Opinion issued July 9, 2013
In The
Court of Appeals For The
First District of Texas
NO. 01-12-00430-CV
STEVEN ALLENDER, Appellant
V.
KATY CHAMBER OF COMMERCE D/B/A KATY AREA CHAMBER OF COMMERCE, AND KATY CHAMBER OF COMMERCE D/B/A KATY RICE HARVEST FESTIVAL, Appellees
On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2008-59572
MEMORANDUM OPINION This is a personal injury case arising out of an automobile-pedestrian
accident. Plaintiff-appellant Steven Allender was struck by a car driven by defendant Judith Cooper at the 2006 Katy Rice Harvest Festival, which was
organized by defendant-appellees Katy Chamber of Commerce d/b/a Katy Area
Chamber of Commerce, and Katy Chamber of Commerce d/b/a Katy Rice Harvest
Festival (“Katy defendants”). Allender sued both Cooper and the Katy defendants.
Allender settled with Cooper, and the trial court granted summary judgment in
favor of the Katy defendants. Allender timely appealed. We affirm in part and
reverse and remand in part.
BACKGROUND
Allender’s wife had a vender booth at the 2006 Katy Rice Harvest Festival.
Vender booths were setup along each side of Third Street. During festival hours,
the area was closed off to vehicles. When the festival ended, however, booth
operators were allowed to drive to their booths to dismantle them.
Allender drove his vehicle into the festival and assisted his wife in
dismantling her booth. Defendant Cooper also had a booth at the festival. After
Cooper packed up her booth and was driving down Third Street, she struck
Allender with her vehicle.
The safety traffic plan for the festival was developed by the Katy defendants
and the Katy police department. There were off-duty police officers at the two
vehicle gates, and between twenty and twenty-four police officers or traffic
2 volunteers on the festival site. Lizzy Davis, the volunteer at the intersection of
Third Street and Avenue C, was wearing a bright orange vest and had a flashlight.
She saw Cooper’s vehicle driving towards her “too fast” and put up her hands
instructing Cooper to slow down. Cooper ignored her, did not slow down, and
drove right past her. Davis then “began to scream and yell to alert the vendors who
were dismantling their booths.” Cooper then hit Allender with her car.
Allender’s October 7, 2008 Original Petition alleged negligence against both
Cooper and the Katy defendants. On October 16, 2009, Allender and the Katy
defendants attended a mediation. According to Allender, the Katy defendants
offered $5,000 to settle the case at mediation, and reiterated that offer on January
27, 2010. The Katy defendants never indicated that this settlement offer was
withdrawn, and Allender attempted to accept that offer on April 15, 2010.
Allender learned on April 20, 2010 that the offer was “off the table.” He filed a
motion to enforce the alleged settlement, which the trial court denied on May 17,
2010.
Allender settled with Cooper, and his claims against her were severed on
July 1, 2010. On September 10, 2010, Allender filed Plaintiff’s Second Amended
Original Petition. This amended petition omitted the claims against Cooper,
reiterated the same negligence claims against the Katy Defendants, and added a
3 claim against the Katy defendants claim for breach of a settlement agreement.
The Katy defendants later filed a Traditional and No Evidence Motion for
Summary Judgment addressing only the merits of the negligence claim, which the
trial court granted on January 18, 2012. On February 17, 2012, Allender filed a
Motion for New Trial, seeking reconsideration of the trial court’s summary
judgment on his negligence claim. On February 27, 2012, the trial court signed a
final judgment that Allender take nothing on his claims against the Katy
Defendants. On March 23, 2012, Allender’s Motion for New Trial was denied.
Allender filed his notice of appeal on April 27, 2012.1
ISSUES ON APPEAL
Allenger brings two issues on appeal:
1. “The trial judge committed fundamental error in light of Rule 65 of the T.R.C.P, a mandatory rule. The trial court signed an order granting a summary judgment Appellees filed against Appellant’s First Amended Original Petition, an abandoned pleading under Rule 65.” 2. “The trial judge committed error by granting a motion for summary judgment where the evidence failed to establish as a matter of law that here was no genuine issue of a material fact.”
