Rape v. M.O. Dental Lab

• Decision Date: 09 January 2003
• Docket Number: No. 2-01-302-CV.,2-01-302-CV.
• Citation: 95 S.W.3d 712
• Parties: Brenda Gail RAPE, Appellant, v. M.O. DENTAL LAB, Gerald W. Carter, Michael K. Zuber, and Lora Zuber, Appellees.
• Court: Texas Court of Appeals

95 S.W.3d 712

Brenda Gail RAPE, Appellant, v. M.O. DENTAL LAB, Gerald W. Carter, Michael K. Zuber, and Lora Zuber, Appellees.

No. 2-01-302-CV.

Court of Appeals of Texas, Fort Worth.

January 9, 2003.

Gallagher Law Firm, J. Patrick Gallagher, Dale Jensen, Fort Worth, for Appellant.

Cowles and Thompson, P.C., Julia F. Pendery, Shawn McCaskill, Dallas, for Appellees.

PANEL A: DAY and GARDNER, JJ.; and JOHN HILL, J. (Retired, Sitting by Assignment).

OPINION

ANNE GARDNER, Justice.

I. INTRODUCTION

This is a premises liability action in which Brenda Gail Rape sued M.O. Dental Lab, Charlie Smith, Michael K. Zuber, Lora Zuber, and Gerald W. Carter for personal injuries she sustained when she slipped in the parking lot at the M.O. Dental Lab and fell to the ground. The trial court granted summary judgment in favor of M.O. Dental Lab, Michael K. Zuber, Lora Zuber, and Gerald W. Carter. Rape complains on appeal that the trial court erred in granting M.O. Dental Lab's motion for summary judgment, and in denying Rape's motion for new trial, because the summary judgment evidence raised a fact issue as to (1) whether there was a dangerous condition on the premises and (2) whether M.O. Dental Lab was negligent.

After holding that we have jurisdiction to hear this appeal, we reverse.

II. BACKGROUND FACTS

M.O. Dental Lab owned a business and building in Granbury, Texas. In her pleadings, Rape alleged that she stopped at M.O. Dental Lab and parked her car along the side of the building. As she walked from her car to the front door, she slipped and fell on what she alleged was a "slippery mud substance" on the sidewalk.

Rape brought a premises liability action to recover damages for injuries she alleges she suffered as a result of the fall, alleging that M.O. Dental Lab and the other defendants acted negligently in allowing the slippery mud substance to accumulate and to create an unreasonably dangerous condition. M.O. Dental Lab, the Zubers, and Carter moved for a traditional summary judgment on the ground that Rape could not establish the existence of a condition posing an unreasonable risk of harm.

Defendant Lora Zuber stated in her deposition testimony, furnished as summary judgment proof by Rape, that it had rained sometime before the accident and acknowledged that when it rained mud accumulated on the concrete slab where Rape fell. Zuber stated that when it rained, "[t]here was a little sheet of mud or dirt there," but no efforts were made to clear it off. Additionally, when asked whether the mud was slippery to walk on, Zuber replied, "I'm sure it is." Zuber testified, however, that no one else had ever informed her or anyone in the office that he or she had slipped on mud on this concrete slab. Zuber noted that, if any dirt or mud gathered on the slab, it would eventually be washed or blown away by the weather. While Zuber never considered mud on the pavement outside the building to be dangerous, she agreed that if this mud was slippery and would cause a person to slip and fall, that would make it a dangerous condition.

In June 2001, the trial court granted the defendants' motion for summary judgment, stating in pertinent part:

[T]he Court heard the Motion for Summary Judgment filed by Defendant, M O Dental Lab, Gerald W. Carter, Michael K. Zuber and Lora Zuber, and the Court, having examined the pleadings and the evidence finds the following facts exist without substantial controversy:

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

2. The Defendant 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.

Rape then filed a motion for new trial arguing that the court erred in granting the summary judgment because the evidence was sufficient to create a fact issue on both elements. After hearing the matter, the trial court denied Rape's motion for new trial. Rape then timely filed a notice of appeal.

III. APPELLATE JURISDICTION

Before we address the merits of the issues presented to us, M.O. Dental Lab asks us to determine whether we have jurisdiction to decide this appeal. M.O. Dental Lab questions the finality of the summary judgment because the judgment does not mention or dispose of named defendant Charles Smith. We only have jurisdiction to consider an appeal taken from a final summary judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Moreover, "[a] judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record." Id.

As M.O. Dental Lab points out, Rape never served named defendant Charlie Smith, and the record contains no pleadings or motions filed by Smith.¹ Defendants M.O. Dental Lab, Michael Zuber, Lora Zuber, and Gerald Carter ("M.O. Dental Lab") answered with general denials and jointly filed a motion for summary judgment. Additionally, no orders appear in the record addressing whether the claims against Smith were disposed of by severance, nonsuit, dismissal, abandonment, or otherwise.

In Youngstown Sheet and Tube Co. v. Penn, the Supreme Court of Texas addressed a similar case to the case at bar. 363 S.W.2d 230, 232 (Tex.1962). In Penn, the trial court granted a summary judgment expressly disposing of all parties named in the petition, except one. Id. As in this case, the party in question was never served with citation and did not answer. Id. The Penn court 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." Id.

Notwithstanding Lehmann, we hold that Penn controls this case and that the trial court's order granting summary judgment is final for the purposes of this appeal. Id.; see also Knie v. Piskun, 23 S.W.3d 455, 459-60 (Tex.App.-Amarillo 2000, pet. denied); Slater v. Nat'l Med. Enters., 962 S.W2d 228, 232 (Tex.App.-Fort Worth 1998, pet. denied); Osborne v. St. Luke's Episcopal Hosp., 915 S.W.2d 906, 909 (Tex.App.-Houston [1st Dist.] 1996, writ denied).

IV. SUMMARY JUDGMENT

Rape contends that facts issues exist with respect to (1) whether there was a dangerous condition on the premises and (2) whether M.O. Dental Lab was negligent. We sustain the two issues raised by Rape.

A. SUMMARY JUDGMENT STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison, County Hons. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true. Rhone-Poulenc, 997 S.W.2d at 223; Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47; Myers v. Doe, 52 S.W.3d 391, 395 (Tex.App.-Fort Worth 2001, no pet.).

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiff's claim. Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

B. PREMISES LIABILITY

At common law, a negligence claim consists of three essential elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). In a premises liability cause of action, the duty owed by a landowner or occupier to visitors to the land depends on the legal relationship between the landowner and the visitor. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996). Under Texas law, "[a]n invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit." Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.-El Paso 1997, writ denied). Both parties agree and it is evident from the summary judgment record before us that Rape is properly classified as an invitee. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975) (describing an invitee as "one who enters on another's land with the owner's knowledge and for the mutual benefit of both"). The premises owner or occupier owes an invitee the "duty to exercise reasonable care to protect her from dangerous conditions ... known or discoverable to it." Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998).

To prevail on her premises liability claim against M.O. Dental Lab, Rape must establish each of four...