Webster Sanford v. Wehner Multifamily LLC and ICON San Antonio, LLC

• Court: Court of Appeals of Texas
• Decided: February 26, 2025
• Docket: 08-24-00053-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

WEBSTER SANFORD, § No. 08-24-00053-CV

Appellant, § Appeal from the

v. § 438th District Court

WEHNER MULTIFAMILY, LLC and ICON § of Bexar County, Texas SAN ANTONIO, LLC, § (TC# 2024CIO1882) Appellees.

MEMORANDUM OPINION 1

Appellant Webster Sanford appeals the summary judgment that disposed of all his claims

against his landlord for injuries he sustained in his apartment. Because we find that he did not meet

his summary judgment burden as a non-movant, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sanford was a tenant at Icon Avesta Apartments in San Antonio. He claims that on August

30, 2018, his bathroom ceiling broke apart and water flowed onto his floor, causing him “to slip

and fall backward hitting his head.” He filed suit against ICON San Antonio, LLC and Wehner

1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3. Multifamily LLC, the property management company, asserting claims of premises liability,

negligence, and gross negligence. 2 In his suit, Sanford alleged that “Defendants knew or should

have known that the poor condition of the foundation would lead to catastrophic failure in

[Sanford]’s apartment such that it created a dangerous condition, posing an unreasonable risk of

harm to [Sanford] and others similarly situated.”

Appellees filed a no-evidence motion for summary judgment on all three of Sanford’s

causes of action. Sanford filed a response, attaching three items of evidence: the deposition of

Francia Rivera, Wehner’s regional supervisor; photographs of the damage to the bathroom; and

his own affidavit. The trial court sustained Appellees’ objections to all of Sanford’s evidence and

granted their motion for summary judgment on all claims.

Sanford raises three points of error. First, he claims that Appellees’ summary judgment

motion was not sufficiently specific. Second, he argues that the trial court erred by striking his

evidence. Third, he argues that he met his summary judgment burden by producing more than a

scintilla of evidence to support the elements of his claims.

I. STANDARD OF REVIEW A party may file a no-evidence motion for summary judgment “on the ground that there is

no evidence of one or more essential elements of a claim or defense on which an adverse party

would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). To avoid summary judgment, the

nonmovant must produce “more than a scintilla of probative evidence to raise a genuine issue of

material fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Evidence that is

“so weak as to do no more than create a mere surmise or suspicion” of a necessary element is less

2 He also named 1300 Patricia LLC dba Avesta Icon Apartments and Trivest Patricia LP as defendants, but they were not a party to the judgment below or this appeal. The trial court signed an order severing those claims into their own case.

2 than a scintilla and will not support a summary judgment. Id. (quoting Kindred v. Con/Chem, Inc.,

650 S.W.2d 61, 63 (Tex. 1983).

We review summary judgments de novo and determine if the nonmovant produced “more

than a scintilla of probative evidence to raise a genuine issue of material fact.” Id. In our review,

“we take as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” KMS Retail Rowlett, LP v. City of

Rowlett, 593 S.W.3d 175, 181 (Tex. 2019). When, like in this case, the trial court does not specify

in its order the ground on which it granted summary judgment, we must affirm if the judgment is

proper on any ground. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000).

II. ANALYSIS A. Sufficiency of Appellees’ Motion for Summary Judgment

Rule 166a “does not authorize conclusory motions or general no-evidence challenges to an

opponent’s case.” Tex. R. Civ. P. 166a, 1997 comment. A no-evidence motion for summary

judgment must be specific as to which elements it is challenging. “If a no-evidence motion for

summary judgment is not specific in challenging a particular element or is conclusory, the motion

is legally insufficient as a matter of law . . . .” Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3

(Tex. App.—San Antonio 2000, pet. denied)

Sanford argues that Appellees’ “motion failed to identify any element of Sanford’s claims

lacking evidentiary support.” We first discuss the elements of each of Sanford’s claims before

turning to the challenges in Appellees’ motion.

3 (1) Premises liability

Generally, a landlord is not liable for dangerous conditions on leased premises. Johnson

Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996) One exception, and the one

on which Sanford relies, is for concealed conditions of which the landlord is aware. Restatement

(Second) of Torts § 358 (1965); Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). The

elements of a premises liability claim when the plaintiff was an invitee 3 are:

(1) Actual or constructive knowledge of a condition on the premises by the owner or occupier;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and

(4) That the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

Appellees’ motion first argues that “Plaintiff has no evidence as to what caused the incident

in question” and that without that evidence Sanford “cannot establish that there was a condition

on the premises that proximately caused the incident in question.” However, “an unreasonably

dangerous condition for which a premises owner may be liable is the condition at the time and

place injury occurs, not some antecedent situation that produced the condition.” Brookshire

Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006). So, for example, in a suit in which the

plaintiff claimed he was injured after he slipped in water on a basketball court, the Texas Supreme

Court stated, “The leaky roof was not itself a dangerous condition; it could only cause a dangerous

3 Sanford, as a tenant, was an invitee. Strandberg v. Spectrum Office Bldg., 293 S.W.3d 736, 739 (Tex. App.—San Antonio 2009, no pet.)