1 Allender’s appeal is timely because his motion for new trial, filed after the trial court’s interlocutory summary judgment but before the court’s final judgment, nonetheless extended the time period for appealing the final judgment because the motion “complains of error brought forward in the subsequent judgment.” Bradley v. Peters, No. 01-07-00081-CV, 2007 WL 4284659, at *2 (Tex. App.—Houston [1st Dist.] Dec. 6, 2007, no pet.). 4 RELEVANT PLEADINGS
In his first issue, Allender argues that, according to Rule 65 of the Texas
Rules of Civil Procedure, his amended petition took the place of his original
petition. He complains that the Katy defendants filed their motion for summary
judgment with reference to his original petition, not his amended petition that was
already on file when the motion for summary judgment was filed. Because the
Katy defendant’s motion “attacked an abandoned pleading” rather than his most
recent live pleading, Allender contends that the trial court erred in granting
summary judgment.
In response, the Katy defendants contend Allender waived this issue by
failing to raise it in his response to their motion for summary judgment.
Alternatively, the Katy defendants argue that Allender “failed to show harm from
the reference to the prior pleading,” as even Allender admitted that he sued for “the
same cause of action” in his amended petition. The Katy defendants quote the
negligence allegations in the original and amended petition, pointing out that the
amended petition “restated almost verbatim” the negligence allegations from
Allender’s original petition. Because a motion for summary judgment directed at
an earlier petition has been held to encompass a challenge to later-filed claims
when those claims are identical to the earlier claims, the Katy defendants argue
5 that the trial court did not err in granting its summary judgment. E.g., Ehler v.
LVDCD, L.C., 319 S.W.3d 817, 820 (Tex. App.—El Paso 2010, no pet.).
The Katy defendants acknowledge that Allender’s amended petition added a
second cause of action for breach of an alleged settlement agreement. But,
according to the Katy defendants, the trial court had already disposed of the merits
of that claim before it was added to the petition by denying Allender’s earlier
Motion to Enforce Settlement Agreement.
Allender correctly argues that a plaintiff’s timely filed amended pleading
supersedes all previous pleadings and becomes the controlling petition in the case
regarding theories of recovery. TEX. R. CIV. P. 65; J.M. Huber Corp. v. Santa Fe
Energy Res., Inc., 871 S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.] 1994,
writ denied). And, contrary to the Katy defendants’ argument, the non-movant
does not waive error by not complaining in a response to a motion for summary
judgment that the movant’s motion addresses only some of the non-movant’s live
claims, or addresses claims that have been abandoned or superseded. Chessher v.
Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).
The Katy defendants are correct, however, that if “a motion for summary
judgment [directed at an earlier-filed petition] is sufficiently broad to encompass
later-filed claims, the movant need not amend his motion” for it to effectively
6 challenge the claims in a later-filed petition. Espeche v. Ritzell, 123 S.W.3d 657,
664 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The question here, then,
is whether the Katy defendants’ motion for summary judgment encompassed the
claims in Allender’s amended petition.
With regard to his negligence allegations against the Katy defendants, in
Allender’s original petition, he stated that “the Katy Defendants controlled the
premises on which the incident occurred.” He articulates the proximate cause of
his damage as “[f]ailing to keep the premises in a safe manner.”
Allender’s amended petition omits his earlier negligence allegations about
Cooper, but repeats the same negligence allegations against the Katy defendants,
stating again that “the Katy Defendants controlled the premises on which the
incident occurred,” and alleging that they were negligent by “[f]ailing to keep the
premises in a safe manner.” Because the Katy defendants’ motion for summary
judgment addressing the negligence allegations in Allender’s original petition
necessarily addresses the allegations repeated in his amended petition, we hold that
the trial court did not err in ruling on the merits of the Katy defendants’ motion
with regard to Allender’s negligence claim against the Katy defendants.
The trial court did, however, err in granting a take-nothing judgment against
Allender, given that his live petition contained a second, unadjudicated claim for
7 breach of the parties’ alleged settlement agreement. “It is axiomatic that one may
not be granted judgment as a matter of law on a cause of action not addressed in a
summary judgment proceeding.” Chessher, 658 S.W.2d at 564. “The movant . . .
must establish his entitlement to a summary judgment on the issues expressly
presented to the trial court by conclusively proving all essential elements of his
cause of action or defense as a matter of law.” Id. (citing City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
The Katy defendants never requested summary judgment on Allender’s
breach of settlement agreement claim, but assert here that the trial court’s denial of
Allender’s Motion to Enforce Settlement Agreement was an adjudication on the
merits of that claim. But that denial does not entitle the Katy defendants to
judgment as a matter of law. In other words, the trial court’s denial of Allender’s
motion reflects only its determination that Allender had not conclusively
established his right to relief on that claim. Cf. Vills. of Greenbriar v. Torres, 874
S.W.2d 259, 262 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“[A] denial
of summary judgment is not a final adjudication of any matter.”).
