ACCEPTED 03-15-00295-CV 7296020 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/8/2015 3:32:12 PM JEFFREY D. KYLE CLERK No. 03-15-00295-CV
FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE 10/8/2015 3:32:12 PM THIRD COURT OF APPEALS JEFFREY D. KYLE Clerk
at Austin
GERALD KOSTECKA, Appellant, V. SMOKEY MO’S FRANCHISE, LLC d/b/a SMOKEY MO’S BBQ, Appellee.
On Appeal from the 26th Judicial District Court of Williamson County, Texas Trial Cause No. 12-1117-C26
APPELLEE’S RESPONSIVE BRIEF
ORAL ARGUMENT REQUESTED ONLY FOR REBUTTAL Robert A. House Texas Bar No. 24071591 CLARK TREVINO & ASSOCIATES 1701 Director Blvd., Suite 920 Austin, Texas 78744 Telephone: 512-445-1580 Facsimile 512-383-0503 robert.house@farmersinsurance.com ATTORNEYS FOR APPELLEE TABLE OF CONTENTS
I. IDENTITY OF PARTIES AND COUNSEL .................................................. iii II. STATEMENT OF ORAL ARGUMENT ........................................................ iii III. INDEX OF AUTHORITIES .......................................................................... iv IV. STATEMENT OF THE CASE ........................................................................1 V. ISSUES PRESENTED .....................................................................................3 VI. STANDARD OF REVIEW..............................................................................4 VII. STATEMENT OF FACTS ...............................................................................6 VIII. SUMMARY OF THE ARGUMENT ...............................................................8 IX. ARGUMENT....................................................................................................9 X. PRAYER .........................................................................................................16 XI. CERTIFICATE OF SERVICE .......................................................................17 XII. CERTIFICATE OF COMPLIANCE .............................................................18
ii I. IDENTITY OF PARTIES AND COUNSEL
Appellant Gerald Kostecka Appellee Smokey Mo’s BBQ
Stuart Whitlow Robert A. House LAW OFFICES OF CLARK, TREVINO & STUART WHITLOW ASSOCIATES 1104 S. Mays Street, Suite 116 1701 Directors Boulevard, Suite 920 Round Rock, Texas 78664 Austin, Texas 78744 (737) 346-1839 Phone (512) 445-1580 Phone (512) 255-5938 Fax (512) 383-0503 Fax
II. STATEMENT OF ORAL ARGUMENT Appellee, Smokey Mo’s BBQ does not believe oral argument will assist the
Court in its analysis of the law and facts in this case, and therefore Appellee only
retains the right to present argument on rebuttal should the Court choose to have this
case placed on the oral submission docket.
iii III. INDEX OF AUTHORITIES Cases Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999) .....................4 Barnes v. Sulak, No. 03-01-00159-CV, 2002 Tex. App. LEXIS 5727, at *25, n.4, 2002 WL 1804912 (Tex.App. – Austin, Aug. 8, 2002, no pet.).........................v, 9 Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) ..................................................v, 10 Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989) ...................................................4 Carter v. Converse, 550 S.W.2d 322, 329 (Tex. Civ. App. -- Tyler, 1977, writ ref. n.r.e.) .....................................................................................................................14 Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex.1996) ...............................4 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005) ...................................4, 5 Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001)....................................4 Farlow v Harris Methodist Fort Worth Hospital, 284 SW3d 903, 911 (Tex App— Fort Worth 2008, pet denied)................................................................................14 Garner v. Long, 106 S.W.3d 260, 267 (Tex. App.—Fort Worth 2003, no pet.) .....14 Geiselman v. Cramer Fin. Grp., Inc., 965 S.W.2d 532, 537 (Tex. App.—Houston [14th Dist.] 1997, no writ) ....................................................................................14 Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.) .......................................................................................................................10 Hovorka v. Cmty. Health Sys., Inc., 262 S.W.3d 503, 511 (Tex. App.—El Paso 2008, no pet.) ....................................................................................................v, 10 Humpreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) .................11 Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.