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McCloskey v. Clubs of Cordillera Ranch, LP

Court of Appeals of Texas, Fourth District, San Antonio

December 20, 2017

Tom MCCLOSKEY, Appellant
v.
THE CLUBS OF CORDILLERA RANCH, LP, Nicklaus Design, LLC, and The Weitz Company, LLC, Appellees

         From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 15-149CCL Honorable Bill R. Palmer, Judge Presiding

          Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         Tom McCloskey appeals the trial court's order granting traditional and no evidence summary judgments in favor of The Clubs of Cordillera Ranch, LP, Nicklaus Design, LLC, and The Weitz Company, LLC. McCloskey argues: (1) the appellees failed to conclusively establish the affirmative defense of release or assumption of the risk; (2) the appellees failed to conclusively establish the condition of the premises causing McCloskey's injury was open and obvious; (3) The Weitz Company, LLC's no evidence motion failed to comply with Rule 166a(i); (4) McCloskey presented more than a scintilla of evidence to defeat The Weitz Company's no evidence motion as to his negligence claim; and (5) McCloskey presented more than a scintilla of evidence to defeat the appellees' no evidence motions as to his gross negligence claim. We affirm the trial court's order.

         Background

         McCloskey was a member of The Clubs of Cordillera Ranch and owned a unit at the Di Lusso Condominiums. The Clubs of Cordillera Ranch was owned by The Clubs of Cordillera Ranch, LP which retained the services of Nicklaus Design, LLC and The Weitz Company, LLC to design and construct Cordillera Ranch's golf course.

         The golf course's sixteenth hole has an elevated green surrounded on three sides by cliffs. While playing the sixteenth hole, McCloskey stumbled on the green, rolled to the edge, and fell off the side. McCloskey sustained severe injuries to his right shoulder as a result of his fall.

         McCloskey subsequently sued Cordillera Ranch, Nicklaus Design, and The Weitz Company, asserting claims for premises liability, negligence, and gross negligence. Cordillera Ranch, Nicklaus Design, and The Weitz Company each filed traditional and no evidence motions for summary judgment which the trial court granted. McCloskey appeals.

         Standard of Review

         "We review the grant of [a] summary judgment de novo." Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). To prevail on a traditional motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." Tex.R.Civ.P. 166a(c). A trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each challenged element of the nonmovant's claims. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2013). We take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the nonmovant's favor, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Katy Venture, Ltd., 469 S.W.3d at 163.

         Release

         McCloskey first challenges whether the trial court erred in granting summary judgment in favor of the appellees because they failed to conclusively establish their affirmative defense of release. McCloskey acknowledges various documents relating to his membership at the Clubs of Cordillera Ranch and his ownership of the condominium unit contained releases, including the Clubs at Cordillera Ranch Membership Agreement, the Clubs at Cordillera Ranch Membership Plan, and the Supplemental Declaration to Cordillera Ranch Master Declaration of Covenants (the "Supplemental Declaration"). We focus our attention on the following release contained in the Supplemental Declaration:

H. Release and Disclaimer. … EACH OWNER … HEREBY (I) ACKNOWLEDGES, ACCEPTS AND ASSUMES THE RISKS ASSOCIATED WITH SAID CLUB FACILITIES PROPERTY HAZARDS, INCLUDING ANY … PERSONAL INJURY … CAUSED BY OR ARISING IN CONNECTION WITH ANY OF SAID GOLF COURSE HAZARDS OR OTHER RISKS, HAZARDS AND DANGERS ASSOCIATED WITH THE OPERATION OF A GOLF COURSE AND OTHER CLUB FACILITIES (COLLECTIVELY THE "ASSUMED RISKS"), AND (II) RELEASES …CORDILLERA RANCH LTD.THE CLUBS, THE OWNER OF THE CLUB FACILITIES PROPERTY, AND THE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, AGENTS, CONTRACTORS, AND EMPLOYEES OF ALL SUCH ENTITIES (COLLECTIVELY THE "RELEASED PARTIES") FROM ANY AND ALL LIABILITY TO THE OWNER … FOR ANY DAMAGES, LOSSES, COSTS (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), CLAIMS, DEMANDS, SUITS, JUDGMENTS, ORDINARY NEGLIGENCE, OR OTHER OBLIGATIONS ARISING OUT OF OR CONNECTED IN ANY WAY WITH ANY OF THE ASSUMED RISKS. ….

         With regard to this release, McCloskey contends the Supplemental Declaration violates the statute of frauds. McCloskey also contends the release is unenforceable because the ...


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