In sum, the trial court did not err by ruling on the Katy defendant’s motion
for summary judgment with regards to the negligence claim that was presented in
both Allender’s original and amended petition. The trial court did, however, err by
8 granting final judgment in the Katy defendants’ favor on the unadjudicated claim
for breach of an alleged settlement agreement. We thus sustain Allender’s first
issue in part, and remand his breach-of-settlement-agreement claim to the trial
court for further proceedings consistent with this opinion.2
SUMMARY JUDGMENT
In his second issue, Allender contends that the trial court erred by granting
summary judgment on his negligence claim because he raised a genuine issue of
material fact. Specifically, Allender argues that the evidence creates a fact issue
about whether Katy defendants created a dangerous condition. He asserts that
(1) the Katy defendants “had the exclusive right to control the roadway,”
(2) “established its standard of care over the festival streets by its documentation to
the City of Katy, vendors and exhibitors,” and (3) “breached its own standard of
care by creating a hazard and a hazardous activity.”
Allender’s theory is that the Katy defendants controlled the decision to close
off the street for a certain period of time. His argument in the trial court focused
2 We are not required to remand the entire case, but instead we consider the merits of the negligence claim that was properly considered on the Katy defendants’ motion for summary judgment. Cf. Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist] 1999, no pet.) (“When, as here, a trial court grants more relief by summary judgment than requested, by disposing of issues never presented to it, the interests of judicial economy demand that we reverse and remand as to those issues, but address the merits of the properly presented claims.”). 9 primarily on the timing of the accident. On the Sunday of the accident, the festival
closed at 6:00 p.m. The vendor contracts contained clauses stating “no vehicles are
allowed in the Katy Rice Harvest Festival after 8:30 AM Saturday and before 6:30
PM Sunday,” and “[b]ooths may not be dismantled until 6:30 p.m. on Sunday.”
The contracts also require vendors to agree they “will wait until all booths are
dismantled and a Katy Rice Harvest Festival Official approves re-entry after 6:30
p.m. Sunday evening. At this time, vehicles may enter the Katy Rice Harvest
Festival Area.”
Allender cited Cooper’s estimate in her deposition testimony that she was
actually permitted to enter the festival with her car between 6:15 and 6:20. He
acknowledges that the Incident Report filled out by an employee of the Chamber of
Commerce states that the accident occurred between 6:30 and 7:00, and that the
police report listed the time the incident was reported as 7:02 p.m., but he contends
that at least a fact issue exists about the time. The time of the accident is
significant to his argument because he contends it was the act “closing the festival
at 6:00 p.m., and then began to allow vehicles to drive into the festival grounds
prematurely, causing endangerment to all people at the festival.”
In response, the Katy defendants argue that Allender has not raised a fact
issue on either a premises liability or ordinary negligence claim. To the extent
10 Allender argues that there was a dangerous condition created by what Allender
characterized as the “lack of safety measures,” i.e., “no speed limit signs, no traffic
guards, no safety cones,” the Katy defendants insist that assertion is simply
contrary to the undisputed and conclusive evidence that there was a traffic safety
plan and numerous volunteers and police officers directing vehicles. The Katy
defendants point out that Allender failed to argue, much less raise a fact issue,
about “the reasonableness of the traffic and safety plan in effect at the time of the
incident” or the Katy defendants “failure to exercise reasonable care to reduce or
eliminate any potential risk.”
As for the timing of the accident, the Katy defendants assert that Allender
has failed to demonstrate how the Katy defendants allowing vehicles into the area a
few minutes early (even if true) could have proximately caused his accident. They
point out that he cannot argue that “he was unaware that vehicles were allowed
into” the area, as the evidence shows that Allender had “just waited in line for the
entrances to reopen, driven his own vehicle up next to his wife’s booth, and was in
the process of carrying ‘a large metal panel’ to his own vehicle when he was
struck.”
The Katy defendants also argue that if Allender’s petition is interpreted to
assert a general negligence claim, there is “no evidence that the Katy Chamber
11 breached a duty to appellant,” or that “such a breach proximately caused Mr.
