Opinion
No. 02-20-00221-CV
03-18-2021
KIMBERLY TAYLOR, Appellant v. CATALYST MULTI-FAMILY MANAGEMENT AND CINNAMON TREE 104, LLC, Appellees
On Appeal from the 96th District Court Tarrant County, Texas
Trial Court No. 096-300047-18 Before Birdwell, Womack, and Walker, JJ.
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Kimberly Taylor appeals the trial court's summary judgment in favor of Appellees Catalyst Multi-Family Management and Cinnamon Tree 104, LLC in this premises liability suit. In a single issue, Taylor contends that the trial court erred by granting Appellees' no-evidence motion for summary judgment because Taylor provided evidence that Appellees had either actual or constructive knowledge of the dangerous condition. Because Taylor has failed to address all of the possible grounds for summary judgment, we affirm the trial court's judgment without addressing the merits.
II. BACKGROUND
In June 2016, Taylor was a tenant at a Fort Worth apartment complex. While walking through the property, she stepped into an uncovered area that housed the main water pipe, tripped, fell, and injured her right foot.
Two years later, Taylor sued Appellees as well as six other entities, asserting claims of negligence. She alleged that Appellees breached their duty by
All of the other entities had been nonsuited without prejudice by the time of the summary judgment hearing.
• creating a condition on the premises which posed an unreasonable risk of harm to individuals such as Taylor;
• permitting an unreasonably dangerous condition which Appellees knew, or in the exercise of ordinary care should have known about, to exist on the premises;Appellees answered, asserting numerous affirmative defenses and what they referred to as "other defenses."
• choosing not to cover the area that houses the main water pipe on Appellees' premises;
• choosing not to conduct a reasonable inspection of the premises in order to discover the condition;
• choosing not to warn Taylor of the condition on the premises;
• choosing not to make safe a condition on the premises;
• choosing not to timely and properly remedy the condition; and
• choosing not to post warning signs to prevent injury to Taylor and others.
After discovery was conducted, Appellees filed their traditional and no-evidence motion for summary judgment. Appellees asserted the following grounds for summary judgment: (1) Rain, as a matter of law, is not an unreasonably dangerous condition; (2) Taylor has no evidence or legally insufficient evidence that Appellees knew or should have known the water main was uncovered; (3) Appellees did not breach a duty owed to Taylor; (4) Taylor encountered the unreasonably dangerous condition voluntarily; and (5) Appellees' alleged acts or omissions were not a proximate cause of Taylor's injuries.
Appellees contend that Taylor's complaint "stems from the fact the uncovered water main was obscured by rain."
Later in the motion, Appellees rephrased their "grounds for summary judgment" as follows: (1) Taylor's claim is a premises liability claim; (2) An adequate time for discovery has elapsed; (3) Rain which obscured a water main hole is not unreasonably dangerous; (4) The danger, if any, was open and obvious to Taylor and, therefore, Appellees did not owe her a duty; (5) Appellees did not have actual or constructive knowledge of the allegedly unreasonably dangerous condition and, therefore, did not owe Taylor a duty; (6) Appellees did not breach any duty; and (7) Appellees did not proximately cause Taylor's injuries.
According to the "Scheduling Order Regarding Summary Judgment Motion(s) by Written Submission," the hearing on the motion for summary judgment was "taken up by written submission on April 15, 2020." Two days after the hearing on the motion for summary judgment, the trial court signed a judgment granting Appellees' motion and noting that it "considered the Motion, the evidence before the Court, Plaintiff Kimberly Taylor's Response, Defendants' Reply, and the arguments of Counsel." After Taylor filed multiple motions for reconsideration and a hearing was held, this appeal followed.
III. DISCUSSION
On appeal, Taylor states that her "arguments will be limited to the No-Evidence Motion for Summary Judgment." She phrases as her sole issue, "Did the trial court err by granting Appellees' . . . No-Evidence Motion for Summary Judgment when . . . Taylor's testimony provided evidence on the record to support the challenged element of her claim?" Taylor states that she is limiting her appeal to this issue because the trial court also limited its finding by making the following statement at the hearing on Taylor's motion for reconsideration: "Assuming that there was an unreasonably dangerous condition, and some of the other factors, I think I was persuaded at the time that there was no evidence that the defendants knew, or should have known, of the existence."
Similarly, the totality of her "Summary of Argument" states, "The trial court erroneously concluded that there was no evidence that the [sic] Catalyst and Cinnamon Tree knew, or should have known, of the existence of the dangerous condition despite evidence that Catalyst and Cinnamon Tree created the condition and thus had constructive knowledge."
