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Martinez v. Dolgencorp of Texas, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 21, 2018

DANIEL MARTINEZ, Appellant,
v.
DOLGENCORP OF TEXAS, INC. D/B/A DOLLAR GENERAL, Appellee.

          On appeal from the 332nd District Court of Hidalgo County, Texas.

          Before Justices Contreras, Longoria, and Hinojosa.

          MEMORANDUM OPINION

          DORI CONTRERAS, JUSTICE.

         Appellant Daniel Martinez appeals from a summary judgment entered in favor of appellee Dolgencorp of Texas, Inc. d/b/a Dollar General (Dolgencorp). By three issues, Martinez contends the trial court erred in: (1) holding that Dolgencorp did not owe him a duty of care, (2) relying on Dolgencorp's summary judgment evidence because the supporting affidavit was deficient, and (3) denying his motion for a continuance. We reverse and remand for further proceedings.

         I. Background

         Martinez visited Dolgencorp's place of business in Edinburg, Texas on September 14, 2014. As Martinez exited the premises, it began to rain, and he slipped and fell on the ramp leading from the sidewalk to the parking lot. On September 9, 2016, Martinez filed suit under a premises liability theory against Dolgencorp for injuries he suffered from the fall and alleged the ramp's surface became slippery due to "the type of paint and/or composition of the materials" used to make it.

         Dolgencorp occupied the building which housed its business by way of a lease agreement with Buchalter II, Inc. (Buchalter). In response to Martinez's suit, Dolgencorp filed a traditional motion for summary judgment and asserted it owed no duty to Martinez because it did not control the ramp on which Martinez fell. As evidence in support of its summary judgment motion, Dolgencorp attached: (1) a copy of the lease with Buchalter and two subsequent lease modifications (together referred to herein as "the lease"); (2) a still photograph from a surveillance camera video showing several individuals inside the store; and (3) a one-page affidavit by Suzzanne S. Peet, an employee of Dolgencorp.

         Martinez filed a response to Dolgencorp's motion for summary judgment in which he argued that: Peet's affidavit was not based on personal knowledge, and, therefore, the trial court could not rely on the evidence submitted with Dolgencorp's motion for summary judgment; there was an issue of fact as to whether Dolgencorp had control over the ramp on which Martinez fell; and he should be granted a continuance to conduct additional discovery. After a hearing on June 15, 2017, both parties submitted briefs in support of their arguments. The trial court then rendered summary judgment in favor of Dolgencorp on the basis that Dolgencorp did not control the ramp and, therefore, owed no duty to Martinez. This appeal followed.

         II. Standard of Review

         We review the grant of summary judgment de novo. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam). The party moving for traditional summary judgment has the burden to submit sufficient evidence to establish that no genuine issue of a material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). A party moving for summary judgment who conclusively negates at least one essential element of the non-movant's cause of action is entitled to summary judgment on that claim. Sw. Electric Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see, e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510-11 (Tex. 1995) (concluding summary judgment was proper because defendant disproved causation as a matter of law).

         After the movant produces evidence sufficient to show it is entitled to summary judgment, the burden shifts to the non-movant to present evidence raising a fact issue. See Amedisys, 437 S.W.3d at 511; Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In reviewing the grant of a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); Sw. Electric Power, 73 S.W.3d at 215.

         III. Summary Judgment Evidence

         By his second issue, which we address first, Martinez argues that the trial court erred in considering Dolgencorp's summary judgment evidence because all the evidence relied on the affidavit by Peet, which was not based on personal knowledge. Dolgencorp, on the other hand, contends Peet's affidavit was based on personal knowledge, but it does not dispute that its summary judgment evidence relied on the affidavit.

         A.Standard of Review and ...


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