Opinion issued September 1, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01058-CV ——————————— DEWBERRY FARM, LLC AND LARRY EMERSON, Appellants V. KIMBERLY ELIAS, AS NEXT FRIEND OF N.E., A MINOR, Appellee
On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 17-02-24173
MEMORANDUM OPINION
In this restricted appeal, appellants, Dewberry Farm, LLC (the “LLC”) and
Larry Emerson (collectively, “appellants”), challenge the trial court’s default
judgment in favor of appellee, Kimberly Elias, as next friend of N.E., a minor, in
Elias’s suit for negligence. In three issues, appellants contend that Elias’s pleadings failed to state a valid premises defect claim under Texas law, there is legally
insufficient evidence to support the trial court’s damages award, and the trial court
erred in awarding pre-judgment interest on future damages.
We affirm in part and reverse and remand in part.
Background
In her first amended petition, Elias alleged that on November 13, 2016, she
took her minor daughter, N.E., to Dewberry Farm in Brookshire, Texas. Dewberry
Farm is owned by Larry Emerson and operated by the LLC. While at Dewberry
Farm, N.E. used a “zip line,” but fell to the ground and was injured. According to
Elias, N.E. was injured as a result of the “unreasonably dangerous condition believed
to be improper and inadequate safety measures for the zip line activity.”
Elias, as next friend of N.E., sued appellants for “negligence: premises
liability.” Elias alleged that she and N.E. were invitees of appellants and that the
condition of the zip line was unreasonably dangerous because it was
age-inappropriate and did not have a harness or safety net to prevent falls. According
to Elias, appellants, as the owner and operator of Dewberry Farm, breached their
duty to make the unreasonably dangerous condition safe by failing to provide
adequate and proper safety measures for the zip line or to warn of its dangerous
condition. Elias also alleged that appellants (1) failed to “adequately train [their]
employees to properly manage the [Dewberry Farm] [p]remises to help prevent and
2 correct dangerous conditions which developed on the zip lines” and (2) failed to
“adequately warn . . . of the ongoing operations on the [Dewberry Farm] [p]remises
which gave rise to the danger in this case and failed to conduct those ongoing
activities in a safe manner.” Elias sought damages for past and future medical care
expenses, past and future physical pain and mental anguish, past and future “physical
impairment and/or disfigurement,” and loss of wages and earning capacity. She also
sought pre- and post-judgment interest and court costs.
Appellants were served with Elias’s suit, but they did not file an answer.
About eleven months after filing suit and after appellants did not file an
answer, Elias moved for a default judgment. The motion was set for submission
without a hearing six months later. Appellants did not respond or otherwise
participate in the default-judgment proceedings, even though Elias’s motion for
default judgment and the notice of submission were both served on appellants by
certified mail, return receipt requested.
In support of her request for a default judgment, Elias attached to her motion
her original and first amended petitions, written discovery requests, proof of service,
and her own affidavit detailing the zip line accident and her requested damages. In
her affidavit, Elias testified that the zip line at Dewberry Farm was “geared toward
children.” And N.E. “wanted to participate in the zip line activity, so she lined up
for it. When it was her turn, she proceeded to use the zip line per its intended
3 purpose,” which was to “hang onto the handles of a wheel-like device that slid down
the zip line, all while dangling in the air.” As N.E. “hung onto the zip line’s handles
and it swung to the other end, she fell off the zip line and onto the hard ground,”
fracturing her left tibia. Elias averred that the zip line did not “have a harness for
the user,” that a child user was “expected to hang onto the zip line with his or her
bare hands and sheer strength,” and that the ground below the zip line did not “have
a safety net or other medium in which to break a minor child’s fall and/or prevent
serious injuries.”
Elias further stated in her affidavit that N.E. had not fully recovered from her
injuries. She indicated that, before her fall, N.E. “was a very active, fearless child
who enjoyed playing sports,” but after her tibia fracture, N.E. was “unable to
participate in any sport activities, especially those requiring use of her legs and feet,
and ha[d] become very fearful of falling.” Elias stated that $3,417.85 in medical
expenses had been paid or incurred and that additional medical care expenses were
anticipated in the future. No affidavit concerning the reasonableness and necessity
of the medical costs was submitted to the trial court. Instead, Elias requested in her
own affidavit that the trial court award the following amounts: (1) $50,000 for past
and future medical expenses; (2) $200,000 for past and future physical pain and
mental anguish; (3) $100,000 for past and future “physical impairment and/or
disfigurement”; and (4) $50,000 for past and future loss of earning capacity.