---Austin 1998, no pet.) .....................................................................................................................v, 9 Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.—Dallas 2003, no pet.). ..............4 Kantor v. Herald Pub. Co., 645 S.W.2d 625, 629 (Tex. App. Tyler 1983) .............14 Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) ..................................................13 La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 563 (Tex. 1984) .............14 Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) ........5 Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013) ...........................5 Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.2013) ...................................................4 Progressive Cty. Mut. Ins. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005) .....................5 Risner v. McDonalds Corp., 18 S.W.3d 903 at 906 (Tex. App. 2000). ..................12 Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex. App.—Houston [1st Dist.] 1997, no writ) ....................................................................................................v, 10
iv Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) ..................... v, 10, 13 Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543–44 (Tex. App.— Houston [14th Dist.] 2007, pet. denied) ...............................................................10 State of Texas v. Terry Williams, 940 S.W.2d 583 at 584 (Tex. 1997) ............ 12, 13 Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.App.—San Antonio 2000, pet. denied) .....................................................................................5 Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) ..........................................4 Woodside v. Woodside, 154 S.W.3d 688, 692 (Tex.App.—El Paso 2004, no pet.) ..4 Rules Tex. R. Civ. P. 166a(f) .............................................................................................13 TEX. R. CIV. P. 166A(I) ...............................................................................................9 Tex. R. Evid. 602 .....................................................................................................13 TEX. R. EVID. 801(E) (2) (D) .....................................................................................13 TEX.R. CIV. P. 166a(c) ...........................................................................................10
v IV. STATEMENT OF THE CASE Nature of the case. On October 11, 2012, Gerald Kostecka, Plaintiff in the
underlying action and Appellant herein, alleged bodily injury and sued Smokey
Mo’s Franchise, LLC D/B/A Smokey Mo’s BBQ (Appellee) for premises liability
and general negligence; Kostecka’s bodily injury claims stem from an October 12,
2010 incident in which Kostecka claims a chair shot out from under him causing
him to fall and injure himself.1 On October 22, 2012, Smokey Mo’s BBQ answered
with a general denial and affirmative defense, Kostecka’s negligence was the
proximate cause of the accident and resulting injuries, if any.2
Course of proceedings. On February 26, 2014, Smokey Mo’s BBQ filed a
motion to compel discovery responses and production of documents.3 On
November 7, 2014, Smokey Mo’s BBQ filed a no-evidence motion for summary
judgment.4 Smokey Mo’s BBQ’s motion argued that Appellant lacked evidence of
each element of his cause of action, damages, and causation concerning
Appellant‘s premises liability claims.5 On December 9, 2014, Appellant filed a
Response to Smokey Mo’s BBQ’s no-evidence motion for summary judgment.6
Support only by a self-serving affidavit, without any expert testimony, Appellant
1 C.R. at 7. 2 C.R. at 14. 3 C.R. at 17. 4 C.R. at 33. 5 C.R. at 33. 6 S C.R. at 3. 1 argued that he sustained substantial injuries, pain and suffering, physical
impairment and mental anguish damages as a result of the shooting chair.7 In his
Response, Appellant did not provide any evidence supporting his claim for
premises liability, nor was there any evidence to support damages of any kind, only
conclusory statements.8
Trial court disposition. The trial court granted Smokey Mo’s BBQ’s motion
for summary judgment on February 13, 2015.9
7 S C.R. at 4, 5, and 7. 8 C.R. at 7. 9 C.R. at 37. 2 V. ISSUES PRESENTED Plaintiff failed to present the Trial Court with more than a scintilla of
evidence on multiple elements of their cause of action for premises liability,
including damages, and therefore the Trial Court was not in error in granting No-
Evidence Summary Judgment.
