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Douglas v. Hardy

Court of Appeals of Texas, Twelfth District, Tyler

May 15, 2019



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Greg Neeley Justice

         Tasha Ernest Douglas, individually, as personal representative of the Estate of Francisco Douglas, deceased, and on behalf of all wrongful death beneficiaries, Sophia Katherine Abed as next friend of S.K.J.D., a minor, Jaime Douglas, Francisco Douglas, Jr., and Francisca Perez Delgado (Appellants), appeal the trial court's grant of summary judgment in favor of Willie J. Hardy. Appellants raise two issues on appeal. We affirm.


         Hardy owns the Sunset Valley Mobile Home Park. Tasha Douglas rented a mobile home from Hardy at the park beginning in May 2015. She paid rent to Wesley Smith, the park's maintenance man at the time. After Wesley ceased his employment at the park, Tasha paid her rent directly to Hardy. John Smith moved into the Sunset Valley Mobile Home Park in July 2015. John took Wesley's place as the maintenance man in September 2015. John also received rent payments from tenants when they paid after hours and performed other tasks from time to time as instructed by Hardy. Hardy paid John $10.00 per hour for his work, but John never kept a regular schedule. Other than these duties, John was no different than other residents of the trailer park.

         Tasha became delinquent on her rent payments, and on December 6, 2015, a constable delivered her an eviction notice. On December 8, Hardy met with Tasha, her husband Francisco ("Frank"), Humberto Douglas (Frank's brother), and John at John's trailer to discuss Tasha's rent delinquency.[1] Tasha and Frank revealed that Tasha would move into her husband Frank's trailer. Hardy agreed to give Tasha an extension and stated that she needed to vacate the trailer by December 16. The move out, cleaning of the trailer, and return of the keys were to be coordinated through John. However, Tasha was unable to fulfill this condition because she was a patient at a hospital from December 12 until December 16. Hardy gave her more time to vacate the trailer.

         On December 18, Tasha finished moving her belongings to Frank's trailer. Around noon, John arrived at the trailer and asked for the keys, and Tasha replied that Frank, who was at work, had them. Tasha told John that Frank would bring the keys to him after he returned. This conversation was not acrimonious. As Tasha completed the cleaning process, Frank returned from work at around 12:30 or 12:45 p.m. Shortly after 2:00 p.m., Tasha walked to John's trailer. As she approached, she saw John drinking beer on his front porch with another man she did not recognize. John had been drinking since approximately 11:00 a.m. and had consumed between five and seven beers that day. Tasha told John that she completed the moveout and cleanup process, the trailer was ready for inspection, and Frank was at the trailer with the keys. According to Tasha, John became angry and said, "Nobody summons me to do a Goddamn thing. Get the fuck off my property." Tasha left and told Frank what happened. Tasha described Frank as "hard-headed," and knew that he had also been consuming beer. Tasha wanted to contact Hardy about what had happened. Instead, Frank became angry, grabbed the keys and a beer, and told her to "come on." As the pair walked towards John's trailer, Frank walked in front of Tasha. Shortly thereafter, Tasha saw John grab a shotgun and point it at Frank. Nevertheless, Frank continued to approach, and as soon as Frank reached John's porch, Tasha heard John say, "Get the fuck off my property or I will shoot." According to Tasha, Frank, who had his hands down by his side and a beer in one hand, stepped on the porch, and less than two seconds later, John shot Frank in the chest, killing him. Tasha tried to approach Frank, but John screamed at her, "I'll shoot." Tasha retreated and called 911.

         John was convicted in a criminal trial for Frank's murder. Appellants filed this civil suit against Maxima Interests, LP, Hardy, and John, asserting wrongful death and survival claims against them based on negligence and premises liability theories.[2] They also sought exemplary damages against Hardy and John, contending that they acted with malice and gross negligence.

         Hardy filed a motion for summary judgment, which he did not clearly demarcate as either a traditional or no evidence motion.[3] In the motion, he argued that there was no evidence of the essential element of proximate causation on each of Appellants' claims, and he specifically contended that John's criminal act of murder against Frank was not foreseeable. As part of his motion, Hardy attached his affidavit and the judgment finding John guilty of murder, cited legal authorities, and made arguments attempting to negate foreseeability in general, as well as proximate causation on each of Appellants' claims. The trial court ultimately signed an "Order Granting Defendant Willie J. Hardy's Motion for Summary Judgment/No-Evidence." In the order, the trial court granted the motion in its entirety and dismissed Appellants' claims with prejudice. The trial court also granted a motion severing the claims against Hardy and Maxima Interests from the claims against John, the sole remaining defendant. The trial court subsequently signed a final judgment dismissing Appellants' suit against Hardy and Maxima Interests. This appeal followed.

