Opinion
No. 05-06-00617-CV
Opinion issued August 15, 2007.
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. 05-01729.
This case was severed from trial court cause no. 05-02727.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Anita Borsella sued appellees and the City of Dallas for negligence and premises liability after she tripped on an allegedly defective sidewalk abutting a restaurant. The property is owned by Penelope Hatteras and/or Penelope Hatteras d/b/a DMPT Enterprises and leased to and operated by Charles A. Whitis and/or Charles A. Whitis d/b/a Thai Lotus Kitchen, the appellees. The trial court granted appellees' no-evidence motion for summary judgment. We affirm.
Factual and Procedural Background
Borsella tripped and fell on what she alleges was a defective sidewalk in front of Thai Lotus Kitchen, a Dallas restaurant. According to Borsella, she suffered "significant personal injuries" as a result of her fall. She sued the City of Dallas and appellees for negligence and premises liability.
The elements of a negligence claim are: (1) a duty, (2) a breach of that duty, and (3) damages proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The elements of a premises liability claim are: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to eliminate or reduce the risk; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
Appellees moved for summary judgment contending there was no evidence that (1) appellees owed a duty of care to Borsella, (2) appellees breached a duty of care to Borsella, (3) "the alleged defective condition of the sidewalk was a proximate cause of [Borsella's] alleged injuries and damages," and (4) "[Borsella] was caused to fall by the alleged dangerous condition of the sidewalk." See Tex. R. Civ. P. 166a(i). In response, Borsella argued that Dallas city ordinances create a duty to her and that genuine issues of fact on the elements of breach and proximate cause precluded summary judgment against her. Without specifying the ground or grounds on which it was based, the trial court issued an order granting appellees' motion and ordered that Borsella "take nothing by reason of her suit against [appellees]." It also severed its summary judgment order from the "main case" and declared its order "final and appealable for all purposes in due course."
Appellees also moved for no-evidence summary judgment arguing there was no evidence "City of Dallas'[s] Ordinances Nos. 8590 and 15123 are valid, enforceable, lawful, and constitutional," but withdrew their motion on this ground prior to the summary judgment hearing. They also moved for no-evidence summary judgment arguing there was no evidence that Borsella's alleged injuries "were not proximately caused solely by [Borsella]'s negligence." In other words, they moved for no-evidence summary judgment on the affirmative defense of contributory negligence. But because it is improper to grant a defendant's no-evidence summary judgment motion on an affirmative defense on which the defendant bears the burden of proof, Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex.App.-Dallas 2000, pet. dism. w.o.j.), we assume this ground was not the basis for the trial court's ruling.
Borsella raises two issues on appeal: (1) whether Dallas city ordinances create "a valid duty for property owners and property possessors, who enjoy the use of abutting sidewalks, to maintain and repair abutting sidewalks," and (2) whether those ordinances "make property owners and property possessors, who enjoy the use of abutting sidewalks, liable for damages and injuries resulting from defective conditions of abutting sidewalks."
Appellant's Burden on Appeal
If the summary judgment does not specify the basis on which it is granted, and several alternative grounds for granting summary judgment were presented in the motion, the appellant must challenge that judgment in one of two ways. One way is to assert a general issue complaining that the trial court erred in granting the motion for summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) ("[T]he best approach on appeal would be a Point of Error which simply complains `THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT.'") (emphasis original). The other way is to assert separate issues that challenge every ground asserted in the motion. Id. (appellant may challenge summary judgment through separate points of error on each ground asserted in motion).
But if an appellant does not assert a general issue challenging all grounds asserted in the motion or does not assert separate issues challenging every ground asserted in the motion, the summary judgment must be upheld on the unchallenged ground or grounds, without regard to the merits of the unchallenged ground or grounds. Malooly Bros., 461 S.W.2d at121 ("The judgment must stand, since it may have been based on a ground not specifically challenged by the plaintiff and since there was no general assignment that the trial court erred in granting summary judgment."); Stewart v. Sanmina Tex., L.P., 156 S.W.3d 198, 206 (Tex.App.-Dallas 2005, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied) (if summary judgment may have been rendered, properly or improperly, on ground not challenged on appeal, judgment must be affirmed); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (when party moves for summary judgment on several grounds, appealing party must assign error to each ground, or judgment will be affirmed on ground about which no complaint is made).
Analysis
The motion for summary judgment contended there was no evidence to support essential elements of Borsella's claim: duty, breach of duty, proximate cause of injury, and proximate cause of fall. In its order granting summary judgment for appellees, the trial court stated that the motion for summary judgment "is well taken and should be, in all things, GRANTED." It did not specify which of appellees' several alternative grounds was the basis for the summary judgment.
On appeal, Borsella does not assert a general issue that the trial court erred in granting summary judgment against her, and does not challenge every ground that was raised below and could have been the basis for the court's judgment. See Malooly, 461 S.W.2d at 121. Instead, she raises only two issues addressing the duty and liability of abutting landowners. Consequently, without deciding the merits of the unchallenged grounds of breach and proximate cause, the judgment must be affirmed on those unchallenged grounds. See id.; Ellis, 68 S.W.3d at 898. Because the judgment must be affirmed on that basis, we also do not address the merits of Borsella's two issues. Tex. R. App. P. 47.1.
Conclusion
We affirm the judgment of the trial court.