ACCEPTED 13-15-00072-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 6/16/2015 11:18:38 AM CECILE FOY GSANGER CLERK NO.13-15-00072-CV
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS THIRTEENTH COURTS OF APPEALS DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI/EDINBURG,TEXAS 6/16/2015 11:18:38 AM CECILE FOY GSANGER Clerk
JIMMIE DONNAN
Appellant
1~~
HIMCO REALTY CORPORATION AND MAURICE REYNOLDS
Appellees
APPELLEES' BRIEF
Respectfully submitted,
HUNTER*BARKER*FANCHER,LLP
F. Edward Barker State Bar No.01741000 Floyd W.Brown,Jr. State Bar No.00796254 555 N. Carancahua,Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEES HIMCO REALTY CORPORATION AND MAURICE REYNOLDS LIST OF PARTIES
Appellant Jimmie Dorman
Appellant's Counsel John J. Hopkins State Bar No. 00796775 THE LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas 78401 Telephone: 361-986-0600 Facsimile: 361-985-0601
Appellees KIMCO Realty Corporation and Maurice Reynolds
Appellee's Trial Counsel
F. Edward Barker State Bar No. 01741000 HUNTER*BARKER*FANCHER,LLP 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437
Appellee's Appellate Counsel
Floyd W. Brown, Jr. State Bar No. 00796254 HUNTER*BARKER*FANCHER,LLP 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437
ii TABLE OF CONTENTS
List ofParties.................................. ................... ii
Index of Authorities................................................ iv
Statement of the Case............................................... v
Statement Concerning Oral Argument..................................vii
Issues Presented....................................................vii
Statement of Facts.................................................. 1
Summary of Argument...............................................2
Argument.........................................................4
I. Standard of Review....................................... 4
II. Reply Issue No. 1: The Trial Court ruled correctly in finding no- evidence of actual or constructive knowledge of a premises defect 4
A. Appellant's misstatement ofthe Record .................... 4
B. There is no evidence of actual or constructive knowledge of an alleged defect ........................................... 6
C. Reliance on Cohen v. Land~y's Inc. is misplaced ............. 9
D. Appellant waived argument by failing to raise issue at Trial Court ...................................................... 11
III. II. Reply to issue No. 2: Appellant has waived issue No. 2 by failing to briefthe issue before this Court .............................. 13
IV. Conclusion ............................................ 14 V. Prayer..................................................14
iii INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
Cases
City ofHouston v. Clear Creek Basin Authority, 589 S.W.2d 671,678(Tex. 1979) ................................................................ 11
CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102(Tex. 2000) ............7,13,
Cohen v. Landry's Inc., 442 S.W.3d 818(Tex. App.-Houston[14th Dist.] 2014, pet. denied) ..................................................... 9,10,11
Corbin v. Safeway Stores, 648 S.W.2d 292, 295 (Tex. 1983) ............. 7, 13
Del Largo Partners v. Smith, 307 S.W.3d 762, 767(Tex. 2010) ........... 6, 13
F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo 1941, writ refld w.o.m.)............................................. 7
H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259(Tex. 1992) ...... 13, 14
McDaniel v. ContinentalApartments.Ioint Venture,887 S.W.2d 167, 171(Tex. App.- Dallas 1994, writ denied) ........................................... 14
Smith v. Tilton, 3 S.W.3d 77, 84(Tex. App.-Dallas 1999, no pet.) ......... 7,13
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex. 2002) ............. 7
Wooldridge v. Gross National Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.-Waco 1980, no writ) ................................................... 12
Court Rules
Tex. R. Civ. P. 166a(c) ............................................. 11 Tex. R. Civ. P. 166a(i) ............................................. 4,6
iv STATEMENT OF THE CASE
This is an appeal from a Summary Judgment granted on October 17, 2014 in
Cause No. 2013-CCV-60590-2,Jimmie Dorman v. Kimco Realty Corporation ,et al,
by County Court at Law No. 2, Nueces County, Texas,the Honorable Lisa Gonzales
presiding.(CR 1325).Plaintiff/Appellant filed suit on April 2,2013 seeking personal
injury damages allegedly sustained from a fall that occurred on November 5, 2012.
