La China v. Woodlands Operating Co.

• Decision Date: 08 August 2013
• Docket Number: No. 14–12–00066–CV.,14–12–00066–CV.
• Citation: 417 S.W.3d 516
• Court: Texas Court of Appeals
• Parties: Ignazio LA CHINA, Appellant v. The WOODLANDS OPERATING COMPANY, L.P. d/b/a The Woodlands Resort & Conference Center, MS TWC, Inc., WECCR, Inc. d/b/a The Woodlands Resort & Conference Center, The Woodlands Commercial Properties Company, L.P., WECCR General Partnership, MS Hospitality, LP, and MND Hospitality, Inc., Appellees.

417 S.W.3d 516

Ignazio LA CHINA, Appellant

v.The WOODLANDS OPERATING COMPANY, L.P. d/b/a The Woodlands Resort & Conference Center, MS TWC, Inc., WECCR, Inc. d/b/a The Woodlands Resort & Conference Center, The Woodlands Commercial Properties Company, L.P., WECCR General Partnership, MS Hospitality, LP, and MND Hospitality, Inc., Appellees.

No. 14–12–00066–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Aug. 8, 2013.

Rabeea Sultan, Houston, for Appellant.

James Howard Stilwell, The Woodlands, for Appellees.

Panel consists of Justices FROST, CHRISTOPHER, and JAMISON.

MAJORITY OPINION

MARTHA HILL JAMISON, Justice.

In this case, we consider whether the trial court properly granted summary judgment in favor of the defendants in a negligence suit brought by a waterpark patron who allegedly suffered injuries resulting from a collision on a waterslide. Concluding that the trial court properly granted summary judgment in favor of some of the defendants, but the claims against newly-added parties were not the subject of a summary-judgment motion, we affirm in part and reverse and remand in part.¹

Background

Appellant Ignazio La China spent a weekend in June 2009 at The Woodlands Resort and Conference Center. While patronizing the facility's waterpark, he allegedly collided with another patron on a waterslide and sustained injuries to his nose and back. Exactly two years later, La China filed suit against The Woodlands Operating Company, L.P., d/b/a The Woodlands Resort & Conference Center; MS TWC, Inc.; and WECCR, Inc. d/b/a The Woodlands Resort & Conference Center (collectively, the “Original Defendants”), asserting claims for negligence and gross negligence. La China alleged the Original Defendants did not have an employee at the top of the waterslide to regulate traffic and failed to reasonably and prudently protect the safety of waterpark patrons.

In answering the suit, the Original Defendants claimed a defect in parties as none is an owner, lessor, lessee or manager of the waterpark. The Original Defendants also asserted a general denial and several affirmative defenses. After the parties engaged in discovery but still early in the case, the Original Defendants filed a traditional motion for summary judgment, asserting that La China filed suit against the wrong entities and that the Original Defendants owed him no legal duty.² The Original Defendants attached as summary-judgment evidence an affidavit of A. Karen West, Vice President and General Counsel for The Woodlands Operating Company, L.P., stating that The Woodlands Operating Company, L.P. and WECCR, Inc. do not do business as “The Woodlands Resort & Conference Center”; and the Original Defendants are not the owners, lessors, lessees, or managers of, or the employers of people working at the waterpark. In their summary-judgment motion, the Original Defendants identified other entities as “the owner of,” “the lessee of,” “the Manager of,” and “the employer at” that location.

Before the trial court ruled on the summary-judgment motion, La China filed a motion for continuance, stating that he needed more time to secure discovery. ³ La China also amended his pleadings to add as additional defendants the other entities identified in the West affidavit: The Woodlands Commercial Properties Company, L.P.; WECCR General Partnership; MS Hospitality, LP; and MND Hospitality, Inc. (hereinafter collectively, the “New Defendants”). La China filed objections to West's affidavit, asserting that it was not proper summary-judgment evidence because it contained conclusory statements and hearsay and West did not establish her personal knowledge as to WECCR, Inc., MS TWC, Inc. and the New Defendants. Though La China also moved to strike the West affidavit, the record does not reflect that the trial court ruled on either the motion to strike or La China's objections to the summary judgment evidence. La China also filed a response to the summary-judgment motion and attached three supporting exhibits. The trial court granted summary judgment, expressly stating in the judgment that it was final and appealable and finally disposed of all claims and all parties.