4 The trial court granted Elias’s motion for default judgment against appellants
and awarded Elias $400,000 in damages—the amount requested by Elias, plus
pre- and post-judgment interest and costs. The judgment indicates, without further
explanation, that $3,417.86—which is the amount of past medical expenses claimed
in Elias’s affidavit—is for “special damages” and $396,582.14 is for “general
damages.” Appellants did not file any post-judgment motions.
Standard of Review
A restricted appeal is a direct attack on a default judgment. TEX. R. APP. P.
30; Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.—
Houston [1st Dist.] 1999, no pet.). A restricted appeal must be (1) filed within six
months after the trial court signs a judgment, (2) by a party to the suit, (3) who, either
in person or through counsel, did not participate at trial or timely file any
post-judgment motions, and (4) the complained-of error must be apparent from the
face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.
2004); Invesco Inv. Servs., Inc. v. Fid. Deposit & Discount Bank, 355 S.W.3d 257,
259 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Only the fourth element,
whether error is apparent from the face of the record, is disputed here.
“The face of the record consists of all the papers on file in the appeal,
including any reporter’s record.” Invesco, 355 S.W.3d at 259. When reviewing a
restricted appeal, we may evaluate the face of the record for the legal sufficiency of
5 the evidence, including the evidence of unliquidated damages. Id. In conducting a
legal-sufficiency review, we credit favorable evidence if a reasonable fact finder
could and disregard contrary evidence unless a reasonable fact finder could not. City
of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain a legal
sufficiency or “no-evidence” challenge if the record shows: (1) a complete absence
of a vital fact, (2) rules of law or evidence bar the court from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital
fact is no more than a scintilla, or (4) the evidence conclusively establishes the
opposite of a vital fact. Id. at 810. We consider the evidence in the light most
favorable to the finding and indulge every reasonable inference that would support
it. Id. at 822.
Pleadings
In their first issue, appellants argue that the default judgment must be set aside
because Elias pleaded only a premises defect claim, not a negligent activity claim,
and as a matter of law, appellants had no duty to warn against the open and obvious
hazards of a zip line.
To support of their argument, appellants direct the Court to case law
instructing that a defendant’s default by failing to answer cannot create liability
when no liability exists as a matter of law on the facts alleged by the plaintiff. See,
e.g., Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988)
6 (default judgment is erroneous if “petition affirmatively discloses the invalidity of
such claim”); see also Doubletree Hotels Corp. v. Person, 122 S.W.3d 917, 919
(Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (observing “where a defendant
fails to file an answer and no liability exists against him as a matter of law on the
facts alleged by the plaintiff, then the fact that he has defaulted by failing to file an
answer cannot create liability”). Assuming appellants are correct that the only cause
of action Elias pleaded was one for premises defect, we disagree that the face of the
record affirmatively demonstrates the open and obvious nature of the alleged
premises defect to allow for a no-duty determination as a matter of law.
A landowner’s duty to an invitee, like N.E.,1 is to exercise reasonable care to
make the premises safe. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex.
2015); see Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)
(noting landowner “is not an insurer of [a] visitor’s safety”); Wal-Mart Stores, Inc.
v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (observing premises liability is not strict
liability). A landowner can satisfy this duty by eliminating an unreasonably
dangerous condition or mitigating the condition so that it is no longer unreasonably
dangerous. Austin, 465 S.W.3d at 202. A landowner can also satisfy the duty, in
most cases, by providing an adequate warning of the danger. Id.
1 Appellants do not dispute that N.E. was an invitee.
7 When an invitee is aware of a dangerous premises condition because the
hazard is obvious, the condition will, in most cases, no longer pose an unreasonable
risk in that the law presumes an invitee will take reasonable measures to protect
against known risks. Id. at 203; Advance Tire & Wheels, LLC v. Enshikar, 527
S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Combined, these
concepts present the general rule regarding a landowner’s duty to an invitee, which
is that a landowner must “make safe or warn against any concealed, unreasonably
dangerous conditions of which the landowner is, or reasonably should be, aware but
the invitee is not.” Austin, 465 S.W.3d at 203.
