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
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
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 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."
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.
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 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.
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 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, ...