Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 332nd District Court of Hidalgo County,
Justices Contreras, Longoria, and Hinojosa.
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.
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
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.
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.
Standard of Review
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).
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.
Summary Judgment Evidence
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 ...