Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 10, Bexar County, Texas Trial
Court No. 2017CV02440 Honorable David J. Rodriguez, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Irene Rios, Justice
Elena D. Chapa, Justice
Kochar slipped and fell at a Chick-fil-A restaurant and sued
the restaurant's prior franchisee, Mark Wasserman.
Wasserman moved for summary judgment, arguing he, in his
individual capacity, did not own or control the premises. The
trial court granted the motion. On appeal, Kochar relies on a
property tax record and a webpage from Chick-fil-A's
website listing Wasserman as the "restaurant
operator." Concluding this evidence does not raise a
fact issue as to a prior franchisee's ownership or
control of the premises, we affirm.
executed a Franchise Agreement with Chick-fil-A, Inc. to
operate a restaurant in San Antonio. The Franchise Agreement
named Wasserman, individually, as the "franchisee"
and the restaurant "operator," and the agreement
became effective on January 1, 2015. The Franchise Agreement
provided a franchisee may assign his rights under the
agreement to a corporation formed for the sole purpose of
operating the franchised restaurant.
the Franchise Agreement became effective, Wasserman formed a
corporation "CMIL & FAMILY, INC." for the sole
purpose of operating the franchised restaurant. Wasserman was
named as the sole director of CMIL. Under an "Assignment
and Consent to Assignment Agreement," Wasserman,
individually, assigned "all the right, title and
interest of [Wasserman] in and to . . . the Franchise
Agreement . . . and the Business," to CMIL. The
Assignment and Consent to Assignment Agreement also became
effective on January 1, 2015.
sued Wasserman, individually, alleging he slipped and fell at
the Chick-fil-A restaurant on August 27, 2016. Kochar alleged
Wasserman was negligent by failing to protect him against
dangerous conditions on the premises. Wasserman filed an
answer, generally denying Kochar's allegations and, in a
verified denial, alleged he was not a proper party to the
proceeding because he was not the owner, operator, or
franchisee of the restaurant.
filed a traditional and no-evidence motion for summary
judgment. He argued he owed no legal duty to Kochar because
he assigned all of his rights and interests to the restaurant
to CMIL. In his summary judgment response, Kochar relied on:
(1) a property tax record that, according to Kochar, shows
Wasserman owned "fixtures, equipment, and personal
property" on the premises; and (2) a webpage on
Chick-fil-A's website listing Wasserman's name under
the heading "restaurant operator." Granting
Wasserman's motion, the trial court rendered summary
judgment against Kochar. Kochar timely appealed.
review the trial court's grant of a traditional or
no-evidence summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To
prevail on a traditional motion for summary judgment, the
movant must show that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of
law. Tex.R.Civ.P. 166a(c); Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).
We review a no-evidence summary judgment using the
well-established legal sufficiency standard. King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003);
see also Tex. R. Civ. P. 166a(i). In reviewing a
summary judgment, we take as true all evidence favorable to
the non-movant, indulging every reasonable inference and
resolving any doubts in the non-movant's favor.
Knott, 128 S.W.3d at 215.
argues he produced evidence raising a fact issue that
Wasserman, individually, owed a duty to protect him against
dangerous conditions on the premises where he slipped and
fell. "[T]he duty to make the premises safe or warn of
dangerous conditions generally runs with the ownership or
control of the property, and a defendant's liability
under a premises liability theory rests on the
defendant's assumption of control of the premises and
responsibility for dangerous conditions on it."
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463,
474 (Tex. 2017) (internal quotation marks omitted). In other
words, "[t]o establish premises liability, a plaintiff
must show that the defendant had control over and
responsibility for the premises." Cohen v.
Landry's Inc., 442 S.W.3d 818, 824 (Tex.
App.-Houston [14th Dist.] 2014, pet. denied).
parties dispute whether Wasserman, individually, is the
proper defendant. "Under Texas law, a corporation is
presumed to be a separate entity from its officers and
shareholders." Richard Nugent & CAO, Inc. v.
Estate of Ellickson, 543 S.W.3d 243, 266 (Tex.
App.-Houston [14th Dist.] 2018, no pet.). A plaintiff bears
the burden to plead and prove a theory to pierce the
corporate veil. U.S. KingKing, LLC v. Precision Energy
Servs., Inc., 555 S.W.3d 200, 213 (Tex. App.-Houston
[1st Dist.] 2018, no pet.). Kochar did not plead or attempt
to prove any corporate-veil-piercing theory to impose