A dangerous condition that an invitee reasonably should be aware of is one
that is open and obvious. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d
401, 412 (Tex. 2009). Defects that are open and obvious are outside the landowner’s
general duty to warn. See Austin, 465 S.W.3d at 203; see also 4Front Engineered
Sols., Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016) (no duty when premises
condition is open and obvious). The no-duty circumstance of an open and obvious
condition focuses on what would be reasonably observable to a person exercising
ordinary care under an objective standard. See Culotta v. Double Tree Hotels LLC,
No. 01-18-00267-CV, 2019 WL 2588103, at *3 (Tex. App.—Houston [1st Dist.]
June 25, 2019, pet. denied) (mem. op.). For example, the Texas Supreme Court has
stated that the danger of falling off the edge of an undamaged sidewalk was open
8 and obvious and therefore could not support a premises-liability claim. Rosales, 505
S.W.3d at 912.
Appellants urge us to follow Kopplin v. City of Garland, 869 S.W.2d 433
(Tex. App.—Dallas 1993, writ denied)—a case in which the Dallas appellate court
held there was an open and obvious danger of falling from playground equipment.
In Kopplin, the parents of a seven- or eight-year-old boy who fell from a “track ride”
sued the playground owner on a premises-liability theory under the doctrine of
attractive nuisance. 869 S.W.2d 433 at 441. There, the court of appeals rejected the
theory, holding that summary judgment on that claim was proper because the
“danger of falling from playground equipment such as the track ride . . . [was] open
and obvious to even a child of [the boy’s] age.” Id.
The procedural posture of this restricted appeal necessarily informs our
analysis of the duty issue. Unlike in Kopplin, we do not have the benefit of a fully
developed summary-judgment record. Our review is limited to the face of the
record, which in turn is limited to the allegations in Elias’s pleadings and her
affidavit testimony submitted with her motion for default judgment.
See Alexander, 134 S.W.3d at 848; Invesco, 355 S.W.3d at 259. The clerk’s record
is not extensive, and the trial court rendered its default judgment by submission on
the motion without an evidentiary hearing. Thus, although the Kopplin court
considered evidence of the injured child’s age, the observations of the child’s
9 mother, and the condition of the playground equipment, including its height and the
composition of the ground below it, in deciding whether the danger was open and
obvious, the face of this record does not provide much in the way of context from
which we could also make a matter-of-law determination of whether a duty was
owed. See Kopplin, 869 S.W.2d at 437. The existence of a duty is a question of law
for the Court to decide, but it must be determined from the facts surrounding the
event in question. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Here, the face of the record does not permit a matter-of-law determination of the
open and obvious nature of the zip line.
As to the condition of the zip line, the face of the record indicates only that
the zip line included a “wheel-like device” with handles and did not have a harness
or safety net. There are no other allegations to indicate what would be reasonably
observable to a person exercising ordinary care under an objective standard. See
Culotta, 2019 WL 22588103, at *3. For example, the face of the record does not
reveal the height, length, or speed of the zip line; nor does it describe the ground
underneath the zip line beyond Elias’s allegation that it was “hard ground.” There
also is nothing to indicate the extent to which the zip line and its component parts
were partially or fully visible. The record does not even reveal N.E.’s age, which is
another point of distinction from Kopplin. See Kopplin, 869 S.W.2d at 441.
10 The limited scope of the face of this record also precludes us from applying
the cases which appellants cite as representing a uniform jurisprudence that the lack
of fall protection is an open and obvious hazard giving rise to no duty on the part of
a landowner. Although the courts in those cases observed the alleged hazard of
falling was open and obvious, no case was a restricted appeal and the facts giving
rise to the alleged duty were more developed in the context of claims made by
independent contractors or employees operating in a familiar work environment, not
a child on a device with ill-defined characteristics given the limited record. See, e.g.,
Diaz v. D.R. Wright Enters., Inc., No. 05-17-00172-CV, 2018 WL 3484227, at *8
(Tex. App.—Dallas July 19, 2018, no pet.) (mem. op.) (considering whether duty
was owed based on summary-judgment record in case where independent contractor
fell from roof); Arana v. K. Hovnanian Homes-DFW, LLC, No. 05-17-00367-CV,
2018 WL 3017307, at *7 (Tex. App.—Dallas June 18, 2018, no pet.) (mem. op.)
(considering whether duty was owed based on summary-judgment record in case
where independent contractor fell from rafters); Gomez v. Saratoga Homes, 516
S.W.3d 226, 238 (Tex. App.—El Paso 2017, no pet.) (considering whether duty was
owed based on summary-judgment record in case where painting contractor fell
from roof); Hernandez v. Hammond Homes, Ltd., 345 S.W.3d 150, 156 (Tex.
