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Mauricio v. Yaklin

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 22, 2019


          On appeal from the 105th District Court of Kleberg County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria


          NORA L. LONGORIA Justice

         Appellant 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 affirm.

         I. Background

         On May 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.

         Yaklin 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 motion.

         Yaklin 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.

         The 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.

         II. Traditional Motion for Summary Judgment

         We 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 pet.).

         We 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).

         A. Premises Liability

         The 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).

         Neither 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 ...

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