Goodson Pontiac GMC, L.L.C., Goodson North, L.L.C., Goodson Honda, Inc., Automotive Group Realty, L.L.C., United Auto Group, Inc, and Motors Insurance Company v. Autonation USA Corporation N/K/A an Dealership Holding Corp., Autonation, Inc., and Turner, Collie & Braden, Inc.

• Court: Court of Appeals of Texas
• Decided: January 8, 2009
• Docket: 01-07-00104-CV
• Status: Published

Opinion

Opinion issued January 8, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00104-CV

GOODSON PONTIAC GMC, L.L.C., GOODSON NORTH, L.L.C., GOODSON HONDA, INC., AUTOMOTIVE GROUP REALTY, L.L.C., UNITED AUTO GROUP, INC., and MOTORS INSURANCE COMPANY, Appellants

V.

AUTONATION USA CORPORATION n/k/a AN DEALERSHIP HOLDING CORP., AUTONATION, INC., and TURNER, COLLIE & BRADEN, INC., Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2003-31954

MEMORANDUM OPINION

This is an appeal from summary judgment orders denying negligence and premises liability claims for damages to cars on a parking lot that flooded after heavy rain. Appellants, Goodson Pontiac GMC, L.L.C., Goodson North, L.L.C., Goodson Honda, Inc., Automotive Group Realty L.L.C, United Auto Group, Inc., and Motors Insurance Company (collectively, "Goodson"), appeal the summary judgment orders rendered in favor of appellees, AutoNation USA Corporation n/k/a AN Dealership Holding Corporation and AutoNation, Inc. (collectively, "AutoNation") and Turner, Collie & Braden, Inc. ("TCB"). In its first issue, Goodson challenges the trial court's traditional summary judgment in favor of AutoNation rendered on the ground that AutoNation had no duty to Goodson as a matter of law for the negligence and premises liability claims. In its remaining four issues, which concern only TCB, Goodson asserts the trial court erred by rendering summary judgment in favor of TCB because TCB's motion for summary judgment inadequately identified the entity to which it was directed; TCB's traditional motion for summary judgment failed to conclusively prove the elements it challenged; and Goodson provided competent summary judgment evidence to raise issues of fact in response to TCB's no-evidence motion. We conclude that the trial court properly granted summary judgment in favor of AutoNation because AutoNation conclusively established it had no duty to Goodson. We also conclude Goodson failed to preserve for appeal its challenge to the specificity of TCB's motion for summary judgment by failing to specially except. Furthermore, we conclude that the trial court properly granted summary judgment in favor of TCB because Goodson has not challenged on appeal each of the grounds under which the trial court could have granted the summary judgment. We affirm the judgment of the trial court.

Background

In 1997, AutoNation owned a 10-acre parcel of land located in Houston, Texas. AutoNation hired Camargo Copeland to design and construct a car-dealership facility at that location. Camargo Copeland contracted with TCB, a civil engineering firm, to design the parking lot and drainage system for the property. Camargo Copeland built the parking lot according to the specifications and design of TCB. In 2000, AutoNation sold the land to Moudy, Inc. As part of the contract for the land, Autonation and Moudy agreed that Moudy would purchase the land "'as is' with all faults and defects, latent and patent," and that AutoNation made no representations concerning the "condition of the property."

Moudy later sold the land to Goodson. On two occasions in 2001 and 2002, cars parked in the Goodson dealership parking lot were damaged by flooding after heavy rain. Goodson filed suit against AutoNation and TCB, asserting negligence and premises liability claims. ⁽¹⁾

AutoNation and TCB each filed a traditional and no-evidence motion for summary judgment to challenge the premises liability and negligence claims. The only ground contained in AutoNation's summary judgment motion was that AutoNation had no duty to Goodson as a matter of law. AutoNation provided summary judgment evidence to show that Autonation did not sell the property to Goodson, but instead sold it to Moudy. AutoNation's evidence showed it made no representations to Moudy and that Moudy purchased the property "as is." AutoNation also presented evidence that AutoNation did not design or construct the parking lot and drainage system "other than through its independent construction contractor."

In response to AutoNation's motion for summary judgment, Goodson asserted that AutoNation owed Goodson a duty as a matter of law by creating a dangerous condition on the premises, which Goodson claimed was a duty that could not be relieved by the fact that Autonation hired independent contractors to carry out the work. Goodson produced the affidavit of Thomas Langford, a civil engineer. In his affidavit, Langford states, "It is our opinion that the design and/or construction of the parking lots did not follow reasonably prudent guidelines, and that this proximately caused the parking lots to retain water at such a level as to go over the floorboards and damage Goodson Pontiac's parked vehicles . . . ." Goodson also identified excerpts from the deposition of Larry Mueller, an engineer and the designated representative of TCB. Mueller's testimony explained that the parking lot drainage was designed to pond at a level of 18 inches. The trial court granted the traditional motion for summary judgment on the ground that AutoNation did not owe a duty to Goodson, but it did not consider the no-evidence portion of AutoNation's motion.

TCB filed a no-evidence motion for summary judgment on Goodson's premises liability and negligence claims. Goodson filed a response to TCB's no-evidence motion for summary judgment. TCB later moved for traditional summary judgment on the premises liability and negligence claims. The trial court granted summary judgment in favor of TCB without specifying the grounds for summary judgment.

