General Mills Restaurants v. Texas Wings, No. 05-99-00354-CV

• Court: Court of Appeals of Texas
• Citation: 12 S.W.3d 827
• Docket Number: No. 05-99-00354-CV
• Parties: (Tex.App.-Dallas 2000) GENERAL MILLS RESTAURANTS, INC. N/K/A GMRI, INC., Appellant V. TEXAS WINGS, INC. D/B/A HOOTERS, TWI XII, INC., AND PLANO WING'S, LTD., Appellees
• Decision Date: 04 February 2000

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12 S.W.3d 827 (Tex.App.-Dallas 2000) GENERAL MILLS RESTAURANTS, INC. N/K/A GMRI, INC., Appellant
V.
TEXAS WINGS, INC. D/B/A HOOTERS, TWI XII, INC.,
AND PLANO WING'S, LTD., Appellees No. 05-99-00354-CV Court of Appeals of Texas,
Dallas. Feb. 4, 2000.

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-378-97

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Before Justices Kinkeade, Ovard, and Whittington

O P I N I O N

Opinion By Justice Whittington

General Mills Restaurants, Inc. n/k/a GMRI, Inc. ("GMRI") appeals a summary judgment in favor of Texas Wings, Inc. d/b/a Hooters, TWI XII, Inc., and Plano Wing's, Ltd. ("Hooters"). On appeal, GMRI contends the trial judge erred in granting Hooters's motion for summary judgment because (i) the summary judgment evidence establishes genuine issues of material fact with respect to GMRI's trespass and nuisance claims; (ii) Hooters failed to establish as a matter of law that it was entitled to prevail on an affirmative defense; and (iii) the trial judge granted summary judgment on claims not addressed in the motion for summary judgment. We agree that Hooters did not establish it was entitled to summary judgment. Accordingly, we reverse the trial court's summary judgment and remand this cause for further proceedings.

B A C K G R O U N D

GMRI owns and operates The Olive Garden restaurant at the intersection of U.S. 75 and Plano Parkway in Plano. It leases the land, including the surrounding parking lot, from James Stalker. Stalker also owns the land adjacent and to the north of The Olive Garden land, which he leased for the construction of a Rootys restaurant. Rootys subsequently closed and, in 1995, renovations began to convert the building into a Hooters restaurant. One of the changes made to the building was to move the entrance from the north side to the southwest side of the building, nearer The Olive Garden's entrance.

During the renovation period, The Olive Garden's manager, Renee Palmer, spoke with Hooters's representatives, expressing her concern that Hooters's customers might use The Olive Garden's parking on the north side of The Olive Garden building. When Hooters's representatives stated they believed the parking between the two buildings was common parking, Palmer told them the parking belonged to The Olive Garden.

Hooters opened for business in late 1995 and, since that time, Hooters's customers have continually parked in the parking spaces to the north of The Olive Garden restaurant. Although Palmer complained to Stalker and attempted to meet with the manager of Hooters, the parking situation did not change. In October 1996, Palmer informed Stalker that if he did not correct the situation, she would take steps to correct it and would look to Stalker for payment of the cost of the remedy. Palmer then hired a valet service to assist with parking. She later posted two signs in the north parking area indicating the parking spaces were for The Olive Garden's patrons. The original signs were removed

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without Palmer's consent and later replacement signs were destroyed. After the valet service was terminated, Palmer hired a security service to walk the parking lot and inform people that the spaces at issue were for The Olive Garden's customers. GMRI gave Stalker the invoices for the security charges. When Stalker did not pay, GMRI deducted the payments from its rent.

On March 5, 1997, Stalker sued GMRI for breach of contract, alleging that GMRI owed unpaid rents under the lease. In response, GMRI filed a general denial, a counterclaim for breach of contract (breach of covenant of quiet enjoyment), and a third-party petition against Hooters for trespass. On May 11, 1998, GMRI filed its third amended answer, counterclaim, and third-party petition. In this pleading, GMRI alleged additional causes of action against Hooters, including nuisance, negligence, trespass, and violations of sections 36.11 and 36.25 of the Texas Business and Commerce Code. In addition, GMRI sought a declaratory judgment that Hooters was a nuisance by virtue of the continuing trespass of its employees and patrons and an injunction to prevent Hooters's employees and patrons from trespassing on GMRI's parking lot.¹

On August 31, 1998, Hooters filed a motion for summary judgment against GMRI alleging the following grounds:

(i) Hooters is "entitled to judgment as a matter of law because the uncontradicted summary evidence establishes as a matter of law there is no genuine issue of material fact as to at least one element of the causes of action asserted" by GMRI against Hooters because

(a) "there is no evidence that [GMRI] was damaged as the result of any act or omission (intentional, negligent or otherwise) of any agent, employee, officer, director or representative of [Hooters];"

(b) GMRI "should be precluded from offering any alleged evidence that [GMRI] was damaged as the result of any act or omission (intentional, negligent or otherwise) of any agent, employee, officer, director or representative of [Hooters];" and

(c) "any alleged use of parking spaces by patrons of [Hooters] did not in any way obstruct access of [GMRI's] patrons to [GMRI's] restaurant and, as such, were [sic] so brief as to be merely incidental and for which [Hooters] should not be in any way held liable."

(ii) "there is no genuine issue of material fact that [Hooters's] efforts to prevent its patrons from allegedly using [T]he Olive Garden parking spaces were at all times reasonable under the facts and circumstances."

(iii) there is "no evidence that any agent, employee, officer, director, or representative of [Hooters] committed any act of trespass in that at all times [T]he Olive Garden was a public place, open to business to the general public or that [Hooters] in any way encouraged such acts."

(iv) GMRI "consented to the use of its parking spaces by all members of the public."

In support of its motion, Hooters attached excerpts from Palmer's deposition testimony. GMRI filed a response to the motion, attaching additional portions of Palmer's deposition testimony along with excerpts

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from the depositions of Stalker and Dennis O'Hayre, Hooters's general manager. On February 15, 1999, after considering the motion and response, the trial judge granted summary judgment in favor of Hooters. Four days later, the trial judge signed an order, dismissing GMRI's and Stalker's claims against each other. This appeal followed.

Standard of Review for Summary Judgment

Rule 166a(c)

The standards for reviewing summary judgment under rule 166a(c) are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App.-Dallas 1998, no pet.). To prevail on summary judgment, a defendant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. International Union United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). 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 v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex. App.-Dallas 1994, writ denied). Where, as here, the summary judgment does not state the grounds upon which it was granted, the nonmovant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See Thomson v. Norton, 604 S.W.2d 473, 476 (Tex. Civ. App.-Dallas 1980, no writ); Orozco, 975 S.W.2d at 394. If a movant does not show its entitlement to judgment as a matter of law, we must remand the case to the trial court for further proceedings. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Texas Stadium Corp. v. Savings of Am., 933 S.W.2d 616, 618 (Tex. App.-Dallas 1996, writ denied).

Rule 166a(i)

Rule 166a(i) provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i). When a motion is presented under rule 166a(i) asserting there is no evidence of one or more essential elements of the nonmovant's claims upon which the nonmovant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather, the burden shifts to the nonmovant to present enough evidence to be entitled to a trial, i.e., evidence that raises a genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a cmt. If the nonmovant is unable to provide enough evidence, the trial judge must grant the...