under the =
rule. See=20
id.
<=
/SPAN>Appellant=20
contends that the trial court was required to notify her of its =
intent to=20
overrule her objections to the sufficiency of appellees=E2=80=99 =
motion for=20
summary judgment in advance of its ruling on appellees=E2=80=99=20
motion.
Appellant has not directed us to any =
place in the=20
record in which she made such a request in the trial court. In =
addition,=20
appellant has not directed us to any authority, and we do not find =
any,=20
that supports her proposition that, by challenging the sufficiency =
of=20
appellees=E2=80=99 motion for summary judgment in her response, =
appellant=20
was entitled to advance written notice from the trial court of =
its=20
intended rulings and that, if the court intended to overrule =
appellant=E2=80=99s=20
objections and was =E2=80=9Cinclined to grant the summary =
judgment,=E2=80=9D that=20
appellant was entitled to additional time to amend her response or =
to=20
=E2=80=9Creplead a viable cause of action=E2=80=9D before the =
trial court ruled on the=20
motion for summary judgment.
<=
/SPAN>Accordingly,=20
appellant=E2=80=99s first issue is overruled. =
D. Appellant=E2=80=99=
s=20
Evidence
<=
/SPAN>In=20
her second issue, appellant contends that the trial court erred by =
rendering a no-evidence summary judgment in favor of appellees =
=E2=80=9Cbecause=20
[appellees] were aware of the condition . . . and failed to warn=20
[appellant].=E2=80=9D We construe appellant=E2=80=99s contention =
to be that she produced=20
evidence of the challenged elements of her =
claims.
<=
/SPAN>Once=20
appellees properly raised their motion for no-evidence summary =
judgment,=20
as here, Rule 166a(i) placed the burden on appellant, as the =
non-movant,=20
to produce evidence on each challenged element of her claim. =
See Colson=20
v. Grohman, 24 S.W.3d 414, 420 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2000,=20
pet. denied).
<=
/SPAN>Even=20
if we assume, without deciding, that appellant produced sufficient =
evidence of the elements of notice and failure to warn, these are =
not the=20
sole elements upon which appellees based their challenge. Hence,=20
appellant=E2=80=99s response is inadequate to defeat a =
=E2=80=9Cno-evidence=E2=80=9D summary=20
judgment motion under Rule 166a(i). See id. =
<=
/SPAN>Accordingly,=20
appellant=E2=80=99s second issue is overruled.
E. Question=20
of Fact or Law
<=
/SPAN>In=20
her third issue, appellant contends that the trial court erred by=20
rendering a no-evidence summary judgment in favor of appellees =
=E2=80=9Cbecause=20
whether . . . [appellees=E2=80=99] sidewalk is a dangerous =
condition and/or=20
whether [appellees=E2=80=99] were negligent in any manner in =
failing to warn=20
[appellant] of the condition of the sidewalk is a question of =
fact, not=20
law.=E2=80=9D
=
It=20
was appellant=E2=80=99s burden to produce more than a scintilla of =
evidence to=20
raise a genuine issue of material fact as to the challenged =
elements.=20
See Johnson, 73 S.W.3d at 207; Dolcefino, 19 =
S.W.3d=20
at 916 (stating that, once movant properly raises its motion for=20
no-evidence summary judgment, burden shifts to non-movant to =
produce=20
competent evidence that raises genuine issue of material fact on=20
challenged elements). We have concluded =
that=20
appellant failed to meet her burden.
<=
/SPAN>Accordingly,=20
appellant=E2=80=99s third issue is overruled.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
&=
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bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Hanks, and=20
Higley. |