Dewberry Farm, LLC v. Elias
| Decision Date | 01 September 2020 |
| Docket Number | NO. 01-18-01058-CV,01-18-01058-CV |
| Parties | DEWBERRY FARM, LLC AND LARRY EMERSON, Appellants v. KIMBERLY ELIAS, AS NEXT FRIEND OF N.E., A MINOR, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 506th District Court Waller County, Texas
In this restricted appeal, appellants, Dewberry Farm, LLC (the "LLC") and Larry Emerson (collectively, "appellants"), challenge the trial court's default judgment in favor of appellee, Kimberly Elias, as next friend of N.E., a minor, in Elias's suit for negligence. In three issues, appellants contend that Elias's pleadings failed to state a valid premises defect claim under Texas law, there is legally insufficient evidence to support the trial court's damages award, and the trial court erred in awarding pre-judgment interest on future damages.
We affirm in part and reverse and remand in part.
In her first amended petition, Elias alleged that on November 13, 2016, she took her minor daughter, N.E., to Dewberry Farm in Brookshire, Texas. Dewberry Farm is owned by Larry Emerson and operated by the LLC. While at Dewberry Farm, N.E. used a "zip line," but fell to the ground and was injured. According to Elias, N.E. was injured as a result of the "unreasonably dangerous condition believed to be improper and inadequate safety measures for the zip line activity."
Elias, as next friend of N.E., sued appellants for "negligence: premises liability." Elias alleged that she and N.E. were invitees of appellants and that the condition of the zip line was unreasonably dangerous because it was age-inappropriate and did not have a harness or safety net to prevent falls. According to Elias, appellants, as the owner and operator of Dewberry Farm, breached their duty to make the unreasonably dangerous condition safe by failing to provide adequate and proper safety measures for the zip line or to warn of its dangerous condition. Elias also alleged that appellants (1) failed to "adequately train [their] employees to properly manage the [Dewberry Farm] [p]remises to help prevent andcorrect dangerous conditions which developed on the zip lines" and (2) failed to "adequately warn . . . of the ongoing operations on the [Dewberry Farm] [p]remises which gave rise to the danger in this case and failed to conduct those ongoing activities in a safe manner." Elias sought damages for past and future medical care expenses, past and future physical pain and mental anguish, past and future "physical impairment and/or disfigurement," and loss of wages and earning capacity. She also sought pre- and post-judgment interest and court costs.
Appellants were served with Elias's suit, but they did not file an answer.
About eleven months after filing suit and after appellants did not file an answer, Elias moved for a default judgment. The motion was set for submission without a hearing six months later. Appellants did not respond or otherwise participate in the default-judgment proceedings, even though Elias's motion for default judgment and the notice of submission were both served on appellants by certified mail, return receipt requested.
In support of her request for a default judgment, Elias attached to her motion her original and first amended petitions, written discovery requests, proof of service, and her own affidavit detailing the zip line accident and her requested damages. In her affidavit, Elias testified that the zip line at Dewberry Farm was "geared toward children." And N.E. which was to "hang onto the handles of a wheel-like device that slid down the zip line, all while dangling in the air." As N.E. "hung onto the zip line's handles and it swung to the other end, she fell off the zip line and onto the hard ground," fracturing her left tibia. Elias averred that the zip line did not "have a harness for the user," that a child user was "expected to hang onto the zip line with his or her bare hands and sheer strength," and that the ground below the zip line did not "have a safety net or other medium in which to break a minor child's fall and/or prevent serious injuries."
Elias further stated in her affidavit that N.E. had not fully recovered from her injuries. She indicated that, before her fall, N.E. "was a very active, fearless child who enjoyed playing sports," but after her tibia fracture, N.E. was "unable to participate in any sport activities, especially those requiring use of her legs and feet, and ha[d] become very fearful of falling." Elias stated that $3,417.85 in medical expenses had been paid or incurred and that additional medical care expenses were anticipated in the future. No affidavit concerning the reasonableness and necessity of the medical costs was submitted to the trial court. Instead, Elias requested in her own affidavit that the trial court award the following amounts: (1) $50,000 for past and future medical expenses; (2) $200,000 for past and future physical pain and mental anguish; (3) $100,000 for past and future "physical impairment and/or disfigurement"; and (4) $50,000 for past and future loss of earning capacity.
The trial court granted Elias's motion for default judgment against appellants and awarded Elias $400,000 in damages—the amount requested by Elias, plus pre- and post-judgment interest and costs. The judgment indicates, without further explanation, that $3,417.86—which is the amount of past medical expenses claimed in Elias's affidavit—is for "special damages" and $396,582.14 is for "general damages." Appellants did not file any post-judgment motions.
A restricted appeal is a direct attack on a default judgment. TEX. R. APP. P. 30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A restricted appeal must be (1) filed within six months after the trial court signs a judgment, (2) by a party to the suit, (3) who, either in person or through counsel, did not participate at trial or timely file any post-judgment motions, and (4) the complained-of error must be apparent from the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Invesco Inv. Servs., Inc. v. Fid. Deposit & Discount Bank, 355 S.W.3d 257, 259 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Only the fourth element, whether error is apparent from the face of the record, is disputed here.
"The face of the record consists of all the papers on file in the appeal, including any reporter's record." Invesco, 355 S.W.3d at 259. When reviewing a restricted appeal, we may evaluate the face of the record for the legal sufficiency ofthe evidence, including the evidence of unliquidated damages. Id. In conducting a legal-sufficiency review, we credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain a legal sufficiency or "no-evidence" challenge if the record shows: (1) a complete absence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810. We consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. Id. at 822.
In their first issue, appellants argue that the default judgment must be set aside because Elias pleaded only a premises defect claim, not a negligent activity claim, and as a matter of law, appellants had no duty to warn against the open and obvious hazards of a zip line.
To support of their argument, appellants direct the Court to case law instructing that a defendant's default by failing to answer cannot create liability when no liability exists as a matter of law on the facts alleged by the plaintiff. See, e.g., Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988)(default judgment is erroneous if "petition affirmatively discloses the invalidity of such claim"); see also Doubletree Hotels Corp. v. Person, 122 S.W.3d 917, 919 (Tex. App.—Corpus Christi-Edinburg 2003, no pet.) ( "where a defendant fails to file an answer and no liability exists against him as a matter of law on the facts alleged by the plaintiff, then the fact that he has defaulted by failing to file an answer cannot create liability"). Assuming appellants are correct that the only cause of action Elias pleaded was one for premises defect, we disagree that the face of the record affirmatively demonstrates the open and obvious nature of the alleged premises defect to allow for a no-duty determination as a matter of law.
A landowner's duty to an invitee, like N.E.,1 is to exercise reasonable care to make the premises safe. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015); see Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010) (); Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (). A landowner can satisfy this duty by eliminating an unreasonably dangerous condition or mitigating the condition so that it is no longer unreasonably dangerous. Austin, 465 S.W.3d at 202. A landowner can also satisfy the duty, in most cases, by providing an adequate warning of the danger. Id.
When an invitee is aware of a dangerous premises condition because the hazard is obvious, the condition will, in most cases, no longer pose an unreasonable risk in that the law presumes an invitee will take reasonable measures to protect against known risks. Id. at 203; Advance Tire & Wheels, LLC v. E...
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