However, as noted by Appellees, the trial court made no explicit findings as to the other challenged elements and neither the order granting the summary judgment nor the order denying Taylor's motion for reconsideration specified the grounds for granting the motion for summary judgment. In addition, at the hearing on the motion for reconsideration, the trial court did not give the reasons for granting the motion for summary judgment but stated, "And that's part of - - I said that's what I recall my thinking at the time was. And I think that granting of the motion for summary judgment was appropriate." Therefore, Appellees contend that Taylor must negate all grounds raised in their motion for summary judgment. We agree.
The law is well-settled that either (1) a specific assignment of error must be attributed to each ground on which a summary judgment could be based, or (2) a general assignment that the trial court erred by granting summary judgment must be made. See Rollins v. Denton Cty., No. 02-14-00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.) (citing Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)). "When an argument is not made challenging every ground on which the summary judgment could be based, we are required to affirm the summary judgment, regardless of the merits of the unchallenged ground." Rollins, 2015 WL 7817357, at *2; see also Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied) ("When the trial court's judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made."). "We can affirm the trial court's judgment on the basis of even one unchallenged ground." Mann v. Denton Cty., No. 02-16-00030-CV, 2017 WL 526309, at *6 (Tex. App.—Fort Worth Feb. 9, 2017, pet. denied) (mem. op.).
While Taylor cites to a statement made by the trial court at the motion for reconsideration which she contends limited the scope of the ruling, she fails to cite to any case in which a court held that oral statements made by the trial court on the record at a hearing govern the scope of grounds upon which the trial court could have granted summary judgment. See Miller v. El Campo Holdings LLC, No. 02-15-00388-CV, 2017 WL 370936, at *4 (Tex. App.—Fort Worth Jan. 26, 2017, no pet.) (mem. op.) ("Appellant does not cite any case, however, in which a court held that oral statements made by the parties or the trial court on the record at a summary judgment hearing govern the scope of grounds upon which the trial court could have granted summary judgment over an otherwise unlimited order."). As we have noted before, Texas courts in fact have reached the opposite conclusion. Id.; see Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 426 (Tex. App.—Texarkana 2002, no pet.) (op. on reh'g) ("We are constrained . . . to look only to the order granting summary judgment to determine the trial court's reasons for ruling. . . . That rule has a fairly sound policy basis in that it gives litigants and appellate courts a single place to look to determine why the trial court granted summary judgment."); Simmons v. Healthcare Ctrs. of Tex., Inc., 55 S.W.3d 674, 680 (Tex. App.—Texarkana 2001, no pet.) ("[W]e must look only to the order granting summary judgment, in which the trial court did not provide the reasons for its ruling.").
Because Taylor's sole issue challenges only the granting of the no-evidence motion for summary judgment without addressing any of the traditional grounds for summary judgment, we are procedurally constrained to affirm the trial court's summary judgment without regard to the merits of Appellees' other grounds for summary judgment. See Next Generation Tech., Inc. v. Tech Plan, Inc., No. 02-16-00415-CV, 2017 WL 5180864, at *1 (Tex. App.—Fort Worth Nov. 9, 2017, pet. denied) (mem. op.) ("If an appellant does not challenge and negate each possible ground for summary judgment, we must uphold the summary judgment on the unchallenged ground, without regard to the merits of the unchallenged ground."). Therefore, we overrule Taylor's sole issue. See McCurley v. Tex. Motor Speedway, Inc., No. 02-19-00108-CV, 2019 WL 6606103, at *1 (Tex. App.—Fort Worth Dec. 5, 2019, pet. denied) (mem. op.) (affirming traditional and no-evidence summary judgment motion on the unchallenged grounds without reaching the merits in a premises liability case); see also Tex. R. App. P. 38.3, 47.1.
In her reply brief, Taylor addresses the "other grounds" in Appellees' motion for summary judgment. However, a reply brief may not be utilized to raise issues not asserted in a party's brief on the merits. See Rollins, 2015 WL 7817357, at *2 n.6; see also Stovall & Assocs. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 803 (Tex. App.—Dallas 2013, no pet.) ("That Stovall could have but did not make such an argument in its opening brief does not allow it to do so for the first time in its reply brief."). --------
IV. CONCLUSION
Having overruled Taylor's sole issue, we affirm the trial court's judgment.
/s/ Dana Womack
Dana Womack
Justice Delivered: March 18, 2021