         Summary Judgment

         In their second issue, Appellants argue that the trial court erred in granting summary judgment in Hardy's favor.

         Standard of Review

         We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A movant for traditional summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Rule 166a provides a method of summarily terminating a case when it clearly appears a question of law is involved and that there is no genuine fact issue. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). A defendant-movant who conclusively negates at least one essential element of a plaintiff's cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

         Separately, after an adequate time for discovery, a party may file a no evidence motion for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). A no evidence summary judgment motion under Rule 166a(i) is essentially a motion for a pretrial directed verdict, and it requires the nonmoving party to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006).

         When reviewing a motion for summary judgment, we review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A motion for summary judgment will be sustained 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. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

         Scope of Hardy's Motion for Summary Judgment

         It is well settled that a trial court cannot grant a motion for summary judgment on grounds not presented in the motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002). A no evidence motion for summary judgment must identify the essential elements as to which there is no evidence. Tex.R.Civ.P. 166a(i). The motion must be specific in challenging the evidentiary support for an element of a claim or defense, and this rule does not authorize conclusory motions or general no evidence challenges to an opponent's case. Id. at Comment- 1997. We are required to strictly enforce this requirement. Cmty. Health Sys. Prof'l Services Corp. v. Hansen, 525 S.W.3d 671, 695-96 (Tex. 2017). The underlying purpose of this requirement is to provide the opposing party with adequate information for opposing the motion, and to define the issues for summary judgment. Timpte Indus., 286 S.W.3d at 311.

         Appellants brought negligence and premises liability claims against Hardy. Specifically, with regard to the negligence claims, Appellants alleged in their petition that Hardy "failed to use due care to avoid injury" to them, failed to "properly hire and screen [John] who, when hired, may pose a threat of injury to . . . members of the public," and that he failed to "use reasonable care in training and supervising [John]." With regard to the premises liability claims, Appellants alleged generally that Tasha and Frank were invitees on Hardy's premises and that he failed to keep them safe in order to avoid the injuries suffered by them. Although not entirely clear, it appears that Appellants' premises liability claims are based on the failure to provide adequate security measures under Timberwalk, as well as the limited and specific duty to prevent harm when a landowner has direct knowledge of an imminent unreasonable risk of harm under Del Lago. See generally Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998).

         Appellants argue as part of their first issue that Hardy failed to sufficiently identify the essential element he challenged in his no evidence motion for summary judgment. In his motion, Hardy specifically challenged the essential element of proximate cause for each of Appellants' claims, along with whether John's actions were foreseeable. The foreseeability element is part of determining whether Hardy owed Appellants a legal duty for their negligence claims, and the foreseeability analysis is the same for both legal duty and proximate causation. See UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 101 (Tex. 2017) (noting that foreseeability is a "prerequisite to imposing a duty," and that "[f]oreseeability is essential to the determination of a duty in all of tort law"); Del Lago Partners, 307 S.W.3d at 774 (noting foreseeability analysis for existence of duty and proximate cause are the same). Moreover, the proximate cause element, including the foreseeability component, is an essential element of Appellants' negligent screening, hiring, training, and supervision claims. See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.- Fort Worth 2008, no pet.).

         The foreseeability element is also an essential element of Appellants' premises liability claims under Timberwalk and Del Lago. See UDR Tex. Props., 517 S.W.3d at 101 (noting that "[t]his Court conceived the Timberwalk factors as a means to aid courts in determining [the essential] foreseeability [element] specifically"); see also Del Lago Partners, 307 S.W.3d at 767-69 (holding that foreseeability required to impose duty for liability of premises owner for third party criminal acts, and can be sometimes shown when property owner has actual knowledge of unreasonable and imminent risk of harm due to immediately preceding conduct by third party).

         In their appellate briefs, the parties provide analysis on all elements of Appellants' claims, and Appellants had adequate information to define the issues for summary judgment and oppose the motion. See Timpte Indus., 286 S.W.3d at 311. Accordingly, Hardy properly raised a no-evidence motion for summary judgment on the legal duty, proximate cause, and foreseeability elements on all of Appellants' claims, and we may review the propriety of the trial ...

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