(CR 12-19). Plaintiff/Appellant originally brought suit against KIMCO Realty
Corporation and Maurice Reynolds,the owner ofIsland Gate Plaza Shopping Center
and the property manager ofthe facility.(CR 12-19).Plaintiff/Appellant amended her
Petition to join Bed Bath &Beyond, Inc. and Elite Commercial Services, Inc. on
March 17, 2014 and April 14, 2014 respectively.(CR 267-275 and CR 316-324).
Plaintiff/Appellant asserted claims sounding in premises liability and negligence
against KIMCO Realty Corporation and Maurice Reynolds(CR 316-324).
On February 21, 2014 Defendants/Appellees filed a Traditional Motion for
Summary Judgment relating to Plaintiff/Appellant's negligence related allegations.
(CR 228-253). On June 10,2014 Defendants/Appellees filed a No-Evidence Motion
for Summary Judgment relating toPlaintiff/Appellant's premises liability allegations.
(CR 355-367). Bed Bath &Beyond and Elite Commercial Services filed dispositive
motions on September 10,2014 and September 18,2014.(CR 542-774)respectively
v (CR 542-774; 781-801). Plaintiff/Appellant filed a Joint Response to all of the
Defendants' Motions for Summary Judgments relating to Plaintiff's negligence
claims on October 3, 2014.(CR 847-888). Plaintiff/Appellant also filed a Joint
Response to all of the Defendants' Motions for Summary Judgment relating to
Plaintiff's premises liability claims on October 3, 2014.(CR 889-1168).
On October 16, 2014 and October 17, 2014 The Honorable Lisa Gonzalez
granted each Defendant's Traditional and No-Evidence Motions for Summary
Judgments.(CR 1317-1326). Appellant filed a Notice of Appeal solely as to her
claims against KIMCO Realty Corporation and Maurice Reynolds.(CR 2168-2169).
Appellant's appeal is limited to her premises liability claims against KIMCO Realty
Corporation and Maurice Reynolds.(Appellant's Brief pg. 5).
vi STATEMENT CONCERNING ORAL ARGUMENT
This is an appeal from a No-Evidence Summary Judgment granted in a
premises liability suit based upon no evidence of actual or constructive knowledge
ofthe alleged premises defect. Appellees contend oral argument is unnecessary in this
case. In the event this Honorable Court requests oral argument from Appellant,
Appellees would respectfully request the opportunity to participate in arguments and
be afforded the opportunity to respond to Appellant's argument.
ISSUES PRESENTED
Re~ly to Issue No. 1: The Trial Court ruled correctly in finding no evidence of actual
or constructive knowledge of a premises defect.
Re~ly to Issue No.2: Appellant waived Issue 2 by failing to briefthe issue before this
Court.
vii STATEMENT OF FACTS
On November 5, 2012 Jimmie Donnan was walking on a sidewalk in front of
the Bed Bath &Beyond store located at the Island Gate Shopping Center in Corpus
Christi, Texas.(CR 13)Ms.Dorman alleges that she tripped on a plumbing drain cap
cap located in the sidewalk and sustained injuries as a result ofthe fall.(CR 13)Ms.
Dorman brought suit against Kimco Realty Corporation, the management company
for Island Gate Shopping Center and the property manager, Maurice Reynolds.(CR
12)Plaintiff later joined Elite Commercial Services, Inc. and Bed Bath &Beyond,
Inc. (CR 316) Plaintiff made allegations sounding in negligence and premises
liability.(CR 318-321)In Plaintiff's Petition she alleged "it is unclear whether the
unsafe condition was a condition that existed on the premises or had recently
arisen from some sort of activity."(emphasis added)(CR 318)
On February 21,2014 Defendants,KIMCO Realty and Maurice Reynolds,filed
a Traditional Motion for Summary Judgment addressing Ms. Donnan's negligence
theories ofrecovery.(CR 228)On June 10, 2014 KIMCO Realty and Reynolds filed
a No-Evidence Motion for Summary Judgment addressing Plaintiff's premises
liability claims. On October 3,2014 Plaintifffiled separate Responses to Defendants'
Traditional and No-Evidence Motion for Summary Judgments.(CR 847, 889). On
October 17,2014 the Honorable Lisa Gonzales signed an Order granting Defendants'
1 Traditional and No-Evidence Motions for Summary Judgment.(CR 1325)
Plaintiff/Appellant has brought this appeal complaining of the Trial Court's
granting of Defendant/Appellees' No-Evidence Motion for Summary Judgment
relating to her premises liability claim.(Appellant's Brief pg. 5).
