Charlie v. Landy v. Howard Johnson Express Inn Toucan Entertainment, Inc., R. Raju, as General Manager of Howard Johnson Express Inn and Otis Elevator Company

• Court: Court of Appeals of Texas
• Decided: August 30, 2005
• Docket: 13-04-00295-CV
• Status: Published

Opinion

                             NUMBER 13-04-00295-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

CHARLIE V. LANDY,                                                                        Appellant,

                                                             v.

PALM HOSPITALITY, D/B/A HOWARD JOHNSON

EXPRESS INN, TOUCAN ENTERTAINMENT, INC.,

AND RAMACHANRAN RAJU,                                                         Appellees.

   On appeal from the 357th District Court of Cameron County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

This is an appeal from the trial court=s order granting a motion for summary judgment in a premises liability suit.  On September 25, 2000, appellant, Charlie V. Landy, was a guest at the Howard Johnson Express Inn on South Padre Island, Texas.  He was trapped in a hotel elevator for approximately one hour when it stalled between floors due to a rolling blackout.  Appellant sued appellees, Palm Hospitality d/b/a Howard Johnson Express Inn, Toucan Entertainment, Inc., and Ramachanran Raju, for negligently failing to (1) properly inspect and maintain the elevator and its equipment and (2) warn appellant about the condition of the elevator.  Appellant alleged he sustained serious injury, anxiety, and pain as a result of appellees= negligence.  Appellees filed a motion for summary judgment asserting both traditional and no-evidence grounds.  The trial court granted the motion and rendered judgment that appellant take nothing.  In two issues, appellant contends the trial court erred in granting appellees= motion for summary judgment.  We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

                                                     A.  Standard of Review

The standard of review for a traditional motion for summary judgment  is well established.  See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.BCorpus Christi 2002, no pet.). The standard of review for a no-evidence motion for summary judgment is also well settled.  See King Ranch v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003); Wal‑Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).

                                            B.  Form & Substance of Motion

In his first issue, appellant complains the trial court erred in granting appellees= motion for summary judgment because the motion was defective in form and substance.  Specifically, appellant contends the motion (1) did not state the specific grounds relied upon, (2) did not state the specific elements on which there was no evidence, and (3) incorrectly combined a traditional motion for summary judgment under rule 166a(b) with a no-evidence motion for summary judgment under rule 166a(i).

                                                            1.  Specific Grounds

Appellees= motion specifically asserted that they were entitled to summary judgment because (1) they had no duty to appellant, and (2) they could negate three essential elements of appellant=s premises liability claim.  Appellees presented argument and authority in support of both grounds.  We conclude that appellees= traditional motion for summary judgment sufficiently stated the grounds upon which they relied.  See Tex. R. Civ. P. 166a(c).

                                                           2.  Specific Elements

A party filing a no-evidence motion for summary judgment must specifically state the elements as to which they assert there is no evidence.  Tex. R. Civ. P. 166a(i).  This requirement is strictly construed.  Meru v. Huerta, 136 S.W.3d 383, 386-87 (Tex. App.BCorpus Christi 2004, no pet.); Michael v. Dyke, 41 S.W.3d 746, 751 n.3 (Tex. App.BCorpus Christi 2001, no pet.).

Appellees= motion specifically asserted appellant had no evidence that (1) an unreasonably dangerous condition existed on the day of the incident, (2) appellees had notice of any unreasonably dangerous condition prior to the incident, (3) appellees failed to operate as reasonable, ordinary, and prudent property owners prior to the incident, and (4) appellees= acts or omissions caused the incident or appellant=s resulting anxiety.  We conclude these assertions are sufficiently specific and comply with rule 166a(i).

                                            3.  Traditional & No-Evidence Motions

While the better practice when pursuing both traditional and no-evidence summary judgment grounds may be to file two separate motions, the rules do not require it.  See Tex. R. Civ. P. 166a; Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004).  In the instant case, appellees included headings that clearly delineated the part of the motion relying on rule 166a(b) traditional grounds from the part of the motion relying on rule 166a(i) no-evidence grounds.  See Binur, 135 S.W.3d at 651.  We consider this sufficient to comply with the rules governing motions for summary judgment.  See Tex. R. Civ. P. 166a(b), (i).

Because appellees= motion for summary judgment was not defective in form or substance, we conclude the trial court did not err in granting the motion.  Appellant=s first issue is overruled.

C.  Granting of Summary Judgment

In his second issue, appellant contends the trial court erred in granting appellees= motion for summary judgment because a genuine issue of material fact exists with regard to his premises liability claim that appellees owed and breached a duty to him.^[1] 

The trial court=s order granting appellees= motion for summary judgment does not state whether the motion was granted on traditional or no-evidence grounds.  When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, appellant must negate all grounds on appeal.  Columbia Rio Grande Reg=l Hosp. v. Stover, 17 S.W.3d 387, 392 (Tex. App.BCorpus Christi 2000, no pet.) (citing State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 381 (Tex. 1993)).  If an appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment.  Id.

Appellees= no-evidence motion for summary judgment specifically asserted appellant had no evidence that (1) an unreasonably dangerous condition existed on the day of the incident, (2) appellees had notice of any unreasonably dangerous condition prior to the incident, (3) appellees failed to operate as reasonable, ordinary, and prudent property owners prior to the incident, and (4) appellees= acts or omissions caused the incident or appellant=s resulting anxiety.

Appellant presented no evidence in response to appellees= no-evidence motion for summary judgment.  Appellant only referred the court to his deposition which appellees had attached to their motion for summary judgment.  We have reviewed appellant=s deposition and conclude that it does no more than create a mere surmise or suspicion of a fact issue.  See King Ranch, 118 S.W.3d at 750.  Because appellant=s deposition evidence amounts to no more than a scintilla, id., and appellant provided no other evidence, we conclude appellant has failed to negate appellees= no-evidence motion for summary judgment.  Accordingly, we hold the trial court did not err in granting the motion.  Appellant=s second issue is overruled.

We affirm the trial court=s order granting appellees= motion for summary judgment.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 30th day of August, 2005.

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^[1] Generally, where a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the trial court=s judgment will be affirmed on the ground to which no error was assigned.  Inscore v. Karnes County Sav. & Loan Ass=n, 787 S.W.2d 183, 184 (Tex. App.BCorpus Christi 1990, no writ).  However, because it is unclear as to which argument appellant assigns error, we liberally construe appellant=s issues on appeal as assigning error to all possible grounds.  See Tex. R. App. P. 38.1(e), 38.9; see also Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990).