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Dees v. Thomas

Court of Appeals of Texas, Third District, Austin

July 3, 2019

Holly Dees, Appellant
v.
Speedy Thomas and Sylvia Thomas, Appellees

          FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT NO. 15-O-294, HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Smith

          MEMORANDUM OPINION

          MELISSA GOODWIN, JUSTICE

         This appeal arises out of a premises liability suit. In July 2013, Holly Dees was at the house of Speedy and Sylvia Thomas (the Homeowners) to celebrate July 4th and to visit the Homeowners' daughter Stacy Thomas when she slipped and fell on a two-step stairway connecting the kitchen and living room. Dees sued for premises liability. The Homeowners moved for summary judgment, asserting that there was no duty to warn or to make the condition reasonably safe because any allegedly dangerous condition was open and obvious or otherwise known to Dees. The trial court rendered final summary judgment, concluding that the Homeowners are entitled to judgment as a matter of law and that Dees should take nothing against the Homeowners. For the reasons discussed below, we affirm.

         I. PROCEDURAL HISTORY

         In July 2015, Dees sued the Homeowners for premises liability. As described in her original petition, she "entered the kitchen and, as she proceeded to walk down the stairs, fell due to a large and/or non-standard gaps in between the stairs/steps." The Homeowners moved for traditional summary judgment on the grounds that there is no duty to warn or to make reasonably safe because Dees was a licensee, not an invitee, and the allegedly dangerous condition was open and obvious or otherwise known to Dees from her previous use of the stairway. As summary judgment evidence, the Homeowners attached: (1) the second amended petition, the live petition at the time; (2) Dees's deposition transcript; and (3) the following photo of the stairway, marked by Dees at her deposition to show where she had stepped during the incident.

         (Image Omitted)

         Dees responded with her own motion for partial traditional summary judgment. She attached as evidence: (1) the deposition transcripts from the Homeowners, (2) an affidavit from Stacy Thomas, (3) an affidavit from Dees's architecture expert Jim Sealy with attached photos of the stairway, and (4) an excerpt from the International Building Code Commentary.[1] The Homeowners objected to Dees's summary judgment evidence on multiple grounds. Dees also filed her third amended petition, [2] revising the reason for her fall and claiming she "fell due to faulty re-constructed stairs/steps that had to be remodeled . . . and which violated countless building codes and other regulations and standards."

         At the summary judgment hearing, the parties agreed that the trial court would consider the summary judgment motions on submission. Following the hearing, the court rendered final summary judgment, granting the Homeowners' summary judgment motion, ordering Dees to take nothing, and expressly stating that it considered the Homeowners' "objections to said response" and "it is the opinion of the Court that [the Homeowners'] objections are sustained." Dees filed a motion for clarification concerning whether the Homeowners' objections were granted and a motion for new trial, which the trial court denied. Dees timely appealed the final summary judgment to this Court.

         II. DISCUSSION

         Dees raises three issues on appeal. First, Dees asserts she was an invitee, not a licensee, and therefore the Homeowners had a duty to warn. Second, Dees claims a genuine issue of material fact exists to prevent summary judgment because there is no direct evidence that Dees was aware of any defects and the danger was not open and obvious. Third, Dees argues that the Homeowners' multiple objections to her summary judgment affidavits may not be granted together without specification, and she was entitled to amend her affidavits in response to form objections.

         A. Standard of Review

         We review a trial court's ruling on a motion for summary judgment de novo. Nassar v. Liberty Mut. Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). The summary judgment movant has the burden of showing there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274, 278 (Tex. 2018). "A trial court properly grants a defendant's traditional motion for summary judgment 'if the defendant disproves at least one element of each of the plaintiff's claims or establishes all elements of an affirmative defense to each claim.'" Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex. 2018) (quoting American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)), cert. denied, 139 S.Ct. 1216 (2019). When the summary judgment does not specify the ruling's grounds, we must affirm if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). We review the summary judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving doubts in nonmovant's favor. Id. at 215.

         Although our summary judgment review is de novo, we review a trial court's decision to exclude evidence in a summary judgment proceeding for an abuse of discretion-i.e., whether the trial court acted "without reference to any guiding rules and principles." Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam) (citing National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000), and quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

         B. Scope of Review and ...


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