Court of Appeals of Texas, Twelfth District, Tyler
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
WILLIE J. HARDY, Appellee
FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS No.
17-0933-A & 17-0933-A/S
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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.
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. 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.
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.
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. They also sought exemplary damages against
Hardy and John, contending that they acted with malice and
filed a motion for summary judgment, which he did not clearly
demarcate as either a traditional or no evidence
motion. 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.
their second issue, Appellants argue that the trial court
erred in granting summary judgment in Hardy's favor.
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.
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).
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).
of Hardy's Motion for Summary Judgment
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.
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).
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,
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).
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 ...