The Trial Court properly granted Appellees' Motion for Summary Judgment
as there is no evidence that Defendants had actual or constructive knowledge of an
alleged premises defect. There was no evidence that Appellees had actual knowledge
of an alleged defect, as admitted by Appellant.(Appellant's Brief pg. 10)Similarly,
there is no temporal evidence establishing constructive knowledge of an alleged
defect.
SUMMARY OF ARGUMENT
To prevail in a premises liability claim the claimant must present evidence that
the defendant had actual or constructive knowledge of an alleged defect in the
premises.In the absence ofevidence ofactual knowledge there must be evidence that
a defect existed for a period oftime sufficient to establish that the defendant should
have known of the defect. Without some temporal evidence, there is no basis upon
which a factfinder can reasonably assess the opportunity the premises owner had to
discover the condition and therefore constructive knowledge cannot be found.
2 Appellant, in Response to Appellees' No-Evidence Motion for Summary
Judgment, acknowledged that there was no evidence of actual knowledge on behalf
of Defendants, KIMCO Realty and Maurice Reynolds. (CR 895) Additionally,
Appellant failed to produce any evidence that KIMCO Realty or Maurice Reynolds
had constructive knowledge of an alleged defect. Appellant admitted that it was
unknown ifthe alleged defect had just occurred or had existed on the premises for a
period oftime.(CR 318)Summary Judgment was properly granted as to Appellant's
premises liability cause of action.
Appellant did not raise a point issue error regarding to her negligence related
causes of action. Appellant did present an issue that the Appellees were negligent in
failing to provide safe ingress and egress onto the property.(Appellate's Brief page
6)Appellant failed to briefthis issue and therefore the issue is waived. Irrespective
ofthe waiver,the issue presented, as worded,relates to Appellate's premises liability
cause of action.
3 ARGUMENTS AND AUTHORITIES
I. STANDARD OF REVIEW
In a No-Evidence Motion for Summary judgment the movant "must state the
elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). Ifthe movant has
identified specific elements he claims lack evidence, the Appellate Court must
determine de novo whether the non-movant has produced more than a scintilla of
probative evidence to raise a genuine issue of material fact. Clearview Props., L.P.
v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 137(Tex. App.-Houston[14th Dist.]
2009, pet. denied). If the non-movant fails to produce summary judgment evidence
that raises a genuine issue of material fact the trial court must grant the No-Evidence
Motion for Summary Judgment. Tex. R. Civ. P 166a(I).
II. Re~ly Issue No. 1: The Trial Court ruled correctly in finding no-evidence of actual or constructive knowledge of a premises defect.
A. Appellant's misstatement of the Record
Appellant has brought this appeal complaining of the granting of Appellees'
Motion for Summary Judgment relating to Appellant's premises liability claim.
(Appellant's Brief pg. 5) In support of her arguments Appellant alleges that
Appellees' Summary Judgment was based, in part, upon the affidavit of Maurice
Reynolds. (Appellant's Brief pg. 9). Appellant further alleges that the alleged premises defect, a drain cap, was only accessible by Appellants.(Appellant's Brief
pg. 10)Appellees' arguments relating to these statements are incorrect and border on
contemptuous.
Appellees filed a No-Evidence Motion for Summary Judgment relating to
Appellant's premises liability claim.(CR355-358). Appellees did not rely upon the
affidavit of Maurice Reynolds in support oftheir No-Evidence Motion for Summary
Judgment.(CR355-358)Appellees moved for summaryjudgment based upon the lack
of evidence of actual or constructive knowledge of a defect, an essential element to
Appellant's premises liability claim.(CR355-358). In doing so Appellees were not
required to rely upon any evidence pursuant to Tex. R. Civ. P. 166a(i). Appellant bore
the burden of producing evidence of actual or constructive knowledge.
Additionally, Appellant is incorrect in misleading this Court by alleging that
the drain cap was only accessible by or through the acts of the Appellees.