Discussion

La China asserts that the trial court erred in granting summary judgment in favor of the Original Defendants because (1) the affidavit supporting the motion for summary judgment was insufficient; (2) La China's evidence created a genuine issue of material fact that the Original Defendants are properly named parties who owed La China a legal duty; and (3) the trial court abused its discretion in denying La China's motion for a continuance of the summary judgment hearing. La China further complains that the summary judgment disposed of the claims against the New Defendants without any summary-judgment motion seeking dismissal of these claims.

In a traditional motion for summary judgment, the movant has the burden of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). Likewise, with a traditional summary-judgment motion, the nonmovant has no burden to respond unless the movant conclusively establishes a claim or defense. See id. If the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. See id. A fact is material if it affects the ultimate outcome of the lawsuit under the governing law. Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex.App.-Dallas 2013, no. pet. h.); see also Pierce v. Washington Mut. Bank, 226 S.W.3d 711, 714 (Tex.App.-Tyler 2007, pet. denied). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

I. The Affidavit Supporting the Summary Judgment Motion is Sufficient.

In his first issue, La China argues the evidence in support of the motion for summary judgment is incompetent because the single affidavit supporting the motion is conclusory and based on hearsay and the affiant, Karen West, did not establish her personal knowledge with regard to WECCR, Inc., MS TWC, Inc., and the New Defendants. West's statements in her affidavit are not conclusory. A “conclusory” statement is defined as “[e]xpressing a factual inference without stating the underlying facts on which the inference is based.” ⁴See Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008) (citing Black's Law Dictionary 308 (8th ed. 2004)); see also LeBlanc v. Lamar State Coll., 232 S.W.3d 294, 301 (Tex.App.-Beaumont 2007, no pet.) (“Statements are conclusory if they fail to provide underlying facts to support their conclusions.”). Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (per curiam). West attested that the Original Defendants are not owners, lessors, lessees, or managers of the waterpark or employers of anyone working there. We find these statements are not conclusory: they furnish some factual information that could have been rebutted and, therefore, contain enough underlying facts to support a summary judgment award. See Rivera v. White, 234 S.W.3d 802, 808 (Tex.App.-Texarkana 2007, no pet.).

The dissent argues that the affidavit is conclusory because it recites a legal standard. The statement that the Original Defendants are not “the owners, lessors, lessees, or managers [of the waterpark or] the employer of persons working there” recites facts, not legal conclusions, because, if incorrect, these facts could be readily controverted.⁵ The dissent cites Geiselman v. Cramer Financial Group, Inc. for the proposition that “conclusions of ownership or lack of ownership must be supported by underlying facts.” 965 S.W.2d 532, 537 (Tex.App.-Houston [14th Dist.] 1997, no writ). In that case, Cramer Financial Group sued Geiselman and others to collect on unsecured promissory notes payable to a failed bank. Id. at 534. Cramer was required to prove ownership of the notes by showing, among other things, possession of the original notes or “what ... happened to the original notes.” Id. at 539. Cramer claimed, but did not present competent evidence that, the notes had been “lost, stolen or inadvertently destroyed.” Id. at 536–37. We held the statement that Cramer was the owner of the notes, without proof of possession or what happened to the notes, was a legal conclusion. Id. at 537. The case does not stand for the broader proposition posited by the dissent that a statement of ownership (or lack of ownership), standing alone, cannot be a fact. See, e.g., Nguyen v. Citibank N.A., 403 S.W.3d 927, 931–32 (Tex.App.-Houston [14th Dist.] 2013, no. pet. h.) (holding affiant's assertion of ownership of credit card account on behalf of bank was sufficient to establish such ownership and not conclusory); Cannon v. Tex. Indep. Bank, 1 S.W.3d 218, 225 (Tex.App.-Texarkana 1999, pet. denied) (finding affiant's statements “concerning execution and delivery of ... note ... and concerning [ban...