App.—Dallas 2011, pet. denied) (considering whether duty was owed based on
summary-judgment record in case where independent contractor fell from roof);
11 Lopez v. Homebuilding Co., Inc., No. 01-04-00095-CV, 2005 WL 1606544, at *3
(Tex. App.—Houston [1st Dist.] July 7, 2005, no pet.) (mem. op.) (considering
whether duty was owed based on summary-judgment record in case where which
independent contractor fell from second story of house).
On the face of this record, we cannot conclude that the open and obvious
nature of the unreasonably dangerous condition alleged is established as a matter of
law. Thus, we hold that the trial court did not err in entering the default judgment.
We overrule appellant’s first issue.
Sufficiency of Evidence
In their second issue, appellants argue that the default judgment must be set
aside because there is no evidence of any damages or of a causal connection between
the zip line fall and the injuries allegedly sustained by N.E.
When, as here, a no-answer default judgment is rendered, the defendants’
liability for all pleaded causes of action is conclusively established and all
allegations of fact in the petition, except for the amount of unliquidated
damages,2 are deemed admitted. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d
80, 83 (Tex. 1992); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.
2 “Damages are unliquidated when they cannot be accurately calculated from the factual allegations in the petition or any written instruments in the record.” Sumah v. Rodriquez, No. 01-15-00813-CV, 2016 WL 4055585, at *3 n.1 (Tex. App.— Houston [1st Dist.] July 28, 2016, no pet.) (mem. op.).
12 1984). The court rendering a default judgment must hear evidence of unliquidated
damages. TEX. R. CIV. P. 243; Morgan, 675 S.W.2d at 731. The plaintiff must prove
by competent evidence the amount of unliquidated damages. Morgan, 675 S.W.2d
at 732; Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex. App.—Houston [14th Dist.]
2007, no pet.).
Further, “[a]lthough a default judgment conclusively establishes [the]
defendant[s’] liability, i.e., the ‘causal nexus between the conduct of the defendant[s]
and the event sued upon,’ [the] ‘defaulting defendant[s] do[] not admit that the event
sued upon caused any of the plaintiff’s alleged injuries.’” Interconex, Inc. v.
Ugarov, 224 S.W.3d 523, 530–31 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(quoting Morgan, 675 S.W.2d at 732). Proving that the event sued upon actually
caused the plaintiff’s alleged injuries “is part and parcel of proving the amount of
damages to which the plaintiff is entitled.” Morgan, 675 S.W.2d at 732.
Elias acknowledges on appeal that she had the burden to present competent
evidence of the damages she alleged, and she concedes that she failed to meet that
burden on past and future medical expenses and loss of earning capacity. That is,
she concedes that those damages are unrecoverable because there is no evidence to
support them. Nevertheless, she urges us to presume that the trial court awarded
amounts only for the damages supported by legally sufficient evidence—the
physical pain, mental anguish, and physical impairment addressed in her affidavit—
13 because the judgment does not itemize damages and instead makes a lump-sum
award of $400,000. According to Elias, the trial court’s default judgment can be
affirmed on that presumption because the trial court, as the fact finder, had discretion
to award the entire judgment amount as compensation for N.E.’s physical pain,
mental anguish, and physical impairment. See, e.g., Marquette Transp. Co.
Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476, at *9 (Tex.
App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.) (discussing discretion
of fact finder to determine amount of non-economic damages in personal injury
cases).
Elias cites this Court’s opinion in Fiske v. Fiske, No. 01-03-00048-CV, 2004
WL 1847368 (Tex. App.—Houston [1st Dist.] Aug. 19, 2004, no pet.) (mem. op.),
as support for her position for affirmance of the damages award, but that case is
distinguishable. Fiske was a personal injury case arising from a car accident in
which the plaintiff claimed multiple elements of damages, including physical pain,
mental anguish, and physical impairment. Id. at *2. Like the trial court’s judgment
in this case, the default judgment in Fiske included a lump-sum award that did not
distinguish between the elements of damages. Id. In reviewing the legal and factual
sufficiency of the evidence of physical impairment, the Court concluded that the
testimony presented did “not amount to evidence of physical impairment because
the alleged impairment did not extend beyond pain and suffering to the extent that it
14 produced a separate, substantial, or extremely disabling loss.” Id. at *3. But the
Court did not reverse the damages portion of the default judgment, reasoning that
although “there [was] a lack of evidence regarding a particular type of damages,
[there was] no indication that the trial court made any award for that type of
damages.” Id. at *4 (emphasis added). Thus, the Court assumed that the trial court
disregarded those damages in making its award. Id. (emphasis added).
