Blancett v. Lagniappe Ventures, Inc.

• Decision Date: 18 August 2005
• Docket Number: No. 01-04-00258-CV.,01-04-00258-CV.
• Citation: 177 S.W.3d 584
• Parties: Sarah BLANCETT, Appellant, v. LAGNIAPPE VENTURES, INC., Appellee.
• Court: Texas Supreme Court

177 S.W.3d 584

Sarah BLANCETT, Appellant, v. LAGNIAPPE VENTURES, INC., Appellee.

No. 01-04-00258-CV.

Court of Appeals of Texas, Houston (1st Dist.).

August 18, 2005.

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D. John Leger, Leger & Burke, P.C., Houston, TX, for Appellant.

Timothy R. Hightower, Susan C. Stevenson, Hays, McConn, Price & Pickering, P.C., Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.

OPINION

TERRY JENNINGS, Justice.

Appellant, Sarah Blancett, challenges a summary judgment granted in favor of appellee, Lagniappe Ventures, Inc. ("Lagniappe"), in her premises liability suit. Blancett presents three issues for our review. She contends that an affidavit in support of Lagniappe's summary judgment motion "fails as summary judgment evidence because it was made by an interested party and cannot be readily rebutted." Blancett also contends that the trial court erred in granting summary judgment in favor of Lagniappe on the issue of duty, as Lagniappe's summary judgment motion did not address her claim for injuries caused by Lagniappe's alleged negligent repairs.

We reverse and remand.

Factual and Procedural Background

In Blancett's original petition, filed on April 7, 2003, Blancett alleged that, on December 24, 2001, her leg was injured "when she fell on property owned by [Lagniappe] because of its negligence in creating and maintaining an unsafe condition on the stairway of the premises located at 4748 Merwin, Houston, Texas, Harris County."¹ She further alleged that Lagniappe "is sued under and pursuant to common law and the Texas Premises Liability statutes in one or more of the following particulars" by:(1) "maintaining a dangerous condition in the stairway"; (2) "failing to remove the dangerous condition"; and (3) "failing to warn of the dangerous condition; among other acts and omissions." In its answer, Lagniappe asserted a general denial.

On September 12, 2003, Lagniappe filed its summary judgment motion, arguing that it was entitled to judgment as a matter of law because Lagniappe owed no duty to Blancett as (1) the "premises in question was leased to Anthony Cheng and Aimee Adams" and, thus, Lagniappe "did not control the premises"; (2) "[Blancett] was an invitee" and Lagniappe "had no actual or constructive knowledge of the alleged premises defect"; and, (3) "[a]s a matter of law, Lagniappe did not owe a duty to warn or to make the condition safe without Blancett first establishing that it had actual or constructive knowledge." Within its third ground, Lagniappe also asserted that "Blancett cannot not recover under a premises liability theory" because "it had no knowledge nor should have known of any hidden danger inside the unit where the accident occurred" and that "improperly lit stairways are not hidden defects as a matter of law." In support of its summary judgment motion, Lagniappe attached excerpts of Blancett's deposition testimony, Blancett's original petition, and the affidavit of Jon Deal, Lagniappe's apartment manager.

Thereafter, on December 17, 2003, Blancett filed a "supplemental original petition," in which she further alleged that Lagniappe "[f]ail[ed] to repair or negligently repair[ed] the dangerous condition, among other acts and omissions." On January 2, 2004, Blancett filed a response to Lagniappe's summary judgment motion,² in which she expressly contended that Lagniappe negligently repaired the handrail in the stairwell. In support of her response, Blancett attached (1) the affidavit of Aimee Adams; (2) the affidavit of Norman Cooper, an engineer who examined the interior stairwell, and a corresponding report; and (3) a portion of Blancett's deposition testimony. She also objected to the affidavit of Jon Deal because, among other things, she alleged that he was an interested witness whose testimony could not be readily controverted. There is no evidence in the record that Blancett obtained a ruling from the trial court concerning her objections.