(Appellant's Brief pg. 10) Appellant directs the Court to the testimony of Steve
Eshleman in support of this argument.(Appellant's Brief pg. 10) The testimony of
Mr. Eshleman in no way indicated that the drain cap was only accessible by
Appellees. In fact, the drain cap is open to the general public and can be manipulated
by any individual walking on the sidewalk.(CR1143-1146)These arguments should
be disregarded by this Court as the arguments are incorrect and unsupported by the
5 Record in this matter.
B. There is no evidence of actual or constructive knowledge of an alleged defect
To prevail in a premises liability action the plaintiff must produce evidence
ofthe following elements:(1)the plaintiff was an invitee;(2)the defendant was the
possessor ofthe premises;(3)a condition on the premises posed an unreasonable risk
ofharm;(4)the defendant knew or reasonably should have known ofthe danger;(5)
that the defendant breached its duty ofordinary care by failing to adequately warn the
plaintiffofthe condition or failing to make the condition reasonably safe; and(6)the
defendant's breach proximately caused the plaintiff's injury. Del Largo Partners v.
Smith,307 S.W.3d 762,767(Tex.2010); Corbin v. Safeway Stores,648 S.W.2d 292,
295 (Tex. 1983).
A defendant has actual knowledge of a premises defect if it actually knew of
the defect. Keetch v. The Kroger Co.,845 S.W.2d 262,265(Tex. 1992). Constructive
knowledge is based upon the defect existing long enough that the defendant should
have known of the defect. See, Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815
(Tex. 2002).The rule requiring proof that a dangerous condition existed for some
length oftime before a premises owner may be charged with constructive knowledge
is firmly rooted in Texas jurisprudence. Wal-Mart Stores, Inc. 81 S.W.3d at 815.
.~ There is no rule oflaw that is better established in this state. F. W. Woolworth Co. v.
Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo 1941, writ refd w.o.m.).
The so called time-notice rule is based on the premise that temporal evidence
best indicates whether the owner had a reasonable opportunity to discover and
remedy the a dangerous condition. CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102
(Tex. 2000).Without some temporal evidence, there is no basis upon which the
factfinder can reasonably assess the opportunity the premises owner had to discover
the dangerous condition. WalmartStores,Inc., 81 S.W.3d at 815. Before liability can
be imposed on the premises owner for failing to discover and rectify, or warn of,the
dangerous condition, there must be some proof as to how long the hazard was there.
Id.
In the case at bar Appellant failed to provide any evidence of actual or
constructive knowledge. Appellant did not direct the Trial Court nor this Honorable
Court to any evidence, much less a scintilla ofevidence, ofactual knowledge.In fact,
Appellant states in her Brief"[t]here has been no evidence discovered that suggest
that any ofthe Appellees had actual knowledge so Appellant must show that they had
constructive knowledge of the defect."(Appellant's Brief pg. 10)
7 Despite this admission Appellant attempts to misdirectthis Court by suggesting
Appellees had actual knowledge as a result of their alleged exclusive access to the
drain cap. Appellant attempts to imply that Appellees"must have" actual knowledge
because Appellees had exclusive access to the drain cap and must have created the
defect. (Appellant's Brief pg. 10) As mentioned above, Appellant's argument is
unsupported as the drain cap was accessible to the general public.(CR 1143-1146)
There is no evidence that Appellees "must have" created the danger. Appellant's
argument is simply that- argument by counsel completely unsupported by the record
or the evidence. There is no evidence of actual knowledge.
Likewise,there is no evidence ofconstructive knowledge ofthe alleged defect.
To establish constructive knowledge the Appellant is required to provide some
temporal evidence to establish that the premises owner had an opportunity to discover
the defect. Walma~tStores,Inc. v. Reece,81 S.W.3d at 815. Appellant acknowledges
the lack of temporal evidence in her pleadings wherein she states"it was unclear
whether the unsafe condition was a condition that existed on the premises or had
recently arisen." (CR 837) Appellant did not provide any evidence that would
establish the length of time the allege defect existed before the accident occurred.
Without such evidence there is no evidence of constructive knowledge. Walma~t
Stores, Inc., 81 S.W.3d at 815. Realizing the lack oftemporal evidence Appellant attempted to rely upon the
theory of yes ipsa loquito~ in an attempt to establish knowledge.(CR 840)Res Ipsa
does not satisfy a plaintiff's burden to supply evidence of a defendant's knowledge
of a dangerous condition in a premises liability action. Parks v. Steak & Ale ofTex.,
Inc.,2006 WL 66428 at *2-3(Tex. App.-Houston[1 st Dist.] 2006,pet. denied)Thus,
Appellant's attempt to rely upon yes ipsa loquitor to establish actual or constructive
knowledge is unfounded.
