Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
LEONARD ALVAREZ, INDIVIDUALLY AND AS NEXT FRIEND OF CASEY ALVAREZ, MINOR CHILD, Appellant,
BROOKE R. SALAZAR-DAVIS, INDIVIDUALLY, AND IKE DAVIS JR., INDIVIDUALLY AND AS NEXT FRIEND OF GABRIEL DAVIS, MINOR CHILD, Appellees.
appeal from the 24th District Court of Victoria County,
Chief Justice Contreras and Justices Benavides and Longoria
CONTRERAS, CHIEF JUSTICE
Leonard Alvarez, individually and as next friend of his son,
Casey Alvarez, appeals from a summary judgment granted in
favor of appellees Brooke R. Salazar-Davis, individually, and
Ike Davis Jr., individually and as next friend of his son
Gabriel Davis. By one issue, Alvarez argues the trial court
erred when it granted appellees' hybrid motion for
summary judgment as to Alvarez's claim for (1) premises
liability and (2) negligence. We affirm in part and reverse
and remand in part.
November 15, 2015, Alvarez and his five-year-old son visited
the residence owned by Salazar-Davis and Davis (the Davises)
in Victoria, Texas. The Davises invited guests over,
including Alvarez, to watch a pay-per-view fight on TV, and
their children were also present at the residence. In the
backyard, the Davises had a campfire burning. In his second
amended petition, Alvarez alleges that, approximately thirty
minutes after they arrived, the Davises' four-year-old
son Gabriel "flung hot smoldering ashes in the direction
of" Casey, which caused Casey "to suffer severe
burn injuries to various parts of his body."
brought suit against the Davises on theories of premises
liability and negligence. Specifically, Alvarez argued in his
second amended petition the Davises were each liable because:
(1) they were "negligent in creating a condition which
posed an unreasonable risk of harm, to wit, an open fire and
hot coals and hot ashes in a pit on [their] premises, that
was not supervised, not attended, not extinguished after use,
nor covered, nor barricaded"; and (2) they were
negligent in the supervision of their son. Alvarez alleges
that Ike told him the campfire would be supervised by an
adult; Ike claims this never happened. In his deposition
testimony, Alvarez was asked "how did Casey get
hurt?" and he responded:
My son told me that him and another kid were standing [next]
to a fire. He told me that the little boy had a shovel and
that the little boy was poking at the fire. My son told me
that he asked the boy to stop playing with the fire or poking
at the fire with the shovel. And the little boy just swung
the shovel, and the coals just flew on top of my son's
in his deposition, Alvarez clarified that the "little
boy" referenced was Gabriel. In the Davises'
deposition testimony, they both stated that Gabriel was in
the garage with them when Casey suffered the injuries.
Davises filed a hybrid motion for traditional and no evidence
summary judgment. After a hearing, the trial court granted
appellees' motion. Alvarez filed a motion for new trial,
which was denied by written order. This appeal followed.
sole issue, Alvarez argues that the trial court erred when it
granted summary judgment in favor of the Davises.
Standard of Review
review the grant of summary judgment de novo. Ortega v.
City Nat'l Bank, 97 S.W.3d 765, 771-72 (Tex.
App.-Corpus Christi-Edinburg 2003, no pet.) (op. on
reh'g). A motion for summary judgment may be brought on
no evidence or traditional grounds. See Tex. R. Civ.
P. 166a(c), (i). We will affirm a summary judgment "if
any of the theories presented to the trial court and
preserved for appellate review are meritorious." Joe
v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex.
motion for no-evidence summary judgment is equivalent to a
motion for pretrial directed verdict. Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006);
Ortega, 97 S.W.3d at 772. Such a motion should be
granted if there is no evidence of at least one essential
element of the claimant's cause of action. Hamilton
v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam).
The burden of producing evidence is entirely on the
non-movant; the movant has no burden to attach any evidence
to the motion, and if the non-movant produces evidence
raising a genuine issue of material fact, summary judgment is
improper. See Tex. R. Civ. P. 166a(i). All that is
required of the non-movant is to produce a scintilla of
probative evidence to raise a genuine issue of material fact
on the challenged element. Forbes, Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003);
Ortega, 97 S.W.3d at 772. "Less than a
scintilla of evidence exists when the evidence is 'so
weak as to do no more than create a mere surmise or suspicion
of a fact.'" Ortega, 97 S.W.3d at 772
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172.
Conversely, more than a scintilla of evidence exists when
reasonable and fair-minded individuals could differ in their
conclusions. Forbes, 124 S.W.3d at 172;
Ortega, 97 S.W.3d at 772 (citing Transp. Ins.
Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In
determining whether the non-movant has produced more than a
scintilla of evidence, we review the evidence in the light
most favorable to the non-movant, crediting such evidence if
reasonable jurors could and disregarding contrary evidence
unless reasonable jurors could not. Tamez, 206
S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d
802, 825, 827 (Tex. 2005).
reviewing a traditional motion for summary judgment, we must
determine whether the movant met its burden to establish that
no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002). The movant bears the burden of proof,
and all doubts about the existence of a genuine issue of
material fact are resolved against the movant. See Sw.
Elec. Power Co., 73 S.W.3d at 215. We take as true all
evidence favorable to the non-movant, and we ...