Summary Judgment Standard of Review We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

Traditional summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a traditional summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661. A defendant who moves for traditional summary judgment on the plaintiff's claim must conclusively disprove at least one element of the plaintiff's cause of action. Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).

After adequate time for discovery, a party may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. Id. AutoNation's Motion for Summary Judgment

In its first issue, Goodson asserts that the trial court erred when it granted AutoNation's motion for summary judgment because AutoNation failed to prove as a matter of law that it had no duty to Goodson. Goodson contends that a defendant not in possession or control of the property owes a duty of due care "if the defendant created a dangerous condition that caused the injury." Goodson points to a Texas Supreme Court decision that holds that a person who creates a dangerous condition owes a duty of due care, asserting that AutoNation had a duty of due care because of its role in building the parking lot. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997).

Premise liability is a type of negligence. See Gen. Electric v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008) ("Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.") In a premises liability action, prior owners of property typically owe no duty to keep a property safe after transfer. Lefmark, 946 S.W.2d at 54. "Generally, vendors of real property are not liable for injuries caused by dangerous conditions on real property after conveyance." Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367-68 (Tex. App.--Houston [1st Dist.] 1994, writ denied). "However, there is an exception to the rule: when a dangerous condition exists at the time the vendor transfers possession, the vendor is not subject to liability for injuries caused to others while upon the premises after vendee has taken possession, unless the vendor does not disclose or actively conceals the existence of the condition." Id. at 368.

Although building the parking lot may have created a duty of due care owed by AutoNation, see Lefmark, 946 S.W.2d at 54, the duty ceased at the point that AutoNation sold the property "as is" to Moudy, which would include the condition of the parking lot being prone to flooding. See Roberts, 886 S.W.2d at 367-68. Any complaint by Goodson about property purchased from Moudy is a complaint to be directed at Moudy, and AutoNation has no duty over the condition of the property after having sold the property "as is" to Moudy. See id. We hold that AutoNation is not liable to Goodson for negligence and premises liability for flooding that occurred after Goodson purchased the property from Moudy. See id.

We overrule Goodson's first issue.Waiver Due to Failure to Specially Except In its second issue, Goodson asserts that "TCB did not specify against which Appellants it was moving for summary judgment against as to the premises liability claim." TCB responds that Goodson failed to preserve its complaint by failing to specially except to the motion in the trial court.

When a summary judgment is attacked on specificity grounds, a special exception is required. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) ("An exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous.") The excepting party must obtain a ruling on the special exception to preserve the issue for appeal. Id. at 343 n.7. As a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint. See Tex. R. App. P. 33.1(a).

In the present case, Goodson did not file a special exception to TCB's motion for summary judgment. Rather, Goodson filed a single response, addressing the substantive claims made by TCB, without any special exceptions. A special exception was filed in Goodson's motion for reconsideration after the trial court rendered summary judgment. We hold Goodson failed to preserve this issue for appeal because Goodson did not make any timely special exceptions before the trial court rendered summary judgment. See McConnell, 858 S.W.2d at 343 n.7.

We overrule Goodson's second issue.

TCB's Motion for Summary Judgment

In its third issue, Goodson challenges the traditional motion for summary judgment concerning claims against TCB.

Texas Rule of Appellate Procedure 38.1(h) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). "Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief conclusory statements, unsupported by legal citations." Id. "Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority . . ." Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.--Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.--Houston [1st Dist.] 2005, no pet.). Similarly, appellate issues are waived when the brief fails to contain a clear argument for the contentions made. See Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.--Dallas 2007, no pet.) (holding that issue is waived by brief that makes no attempt to analyze trial court's order within context of cited authority); see also Bradt v. West, 892 S.W.2d 56, 69 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (holding fact that brief contains authorities on conspiracy is not alone sufficient to comprise "argument" necessary to keep from waiving cause of action on appeal, as both authorities and argument are required).

Goodson's third issue states, "The trial court erred in granting TCB's traditional portion of the motion for summary judgment on [Goodson's] negligence and premises liability claims, as TCB did not prove as a matter of law that it had no duty to [Goodson], that it met its standard of care, nor that its conduct did not proximately caused [sic] the occurrences." However, in the argument section of its third issue, Goodson addresses only the element of duty. Goodson makes no argument, refers to no evidence, and cites to no authority concerning breach of duty or proximate cause. We therefore hold that Goodson's brief is inadequate to present any challenge to breach of duty or proximate cause concerning the traditional motion for summary judgment. See Brock, 215 S.W.3d at 929.

"If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed." Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.); see also Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (holding appellate court may not reverse judgment on grounds not raised and argued on appeal). In its summary judgment, TCB moved for summary judgment as a matter of law on the grounds that (1) it owed no duty to Goodson because Goodson was not its client and because TCB never owned or controlled the premises; (2) TCB did not breach the standard of care; and (3) any alleged breach of the standard of care did not proximately cause Goodson's damages. TCB's traditional motion for summary judgment challenged the elements of breach of duty and probable cause, but Goodson does not challenge those elements in this appeal. Because Goodson has not challenged every ground on which summary judgment may have been granted, we must uphold the trial court's summary judgment in favor of TCB. See Ellis, 68 S.W.3d at 898.

We overrule Goodson's third issue. Having overruled this issue, we need not address Goodson's remaining fourth and fifth issues that attack the summary judgment on alternate grounds.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

1. Goodson also filed suit against a number of other entities involved in the design or construction the parking lot, however, none of these entities is a party to this appeal.