David Carr v. Classic Special Automotive, LTD D/B/A Round Rock Toyota;,Cintas Corporation No. 2; And Tidwell Professional Power Touch, LLC

• Court: Court of Appeals of Texas
• Decided: June 10, 2025
• Docket: 07-24-00350-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00350-CV

DAVID CARR, APPELLANT

V.

CLASSIC SPECIAL AUTOMOTIVE, LTD d/b/a ROUND ROCK TOYOTA, CINTAS CORPORATION NO. 2, and TIDWELL PROFESSIONAL POWER TOUCH, LLC, APPELLEES On Appeal from the 395th District Court Williamson County, Texas1 Trial Court No. 22-1374-C395, Honorable Scott K. Field, Presiding

June 10, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

After Appellant David Carr slipped and fell on wet tiles at a Toyota dealership, he

brought suit against Appellee Classic Special Automotive, LTD d/b/a Round Rock Toyota

1 This cause was originally filed in the Third Court of Appeals and was transferred to this Court by

a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. for premises liability. The trial court granted Round Rock Toyota’s motion for summary

judgment, from which Carr brings this appeal. We affirm.

Background

On a rainy May morning in 2021, Carr called Round Rock Toyota to arrange a car

purchase for his brother. The sales manager agreed to hold the vehicle until the brothers

could drive up from San Antonio.

Carr and his brother made the trip through steady rain that had turned to mist by

the time they reached the dealership. Everything was coated with moisture, including the

tile flooring inside the showroom. Carr stepped over puddles in the parking lot, and his

shoes were wet when he entered the building.

The brothers walked across the wet tile floor to meet with the sales staff. Carr

noticed the water on the tiles—it looked “like a mist” and was visible to him. Over the

course of their visit, he crossed the same wet area at least four times without incident.

When another customer stepped into Carr’s path, he sidestepped to avoid colliding

with the customer. Carr’s foot slipped on the wet tiles and he fell. He testified that nothing

other than the water caused his fall and that he would not have slipped if the floor had

been dry.

Carr sued the Round Rock Toyota, its cleaning company, and another contractor.

The trial court granted summary judgment for the dealership and the cleaning company.

Carr settled with the third defendant and later resolved his claims against the cleaning

company, leaving only the dealership at the time of appeal.

2 Analysis

Did Carr waive his appellate rights by conduct?

As a preliminary matter, Round Rock Toyota argues that Carr waived his appellate

rights by moving for a final judgment without reserving his rights and by signing the

judgment under a heading marked “Agreed” instead of agreeing only to the form of the

order. We are unable to say that Carr forfeited his appellate rights on this record. After

adverse summary judgment rulings, Carr filed a detailed motion for reconsideration

arguing the trial court’s ruling was in error. The final judgment that Carr signed explicitly

declares the summary judgment orders to be “final and appealable.”

The law does not require forfeiture of appellate rights based on procedural

missteps when a party’s intent to appeal is clear. As the Third Court noted in Green v.

Tex. Workers’ Comp. Ins. Facility, the Supreme Court’s waiver decisions stand for the

“more limited proposition that a party may not, after motion for entry of judgment on the

verdict, take a position on appeal inconsistent with that judgment.” 993 S.W.2d 839, 843

(Tex. App.—Austin 1999, pet. denied) (discussing First Nat’l Bank of Beeville v. Fojtik, 775

S.W.2d 632, 633 (Tex. 1989) and Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319,

321–22 (Tex. 1984)).

Here, the record reflects Carr opposed the trial court’s summary judgment.

Obtaining the final judgment accomplished the beneficial purpose of consolidating

multiple interlocutory orders into one final judgment so he could appeal. Carr’s position

on appeal is entirely consistent with his position below. We overrule Round Rock Toyota’s

waiver claim.

3 Summary Judgment

Through a single issue, Carr argues the trial court erred in granting summary

judgment for Round Rock Toyota.2 The dealership moved for summary judgment on

traditional and no-evidence grounds.

The standards governing our review of no-evidence summary judgments are well-

established and need not be reiterated here. See Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Sanchez-Rolon v. Pactiv, LLC, No. 03-23-00031-CV, 2024

Tex. App. LEXIS 9095, at *6–9 (Tex. App.—Austin Dec. 31, 2024, no pet.) (mem. op.).

We view the evidence in the light most favorable to Carr, crediting evidence a reasonable

jury could credit. Merriman, 407 S.W.3d at 248.

It is undisputed that Carr was an invitee of Round Rock Toyota. To prevail on a

premises liability claim, an invitee must prove: (1) the owner had actual or constructive

knowledge of some condition on the premises; (2) the condition posed an unreasonable

risk of harm; (3) the owner did not exercise reasonable care to reduce the risk; and (4)

the owner’s failure to use reasonable care proximately caused the plaintiff’s injuries.

Motel 6 G.P. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curiam). However, this duty

extends only to “concealed, unreasonably dangerous conditions.” United Supermarkets,

LLC v. McIntire, 646 S.W.3d 800, 802 (Tex. 2022). When a hazard is open and obvious

or known to the visitor, the landowner has no duty to warn because “the law presumes

2 See Malooly Bros, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (point of error on appeal stating

simply that trial court erred by granting summary judgment “allow[s] argument as to all the possible grounds upon which summary judgment should have been denied.”).

4 that invitees will take reasonable measures to protect themselves against known risks.”

Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015).

Carr’s own summary judgment evidence dooms his case. He admitted that the

wet tiles were visible and obvious to him from the moment he entered the dealership. He

arrived from the rain and a wet parking lot in wet shoes. Inside the dealership, he walked

across the same wet area at least four times before falling. The water was not

concealed—he described it as visible and a mist coating the floor.

Carr’s expert, Radebach, opined that the tiles were extra slippery because they

were not covered by mats. He reasoned that without mats, contaminants accumulated

on the tiles and became more slippery because of the mist and rain. But notably,

Radebach did not opine that anything was wrong with the tiles themselves—only that wet

tiles are slippery. Nor did Carr present evidence that the accumulated contaminants

created a dangerous condition materially different from the wet, slippery surface he

admittedly observed and navigated multiple times.

When an invitee has actual knowledge of a dangerous condition, the landowner’s

duty to warn or make safe is discharged. Los Compadres Pescadores, L.L.C. v. Valdez,

622 S.W.3d 771, 788 n.13 (Tex. 2021). Just as the Supreme Court held in Henkel v.

Norman that awareness of a “slippery condition” is sufficient regardless of the specific

material causing it, Carr’s knowledge of wet, slippery tiles defeats his claim regardless of

whether contaminants enhanced the slipperiness. 441 S.W.3d 249, 253 (Tex. 2014).

When a slippery condition is open and obvious to the invitee, “the law presumes that

5 invitees will take measures to protect themselves against known risks.” Austin, 465

S.W.3d at 203.

In summary, we hold that Carr cannot recover for a fall caused by a condition he

saw, understood, and successfully navigated multiple times. We overrule his issue.

Because the no-evidence motion was properly granted, we need not address the

dealership’s traditional motion for summary judgment. TEX. R. APP. P. 47.1

Conclusion

We affirm the trial court’s judgment.

Lawrence M. Doss Justice