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Cornelius v. Park Houston Affordable Housing Partners LP

Court of Appeals of Texas, Fourteenth District

March 9, 2017

MORGAN CORNELIUS AND DANIELLE M. JONES, Appellants
v.
PARK HOUSTON AFFORDABLE HOUSING PARTNERS LP, PARK HOUSTON HOUSING PARTNERS LLC, AND ROBERT CRESS, Appellees

         On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2015-53604

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.

          MEMORANDUM OPINION

          MARC W. BROWN, JUSTICE

         Appellants Morgan Cornelius and Danielle M. Jones filed suit against appellees Park Houston Affordable Housing Partners LP, Houston Housing Partners LLC, and Robert Cress (collectively, the "Park Houston Parties"), asserting a premises-liability claim and seeking to recover exemplary damages based on allegations of gross negligence. In a single issue, Cornelius and Jones contend the trial court erred in granting the Park Houston Parties' no-evidence motion for summary judgment on the premises-liability claim. Concluding there is no evidence that the Park Houston Parties leased the premises, we affirm.

         I. Background

         Cornelius and Jones were injured when the roof of an apartment unit collapsed. During the collapse, pigeons, bird waste, insects, sheetrock, and wooden beams fell on them. Cornelius and Jones sued the Park Houston Parties for premises liability and gross negligence. In their original petition, Cornelius and Jones alleged they were the Park Houston Parties' tenants or guests of the Park Houston Parties' tenants. Requests for disclosure were served with the original petition. No additional written discovery was propounded.

         Six and a half months after Cornelius and Jones filed their petition, the Park Houston Parties filed a no-evidence motion for summary judgment. The Park Houston Parties alleged that there was no evidence supporting premises liability or gross negligence. Cornelius and Jones filed a response attaching ambulance records and two affidavits in support thereof. In the affidavits, Cornelius and Jones swore that the roof-collapse caused their injuries, that the pigeons and bird waste "built up" and caused the roof to collapse, and the apartment complex "failed to monitor, clean, and repair ceiling and roof where pigeons were nesting."

         The Park Houston Parties filed a reply and Cornelius and Jones responded to the reply. After a hearing on the motion, the trial court granted the Park Houston Parties' no-evidence summary judgment motion. No record was made of the hearing and the trial court's summary judgment order did not specify the grounds on which it relied to grant the summary judgment.

         II. Standard of Review

         We review a trial court's granting of a summary judgment de novo. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict and is governed by the standards of Texas Rule of Civil Procedure 166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the nonmovant's claim or defense. Tex.R.Civ.P. 166a(i).

         The nonmovant then must present more than a scintilla of probative evidence that raises a genuine issue of material fact supporting each element contested in the motion. See Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014). "However, if the evidence is so weak that it only creates a mere surmise or suspicion of its existence, it is regarded as no evidence." Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). Unless the nonmovant raises a genuine issue of material fact, the trial court must grant summary judgment. Tex.R.Civ.P. 166a(i). If the nonmovant satisfies its burden of production on the no-evidence motion, then the court cannot properly grant summary judgment. See Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

         On appeal, appellants must challenge all grounds when, as here, there are multiple grounds for summary judgment and the order granting the summary judgment does not specify on which ground it was granted. DeWolf v. Kohler, 452 S.W.3d 373, 389 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.-Houston [14th Dist.] 1998, no pet.). We sustain a no-evidence summary judgment when: (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. DeWolf, 452 S.W.3d at 387.

         III. Analysis

         A. Cornelius and Jones have not waived the issue ...


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