Spruell v. USA Gardens at Vail Leasco, L.L.C.
| Decision Date | 31 January 2013 |
| Docket Number | NO. 02-12-00056-CV,02-12-00056-CV |
| Parties | Kevin D. Spruell AND Darcy Spruell, Individually and as Next Friend of Camryn Spruell, a Minor v. USA Gardens at Vail Leasco, L.L.C., USA Gardens at Vail, L.L.C., and Internacional Realty, Inc. |
| Court | Texas Court of Appeals |
Kevin D. Spruell AND Darcy Spruell, Individually and as Next Friend of Camryn Spruell, a Minor
v.
USA Gardens at Vail Leasco, L.L.C., USA Gardens at Vail, L.L.C., and Internacional Realty, Inc.
NO. 02-12-00056-CV
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
DELIVERED: January 31, 2013
This court has considered the record on appeal in this case and holds that there was no error in the trial court's judgment. It is ordered that the judgment of the trial court is affirmed.
It is further ordered that appellants Kevin D. Spruell and Darcy Spruell, Individually and as Next Friend of Camryn Spruell, a Minor shall pay all of the costs of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By ____________
Justice Sue Walker
Page 2
KEVIN D. SPRUELL AND DARCY SPRUELL, INDIVIDUALLY AND AS NEXT FRIEND OF CAMRYN SPRUELL, A MINOR APPELLANTS
V.
USA GARDENS AT VAIL LEASCO, L.L.C.; USA GARDENS AT VAIL, L.L.C.; AND INTERNACIONAL REALTY, INC. APPELLEES
This is a summary judgment appeal. Two-and-a-half-year-old Camryn Spruell received debilitating, lifelong injuries when she fell from an open window
Page 3
in her third-story apartment. Appellant Kevin D. Spruell and Appellant Darcy Spruell, individually and as next friend of Camryn Spruell, the divorced parents of Camryn, filed suit against Appellees USA Gardens at Vail LeasCo, L.L.C.; USA Gardens at Vail, L.L.C.; and Internacional Realty, Inc.,2 asserting causes of action for premises liability, breach of the implied warranty of good and workmanlike repair, negligent repair, and gross negligence. Appellees filed no-evidence and traditional motions for summary judgment on all claims asserted by Kevin and Darcy, which the trial court granted. Kevin and Darcy both perfected appeals. On appeal, Kevin and Darcy filed separate briefs, both raising the same two points: the trial court erred by granting Appellees' motion for traditional and no-evidence summary judgment, and the trial court erred by denying Kevin's and Darcy's motions to strike the testimony of Michael Welton. We will affirm.
In 2007, Darcy visited the Gardens at Vail Apartment Homes and viewed apartment 3319; she decided to rent the apartment. Darcy entered into a Texas Apartment Association (TAA) form lease entitled "Apartment Lease Contract" (the Lease Agreement) with the owner of the complex—USA Gardens at Vail LeasCo, L.L.C.—in January 2007.
The Lease Agreement contains the following paragraph:
Page 4
24. RESIDENT SAFETY AND PROPERTY LOSS. You and all occupants and guests must exercise due care for your own and others' safety and security, especially in the use of smoke detectors, door and window locks, and other safety or security devices. You agree to make every effort to follow the Security Guidelines on page 5. Window screens are not for security or keeping people from falling out.
The Lease Agreement also contains Paragraph 28, which allows the landlord re-entry into the apartment. Upon move in, Darcy inspected the apartment and completed the TAA's "Inventory and Condition Form," noting no damage or defects in the living room windows, latches, and screens on the form.
After Darcy settled into the third-floor apartment with her daughter Camryn, Darcy submitted a maintenance request for the two windows in the living room because the right window would slam down if opened and the left one would gradually work its way down after it had been opened. The windows were low-sill windows; the sills were seven inches off the ground. Darcy wanted to be able to open the windows and keep them open. Felix Galvan on the maintenance staff at the apartment complex lubricated the track of the left window, and it then stayed open to Darcy's liking.3
On May 19, 2007, Darcy opened the left window three-fourths to 100% of its capacity and wanted it to remain open to provide fresh air. On that day, while Darcy was cooking in the apartment, Camryn fell from the third-story apartment through the left window in the living room and sustained serious and permanent
Page 5
injuries. At the time of the accident, the screen covering the window from which Camryn fell contained the following language: "WARNING: Screen will not stop child from falling out window. Keep child away from open window."
In their first points, both Appellants argue that the trial court erred by granting Appellees' traditional and no-evidence motion for summary judgment.
When a party moves for both no-evidence and traditional summary judgment, we first review the trial court's summary judgment under the no-evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under that standard, after an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199
Page 6
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).
When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the trial court's judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied).
Page 7
Appellants argue that genuine issues of material fact exist on their claims for breach of the implied warranty of good and workmanlike repair. Darcy argues that Appellees breached the warranty of good and workmanlike repair when they undertook to repair her window so that it would open fully but failed to take any precautions to prevent children from falling from the window. Kevin argues that the questions of the wrongdoing in the performance of the repairs and whether the repairs were the proximate cause of Camryn's injuries are genuine issues of fact, precluding summary judgment.
An implied warranty exists that a service provider will perform repairs in a good and workmanlike manner. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). A good and workmanlike manner means "that quality of work performed by one who has the knowledge, training, or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work." Parkway Co. v. Woodruff, 901 S.W.2d 434, 446 (Tex. 1995); Melody Home Mfg. Co., 741 S.W.2d at 354. The implied warranty focuses on a service provider's conduct by defining the level of performance expected when the parties fail to make an express provision in their contract for such performance. Centex Homes v. Buecher, 95 S.W.3d 266, 273-74 (Tex. 2002).
...
To continue reading
Request your trial