Lampasas v. Spring Center, Inc.

• Decision Date: 25 March 1999
• Docket Number: No. 14-98-00336-CV,14-98-00336-CV
• Parties: Ciro A. LAMPASAS, Individually and d/b/a Ciro's Cibi Italiani Restaurant, Appellant, v. SPRING CENTER, INC., G.J. Braun Corporation d/b/a Braun Enterprises, and Craig McAlexander, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 428

988 S.W.2d 428

Ciro A. LAMPASAS, Individually and d/b/a Ciro's Cibi

Italiani Restaurant, Appellant, v. SPRING CENTER, INC., G.J. Braun Corporation d/b/a Braun

Enterprises, and Craig McAlexander, Appellees.

No. 14-98-00336-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 25, 1999.

Richard Lee Fuqua, Houston, for appellant.

Troy Allen Williams, Darrell K. McAlexander, Leslie M. Henry, Houston, for appellee.

Panel consists of Justices AMIDEI, EDELMAN and WITTIG.

CORRECTED OPINION

DON WITTIG, Justice.

We withdraw the opinion issued February 4, 1999, and substitute the following in its place.

This is a negligence case in which Ciro Lampasas, Individually and d/b/a/ Ciro's Cibi Italiani Restaurant (Lampasas) sued Spring Center, Inc., G.J. Braun Corporation d/b/a/ Braun Enterprises (Braun), and Craig McAlexander for the damages his personal property incurred in a warehouse fire. The trial court granted summary judgment in favor of Spring, Braun, and McAlexander. Lampasas perfected this appeal. We affirm.

Background

Spring Center owned and Braun, its agent, operated a warehouse facility. Spring Center leased its warehouse facility to Bet-Del Foods, Craig McAlexander, and various other tenants. Bet-Del Foods allowed Lampasas to store his restaurant supplies in its leased facility. Early one morning, a fire completely destroyed the multi-unit warehouse including Lampasas's supplies.

After the fire was extinguished, numerous entities retained experts to determine the cause and origin of the fire. The different investigators included the Harris County Fire Marshal, ADTEST Engineering, Premier Claims Investigations, and Armstrong Forensic Laboratory. These investigations were conducted immediately after the fire and included inspections of the premises, witness interviews, and chemical tests. Despite the extensive and numerous investigations, all the investigations resulted in the same conclusion: the cause of the fire was unidentified or undetermined. The investigations, however, did reveal Unit G, McAlexander's unit, as the unit where the fire most likely started.

Initially, Spring Center filed a summary judgment with supporting evidence that it owed Lampasas no duty. After adequate time for discovery, a no evidence motion for summary judgment under Texas Rules of Civil Procedure 166a(i) was filed on behalf of Spring Center, Braun, and McAlexander. Three days before the hearing on the no evidence summary judgment, Lampasas filed his second amended petition asserting additional theories of negligence. The no evidence hearing was reset allowing an additional twenty-one days to pass. The trial court granted summary judgment for all three defendants. In two points of error, Lampasas asserts that the trial court erred in granting: (1) the no evidence summary judgment because the summary judgment evidence raised a genuine issue of material fact on the challenged elements; and (2) a final rather than a partial summary judgment because the motions for summary judgment did not address all causes of action.

Standard of Review

The standard we follow when reviewing a summary judgment under TEX.R. CIV. P. 166a(c) is well-rehearsed. Summary judgment is proper only when the movant establishes there are no genuine issues of material fact and proves he is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). To be entitled to summary judgment, a defendant must either (1) conclusively negate at least one essential element of each of the plaintiff's causes of action, or (2) conclusively establish each element of an affirmative defense to each claim. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In deciding whether there exists a disputed fact issue precluding summary judgment, we treat evidence favorable to the nonmovant as true and indulge all reasonable inferences in the nonmovant's favor. Id. A summary judgment may be affirmed on any of the movant's theories that have merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996).