4 condition.” City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536–37 (Tex. 1996) (per curiam),

see also Am. Ret. Corp v. Stanley, No. 13-02-479-CV, 2004 WL 1405686, at *4 (Tex. App.—

Corpus Christi–Edinburg June 24, 2004, pet. dism’d) (mem. op.) (dangerous condition was water

on the tenant’s bathroom floor, not the leaks that caused the water to be there). In this case, the

condition that Sanford claims caused his injuries was the collapsed ceiling and water on the floor.

But the reason for that condition, whether it was a faulty foundation as alleged in his petition or

plumbing issues as he alleged at the summary judgment stage, is not an element of his cause of

action. We agree with Sanford that this evidentiary challenge does not challenge an element of his

premises liability claim.

Appellees’ motion then states that Sanford had no evidence of the following:

• that Appellees “knew or should have known of the condition (whatever that condition may have been).”

• that Appellees “failed to exercise reasonable care to reduce or eliminate the unreasonable risk of harm[.]”

• “that any of [Sanford’s] claimed injuries or damages were caused by the incident[.]”

Each of these statements clearly identifies an element of Sanford’s premises liability claim and is

therefore sufficient to put the element at issue under Rule 166a(i).

(2) Negligence

“Depending on the circumstances, a person injured on another’s property may have either

a negligence claim or a premises-liability claim against the property owner.” Occidental Chem.

Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (citing Keetch v. Kroger Co., 845 S.W.2d 262,

264 (Tex. 1992)). The claim is one of negligence rather than premises liability if the plaintiff was

“injured by or as a contemporaneous result of the activity itself rather than by a condition created

by the activity.” Keetch, 845 S.W.2d at 264.

5 In their motion for summary judgment, Appellees argued that Sanford had “no evidence

that he was injured as a result of ongoing activity.” Because Appellees specifically challenged an

element necessary to distinguish Sanford’s negligence claim from a premises liability claim, it is

sufficient under Rule 166a(i). Blake v. Intco Investments of Tex., Inc., 123 S.W.3d 521, 526

(Tex. App.—San Antonio 2003, no pet.) (affirming a no-evidence summary judgment for

negligence claims when the Plaintiff did not assert she was injured by ongoing activity); Flores v.

Oncor Elec. Delivery Co., LLC, 697 S.W.3d 465, 479 (Tex. App.—Dallas 2024, no pet. h.)

(affirming summary judgment because there was no evidence in the record of an ongoing activity

that injured plaintiff and the “claim [did] not sound in negligent activity”); Brooks v. PRH

Investments, Inc., 303 S.W.3d 920, 924–25 (Tex. App.—Texarkana 2010, no pet.) (affirming

summary judgment because “there is no evidence that the negligent activity itself caused Brooks’s

injuries or that her fall was contemporaneous with Summers’s mopping”).

(3) Gross negligence

A gross negligence claim requires evidence of two elements:

(1) viewed objectively from the actor’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed[s] in conscious indifference to the rights, safety, or welfare of others.

Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per curiam); Tex. Civ. Prac. & Rem.

Code Ann. § 41.001(11).

Appellees’ motion for summary judgment listed these two elements and claimed that

Sanford had “no evidence of any of the foregoing elements of his gross negligence claim[.]”

Because Appellee’s motion expressly lists and challenges both elements of Sanford’s gross

negligence claim, it is sufficiently specific. See, e.g., Hight v. Dublin Veterinary Clinic, 22 S.W.3d

6 614, 622–23 (Tex. App.—Eastland 2000, pet. denied) (holding that a no-evidence motion for

summary judgment met requirements of Rule 166a(i) when it listed elements of a negligence cause

of action and stated that the plaintiff “cannot provide evidence to support any of the

aforementioned elements”).

To summarize, we hold that, except for Appellees’ allegation that Sanford had no evidence

of the cause of the condition, their no-evidence motion for summary judgment specifically

identified the challenged elements of Sanford’s causes of action. We overrule Sanford’s issue one.

B. Summary judgment evidence

Sanford responded to the motion for summary judgment with the deposition of Wehner’s

regional supervisor, photographs of his bathroom ceiling, and his affidavit. Appellees objected to

the evidence in its entirety on the ground that Sanford’s claim that a water leak caused the ceiling

to collapse had never been pled or disclosed in discovery. They also objected to a portion of

Sanford’s affidavit on the ground that he offered an expert opinion about the cause of the condition

when he had not been designated as an expert. In his second issue, Sanford argues that the trial

court’s order sustaining those objections was error. However, we do not reach that issue because

we hold that, even considering all of Sanford’s summary judgment evidence, Appellees were

entitled to summary judgment.

