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Alvarez v. Salazar-Davis

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

October 24, 2019

LEONARD ALVAREZ, INDIVIDUALLY AND AS NEXT FRIEND OF CASEY ALVAREZ, MINOR CHILD, Appellant,
v.
BROOKE R. SALAZAR-DAVIS, INDIVIDUALLY, AND IKE DAVIS JR., INDIVIDUALLY AND AS NEXT FRIEND OF GABRIEL DAVIS, MINOR CHILD, Appellees.

          On appeal from the 24th District Court of Victoria County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE

         We issued a memorandum opinion in this case on August 8, 2019, affirming in part and reversing and remanding in part the trial court's judgment. The Davises, appellees, subsequently filed a motion for rehearing. Without changing our previous disposition, we deny the motion for rehearing, withdraw our earlier memorandum opinion and associated judgment, and issue this substitute opinion and judgment in their place.

         Appellant 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.

         I. Background

         On November 15, 2015, Alvarez and his five-year-old son Casey 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. Alvarez alleges that Ike told him the campfire would be supervised by an adult; Ike claims this never happened. According to Alvarez, he and the Davises were inside the garage watching the fight while Casey and Gabriel played outside the garage. In his second amended petition, Alvarez alleges that, approximately thirty minutes after they arrived, Casey ran into the garage screaming because Gabriel, the Davises' four-year-old son, "flung hot smoldering ashes in the direction of" Casey, which caused Casey "to suffer severe burn injuries to various parts of his body."

         Alvarez 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.

         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 neck area.

         Later 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.

         The Davises filed a hybrid motion for traditional and no evidence summary judgment and attached the deposition testimony of Alvarez, the Davises, and Brooke's father. Alvarez filed a response in opposition and included an affidavit by Miguel C. Almaguer, M.D. 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.

         II. Discussion

         By his sole issue, Alvarez argues that the trial court erred when it granted summary judgment in favor of the Davises.

         A. Standard of Review

         We 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. 2004).

         A 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 elements. 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, ...


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