3 VI. STANDARD OF REVIEW The appellate court may review and affirm on any ground the movant
presented to the court in its motion for summary judgment, regardless of whether
the trial court identified the ground relied on to grant the summary judgment.10
When the summary judgment does not state the grounds on which it was granted,
the nonmovant must show that each ground alleged in the motion is insufficient to
support the judgment.11 Otherwise, the summary judgment may be affirmed on any
one meritorious ground alleged.12 The appellate court may even review grounds in
earlier summary-judgment motions, even though they were denied.13
In reviewing a no-evidence summary judgment, the appellate court must
consider all the evidence in the light most favorable to the party against whom the
summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not.14 The appellate court will affirm a no-evidence summary
judgment if the record shows one of the following: (1) there is no evidence on the
10 Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); see Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.2013) (appellate court cannot infer from pleadings other grounds for granting SJ that were not expressly before trial court). 11 Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.—Dallas 2003, no pet.). 12 Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Woodside v. Woodside, 154 S.W.3d 688, 692 (Tex.App.—El Paso 2004, no pet.). 13 Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999). 14 Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex.2009); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). 4 challenged element, (2) the evidence offered to prove the challenged element is no
more than a scintilla, (3) the evidence establishes the opposite of the challenged
element, or (4) the court is barred by law or the rules of evidence from considering
the only evidence offered to prove the challenged element.15
When a trial court erroneously grants a summary judgment, the appellate
court should affirm the summary judgment if later events in the trial court made
the erroneous decision harmless.16
15 Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013); City of Keller, 168 S.W.3d at 810; Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.App.—San Antonio 2000, pet. denied). 16 Progressive Cty. Mut. Ins. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005); see, e.g., Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) (harmless error to grant D’s motion for SJ without notice to P because trial court considered P’s response after SJ and reconfirmed its ruling). 5 VII. STATEMENT OF FACTS On October 12, 2010, Gerald Kostecka claims to have injured himself while
visiting Appellee, Smokey Mo’s BBQ restaurant. Mr. Kostecka claims to have
been at the restaurant, eating his dinner, when he reached for a salt shaker and the
chair, inexplicably, “shot out from under [him] and [he] fell to the floor jamming
[his] left knee.”17 Gerald Kostecka alleges an employee of Smokey Mo’s BBQ told
him the paint on the floor of the restaurant and the “nature of the bottom of the
chair legs” created a “dangerous situation […] in terms of a chair moving out from
under customers.”18 That Smokey Mo’s BBQ “had to sand texture the floor.”19
Kostecka claims he was not warned, ordinary care was not exercised, the chairs
and floors in Smokey Mo’s BBQ were dangerous, and because of this he sustained
substantial injuries, felt severe pain and suffering, experienced impairment and
mental anguish, which continues to the date of the affidavit, December 8, 2014.20
No medical records were attached to Gerald Kostecka’s Response to the Motion
for Summary Judgment.21 The responses to discovery that were, eventually, served
in response to Smokey Mo’s BBQ requests include reference to chiropractic
treatment from Tyson Krugman, D.C. for a “condition” with Kostecka’s his right
17 C.R. at 8. 18 S C.R. at 7. 19 S C.R. at 7. 20 S C.R. at 7. 21 S C.R. at 3. 6 knee on May 18, 2010 – about five months before the October 12, 2010 visit to
Smokey Mo’s BBQ he claims to have be ousted by the shooting chair.22 The only
support offered as summary judgment evidence is the self-serving affidavit of
Gerald Kostecka, wherein Mr. Kostecka essentially restates the pleadings and other
conclusory statements, unsupported by facts, reality, or any other shred of
evidence, competent or otherwise.23
22 C.R. at 23. 23 S C.R. at 7. 7 VIII. SUMMARY OF THE ARGUMENT Both before the Trial court and before this Court, Gerald Kostecka has failed
to establish damages or liability under the premises liability cause of action
brought against Smokey Mo’s BBQ. More important for the purpose of a summary
judgment, no liability or damage exists as a matter of law.
Kostecka failed to show that a condition on the property was unreasonably
dangerous. Kostecka failed to show Smokey Mo’s BBQ was aware of an
unreasonable risk. Kostecka failed to show how Smokey Mo’s BBQ failed to use
reasonable care in failing to adequately warn the Kostecka and to make the
premises safe. Kostecka failed to show any damages that were causally related to
the claimed unreasonably dangerous condition.
