Almanza v. Navar

• Decision Date: 18 August 2005
• Docket Number: No. 08-04-00093-CV.,08-04-00093-CV.
• Citation: 225 S.W.3d 14
• Parties: Carlos ALMANZA, Appellant, v. Maria De Jesus H. NAVAR, and Mary Margaret Navar, As Administratrix of the Estate of Maria De Jesus H. Navar, Deceased, Appellees.
• Court: Texas Court of Appeals

225 S.W.3d 14

Carlos ALMANZA, Appellant, v. Maria De Jesus H. NAVAR, and Mary Margaret Navar, As Administratrix of the Estate of Maria De Jesus H. Navar, Deceased, Appellees.

No. 08-04-00093-CV.

Court of Appeals of Texas, El Paso.

August 18, 2005.

Byron Calderon, El Paso, for Appellant.

J. Monty Stevens, Stevens and Associates, El Paso, for Appellees.

Before BARAJAS, McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

Appellant Carlos Almanza appeals from a partial summary judgment in the negligence suit he has brought against Appellees Maria de Jesus H. Navar and Mary Margaret Navar, as Administratrix of the Estate of Maria de Jesus H. Navar, Deceased, (collectively "Mrs. Navar") for injuries he sustained after falling from the roof of the duplex he rented from Mrs. Navar. The trial court granted partial summary judgment in favor of Mrs. Navar and adjudged Mrs. Navar not liable to Mr. Almanza for his premises liability cause of action.¹ On appeal, Mr. Almanza raises three issues in which he argues that: (1) Mrs. Navar's summary judgment motion failed to state with sufficient specificity the grounds upon which summary judgment was sought; (2) Mrs. Navar's motion failed to address the essential elements of his premises liability cause of action; and (3) Mrs. Navar failed to prove as a matter of law a defense or disprove an element of his premises liability claim. We affirm.

On May 10, 1999, Mr. Almanza filed suit against Mrs. Navar, alleging she was liable for injuries he sustained from falling from the roof of the duplex based on claims of common law negligence, premises liability, breach of contract, and breach of an implied warranty of habitability under landlord/tenant law. In her first amended answer, Mrs. Navar alleged as her defense that Mr. Almanza was a trespasser, or alternatively, a licensee, to whom she owed a limited duty which she had not breached.

On July 3, 2001, Mrs. Navar filed a motion for summary judgment. In the motion, Mrs. Navar argued that no genuine issues of material fact existed and that she was entitled to summary judgment as a matter of law because inter alia:

(1) The undisputed summary judgment evidence establishes as a matter of law that at the time that the Plaintiff fell through the aluminum slat overhang which covered his neighbor's patio, the Plaintiff was a trespasser or, alternatively, a licensee;

(2) As a matter of law, it is undisputed that Defendant did not breach her limited duty not to injure the Plaintiff willfully, wantonly, or through gross negligence; no evidence to the contrary exists;

(3) In the event that the Court concludes that, at best, at the time of his fall the Plaintiff was a licensee, it remains undisputed that the Defendant did not breach her limited duty not to injure the Plaintiff willfully, wantonly, or through gross negligence and, moreover, no evidence exists of active negligence committed by the Defendant ....

As summary judgment evidence, Mrs. Navar attached Mr. Almanza's original petition, Mr. Almanza's deposition of January 25, 2001, with accompanying photograph exhibits, and the parties' residential lease contract dated December 1, 1996.

In response to Mrs. Navar's summary judgment motion, Mr. Almanza acknowledged that she had "moved for summary judgment alleging, among other things, that Plaintiff was a trespasser, or at best, a licensee, at the time he was injured, and that she owed him either no duty or a very limited duty which she did not breach." Mr. Almanza argued that summary judgment was precluded because there existed many issues of material fact in dispute. Mr. Almanza relied on the following documents as summary judgment evidence: his original and first amended petition; Mrs. Navar's responses to his request for disclosure; and his affidavit in support of his response to the summary judgment motion. Mr. Almanza later filed a supplemental response to the summary judgment motion, in which he attached his supplemental affidavit and specifically incorporated Mrs. Navar's summary judgment evidence.