We cannot make the same assumption in this case because, unlike in Fiske,
the face of the record indicates that the default judgment includes awards for
admittedly unrecoverable damages. By rendering the default judgment for
$400,000, the trial court awarded the full amount of damages requested by Elias in
her affidavit. And although the trial court did not assign any element of damages a
particular amount beyond designating $3,417.86 as “special damages” and
$396,582.14 as “general damages,” the amount the trial court awarded as “special
damages” is the same as the amount of medical expenses that Elias averred had been
paid or incurred as a result of N.E.’s injury. Thus, even though the trial court’s single
“general damages” award does not provide any means of distinguishing among the
elements of damages, Elias’s affidavit includes an itemized list of the specific
amount she was requesting for each element of damages. The amount she requested
included $50,000 for past and future medical expenses and $50,000 for past and
future loss of earning capacity—both amounts that she now concedes are
15 unrecoverable due to a complete absence of competent evidence. The remainder of
her request for the damages that she asserts are recoverable was $300,000—
$200,000 to compensate for N.E.’s physical pain and mental anguish and $100,000
to compensate for N.E.’s physical impairment. An assumption that the trial court
did not award any amount for unrecoverable medical expenses or loss of earning
capacity would mean the trial court’s damages award in its default judgment exceeds
the amounts claimed by Elias by $100,000. The face of this record therefore compels
a different result than in Fiske.
We find the reasoning of our sister court in Whitaker persuasive here. In that
case, the defendant asserted that he was entitled to a new trial because the trial
court’s default judgment failed to distinguish between recoverable and
nonrecoverable damages. Whitaker, 218 S.W.3d at 224. The appellate court agreed,
explaining:
[I]f a default judgment makes a single damage award based on more than one element and if there is no evidence to support the award as to one of the elements on which the award is based, then this court must reverse and remand as to the entire award, even though one of the other elements might be sufficient to support the award.
Id.; see also Sumah v. Rodriquez, No. 01-15-00813-CV, 2016 WL 4055585, at *3
n.1 (Tex. App.—Houston [1st Dist.] July 28, 2016, no pet.) (mem. op.) (reversing
and remanding for new trial on damages where “single damages award [did] not
provide any means of distinguishing among the four appellees and the categories of
16 damages they alleged”); Thomas v. Martinez, 217 S.W.3d 680, 684–85 (Tex. App.—
Dallas 2007, pet. struck) (reversing and remanding for new trial on damages where
there was no evidence of physical impairment and amounts could not be
distinguished from other damages).
Because there is no dispute in this appeal that more than one element of
damages is not supported by legally sufficient evidence and the trial court’s default
judgment does not provide any means of distinguishing among the categories of
damages, we hold the trial court erred in awarding Elias damages in its default
judgment. See TEX. R. APP. P. 44.1(b) (reversal as to all matters in controversy
required if non-reversible and reversible cannot be fairly separated); Whitaker, 218
S.W.3d at 224–25; Sumah, 2016 WL 4055585, at *3; see also Holt Atherton Indus.,
Inc., 835 S.W.2d at 86 (when appellate court sustains no evidence point after
uncontested hearing on unliquidated damages following no-answer default
judgment, appropriate disposition is to remand for trial on issue of unliquidated
damages only, not liability).
We sustain appellant’s second issue.3
3 Having concluded that the trial court erred in awarding Elias damages in its default judgment, we do not reach appellants’ assertion that there is no evidence of a causal connection between the zip line fall and the injuries allegedly sustained by N.E. because, even if we were to sustain that portion of appellants’ issue, appellants would not be granted any greater relief. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992) (remedy for legal-insufficiency point in context of default judgment is remand for new trial, not rendition of judgment, because 17 Conclusion
We affirm the trial court’s judgment as to liability. We reverse the portion of
the trial court’s judgment awarding Elias damages and remand for a new trial on
damages.
Julie Countiss Justice
Panel consists of Justices Goodman, Hightower, and Countiss.
evidence is “not fully developed”); see also TEX. R. APP. P. 47.1. We also do not reach appellants’ third issue related to pre-judgment interest. See TEX. R. APP. P. 47.1.