8 IX. ARGUMENT Gerald Kostecka needed to provide more that a scintilla of evidence to
support each point raised in Smokey Mo’s BBQ’s No-Evidence Motion for
Summary Judgment.24 Both under the Rules and by substance, Kostecka failed to
do so. In its No Evidence Motion for Summary Judgment, Smokey Mo’s BBQ
contended that as to each element required for proof of liability, including
damages, Kostecka could not prove each by more than a scintilla of evidence.25
Smokey Mo’s BBQ’s No-Evidence Motion for Summary Judgment attacked each
element of Kostecka’s cause of action for premises liability.26 “A no-evidence
summary judgment is properly granted if the nonmovant fails to bring forth more
than a scintilla of probative evidence to raise a genuine issue of material fact as to
an essential element of the nonmovant's claim on which the nonmovant would
have the burden of proof at trial.”27 Kostecka failed to put forth any evidence
regarding several elements of his claim. Kostecka provides no proof of the injuries,
or other damages, he claims to have sustained.28 The only summary judgment
evidence that was offered in Kostecka’s response to the summary judgment motion
24 TEX. R. CIV. P. 166A(I). 25 C.R. at 33. 26 If Plaintiff desired to object to any perceived lack of specificity in the No-Evidence Motion for Summary Judgment, this Court has previously ruled any such objection is waived. Barnes v. Sulak, No. 03-01-00159-CV, 2002 Tex. App. LEXIS 5727, at *25, n.4, 2002 WL 1804912 (Tex.App. – Austin, Aug. 8, 2002, no pet.). 27 Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.---Austin 1998, no pet.). 28 S C.R. at 3. 9 was his own self-serving affidavit.29 The affidavit is little different from a
verification, in that it only restates the response to the summary judgment motion
in an affidavit form. “An affidavit that is nothing more than a sworn repetition of
the allegations in the pleadings is conclusory and has no probative force.”30
“Conclusory statements in an affidavit are not proper summary judgment proof.”31
“A conclusory statement is one that does not provide the underlying facts to
support the conclusion.”32 “Conclusory statements without factual support are not
credible and are not susceptible to being readily controverted.”33 “To avoid being
conclusory, statements need factual specificity such as time, place, and the exact
nature of the alleged facts.”34 “Merely reciting that an affidavit is made on personal
knowledge is insufficient. Instead, the affidavit must go further and disclose the
basis on which the affiant has personal knowledge of the facts asserted.”35 “An
29 S C.R. at 7. 30 Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.— Houston [1st Dist.] 2010, pet. denied). 31 See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (affidavits); Hovorka v. Cmty. Health Sys., Inc., 262 S.W.3d 503, 511 (Tex. App.—El Paso 2008, no pet.) (deposition testimony); see, e.g., Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.) (affidavit that Plaintiff was fired because of unacceptable behavior was factual conclusion and incompetent as summary-judgment evidence); Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex. App.—Houston [1st Dist.] 1997, no writ) (affidavit that Defendant caused problem with Plaintiff’s car by steam cleaning engine was factual conclusion and incompetent as summary-judgment evidence). 32 Id. 33 Id.; See TEX.R. CIV. P. 166a(c). 34 Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543–44 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). 35 Id. 10 affidavit must ‘positively and unqualifiedly’ show that the facts asserted are true
and within the affiant’s personal knowledge.”36 Kostecka attempted to survive
summary judgment by offering conclusory statements which purport provide
scintillas of evidence on the challenged elements. To support that he has produced
more than a scintilla of evidence, he simply says so.37 The first conclusory
statement in the affidavit, with respect to the material facts in the matter, occurs in
Kostecka’s description of the incident. He swears that the chair shot out from
under him when he reached for a salt shaker on the table.38 This is his only