Allender’s damages.” Specifically, the Katy defendants argue that Allender has
not shown that, by their entering into a vender agreement with Allender’s wife
stating time for vehicle traffic for the festival, they created a duty owed to Allender
to not deviate from those times. And, according to the Katy defendants, there is no
evidence of a breach of whatever duty Allender relies upon or causation.
Finally, the Katy defendants assert that, to the extent Allender claims that
the Katy Chamber “created a hazardous condition by allowing vehicles into the
area prior to the booths being dismantled,” Allender has “no evidence as to how
this created a hazardous condition.” Instead, “the evidence shows that Mr
Allender’s injuries were caused by a woman driving unsafely who had ignored
warnings from a volunteer that was directing traffic, combined with Mr. Allender’s
own failure to keep a proper lookout for vehicles traveling through the festival, just
as his vehicle was traveling mere minutes before the accident.” Thus, the Katy
defendants argue that we should affirm the trial court’s summary judgment.
A. Standard of Review
The Katy defendants raised both traditional and no-evidence grounds in their
motion for summary judgment, and the trial court did not specify on which
grounds it based its judgment. See TEX. R. CIV. P. 166a(c), (i). In reviewing a
12 grant of summary judgment, we consider the evidence in the light most favorable
to the nonmovant. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citing
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). We credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard evidence
contrary to the nonmovant unless reasonable jurors could not. See Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When, as here, the trial court does
not specify the grounds for its grant of summary judgment, we must affirm the
summary judgment if any of the theories presented to the court and preserved for
appeal are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003).
A no-evidence summary judgment must be granted unless the non-movant
produces competent summary-judgment evidence raising a genuine issue of
material fact on the challenged elements. TEX. R. CIV. P. 166a(i); Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We apply the same legal-sufficiency
standard of review that we apply when reviewing a directed verdict. City of Keller
v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Applying that standard, a no-
evidence point will be sustained when (1) there is a complete absence of evidence
of a vital fact, (2) the court is barred by rules of law or evidence from giving
weight to the only evidence offered to prove a vital fact, (3) the evidence offered to
13 prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla
of evidence exists when the evidence is “so weak as to do no more than create a
mere surmise or suspicion” of a fact, and the legal effect is that there is no
evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
To prevail on a traditional Rule 166a(c) summary-judgment motion, a
movant must prove that there is no genuine issue regarding any material fact and
that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little
v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant
moving for summary judgment must either (1) disprove at least one element of the
plaintiff's cause of action or (2) plead and conclusively establish each essential
element of an affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth,
900 S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish its
right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60
(Tex. 1986). If the movant meets its burden, the burden then shifts to the
nonmovant to raise a genuine issue of material fact precluding summary judgment.
See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
14 B. Analysis
We conclude that the trial court’s summary judgment was correct—
regardless of whether Allender’s claim is interpreted as premises liability or
general negligence—because Allender presented no evidence of a common
element, i.e., causation. In LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.
2006), the supreme court addressed whether a no-evidence summary judgment was
proper on a premises-liability claim involving a pedestrian struck by a car in a
parking lot. The court explained that the “proximate cause element has two
components: cause-in-fact and foreseeability.” Id. (citing Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 727 (Tex. 2003)); see also Doe v. Boys Clubs of Greater
Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (articulating same proximate cause
elements of ordinary negligence claim). “The test for cause-in-fact, or “but-for”
causation, is whether (1) the act or omission was a substantial factor in causing the
injury and (2) without the act or omission the harm would not have occurred.”
LMB, 201 S.W.3d at 688.
In response to the parking-lot owner’s no-evidence motion for summary
judgment in LMB, the plaintiff produced a treating physician’s affidavit stating, “In
reasonable medical probability, the death of Ernestina Moreno resulted from her
weakened condition caused by the accident in question. Therefore, in my opinion,
15 the conduct of [premises owner] substantially caused Ernestina Moreno’s injuries
and death.” Id. At 687–88. The supreme court articulated the plaintiff’s burden to
raise a fact issue in response to the no-evidence summary judgment motion, and
explained why this affidavit fell short:
[T]he Morenos had the burden to produce summary judgment evidence that an accident such as that involving Ernestina Moreno, or some similar occurrence, was a foreseeable result of a failure by LMB to use reasonable care to reduce or eliminate an unreasonably dangerous premises condition, and that LMB’s failure was a substantial factor in causing Ernestina Moreno’s injuries and death. Mere proof that Ernestina Moreno was injured in LMB’s parking lot is not proof of such proximate cause. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551–52 (Tex. 2005) (holding that summary judgment was proper when there was no evidence that any of the premises owner's “acts or omissions were a substantial factor in causing” the plaintiff's injuries); Southwest Key Program, Inc. v. Gil– Perez, 81 S.W.3d 269, 274 (Tex. 2002).