(1) Premises liability—knew or should have known about the condition

Appellees’ motion for summary judgment asserted that Sanford had no evidence that they

knew or should have known about the dangerous condition in his apartment. Sanford argues that

he produced more than a scintilla of evidence that Appellees knew that the apartment above

Sanford’s had a water leak.

7 Even though, as we explained above, the cause of the condition is not an element of a

premises liability claim, the property owner’s knowledge of the cause can be evidence that he had

actual or constructive knowledge of the condition itself. For example, in the Rodriguez case, the

Court stated:

The City complains that there was no evidence that it knew of the water on the floor. However, there was evidence that the person in charge of the recreation center knew of the leaks in the roof and knew that it had been raining. Depending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor. We therefore reject the City's no-evidence complaint.

Rodriguez, 931 S.W.2d at 537; see also Stanley, 2004 WL 1405686, at *3 (stating that the court

could infer that the property owner would know that there would be water on the floor of an

apartment when the owner knew that there were roof leaks and a storm).

In this case, evidence that Appellees knew of a water leak in the bathroom above Sanford’s

apartment could be evidence that Appellees knew or had reason to know that the water would

cause the ceiling to collapse and would leak onto Sanford’s floor. However, we do not find such

evidence in the record.

During Rivera’s deposition, taken on August 4, 2021, Sanford’s attorney apparently showed

Rivera a report about the upstairs water leak and the following exchange occurred:

Q. This is unit 117. It’s my understanding this is the unit above my client’s; are you aware of that? Have you seen this document before?

A: Yes, sir.

Q: When would be the first time you saw it?

A: It was this year. That particular one it was actually April.

Q. Okay. So this is-it says the sink is leaking and there’s a plumbing issue and it’s reported the same day of the incident, correct?

8 A: Okay.

Q: Were you aware of that?

A: No.

Q: You were not aware

A: About the same day of the incident?

Q: Correct.

A: No I don’t remember seeing the date on this one.

The report that Sanford’s attorney referred to, while it may have been an exhibit to the

deposition, was not produced in response to the motion for summary judgment. Without that

report, the deposition is only evidence that there was a report about a plumbing issue that Rivera

did not see until April 2021, almost three years after the incident. Appellees’ counsel told Rivera

that the report was made the same day as the incident, but an attorney’s statements and questions

are not evidence. Sunrizon Homes, Inc. v. Fuller, 747 S.W.2d 530, 533 (Tex. App.—San Antonio

1988, writ denied); Vaccaro v. Raymond James & Associates, Inc., 655 S.W.3d 485, 491–92 (Tex.

App.—Fort Worth 2022, no pet.); Ex parte Holliday, 619 S.W.3d 859, 862 (Tex. App.—Houston

[14th Dist.] 2021, no pet.). Moreover, Rivera only responded, “Okay.” She neither agreed with nor

confirmed the truth of the attorney’s statement. The deposition is not evidence that the water leak

was reported the same day as the incident or that Appellees knew about it before Sanford was

injured. 4

4 Also, even if the deposition were evidence that a report of a water leak was made on the same day as the incident, there is no evidence about the time the report was made–whether it was before or after Sanford’s ceiling collapsed.

9 Because Sanford failed to produce more than a scintilla that Appellees knew or should have

known about the dangerous condition, an essential element of his premises liability claim, the trial

court did not err in granting summary judgment for Appellees on that claim. 5

(2) Evidence of negligence and gross negligence

Sanford’s response to Appellees’ motion for summary judgment discusses only the

elements of his premises liability claim, and not his negligence and gross negligence claims. He

does not respond to Appellees’ allegations that he had no evidence to support his negligence and

gross negligence claims or cite to any evidence of the elements of those claims. Because he did

not specifically point to evidence supporting the challenged elements, he did not raise a fact issue

necessary to defeat summary judgment. Arredondo v. Rodriguez, 198 S.W.3d 236, 238–39

(Tex. App.—San Antonio 2006, no pet.) (“Because plaintiffs’ response did not direct the trial court

to any specific portion of their summary judgment evidence, plaintiffs failed to raise a fact issue

sufficient to defeat appellee’s no-evidence motion for summary judgment.”); Leija v. Laredo Cmty.

Coll., No. 04-10-00410-CV, 2011 WL 1499440, at *5 (Tex. App.—San Antonio Apr. 20, 2011,

no pet.) (mem. op.) (same).

Because Sanford failed to produce more than a scintilla of evidence of all the challenged

elements of his claims, we overrule his third issue.

IV. CONCLUSION Appellees sufficiently challenged elements of Sanford’s premises liability, negligence, and

gross negligence claims. Because Sanford failed to respond with more than a scintilla of evidence

5 Because summary judgment is proper if there is no evidence of any one element, we do not reach whether Sanford produced evidence of the other elements of his premises liability claim. Tex. R. Civ. P. 166a(i).

10 for each challenged element, the trial court properly granted summary judgment on all claims. The

judgment of the trial court is affirmed.

MARIA SALAS MENDOZA, Chief Justice

February 26, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.