description of how, and the extent, the exact nature of the alleged facts occurred,
everything between the moment he began to reach and the moment the chair shoots
out from under him. This may be to avoid a discussion on what Kostecka did to
cause the chair to shoot, but it avoids a positive and unqualified showing of the
truth of the asserted facts. In the very next sentence of the affidavit he claims an
employee of Smokey Mo’s, named Aaron, told him that the “nature of the bottom
of the chair legs and the paint used on the floor I created a dangerous situation for
its customers in terms of a chair moving out from under customers.”39 Kostecka
fails to provide evidence that the “situation with respect to the chairs and floor in
36 Humpreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam). 37 See Apellant’s Brief p. 8. 38 S C.R. at 7. 39 S C.R. at 7. 11 its restaurant” was an unreasonable risk.40 Kostecka does not even explain what the
“situation with respect to the chairs and floor in its restaurant” is, and what about it
creates any risk. There is no evidence with a description of the legs of the chairs,
whether or not have wheels, plastic feet, metal feet, are missing legs, wobble, or
are poorly made or maintained. As for the floors, Kostecka does reference a
conversation he had with “Matthew” at Smokey Mo’s BBQ where it was said the
floors had been sand textured.41 The sanded floors are also without support or
description as to what about the condition of the floor would create an
unreasonable risk. Is not established whether the floor is slippery after the sanding,
if it sticky. Do the chairs now hover over the floor and move about the restaurant
on their own? Kostecka did not even put forth evidence to prove that Smokey Mo’s
BBQ was an owner or occupier of the property.42 In order for the Smokey Mo’s
BBQ be liable for a premises defect, the Smokey Mo’s BBQ not only has to be an
owner or occupier of the property, but must control the activity about which
Kosteckas complained.43 In this case, per the Kostecka’s allegations, that would be
the “situation with respect to the chairs and floor in its restaurant.”44 Kostecka
provided neither the Trial Court nor this Court with any evidence that Smokey
40 S C.R. at 7. 41 S C.R. at 7. 42 State of Texas v. Terry Williams, 940 S.W.2d 583 at 584 (Tex. 1997). 43 Risner v. McDonalds Corp., 18 S.W.3d 903 at 906 (Tex. App. 2000). 44 C.R. at. 8—11 and S C.R. at 7. 12 Mo’s BBQ had control of the “situation with respect to the chairs and floor in its
restaurant.” As Kostecka failed to meet the first element of their premises liability
claim, his lawsuit fails as a matter of law. Kostecka further failed to provide
evidence that the “situation with respect to the chairs and floor in its restaurant”
was an unreasonable risk. Kosteckas further failed to show any evidence that
Smokey Mo’s BBQ was aware of the risk by which Kostecka claims he was
injured. As noted by the nature of the claim, Kostecka would have to prove by
more than a scintilla of evidence not only that an unreasonable risk existed, but that
Smokey Mo’s BBQ had actual knowledge of that unreasonable risk.45 Kostecka
relies on the heresy statements of an “Aaron” and “Matthew” who are alleged to be
employees of Smokey Mo’s BBQ; however the hearsay references concerns the
“nature of the bottom of the chair legs and the pain used on the floor creating a
dangerous situation in terms of a chair moving out from under customers.”46
Kostecka argues these statements are not hearsay because they are admissions by a
party opponent. A statement made by the opposing party's agent or employee on a
matter within the scope of that relationship and while it existed is not hearsay.47
Hearsay is not competent summary-judgment evidence.48 However, for a hearsay
45 State, 940 S.W.2d at 584. 46 S C.R. at 7. 47 TEX. R. EVID. 801(E) (2) (D) 48 See Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602; Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Garner v. Long, 106 13 statement to be admissible as admission by a party-opponent made by an agent or