Dr. Garza’s assertion in his affidavit that “in my opinion, the conduct of [premises owner, LMB] substantially caused Ernestina Moreno’s injuries and death” does not comprise evidence that some premises condition or an act or omission of LMB was causally related to the accident and Ernestina Moreno’s resulting injuries. His statement fails to address any particular condition of the premises, conduct of LMB, or underlying facts on which his conclusion is based. His affidavit does not set out specific facts from which a jury could reasonably infer that LMB knew or should have known of some unreasonably dangerous condition of the premises which was involved in the accident. Nor does his affidavit amount to more than a bare conclusion that some unknown conduct of LMB was a substantial cause of the occurrence, or that absent the conduct, the incident would not have occurred. In sum, the affidavit does not contain competent summary judgment evidence of either cause-in-fact or foreseeability. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 16 1999); Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex. 1962); see also McIntyre v. Ramirez, 109 S.W.3d 741, 750 (Tex. 2003).
Id. at 688–89.
Here, Allender asserts in his brief that the evidence raises a fact issue on
negligence because,
First, the [Katy defendants] had the exclusive right to control the roadway when [he] was injured. Second, the [Katy defendants] established its standard of care over the festival streets by its documentation to the City of Katy, vendors and exhibitors. Third, [the defendants] breached its own duty of care by creating a hazard and hazardous activity.
He complains that the Katy defendants “directed cars into a pedestrian
thoroughfare without taking any safety measures – that’s a created hazard.” He
contends that, because the Katy defendants created the hazard, they necessarily
knew about the hazard and are thus liable for his injury.
According to Allender, vehicles were allowed into the festival area around
6:15, despite the vendor agreements providing that vehicles would not be allowed
in until 6:30. The specific alleged breach of the duty of care that Allender
articulates is thus the Katy defendants’ failure to (1) wait until 6:30 to allow
vehicle traffic to enter the festival grounds, and (2) wait until the booths were
dismantled before allowing vehicle traffic to enter. But, even assuming these facts
17 to be true, it does not follow that allowing vehicles into the festival area ten or
fifteen minutes early was a proximate cause of his injury.
Allender cannot argue that, as a pedestrian, he was caught unaware that
vehicles were allowed into the festival area early because he had himself already
driven into the area. Thus, he has not articulated—much less offered any evidence
about—how letting vehicles into the area before 6:30 (as opposed to after 6:30 as
provided by the contracts) caused his injury. The same holds true for his assertion
that the Katy defendants were negligent in allowing vehicles in before the booths
were completely dismantled. Allender alleges that he was struck by Cooper’s car
while he was carrying a large metal panel from the booth to his car. Whether the
booths were completely dismantled before vehicles were allowed in the area would
not change the fact that the vendor contracts contemplated that there would be
vehicular traffic in the festival area while vendors are loading their cars, as
Allender was doing. In other words, while Allender states the self-evident fact that
he would not have been struck by Cooper were their not vehicles allowed in the
area, he does not explain—or offer any evidence—that allowing vehicles in before
the booths were dismantled in alleged violation of the vendor contracts
proximately caused his injury. E.g., Boys Club of Greater Dallas, 907 S.W.2d at
477 (“Cause in fact is not shown if the defendant’s negligence did no more than
18 furnish a condition which made the injury possible . . . . The evidence must go
further, and show that such negligence was the proximate, and not the remote,
cause of resulting injuries.”).
Because Allender did not present evidence of proximate cause in response to
the Katy defendants’ motion for summary judgment, the trial court properly
granted summary judgment. We overrule Allender’s second issue.
CONCLUSION
We affirm the trial court’s summary judgment on Allender’s negligence
claim against the Katy defendants. We reverse and remand the trial court’s
judgment on Allender’s breach-of-settlement agreement claim.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.