Holland v. Mem'l Hermann Health Sys.

570 S.W.3d 887
CourtCourt of Appeals of Texas
DecidedDecember 18, 2018
DocketNO. 01-17-00107-CV
StatusPublished
Cited by10 cases

This text of 570 S.W.3d 887 (Holland v. Mem'l Hermann Health Sys.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holland v. Mem'l Hermann Health Sys., 570 S.W.3d 887 (Tex. Ct. App. 2018).

Opinion

Terry Jennings, Justice

Appellant, Cynthia Holland, challenges the trial court's rendition of summary judgment in favor of appellee, Memorial Hermann Health System ("Memorial Hermann"), in her suit against it for premises liability. In her sole issue, Holland contends that the trial court erred in granting Memorial Hermann summary judgment.

We affirm.

Background

In her first amended petition, Holland alleged that she tripped and fell on uneven and cracked pavement while walking on Memorial Hermann's easement of ingress and egress at its Memorial City facility in Houston, Texas. As a result of the fall, she sustained serious, permanent injuries. Holland specifically alleged that Memorial Hermann was negligent in allowing a dangerous condition to exist, creating a dangerous condition, failing to inspect and keep its easement safe from a tripping hazard, and failing to warn visitors that a tripping hazard existed. She requested damages for past and future physical pain and suffering, mental anguish, physical impairment, *892disfigurement, loss and/or reduction of earnings, and medical expenses.

Memorial Hermann moved for summary judgment,1 arguing that it is entitled to judgment as a matter of law because it did not own, possess, or control the roadway where Holland fell, negating an essential element of her cause of action for negligence based on her theory of premises liability. Specifically, Memorial Hermann asserted that it was merely a lessor, and, although it has a non-exclusive right of use of the roadways adjacent to its leased premises, its landlord retained ownership and control of the roadway where the incident occurred. It attached to its motion a previously-issued memorandum opinion from this Court;2 Holland's original petition; discovery exchanged between the parties, including production of the applicable lease agreements and interrogatory responses from Holland in which she admits that the incident occurred at the Memorial City location; Harris County Tax Office Property Tax Receipts; a map of the premises where the alleged injury occurred; the original lease agreement from 1994 in which the property owner retained ownership and control of the roadway at issue; a 2006 lease amendment excluding the roadway at issue from the description of the leased premises; the deposition of Heins and an affidavit executed by him (the "Heins Affidavit") in which he authenticated the attached leases and testified about ownership and control issues.3

In his affidavit, Heins testified that Memorial Hermann originally executed a lease agreement in 1994 and, at the time, it was the only tenant on the Memorial City campus. In 2006, Memorial Hermann's landlord, which is now Metro National and Lipex Properties, L.P. ("Metro National"), advised Memorial Hermann of its plan to "construct a multitenant tower on campus and to develop adjacent tracts of land for hotel, restaurant, and retail operations." In recognition that Memorial Hermann would no longer be the sole tenant, the parties entered into the sixth amendment to their lease agreement on or about July 17, 2006. Heins explained that "one of the purposes of this [s]ixth [a]mendment was to save and except specific pieces of property," including the "roadway at issue," for use "by all the tenants." Thus, the sixth amendment "specifically redefined the description of the leased premises to save and except certain parcels including the north/south driveway, which is the roadway where the incident at issue occurred." Since executing the sixth amendment, Memorial Hermann "no longer leased the roadway at issue" and Metro National is "solely responsible for maintenance and repair of roadways on campus." And Heins *893noted that he "called counsel for [Metro National] and he confirmed that since 2006, [the landlord] has had exclusive control of the roadways and is solely responsible for their maintenance."

In his deposition, Heins testified that Memorial Hermann is responsible for maintenance of the leased premises, which includes only the building and its "envelope," essentially anything attached to the building such as a post or walk ramp. He explained that "any road, sidewalk, landscaping, berm, etc., is the responsibility of Metro National," including the roadway where Holland fell. And the General Counsel of Metro National confirmed to Heins in a telephone conversation that Metro National "owned and controlled and [was] responsible for the maintenance of the roads that run through [the] Memorial City Medical Center campus."

In her response to Memorial Hermann's summary-judgment motion, Holland argued that it was not entitled to summary judgment because it had failed to meet its burden to establish that it lacked control over the premises where she fell. Specifically, she argued that because the roadway on which she fell was potentially constructed by Memorial Hermann and used by its delivery trucks, it could have been within Memorial Hermann's maintenance purview under the various lease agreements. She further asserted that there is sufficient evidence of Memorial Hermann's control over the premises to defeat summary judgment. Holland attached to her response the Heins Affidavit, an Incident Report, an Amended and Restated Parking Facility Traffic Management Agreement (the "Parking Agreement"), and a fifth amendment to the lease agreement, a June 1, 2010 Lease Agreement. Holland later supplemented her response with additional exhibits, including other lease agreements and the affidavit of Brenda Lovell, the Director of Construction Safety for Insite Technical Solutions, a contractor for Memorial Hermann that was "responsible for construction safety" at its facility. In her affidavit, Lovell testified that she believed "the condition of the concrete" where Holland fell, "was a dangerous tripping hazard."

Holland also filed objections to several statements made in the Heins Affidavit, including that they constituted hearsay, parole evidence, and improper legal conclusions and were made without personal knowledge.

In its reply to Holland's response, Memorial Hermann asserted that it lacked ownership or control over the premises where Holland fell. And it asserted that there are limited exceptions to the general rule that a plaintiff must establish that a defendant owns or occupies a premises to establish liability, none of which applied here.

The trial court granted Memorial Hermann summary judgment on Holland's premises-liability claim without ruling on Holland's objections. Holland then filed a motion for new trial and objection to the trial court's refusal to rule on her objections to the Heins Affidavit. The trial court did not rule on the objections, and the motion for new trial was overruled by operation of law.

Evidentiary Challenges

In a portion of her sole issue, Holland argues that the trial court erred in not sustaining objections that she made to certain evidence attached to Memorial Hermann's summary-judgment motion.

We review a trial court's decision to admit or exclude summary-judgment evidence for an abuse of discretion. Starwood Mgmt., LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017). Even if a trial court abuses *894

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570 S.W.3d 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holland-v-meml-hermann-health-sys-texapp-2018.