After a hearing on Mrs. Navar's summary judgment motion, the trial court ordered a partial summary judgment in favor of Mrs. Navar and adjudged that as a matter of law, Mrs. Navar was not liable to Mr. Almanza under his premises liability claim. The trial court, however, found that there existed issues of material fact with regard to Mr. Almanza's claim for breach of implied warranty of habitability. Subsequently, Mr. Almanza filed a motion to reconsider the order, arguing that the ruling was incorrect because Mrs. Navar had not moved for summary judgment on the premises liability cause of action and had not produced any summary judgment evidence on that issue. On February 25, 2002, Mrs. Navar moved to sever the partial summary judgment from the original suit. The trial court granted the motion and severed the partial summary judgment on Mr. Almanza's premises liability cause of action and assigned it a new cause number. Mr. Almanza now brings this appeal.

Standard of Review

The movant for traditional summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996 writ denied). A defendant is entitled to summary judgment when he or she disproves, as a matter of law, one of the essential elements of the plaintiffs theory of recovery or conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston, 589 S.W.2d at 678-79. In determining whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the non-movant must be taken as true and all reasonable inference, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co. Of Texas, Inc., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied).

Summary Judgment Evidence

Taking the summary judgment evidence favorable to Mr. Almanza as true and resolving all reasonable inferences and any doubts in his favor, we recite the following facts in this case. On Saturday, May 10, 1997, Mr. Almanza resided in one unit of a duplex owned by Mrs. Navar. After repeated requests to Mrs. Navar to perform seasonal air conditioning service and to turn on the air conditioning unit for his portion of the duplex, Mr. Almanza attempted to climb up onto the roof of the rental property in order to turn on the air conditioning that day. According to his affidavit, Mr. Almanza had called Mrs. Navar every day for three weeks prior to his fall, repeatedly requesting that she turn on the air conditioning for his duplex. Mrs. Navar told Mr. Almanza that she was not going to service the unit nor hire anyone to service the unit. During the calls made to Mrs. Navar in the week prior to his fall, Mrs. Navar began telling him to turn on the air conditioner himself. Mr. Almanza, however, knew that it was Mrs. Navar's responsibility to turn on the air conditioning unit for the property since she had previously sent a maintenance man to turn off the air conditioning and turn on the heat when he moved into the duplex.

Mr. Almanza called Mrs. Navar on the day of his fall. He informed Mrs. Navar that he did not have a ladder nor any tools to work on the air conditioner. Mr. Almanza asked her how she expected him to get on the roof without a ladder. In response, she told him that she did not care how he accessed the roof, but that he needed to turn on the air conditioner himself. When he remarked, "What if I fall off the roof?" she replied, "If you fall, you fall." Mr. Almanza did not call anyone to service the unit for him because it was 115 degrees outside and he believed it probably would have been very difficult to get someone out there right away. It was his understanding by Mrs. Navar's instructions that day, that as owner of the entire structure, she was not only giving him permission to climb on the roof by whatever means he could, but was also directing him to do just that because she knew he did not have a ladder or tools.

At first, Mr. Almanza tried to reach the roof by parking his pickup truck next to the side of the duplex and climbing onto the pickup. This did not work because the pickup was not high enough. In his second attempt, Mr. Almanza went into his backyard and climbed onto the rock wall that divided the backyard of the duplex units. Mr. Almanza then pulled himself up onto the aluminum overhang or roof that covered the patio of the duplex. Mr. Almanza had never tried to walk on this type of surface before. He knew, however, that the strength of aluminum varies. He stood upright and started walking toward the shingled roof. He did not test the surface with his weight before deciding to walk forward. Mr. Almanza weighed 210 pounds at the time. He took at least one step before the aluminum pieces of the overhang or roof collapsed without warning. Mr. Almanza fell and landed in front of his neighbor's sliding glass door. Mr. Almanza was knocked unconscious and suffered severe injuries.

In his first two issues, Mr. Almanza contends that Mrs. Navar failed to state with sufficient specificity as to give him fair notice that premises liability was one of the grounds upon which summary judgment was sought. Further, he asserts that she failed to properly identify any essential element of his premises liability cause of action which she claims to have...