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Hockins v. U.S. Certified Contractors, Inc.

Court of Appeals of Texas, Second District, Fort Worth

May 17, 2018

BRENT HOCKINS APPELLANT
v.
U.S. CERTIFIED CONTRACTORS, INC. APPELLEE

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-04798-16

          PANEL: WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

          MEMORANDUM OPINION[1]

          CHARLES BLEIL JUSTICE

         Brent Hockins appeals from the trial court's final judgment granting a take-nothing summary judgment in favor of U.S. Certified Contractors, Inc. (UCC). We affirm.

          Procedural Background

         Hockins sued UCC, a roofing contractor, for negligence arising from injuries he sustained after slipping in rainwater that had leaked into his place of employment. UCC had been in the process of replacing the roof of the building but did not finish the last section before forecasted rainstorms occurred. UCC had placed tarps over the open section of the roof before the rain began. Hockins specifically claimed that UCC was negligent because it (1) failed to use reasonable care in repairing the roof, (2) failed to properly patch the roof to keep rain from entering the building, (3) failed to warn him and others of the potential for wet surfaces, (4) failed to inspect its patchwork to determine if the roof was properly secured and functioning for its proper purposes, and (5) failed to perform its work as a reasonably prudent roofing contractor would have done under the circumstances.

         UCC filed a combined traditional and no-evidence motion for summary judgment. In its traditional motion for summary judgment, UCC claimed that Hockins's "sole actionable claim is for negligence based on an alleged premises condition" and that this claim against it fails as a matter of law because the condition was open and obvious and, as such, UCC had no duty to warn or protect Hockins from that condition. In its no-evidence motion for summary judgment, UCC argued that Hockins had brought forward no evidence on either a premises liability or general negligence claim. The trial court granted the summary-judgment motion, but it did not specify on what ground or grounds.

          Standard of Review

         When a party moves for both a traditional summary judgment under rule 166a(c) and a no-evidence summary judgment under rule 166a(i), we will generally first review the trial court's judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the appellee's summary judgment proof satisfied the rule 166a(c) burden for a traditional motion for summary judgment. Id.

         A no-evidence motion for summary judgment must specifically state the elements for which there is no evidence. Tex.R.Civ.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

         When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).

         A no-evidence summary judgment is essentially a pretrial directed verdict because it requires the nonmovant to present evidence sufficient to raise a genuine issue of material fact on each challenged element. Timpte Indus., 286 S.W.3d at 310. We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, 118 S.W.3d at 750-51.

         Timing of 166a(i) Motion

         In his fourth issue, [2] Hockins contends that the trial court erred by granting UCC's no-evidence motion for summary judgment because an adequate time for discovery had not yet passed. Hockins failed to preserve his argument that he had not had an adequate time for discovery before the trial court granted UCC's motion because he failed to file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Correa v. Citimortgage, No. 02-13-00019-CV, 2014 WL 3696101, at *1 (Tex. App.--Fort Worth July 24, 2014, no pet.) (mem. op.); Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex. App.--Houston [14th Dist.] 2014, no pet.); see ...


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