The standard of review for a "no evidence" motion for summary judgment under TEX. R. CIV P. 166a(i) is less settled than standard motions for summary judgment. The new no evidence summary judgment shifts the burden of proof to the nonmovant to present enough evidence to be entitled to a trial. Id. If the nonmovant is unable to provide enough evidence, then trial court must grant the motion. Id. Because Rule 166a(i) is Texas's adoption of the federal rule for summary judgment motions, we look to federal case law dealing with the appropriate standard of review. Id. at cmt.

The United States Supreme Court in Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), discussed the federal standard for reviewing summary judgment holdings. Id. at 250, 106 S.Ct. 2505. There, the Court concluded that the summary judgment standard mirrored the standard used when reviewing directed verdicts. Id. Therefore, we must review the evidence in the light most favorable to the respondent against whom the no evidence summary judgment was rendered, disregarding all contrary evidence and inferences. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). "A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Id. Stated another way, a no-evidence summary judgment is improperly granted if the respondent counters with more than a scintilla of probative evidence to raise a genuine issue of material fact. See TEX.R. CIV. P. 166a(i); see Havner, 953 S.W.2d at 711; Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex.App.--Houston [14 th Dist.] 1998, no pet. h.); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.--Austin 1998, no pet. h.); Taylor-Made Hose, Inc. v. Wilkerson, No. 04-97-01025-CV, 1999 WL 90021, at * 2, --- S.W.2d ---- (Tex.App.--San Antonio Aug.31, 1998, no pet. h.). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise of suspicion" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711.

Rule 166a(i) states "[t]he court must grant the motion [for summary judgment] unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Under the federal counterpart, a fact is "material" only if it affects the outcome of the suit under the governing law. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Such a determination can only be made by reliance on the substantive law, and only those facts identified by the substantive law can be considered material. Id. A material fact is "genuine" if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving party. Id. By the same token, if the evidence is not significantly probative, the fact issue is not genuine. Id.

Analysis

Summary Judgment

In his first point of error, Lampasas asserts the trial court erred in granting the no evidence summary judgment. Specifically, he contends that his summary judgment evidence raised a material genuine issue of fact on the challenged elements: duty, breach, and causation.

A cause of action for negligence consists of three essential elements: (1) a legal duty owed by one party to another; (2) a breach of that duty; and (3) damages proximately caused by that breach. ¹ Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Duty is the threshold inquiry in a negligence case. Id. The existence of a duty is a question of law for the court to decide based on the specific facts of the case. Mitchell v. Missouri-Kansas-Texas R.R., 786 S.W.2d 659, 662 (Tex.1990). In a premises liability case, the duty owed depends on the relationship between the parties. Compare Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3-4 (Tex.1996) (owner/invitee); with Johnson Co. Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996) (lessor/lessee).

For Lampasas to withstand Spring Center's and Braun's no evidence summary judgment, he must establish that some duty was owed. He asserts that he was a guest of Bet-Del Foods, and thus, Spring Center and Braun ² owed him a duty of reasonable care. In addition, Lampasas asserts that McAlexander, another tenant, also owed him a duty of reasonable care. We will examine the summary judgment evidence to determine the relationships between the parties and the duties owed.

The contract between Bet-Del Foods and Spring Center specifically provides in section 11.1 that "Lessee shall not have the right to sub-let said premises or to assign its interest in this Lease without the written consent of Lessor." In addition, the Texas Property Code provides that "[d]uring the term of a lease, the tenant may not rent the leasehold to any other person without the prior consent of the landlord." TEX. PROP.CODE ANN. § 91.005 (Vernon 1995). A subtenant without consent of the landlord is merely a trespasser. See Digby v. Hatley, 574 S.W.2d 186, 189 (Tex.Civ.App.--San Antonio 1978 no writ); Young v. De La Garza, 368 S.W.2d 667, 671 (Tex.Civ.App.--Dallas 1963, no writ).

Lampasas admits in his affidavit that he did not enter into a lease agreement with Spring Center, that he only had Bet-Del Foods's permission and consent to use its facility, and that he paid valuable consideration to Bet-Del Foods for its storage facility. Lampasas brought forward no evidence that he obtained Spring...