C. Reliance on Cohen v. Landry's Inc. is misplaced
Appellant relies upon Cohen v. Landry's Inc.' in support of her argument that
Appellees had actual or constructive knowledge of the alleged premises defect.
(Appellant's Brief pgs. 16-17) Appellant's reliance on Cohen is misplaced as the
Houston Court of Appeals found actual or constructive knowledge based upon
completely distinguishable facts.
In Cohen, the Fourteenth Court of Appeals found that Defendant, Landry's
Inc., knew or should have known ofa slight elevation in the sidewalk caused by tree
roots growing underneath the sidewalk. Cohen v. Landry's Inc.,442 S.W.3d 826-27
The Court referred to an expert report included in the summary judgment evidence
'Cohen v. Landry's Inc., 442 S.W.3d 818(Tex. App.-Houston[14th Dist.] 2014, pet. denied)
D which noted that small changes in elevations ofsidewalks caused by tree roots occur
over a period oftime.Id. Thus,due to the fact that the defect is created over a `period
oftime" a reasonable inspection would have revealed the defect. Id.
In a case such a Cohen, there is temporal evidence sufficient to establish
constructive knowledge. The summary judgment evidence established that the tree
roots take a period oftime to create the defect in the sidewalk. This period oftime is
sufficient to allow a factfinder to determine that the Defendant should have
discovered the defect.
In the case at bar there is no summary judgment evidence that establishes that
the alleged defect, a raised drain cap,takes a period oftime to develop. Appellant's
Briefillustrates the lack ofevidence necessary to establish that the alleged defecttook
time to create. Appellant states the alleged defect must have been "created by
Appellees or, in the alternative, have occurred over a length of time".(Appellant's
Brief pg. 7) Appellant does not know because there is no evidence. Additionally,
Appellant's pleadings illustrate the lack oftemporal evidence necessary to establish
constructive knowledge. Appellant's Third Amended Petition stated "it is unclear
whether the unsafe condition was a condition that existed on the premises or had
recently arisen." (CR 837) The lack of temporal evidence in this case clearly
distinguishes Cohen case from the case at bar.
10 D. Appellant waived argument by failing to raise issue at Trial Court
A party responding to a Motion for Summary Judgment must expressly present
to the trial court, by written answer or response, any issues defeating the movant's
entitlement to Summary Judgment. City ofHouston v. Clear Creek Basin Authority,
589 S.W.2d 671,678(Tex. 1979)(the written answer or response must fairly apprise
the movant and the court of the issues the non-movant contends should defeat the
motion)Issues not expressly presented to the trial court by written motion, answer or
response shall not be considered on appeal as grounds for reversal. See, Tex. R. Civ.
P. 166a(c). Summary Judgments must stand or fall on their own merits. Clear Creek,
589 S.W.2d at 678.
In response to Appellees' No-Evidence Motion for Summary Judgment
Appellant filed over 265 pages of documents. (CR 901-1168) Included in her
summary judgment evidence Appellant filed the report of Gary Nelson, an eighteen
page single spaced report.(CR 1150-1167) Appellant did not direct the Trial Court
nor Appellees to any specific language or portion of the Nelson report, but rather
simply stated that the report illustrates Appellees' failure to "identify, evaluate and
control" premises defects. (CR 897) A failure to identify, evaluate and control
premises defects relate to a party's duty to inspect and warn of premises defects, an
element not attacked by Appellees.
11 For the first time on appeal Appellant directs the Court to specific language in
the Nelson report and argues that the language illustrates Appellees'failure to inspect
the premises.(Appellant's Brief pg. 16) Appellant failed to direct the trial court to
these arguments and failed to refer the trial court to the specific language in the
report. A trial court is not required to sift through a party's evidence in an attempt to
find a fact issue to defeat a Motion for Summary Judgment. Wooldridge v. Gross
NationalBank,603 S.W.2d 335,344(Tex. Civ. App.-Waco 1980,no writ)Appellant
has waived these arguments for failure to expressly present the arguments to the trial
court. Clear Creek, 589 S.W.2d at 678.
