Brooks v. National Convenience Stores, Inc.

• Decision Date: 05 April 1995
• Docket Number: No. 04-94-00065-CV,04-94-00065-CV
• Citation: 897 S.W.2d 898
• Court: Texas Court of Appeals
• Parties: Robert BROOKS, Appellant v. NATIONAL CONVENIENCE STORES, INC., & Stop N Go Markets of Texas, Inc., Appellees.

Page 898

897 S.W.2d 898

Robert BROOKS, Appellant v. NATIONAL CONVENIENCE STORES, INC., & Stop N Go Markets of Texas, Inc., Appellees.

No. 04-94-00065-CV.

Court of Appeals of Texas San Antonio.

April 5, 1995.

Rehearing Overruled April 20, 1995.

Robert P. Wilson, O'Neill, Balega & Wilson, P.C., San Antonio, for appellant.

Ryan G. Anderson, Ball & Weed, P.C., San Antonio, for appellees.

Before LOPEZ, HARDBERGER and DUNCAN, JJ.

OPINION

LOPEZ, Justice.

Appellant, a convenience store employee, brought suit to recover for his injuries suffered during an armed robbery of the convenience store. A preliminary statement of the facts of this case follows. Appellant was employed by National Convenience Stores, Inc. [NCS] to work in a Stop N Go convenience store. Stop N Go Markets of Texas, Inc. [Stop N Go], a subsidiary corporation of NCS, was the lessee of the store premises, and NCS was the guarantor of Stop N Go's obligations under the lease. Appellant was shot and injured on the job during a robbery of the convenience store. He applied for worker's compensation benefits, and received them. He then brought claims of intentional torts against NCS and negligence against Stop N Go.

NCS and Stop N Go jointly moved for summary judgment: NCS on the grounds that the worker's compensation statute granted it immunity, and Stop N Go on the grounds that it owed appellant no duty of care because it was not appellant's employer. The trial court, without stating the grounds for its ruling, granted the motion for summary judgment in full. Appellant argues, in four points of error, that the trial court erred by granting the summary judgment because Stop N Go, as the named tenant in the lease of the premises, owed a duty to protect appellant from harm, and because a material issue of fact existed as to its performance of that duty. The summary judgment granted as to NCS is not challenged. We sever and reverse the portion of the judgment which disposes of appellant's causes of action against Stop N Go.

I. Summary Judgment

a. Standard of Review

The party moving for summary judgment must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311.

A summary judgment may not be affirmed on any grounds not presented in the motion for summary judgment. Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 693 (Tex.App.--Houston [1st Dist.] 1993, writ denied). When, as in the instant case, the trial court's order does not specify the grounds relied on for the ruling, the summary judgment will be affirmed if any of the grounds advanced are meritorious. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989); Villanueva, 866 S.W.2d at 693.

b. Proper Summary Judgment Evidence

In his argument on appeal, appellant claims that appellees presented no summary judgment evidence other than the affidavit attached to the motion for summary judgment. He contends the affidavit is one of an interested party, and was insufficient to support summary judgment. Appellant's contention that the affidavit was the only evidence set forth by appellees is not borne out by the record. Appellees also filed a reply to appellant's response to its motion for summary judgment over two months in advance of the hearing date, and attached several depositions and exhibits. After the hearing, the trial court granted summary judgment for appellees based on "the pleadings and the evidence submitted in support of and in opposition to said motion and hearing arguments of counsel." Appellant does not state why the evidence proffered by appellees in connection with their reply to appellant's response should not be considered. The evidence, and appellees' reply, raised no additional grounds for summary judgment, but rather reiterated and supported the assertions made in the motion for summary judgment and corresponding affidavit. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (summary judgment must stand or fall on grounds expressly presented in motion). Such evidence was properly considered by the trial court in the absence of a timely objection by appellant. TEX.R.CIV.P. 52; Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex.App.--Houston [14th Dist.] 1989, no writ). We reject appellant's contention that the affidavit constituted the whole of appellees' summary judgment evidence, and hold that the evidence attached to appellees' reply was properly included in the record before the trial court.

II. Analysis

a. Cause of Action

Appellant asserted in his first amended petition that Stop N Go committed eight specific acts of negligence. Each alleged act constituted either a failure to provide appellant a safe place to work or a failure to warn appellant prior to his employment with NCS of the risks associated with working in a convenience store. ¹ In his petition, appellant further stated that Stop N Go's duty to protect him, an NCS employee, arose out of Stop N Go's assumption of obligations under "its leases," participation in the operation of the store, and receipt of profits from the store. By listing specific acts of negligence, appellant limited his cause of action against Stop N Go to one in negligence in maintaining a safe workplace. See Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 254 (Tex.1974).

The essential elements of a negligence cause of action are: (a) the existence of a duty owed by one party to the other; (b) a breach of that duty; and (c) damages proximately caused by that breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). To defeat a claim of negligence by summary judgment, a defendant must disprove at least one of these essential elements as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

b. Motion for Summary Judgment

Appellees moved for summary judgment and asserted in their motion for summary judgment without further explanation or argument:

Plaintiff has never been an employee of Stop N Go. Stop N Go did not own the property nor operate the business where plaintiff was employed and where he sustained his subject injury.

In support of their motion, appellees attached the affidavit of A.J. Gallerano, vice president and secretary of both NCS and Stop N Go. Gallerano stated in his affidavit that appellant was not employed by Stop N Go, and that NCS owned and operated the store where appellant worked. Stop N Go's motion for summary judgment, stated another way, was based on an assertion that it owed appellant no duty of care. The absence of a duty defeats a cause of action for negligence. Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993).

Appellant responded to the motion for summary judgment by setting forth evidence which he asserted presented a material issue of fact as to whether Stop N Go participated in the operation of the store. Appellant argued that Stop N Go was the tenant under the lease to the premises, was involved in certain decisions relating to the operation of the store, and that Stop N Go's negligence with respect to these decisions exposed appellant to the danger which caused his injury. The trial court granted the summary judgment.

c. Duty

After the trial court granted appellees' motion for summary judgment, but before appellant filed his brief in this court, the Texas Supreme Court issued its opinion in Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex.1993). Appellees argue that Exxon delineates Stop N Go's duty under the facts of this case. In Exxon, a service station employee was shot during a robbery in the course of his employment. The employee sued the oil company which owned the premises leased to his employer, who was an individual dealer. Exxon, 867 S.W.2d at 20. Like in the instant case, the plaintiff's cause of action was based on the oil company's negligent failure to maintain a safe workplace. Id. The supreme court noted that relationships between oil companies and individual service station dealers typically are something more than landlord-tenant but do not reach the level of employer-employee, and that the relationships determine the extent of the oil companies' duty towards service station employees. For example, a landlord is not liable to a tenant for injuries caused by an unsafe condition unless the landlord was aware of the latent dangerous condition at the time the premises were let. But when the landlord retains some possession or control over a portion of the premises, it is charged with the duty of ordinary care to the tenant and its employees in maintaining the portion retained. Exxon, 867 S.W.2d at 21. Employers, on the other hand, have a nondelegable duty of ordinary care to provide a safe workplace for their employees. Exxon, 867 S.W.2d at 21. However, the supreme court concluded that, no matter what the relationship was between the oil company and the employee, the true test to determine whether the oil company had a duty to maintain a safe workplace is whether the oil company reserved a right of control or exercised actual control specifically over the safety and security of the workplace:

We think that in a case alleging negligence in maintaining a safe workplace, the court's inquiry must focus on who had specific control over the safety and security of the premises, rather than the more general right of control over operations.... The focus should be on whether Exxon had the right to control the alleged security defects that...