Abdo v. Richmond Stop Food Mart

• Decision Date: 03 August 2021
• Docket Number: 01-20-00031-CV
• Parties: SAMUEL ABDO, Appellant v. RICHMOND STOP FOOD MART, HUSAM ENT. INC., AND MOHID ALMOHAMAD, Appellees
• Court: Texas Court of Appeals

SAMUEL ABDO, Appellant v. RICHMOND STOP FOOD MART, HUSAM ENT. INC., AND MOHID ALMOHAMAD, Appellees

No. 01-20-00031-CV

Court of Appeals of Texas, First District

August 3, 2021

On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2017-81085

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

MEMORANDUM OPINION

Amparo Guerra, Justice

Appellant Samuel Abdo ("Abdo") appeals the no-evidence summary judgment granted by the trial court in favor of appellees Husam Ent. Inc. ("Husam") and Mohid Almohamad ("Almohamad") (collectively "appellees").^[1] In three issues on appeal, Abdo contends (1) genuine issues of material fact precluded the summary judgment, (2) appellees improperly asserted pleading defects as a basis for summary judgment, and (3) the trial court abused its discretion by refusing to reconsider the summary judgment.

We affirm.

Background

Abdo alleges that while visiting a business owned by appellees in May 2016, he was physically assaulted by an employee and sustained injuries.^[2] Six months later, Abdo filed a personal-injury lawsuit and asserted claims for premises liability, negligence, and gross negligence against appellees. Specifically, Abdo asserted that appellees failed to warn of or make safe an unreasonably dangerous condition of their premises and were negligent in the hiring, training and supervision of their employee.

More than a year and a half after Abdo filed his petition appellees moved for a no-evidence summary judgment. Appellees contended that although the discovery period had ended and they put Abdo on notice his claims were not viable by filing special exceptions, Abdo did not propound "any discovery to discern the existence of any evidence to support his allegations" against appellees. Appellees asserted in their motion that there was no evidence of the essential duty, breach, and causation elements of the premises liability, negligence, and gross negligence claims. In addition, appellees specifically asserted there was no evidence:

• Husam or Almohamad had any connection to the alleged assault;

• Husam or Almohamad owned any business visited by Abdo on the date of the alleged assault; or

• Husam had any employees on the date of the alleged assault.

Abdo did not respond to the no-evidence motion before the date it was initially set for a hearing. Instead, he moved for a continuance on the ground that he had not received adequate notice of the setting. The trial court granted Abdo's motion for continuance and reset the no-evidence motion for a hearing on a later date.

The day after the trial court granted the continuance, Abdo filed a "Motion for Leave to File Response to Defendants' No Evidence Motion for Final Summary Judgment." In the motion, Abdo requested that the summary-judgment hearing be continued for a second time to allow additional discovery. He also addressed the no-evidence summary-judgment standard purported to present summary-judgment 3 evidence, and requested that, "upon consideration," the trial court deny appellees' no-evidence motion for summary judgment. The record does not indicate whether the trial court ruled on this motion, and Abdo did not file any other document in connection with appellees' no-evidence motion.

One month later, the trial court granted the no-evidence motion in favor of appellees. The order dismissed "all of [Abdo's] claims," and noted below the trial court's signature that "despite the court granting a motion for continuance for [Abdo] on the previously scheduled hearing date[, ] [Abdo] failed to provide an evidentiary response to the no-evidence motion for summary judgment."

Abdo timely moved for reconsideration and a new trial, arguing, among other things, that the trial court's statement in the summary-judgment order that he failed to file an evidentiary response to the no-evidence motion was incorrect because his motion for leave was responsive to the no-evidence motion. The trial court denied the motion for reconsideration and request for a new trial. This appeal followed.

No-Evidence Summary Judgment

Texas Rule of Civil Procedure 166a(i) provides that "[a]fter adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim . . . on which the adverse party would have the burden of proof at trial." TEX. R. CIV. P 166a(i). In his first and second issues, respectively, Abdo argues that the trial court erred by granting a no-evidence summary judgment under Rule 166a(i) because (1) he presented evidence raising a genuine issue of material fact as to the challenged elements of his claims and (2) appellees improperly asserted pleading defects as a basis for the no-evidence summary judgment.

A. Standard of review

We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of a claim on which the nonmovant would have the burden of proof at trial. Flameout Design &Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. TEX. R. CIV. P. 166a(i). A no-evidence summary judgment will be sustained on appeal when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered by the nonmovant to prove a vital fact, (3) the nonmovant offers no more than a scintilla of evidence to prove a vital fact, or (4) the nonmovant's evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.

B. No fact issues precluded summary judgment

In his first issue, Abdo argues that the trial court erred in granting summary judgment for appellees because "there are genuine issues of material fact for every element of [his] negligence claim." Construing Abdo's brief liberally, as we must, we understand this first issue to concern the trial court's summary judgment on both his negligence and premises liability claims.^[3] See Tello v. Bank One, N.A., 218 S.W.3d 109, 122-23 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (courts of appeals must construe appellant briefs reasonably and liberally); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (negligence and premises liability claims are closely related but distinct).

Abdo does not dispute that appellees challenged both his negligence and premises liability claims in the no-evidence motion for summary judgment. The record reflects that the no-evidence motion specifically identified the duty, breach, and causation elements as to which appellees contended there was no evidence. Concluding that Abdo failed to respond by presenting evidence of these elements, the trial court granted the no-evidence motion. See Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 793 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ("Generally, a failure to respond to a no-evidence motion is fatal to the nonmovant's ability to assert on appeal that the trial court erred in granting the motion."); Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.-Houston [1st Dist.] 2008, no pet.) ("Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i).").

According to Abdo, the trial court should have treated his motion for leave- to which he attached some evidence-as a response to the no-evidence motion. We agree that parts of Abdo's motion for leave can be considered responsive to the no-evidence motion. The motion for leave set out the standard for a no-evidence summary judgment, purported to present "summary judgment evidence," and requested that the no-evidence motion be denied "upon consideration." E.g., State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (to determine nature of pleading, courts should look to its substance rather than its form). But nothing presented in Abdo's motion for leave raised a fact issue that would have precluded summary judgment. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (courts should affirm summary judgment if any of the theories presented to court and preserved for appellate review are meritorious); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (appellant courts may affirm summary judgment on ground different from that relied on by trial court, in interest of judicial economy, as long as alternative ground was included in motion).

Abdo as the nonmovant, was required to present evidence that qualified as "summary judgment evidence," which is evidence that meets the technical requirements for summary-judgment proof. TEX. R. CIV. P. 166a(i); In re Guardianship of Virgil, 508 S.W.3d 591, 595 (Tex. App.-El Paso 2016, no pet.). He submitted four documents with his motion for leave: (1) his petition; (2) his responses to appellees' request for disclosures; (3) an assumed name certificate indicating Husam was conducting business in 2010 under the name Richmond Stop Food Mart; and (4) a "Houston Police Department [HPD] - Officer Incident Notice." Abdo contends these four documents raised fact issues as...