Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 105th District Court of Kleberg County,
Chief Justice Contreras and Justices Benavides and Longoria
L. LONGORIA Justice
Amanda Mauricio appeals from the trial court's granting
of a motion for summary judgment in favor of appellees Dennis
Yaklin d/b/a Jacob's Apartments and Yaklin Rentals.
Mauricio argues that summary judgment was improper and that
the trial court erred in admitting a defective affidavit. We
29, 2014, Mauricio fell from her apartment balcony. On April
12, 2016, she filed suit against Yaklin, the owner of the
property, alleging negligence, negligence per se, premises
liability, and gross negligence, stating that her fall was
caused when she "lost her footing on the wet surface and
fell over the second-story railing . . . ." Mauricio
further alleged that the railing on the balcony was too low.
filed a traditional and no-evidence motion for summary
judgment. Mauricio amended her petition several times and at
the time of the hearing on Yaklin's summary judgment
motion, Mauricio's live pleading was her fourth amended
petition which no longer alleged a "wet surface"
and also limited her claims against Yaklin to negligence per
se and premises liability. Mauricio then filed her objections
to Yaklin's summary judgment evidence and her response to
Yaklin's traditional and no-evidence summary judgment
also filed his objections to and motion to strike
Mauricio's summary judgment evidence, including, inter
alia, an objection to the affidavit of Mauricio's expert,
Janis Fox, as a late designated expert witness. The trial
court granted Yaklin's motion to strike as to the
testimony and affidavit of Janis Fox.
trial court held a hearing on Yaklin's traditional and no
evidence summary judgment motion. After hearing argument and
reviewing the summary judgment evidence, the trial court
granted Yaklin's traditional summary judgment motion.
This appeal followed.
Traditional Motion for Summary Judgment
review the grant of summary judgment de novo. KCM Fin.
LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). In a
traditional motion for summary judgment, if the movant's
motion and summary judgment evidence facially establish its
right to judgment as a matter of law, the burden shifts to
the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. Tex.R.Civ.P. 166a(c);
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002). A defendant seeking traditional summary judgment
must either disprove at least one element of each of the
plaintiff's causes of action or plead and conclusively
establish each essential element of an affirmative
defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995) (per curiam); Sanchez v. Matagorda County, 124
S.W.3d 350, 352 (Tex. App.-Corpus Christi-Edinburg 2003, no
consider all the evidence in the light most favorable to the
nonmovant, crediting favorable evidence to the nonmovant if
reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not. Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of
the summary judgment evidence. Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per
curiam). When, as in this case, the trial court does not
specify in the order granting summary judgment the grounds
upon which the trial court relied, we must affirm the summary
judgment if any of the independent summary judgment grounds
is meritorious. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000).
extent of the duty owed by an owner or occupier of land to
entrants on the property depends on the status of the entrant
as a trespasser (whose presence on the property is
unauthorized), a licensee (one who comes onto the property
with permission, but for his own purposes rather than a
purpose that mutually benefits the owner or occupier and the
entrant), or an invitee (who is expressly invited onto the
property for the mutual benefit of the owner or occupier and
the entrant). See, e.g., Mellon Mortgage Co. v.
Holder, 5 S.W.3d 654, 655 (Tex. 1999).
party disputes that Mauricio resided in one of the apartments
owned by Yaklin, making her an invitee. Under premises
liability principles, a property owner generally owes an
invitee a duty to make the premises safe or to warn of
dangerous conditions as reasonably prudent under the