Alvin Lee v. Chai Sukumpantanasarn

• Court: Court of Appeals of Texas
• Decided: July 8, 2013
• Docket: 05-12-00324-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 8,2013.

In The Qiinrt of Appiahi !iiItl; Jnitrzrl of xu a! 1aLlzu

No. 05-12-00324-CV

ALVIN LEE, Appellant V. CHAI SUKUMPANTANASARN, Appellee

On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No DC-10-09977-A

MEMORANDUM OPINION Before Justices O’Neill. Francis, and Fillmore Opinion by Justice O’Neill Appellant Alvin Lee lived in a duplex owned by appellee Chai Sukumpantanasarn. In

June of 2009, the bedroom ceiling of the duplex collapsed on appellant causing him injuries.

Appellant filed a premises liability lawsuit asserting appellee owned the duplex and therefore,

because appellant was an invitee, appellec owed him a duty to either adequately warn him of an

unreasonably dangerous condition or make the unreasonably dangerous condition reasonably

safe.

Appellee filed a traditional and no-evidence motion for summary judgment. The trial

court granted appellee’s traditional motion for summary judgment. In a single issue, appellant

argues the trial court misapplied Texas Property Code chapter 92 because chapter 92 does not

apply to personal injury causes of action. Because the applicable law is well-settled and the facts are known to both parties, we issue this memorandum opinion. See TEx, R. App, P. 47,4. We

affirm the trial court’s judgment.

Appellee moved for summary judgment on the grounds that (1) appellee was not in

control of the duplex at the time of the incident: (2) according to the terms of the lease, appellant

was solely responsible for all necessary repairs to the interior of the duplex; and (3) appellee did

not owe a duty under chapter 92 to appellant because appellant failed to satisfy various

provisions of the property code, including failure to give notice of the incident and delinquency

of lease payments. The trial court granted the traditional motion for summary judgment but did

not specify the grounds on which it rendered it.

On appeal, appellant has only challenged the application of chapter 92 of the property

code. Appellee responds that appellant’s failure to respond and negate the other arguments

raised in his motion for summary judgment results in an affirmance. We agree with appellee.

When more than one ground is asserted in a motion for summary judgment and the trial

court does not specify the grounds on which it rendered summary judgment, an appellant must

challenge each ground asserted. Worldwide Asset Purchasing, LLC v. Rent-A -Car Center E.,

Inc., 290 S.W.3d 554, 569 (Tex. App.—Dallas 2009, no pet.); see also Walker v. Town N. Bank,

N.A., No. 05-10-01 174-CV, 2012 WL 3536183, at *2 (Tex. App.—Dallas Nov. 6, 2012, no pet.)

(mem. op.). If an appellant fails to challenge one of the grounds for summary judgment, an

appellate court may affirm the summary judgment on that ground alone. Worldwide Asset, 290

S.W.3d at 569.

Here, appellee’ s motion for summary judgment did not rely on chapter 92 of the property

code alone but also argued summary judgment was appropriate because appellant was

responsible for repairs under the lease and appellee owed no common law duty to appellant

because appellee did not have control over the premises. Appellant has not challenged these

—2— grounds for summary judgment. Applying the appropriate standard of review, we must conclude

the trial court did not err when it granted the traditional motion lor summary judgment in favor

ni appellee because appellant has not challenged every possible ground br the trial court s

judgment. Id.

In reaching this conclusion, we are not persuaded by appellant’s reply argument that “the

court based its decision on appellant’s failure to provide summary judgment evidence that he

provided wrillen ilolue of the leak in the roof as required by the lease. (CR. 159).” Appellant’s

citation to the clerk’s record does not support his contention. Rather, he merely cites to his

“motion for new trial/reconsideration of court’s grant of defendant’s traditional motion for

summary judgment.’ Nothing within the motion, other than appellant’s interpretation of the trial

court’s alleged ruling, indicates the specific grounds for which the trial court granted summary

judgment.

We likewise are not persuaded by his contention that “the appellate record is replete with

the summary judgment evidence addressing those matters in the trial court.” The law is clear

that it is appellant’s burden to challenge every possible ground upon which the trial court could

have granted summary judgment. Id. Moreover, it is not the duty of the appellate court to make

arguments for either side or to make an independent search of the record for evidence to support

appellant’s position. See Kupchvnskv v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.—Dallas

2007, pet. denied); see also Margetis v. Petterson, No. 05-10-01281-CV, 2011 WL 5009797, at

*1 (Tex. App.—Dallas Oc. 21, 2011, no pet.). Appellant’s sole issue is overruled.

—3— The judgment of the trial court is affirmed.

/Michael J. ONei1l/ MICHAEL J 0 NEILI JUSTICE

1203 24RP05

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uurt nf Anabi FiftI Jitrirt nf xas at Jatta JUDGMENT

ALVIN LEE. Appellant On Appeal from the 14th Judicial District Court. Dallas County. Texas No. 05-12M0324-CV V. Trial Court Cause No. DC-1O--09977-A, Opinion delivered by Justice O’Neill, CHAI S UKUMPANTANASARN, Appellee Justices Francis and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMEI).

It is ORI)ERED that appellee CHAI SUKUMPANTANASARN recover his costs of this appeal from appellant ALVIN LEE.

Judgment entered this 8 day of July, 2013.

/Michael J. O’Neill! MICHAEL J. O’NEILL JUSTICE

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