servant, the proponent of its admission must show that the statement was made by
an employee or agent acting within the scope of authority.49 Absent the unreliable
nature of these statements, they do not explain the unreasonable risk, nor do they
explain what Smokey Mo’s knew about the alleged condition.50 Even if Kostecka
established that an employee of the Smokey Mo’s BBQ knew there was a risk;
Kostecka never shows how that risk translated into the higher level of proof needed
to establish that this employee, or any other representative of the Smokey Mo’s
BBQ perceived it as an unreasonable risk. More importantly, the fact “Aaron” or
“Matthew,” whom are claimed to be Smokey Mo’s BBQ’s employees, were aware
of the “situation with respect to the chairs and floor in its restaurant” provides no
evidence to support Kostecka’s duty to prove the Defendant was aware of any risk
– unreasonable or otherwise. “[A] corporation, is bound by the knowledge of one
of its agents if that knowledge came to him in the course of the agent's
employment.”51 Kostecka failed to provide any evidence that if there was an
S.W.3d 260, 267 (Tex. App.—Fort Worth 2003, no pet.); Geiselman v. Cramer Fin. Grp., Inc., 965 S.W.2d 532, 537 (Tex. App.—Houston [14th Dist.] 1997, no writ). 49 Farlow v Harris Methodist Fort Worth Hospital, 284 SW3d 903, 911 (Tex App—Fort Worth 2008, pet denied). 50 S C.R. at 7. 51 La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 563 (Tex. 1984). Defendant is not oblivious to cases that indicate to the contra (see Kantor v. Herald Pub. Co., 645 S.W.2d 625, 629 (Tex. App. Tyler 1983); Carter v. Converse, 550 S.W.2d 322, 329 (Tex. Civ. App. -- Tyler, 1977, writ ref. n.r.e.)); however these cases deal with the liabilities imputed on a client by the knowledge of their attorney. 14 unreasonable risk, Smokey Mo’s BBQ failed to take steps to make the condition
reasonably safe. This element returns to the Court’s consideration of whether
Smokey Mo’s BBQ owned or occupied the premises. The very nature of the cause
of action for premises liability is that the owner created the risk so the owner can
remove the risk. In fact, Gerald Kostecka’s affidavit states that the floors were sand
textured and that it was destroying the mops.52 Kostecka could not even prove
Smokey Mo’s BBQ could remove the claimed risk, there was no duty on the part
of the Smokey Mo’s BBQ to remove the risk.
The level of proof needed to establish each element of a cause of action for
premises liability in order to avoid a no-evidence summary judgment is minimal.
Kosteckas failed to meet that minimum standard as to multiple elements of their
claim. Therefore, the Trial Court correctly ruled in granting Smokey Mo’s BBQ’s
No-Evidence Motion for Summary Judgment and the same should be affirmed on
appeal.
52 S C.R. at 7. 15 X. PRAYER As outlined above, Appellant’s response to summary judgment did not raise
a genuine issue of material fact. Accordingly, Smokey Mo’s respectfully request
that this Court affirm the summary judgment entered by the trial court.
Respectfully submitted, CLARK, TREVINO & ASSOCIATES Mailing Address: P.O. Box 258829 Oklahoma City, OK 73125-8829 Physical Address: 1701 Directors Boulevard, Suite 920 Austin, Texas 78744 (512) 445-1580 - Metro (512) 383-0503 - Metro Fax robert.house@farmersinsurance.com
BY: Robert A. House State Bar No. 24071591 ATTORNEYS FOR DEFENDANT
16 XI. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the
foregoing document has been forwarded to the following parties of record in a
manner consistent with the Texas Rules of Appellate Procedure on this 8th day of
October, 2015, via facsimile:
Stuart Whitlow LAW OFFICES OF STUART WHITLOW 1104 S. Mays Street, Suite 116 Round Rock, Texas 78664 (512) 255-5938 Fax COUNSEL FOR GERALD KOSTECKA
_____________________________ ROBERT A. HOUSE
17 XII. CERTIFICATE OF COMPLIANCE The number of words in this document totals: 3,320 words (counting all
parts of the document). The body text is in 14 point font, and the footnote text
is in 12 point font. The undersigned relied on the word count of the computer
program used to prepare the document.
______________________________ ROBERT A. HOUSE