On January 7, 2004, Lagniappe filed a reply to Blancett's response, in which it asserted, among other things, that (1) "Blancett has not presented any evidence indicating a covenant to repair the premises"; (2) "Blancett has no evidence that the lack of a handrail on the bottom steps was concealed from her as a matter of law"; and (3) "Blancett has no evidence that a defect existed on the premises that remained under. . . Lagniappe's control." In regard to Blancett's negligent-repair claim, Lagniappe asserted:

Blancett has not attached any evidence indicating that the tenants requested their landlord to add a handrail to the bottom stairs much less covenant to add an additional handrail at the bottom of the stairs. Even if there was such a request, any promise to repair "was merely gratuitous, not made at the time of the lease, and was no part of the original contract. It was without consideration, and could not be enforced." (Citation omitted). Therefore, Lagniappe, as a matter of law, did not covenant to erect or add a banister at the bottom of the stairway in question; thus, it owed no duty to Blancett, its tenant's guest.

The trial court, on January 12, 2004, signed an order granting Lagniappe's motion for summary judgment without specifying the grounds upon which it relied. Blancett then filed a motion for new trial, which was denied.

Objections to Summary Judgment Evidence

Initially, we note that, in her third point of error, Blancett argues that the "[a]ffidavit of [Lagniappe's] [m]anager, [Jon] Deal, supporting its Motion [f]or Summary Judgment fails as summary judgment evidence because it was made by an interested party and cannot be readily rebutted." She also argues that Deal's "[a]ffidavit cannot support the summary judgment" because "the safety defects in Apartment No. 1 are violations of the Building Code of [t]he City of Houston." Blancett asserts that these codes "have the force of law" and that "Deal, as a representative of the lessor, [was] charged with knowledge of the requirements of the Building Code of [t]he City of Houston regarding stairrails and the construction of stairs and thus he ha[d] knowledge of the defects in the stairs and handrails by presumption of law."

To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. See TEX.R. CIV. P. 166a(f); see United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). A summary judgment may be based on the uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, "and could have been readily controverted." TEX.R. CIV. P. 166a(c). An objection to an affidavit on the grounds that it cannot be readily controverted must be made before the summary judgment is granted or the objection is waived. See Patterson v. Mobiloil Fed. Credit Union, 890 S.W.2d 551, 554 (Tex.App.-Beaumont 1994, no writ). Moreover, a written ruling on such an objection must be obtained from the trial court to preserve error. Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see Harris v. Spires Council of Co-owners, 981 S.W.2d 892, 897 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

Here, the record shows that Blancett, in her response to Lagniappe's motion, did, in fact, raise her objection that Deal was an interested witness and that his testimony could not be readily controverted. However, the record does not show that Blancett received any ruling on her objection. Furthermore, the record shows that Blancett did not clearly assert a specific objection regarding Deal's knowledge of the building codes in relation to Deal's affidavit to the trial court. Accordingly, we hold that Blancett has waived her complaints regarding Deal's affidavit testimony. TEX.R.APP. P. 33.1(a).

We overrule Blancett's third issue.

Standard of Review

Because the propriety of a summary judgment is a question of law, we review the trial court's summary judgment decision de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. TEX.R. CIV. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant is taken as true, and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Lawson v. B Four Corp., 888 S.W.2d 31, 33-34 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We may affirm a summary judgment only when the record shows that a movant has disproved at least one element of each of the plaintiff's claims or has established all of the elements of an affirmative defense as to each claim. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Farah, 927 S.W.2d at 670. If the movant establishes a right to summary judgment, the burden shifts to the non-movant to present evidence raising a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

We note, moreover, that a summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-41 (Tex.1993). When a summary judgment does not specify the grounds on which the trial court granted it, the reviewing court will affirm the judgment if any theory included in the motion is meritorious. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Summers v. Fort Crockett Hotel, Ltd., 902...