Martinez v. Dolgencorp of Tex., Inc.

• Decision Date: 21 June 2018
• Docket Number: NUMBER 13-17-00425-CV
• Parties: DANIEL MARTINEZ, Appellant, v. DOLGENCORP OF TEXAS, INC. D/B/A DOLLAR GENERAL, Appellee.
• Court: Texas Court of Appeals

DANIEL MARTINEZ, Appellant, v. DOLGENCORP OF TEXAS, INC.D/B/A DOLLAR GENERAL, Appellee.

NUMBER 13-17-00425-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 21, 2018

On appeal from the 332nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Contreras

Appellant Daniel Martinez appeals from a summary judgment entered in favor of appellee Dolgencorp of Texas, Inc. d/b/a Dollar General (Dolgencorp). By three issues, Martinez contends the trial court erred in: (1) holding that Dolgencorp did not owe him a duty of care, (2) relying on Dolgencorp's summary judgment evidence because the supporting affidavit was deficient, and (3) denying his motion for a continuance. We reverse and remand for further proceedings.

I. BACKGROUND

Martinez visited Dolgencorp's place of business in Edinburg, Texas on September 14, 2014. As Martinez exited the premises, it began to rain, and he slipped and fell on the ramp leading from the sidewalk to the parking lot. On September 9, 2016, Martinez filed suit under a premises liability theory against Dolgencorp for injuries he suffered from the fall and alleged the ramp's surface became slippery due to "the type of paint and/or composition of the materials" used to make it.

Dolgencorp occupied the building which housed its business by way of a lease agreement with Buchalter II, Inc. (Buchalter). In response to Martinez's suit, Dolgencorp filed a traditional motion for summary judgment and asserted it owed no duty to Martinez because it did not control the ramp on which Martinez fell. As evidence in support of its summary judgment motion, Dolgencorp attached: (1) a copy of the lease with Buchalter and two subsequent lease modifications (together referred to herein as "the lease"); (2) a still photograph from a surveillance camera video showing several individuals inside the store; and (3) a one-page affidavit by Suzzanne S. Peet, an employee of Dolgencorp.

Martinez filed a response to Dolgencorp's motion for summary judgment in which he argued that: Peet's affidavit was not based on personal knowledge, and, therefore, the trial court could not rely on the evidence submitted with Dolgencorp's motion for summary judgment; there was an issue of fact as to whether Dolgencorp had control over the ramp on which Martinez fell; and he should be granted a continuance to conduct additional discovery. After a hearing on June 15, 2017, both parties submitted briefs insupport of their arguments. The trial court then rendered summary judgment in favor of Dolgencorp on the basis that Dolgencorp did not control the ramp and, therefore, owed no duty to Martinez. This appeal followed.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam). The party moving for traditional summary judgment has the burden to submit sufficient evidence to establish that no genuine issue of a material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). A party moving for summary judgment who conclusively negates at least one essential element of the non-movant's cause of action is entitled to summary judgment on that claim. Sw. Electric Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see, e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510-11 (Tex. 1995) (concluding summary judgment was proper because defendant disproved causation as a matter of law).

After the movant produces evidence sufficient to show it is entitled to summary judgment, the burden shifts to the non-movant to present evidence raising a fact issue. See Amedisys, 437 S.W.3d at 511; Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In reviewing the grant of a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); Sw. Electric Power, 73 S.W.3d at 215.

III. SUMMARY JUDGMENT EVIDENCE

By his second issue, which we address first, Martinez argues that the trial court erred in considering Dolgencorp's summary judgment evidence because all the evidence relied on the affidavit by Peet, which was not based on personal knowledge. Dolgencorp, on the other hand, contends Peet's affidavit was based on personal knowledge, but it does not dispute that its summary judgment evidence relied on the affidavit.

A. Standard of Review and Applicable Law

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011); Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 426 (Tex. App.—Corpus Christi 2016, no pet.) (applying an abuse of discretion standard to rulings on summary judgment evidence). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex. 2017).

Texas Rule of Civil Procedure 166a(f) requires that affidavits in support of summary judgment must be made on personal knowledge and set forth facts which would be admissible in evidence. TEX. R. CIV. P. 166a(f); see also TEX. R. EVID. R. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). "An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient." Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding); see Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 669 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Accordingly, an affidavit must disclose the basis on which the affiant has personal knowledge of the factsasserted. Rogers, 533 S.W.3d at 428; see Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex. 1988) (per curiam).

"As to the personal knowledge requirement, an affiant's position, job responsibilities, and status as custodian of records may help demonstrate the basis of his personal knowledge." Berry Contracting, L.P. v. Mann, ___ S.W.3d ___, ___, No. 13-17-00063-CV, 2018 WL 1972817, at *9 (Tex. App.—Corpus Christi Apr. 26, 2018, no pet. h.) (citing Rogers, 533 S.W.3d at 429); see, e.g., Nat'l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 130 (Tex. App.—Dallas 2014, no pet.) (concluding status as a custodian of records with a relationship to the facts of the case may help establish the affiant's personal knowledge); Valenzuela v. State & Cty. Mut. Fire Ins., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("Affidavits demonstrating personal knowledge often state the affiant's knowledge is acquired through not only the person's position, but also through his specifically described job duties."); Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio 1998, pet. denied) (concluding the personal knowledge requirement may be satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit). "The key is whether the affidavit clearly shows the affiant is testifying from personal knowledge." Pipkin, 383 S.W.3d at 669. Thus, "[t]he affidavit must 'itself' state the facts and demonstrate the affiant's competency." Valenzuela, 317 S.W.3d at 553 (citing Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394 (Tex. App.—Houston [14th Dist.] 1988, no writ)). "We look to the entire affidavit to determine whether the facts asserted therein are based onpersonal knowledge." Rogers, 533 S.W.3d at 428 (citing Noriega v. Mireles, 925 S.W.2d 261, 264 (Tex. App.—Corpus Christi 1996, writ denied)).

B. Application

Peet's affidavit provides the following:

1. My name is Suzzanne S. Peet. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2. I am a Senior Claims Representative (#2) with Dollar General, which has been sued in this action in connection with an incident involving Daniel Martinez outside the store of Dollar General located at 1121 S. Raul Longoria Road in Edinburg, Texas (the "incident").

3. I have an awareness of the lease and modification agreements, referred to herein by individual name or as Lease and Modification Agreements, that Dolgencorp of Texas, Inc. d/b/a Dollar General executed for the use of the property located at 1121 S. Raul Longoria Road in Edinburg, Texas ("Dollar General").

4. Attached to Defendant Dolgencorp of Texas, Inc. d/b/a Dollar General's Traditional Motion for Summary Judgment ("Motion for Summary Judgment") are to the best of my knowledge true and correct copies of the Lease dated May 24, 2014, between Buchalter II, Inc. and Dolgencorp of Texas, Inc., Lease Modification Agreement #1, and Lease Modification Agreement #2.

5. The Lease and Modification Agreements to the best of my knowledge have been kept in accordance with the normal course of business.

6. I have an awareness of the surveillance video of the incident taken by one of the security cameras of Dollar General, which captured the incident occurring outside of Dollar General. I have viewed the video. I made a photograph of the video, a copy of which is attached as Exhibit 1 of the Motion for Summary Judgment. The photograph is a true and correct copy of the picture frame/section of the video.

Here, Peet's position as a senior claims representative alone, without more, does not affirmatively show how she is testifying from personal knowledge as to the copy of thelease.¹ See Rogers, 533 S.W.3d at 429-30; Valenzuela, 317...