Irrespective ofAppellant's waiver,the language referred to by Appellant does
not create a fact issue relating to actual or constructive knowledge. The Nelson report
criticizes Appellees for failing to inspect the premises. Failure to inspect is simply
one element of a premises liability claim. A claimant is still required to produce
evidence of actual or constructive knowledge. Del Largo Partners, 307 S.W.3d at
767; Corbin, 648 S.W.2d at 295. There still must be evidence that the condition did
occur for a sufficient length of time so that a reasonable inspection would have
revealed it. CMHHomes,Inc., 15 S.W.3d at 102-03 Appellant produced no temporal
evidence and therefore there is no evidence ofactual or constructive knowledge. The
Trial Court correctly granted Appellees'No-Evidence Motion for Summary Judgment
12 relating to Appellant's premises liability claim.
III. Reply to issue No.2: Appellant has waived issue No.2 by failing to brief the issue before this Court
Appellant presented two issues to the Court, however failed to brief and argue
Issue No. 2.(Appellant's Briefpg.6)Appellant presented an issue stating "[t]he trial
court erred in ruling that Appellees were not negligent in their failure to provide a
safe ingress and egress to the Bed Bath &Beyond." (Appellant's Brief pg. 6)
Appellant failed to briefthis issue and provided no argument or authorities in support
of this issue. Appellant certainly did not make any argument that a "negligent
activity" was occurring at the time ofthe accident. More importantly, Appellant did
not provide any argument relating to this issue. Points oferror asserted on appeal but
not briefed are waived. Smith v. Tilton, 3 S.W.3d 77,84(Tex. App.-Dallas 1999, no
pet.)
Pleading in the alternative, and only should this Court find that Appellant did
not waive Issue no. 2, Appellant's Issue No. 2 is an attempt to reword a premises
claim and make a claim of negligence. When the alleged injury is the result of a
premises condition the injured party can only recover under a premises defect theory.
H.E. Butt Grocery Co. v. Wainer, 845 S.W.2d 258,259(Tex. 1992)Phrasing ofthe
pleadings to encompass negligence theories does not affect application of premises
13 liability law. McDaniel v. Continental Apartments Joint Venture, 887 S.W.2d 167,
171(Tex. App.-Dallas 1994, writ denied)
As stated above,in the case at bar there was no evidence presented to the trial
court sufficient to establish actual or constructive knowledge on behalf of the
Appellees. The absence ofan essential element ofAppellant's premises liability claim
made Summary Judgment proper in this matter.
IV. CONCLUSION
Appellant failed to provide any evidence that Appellees had actual or
constructive knowledge ofan alleged premises defect. Temporal evidence is required
to establish constructive knowledge and Appellant did not direct the trial court or this
Court to any evidence of the length of time the alleged premises defect existed. As
such, the Trial Court was correct in granting Appellees' Motion for Summary
Judgment.
V. PRAYER
Wherefore,premises considered,Appellees respectfully request this Honorable
Court to Affirm the Judgment ofthe Trial Court. Additionally, Appellees pray for any
other relief they are entitled to at law or in equity.
14 Respectfully submitted,
T ~kBARKER~kFANCHER,LLP
F. Edward Barker State Bar No. 01741000 Floyd W. Brown, Jr. State Bar No.00796254 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-881-9217 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEE, Kimco Realty Corparation and Maurice Reynolds
15 CERTIFICATE OF COMPLIANCE WITH WORD LIMITATIONS
I certify that have reviewed the Appellee's Briefand have concluded that every
factual statement made herein is supported by competent evidence included in the
appendix or the record.
Pursuant to the TEXAS RULE OF APPELLATE PROCEDURE 9.4(1)(3), I
hereby certify that the foregoing brief contains 3,456 words (excluding the caption,
table of contents, table of authorities, signature, proof of service, certification, and
certificate of compliance). This is a computer generated document created in Word
Perfect using 14 point typeface. In making this certificate ofcompliance,I am relying
on the word count provided by the software used to prepare this document.
ER*BA.RKE,~*FANCHER,LLP
F. Edward Barker State Bar No. 01741000 Floyd W. Brown, Jr. State Bar No. 00796254 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-881-9217 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEE, Kimco Realty Corporation and Maurice Reynolds
16 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instruments been forwarded to all counsel ofrecord in the manner indicated below on the ~' ~ day of JUNE, 2015.
Via E-Serve and Einail and Fax 361-985-0600 Mr. John J. Hopkins The Law Offices of Thomas J. Henry 521 Starr Street Corpus Christi, Texas 78401
F. Edward Barker
]7