M.O. Dental Lab v. Rape, No. 03-0146.

• Court: Supreme Court of Texas
• Writing for the Court: Per Curiam
• Citation: 139 S.W.3d 671
• Parties: M.O. DENTAL LAB, Gerald W. Carter, Michael K. Zuber and Lora Zuber, Petitioners, v. Brenda Gail RAPE, Respondent.
• Decision Date: 02 July 2004
• Docket Number: No. 03-0146.

139 S.W.3d 671 M.O. DENTAL LAB, Gerald W. Carter, Michael K. Zuber and Lora Zuber, Petitioners,
v.
Brenda Gail RAPE, Respondent. No. 03-0146. Supreme Court of Texas. July 2, 2004.

Appeal from the 355th District Court, Hood County, William H. Brigham, J.

[139 S.W.3d 672]

Julia F. Pendery, Shawn Malcolm McCaskill, Godwin Gruber, LLP, William Barry Shelton, G. Patrick Collins & Associates, Dallas, for petitioners.

J. Patrick Gallagher, Dale Jensen, Gallagher Law Office, Fort Worth, for respondent.

PER CURIAM.

The issue in this premises liability case is whether ordinary mud or dirt that accumulated naturally on a concrete slab outside a business posed an unreasonable risk of harm. Because we hold that, as a matter of law, it did not, we reverse the court of appeals' judgment in part and remand this case to the trial court.

Brenda Gail Rape filed a premises liability action against M.O. Dental Lab, Charlie Smith, Gerald W. Carter, Michael K. Zuber, and Lora Zuber after she slipped and fell on the pavement outside the M.O. Dental Lab. Rape alleged that she parked her car along the side of the business, and as she was walking from her car toward the entrance of the building, she slipped and fell on a "slippery mud substance." She claimed the substance had accumulated on the parking lot sidewalk.

Defendant Lora Zuber stated in her deposition testimony that it had rained sometime

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before Rape's arrival. Zuber acknowledged that, as a result of the rain, mud had accumulated on the concrete slab where Rape fell. Zuber explained that no efforts were made to clear off the mud, as it would eventually be washed or blown away by the weather. Zuber claimed no one else had ever informed her or anyone in the office about mud on the concrete slab causing someone to slip. When asked, though, whether the mud was slippery to walk on, Zuber replied, "I'm sure it is."

The defendants, with the exception of Smith, who was never served with citation, moved for summary judgment on the ground that the slippery mud substance Rape complained about was not a condition posing an unreasonable risk of harm. The trial court granted summary judgment on two grounds: (1) no dangerous condition existed on the property as a matter of law; and (2) the defendants committed no acts of negligence in relation to this accident. Rape filed a motion for new trial arguing that the evidence created a fact issue on both grounds. The trial court denied the motion, and Rape appealed.

Although the defendants did not affirmatively contend in the court of appeals that the judgment was interlocutory and therefore unappealable, they did observe in their briefing that the judgment did not expressly dispose of Rape's claim against Smith. They asked the court of appeals to determine whether it had appellate jurisdiction before proceeding to the merits of the appeal. The court of appeals, after concluding that the trial court's judgment was final even though it did not specifically include Smith,¹ reversed the order granting summary judgment.² As to whether a "dangerous condition" existed on the property, the court of appeals held that a fact issue existed with respect to whether the mud that Rape slipped on was a condition posing an unreasonable risk of harm.³ In so holding, the court distinguished Johnson County Sheriff's Posse, Inc. v. Endsley⁴ and Brownsville Navigation District v. Izaguirre,⁵ in which this Court held that ordinary mud or dirt remaining "in its natural state and environment" does not pose an unreasonable risk of harm as a matter of law, on the basis that the mud in this case "accumulated on a man-made surface."⁶ The court of appeals further held that the trial court erred in granting summary judgment on Rape's negligence claim because M.O. Dental Lab had not moved for summary judgment on that ground.⁷ The defendants petitioned this Court for review.

Neither party argues to this Court that the summary judgment was not a final, appealable order. Nevertheless, we are obligated to review sua sponte issues affecting jurisdiction.⁸ In Lehmann v. Har-Con Corp., we clarified the longstanding general rule that "[a] judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record."⁹ The judgment in this case is entitled "Order Granting Summary Judgment," and it recites in its entirety:

On the 22 day of June, 2001, the Court heard the Motion for Summary Judgment

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filed by Defendant [sic], M O Dental Lab, Gerald W. Carter, Michael K. Zuber and Lora Zuber, and the Court, having examined the pleadings and the evidence finds that the following facts exist without substantial controversy:

1. No dangerous condition existed on the property as a matter of law; and

2. The Defendant [sic] committed no acts of negligence in relation to this accident.

It is therefore, ORDERED, ADJUDGED AND DECREED, that JUDGMENT in this cause be entered against Plaintiff and that costs be assessed against the Plaintiff[.]

Signed this the 22 day of June, 2001.

The court of appeals, citing our decision in Youngstown Sheet & Tube Co. v. Penn,¹⁰ held that the trial court's order granting summary judgment was final for purposes of this appeal because Smith was never served and the record contains no pleadings or motions filed by Smith.¹¹ In Penn, the trial court's order granting summary judgment disposed of all parties named in the petition except one. The remaining party was never served with citation and did not file an answer, and nothing in the record indicated that the plaintiff in the case ever expected to obtain service upon the remaining party. We therefore held, "In these circumstances the case stands as if there had been a discontinuance as to [the unserved party], and the judgment is to be regarded as final for the purposes of appeal."¹²

This holding in Penn was not overruled, expressly or otherwise, by Lehmann.¹³ We said in Lehmann that "[t]o determine whether...