Xiao Yu Zhong and Ying Chun Ma, Individually and as Next of Friend of Hong Ya Zhong and Daonan He, Minor Children v. Sunblossom Gardens, L.L.C. D/B/A Sunblossom Gardens

• Court: Court of Appeals of Texas
• Decided: April 30, 2009
• Docket: 01-08-00470-CV
• Status: Published

Opinion

Opinion issued April 30, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00470-CV

XIAO YU ZHONG AND YING CHUN MA, INDIVIDUALLY AND AS NEXT FRIEND OF HONG YA ZHONG AND DAONAN HE, MINOR CHILDREN, Appellants

V.

SUNBLOSSOM GARDENS, L.L.C. D/B/A SUNBLOSSOM GARDENS, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 2007-22936

MEMORANDUM OPINION

Appellants, Xiao Yu Zhong and Ying Chun Ma, Individually and as Next Friend[s] of Hong Ya Zhong and Daonan He, Minor Children, challenge a no-evidence summary judgment rendered in favor of appellee, Sunblossom Gardens, L.L.C. d/b/a Sunblossom Gardens (Sunblossom). Appellants' claims derive from an assault on Xiao Yu Zhong on apartment-complex premises owned by Sunblossom, where appellants were residents. In five issues, appellants contend that the trial court erred by rendering a no-evidence summary judgment dismissing the claims of each appellant, by overruling their objections to the sufficiency of Sunblossom's no-evidence motion, and by sustaining Sunblossom's objections to some of appellants' summary-judgment proof. Appellants further contend that they raised a genuine issue of material fact on each challenged element of their claims and that the trial court erred by denying their motion for reconsideration. We affirm.

Background

Appellants, a husband and wife and their two children, became residents of the Sunblossom apartment complex in November 2003. On March 13, 2007, Xiao Yu Zhong was stabbed and robbed at night after parking his car in the complex parking lot. He sued Sunblossom for damages, claiming that defects on the premises that were known to Sunblossom but not to Xiao Yu Zhong proximately caused his injuries. Xiao Yu Zhong filed an amended petition in which he added his family members as additional plaintiffs for his underlying claim.

After the parties completed formal discovery, and the deadline to designate experts had passed, Sunblossom filed a no-evidence motion for summary judgment seeking a take-nothing judgment on appellants' claims. See Tex. R. Civ. P. 166a(i). Sunblossom maintained it was entitled to prevail as a matter of law because appellants had no evidence of one or more essential elements of their premises-liability claim.

In response, appellants listed each element of their premises-liability claim and argued that their supporting proof satisfied their burden to raise a fact issue on each element. Their summary-judgment evidence consisted of the affidavits of Xiao Yu Zhong and his wife, Ying Chun Ma. Their affidavits stated, in part, that Xiao Yu Zhong was stabbed five times and robbed on the Sunblossom premises and expressed their reliance on Sunblossom's representations regarding security at the apartment complex and concerns regarding safety and criminal activity at the complex. Appellants attached to their response a voluminous computer printout of 911 emergency summonses to the complex, which Xiao Yu Zhong and Ying Chun Ma described in their affidavits as copies of public records. Appellants' response also asserted objections and exceptions to Sunblossom's summary-judgment motion.

In reply, Sunblossom objected to the admissibility of the 911 records and to the affidavits provided by Xiao Yu Zhong and by Ying Chun Ma. Sunblossom also reiterated that adequate time for discovery has passed, reasserted its summary-judgment contentions, and provided excerpts from the deposition testimony of Xiao Yu Zhong in further support of Sunblossom's no-evidence contentions.

The record on appeal contains the reporter's record of the hearing at which the trial court considered Sunblossom's motion, appellants' response, and the parties' objections. At that hearing, the trial court rendered a take-nothing judgment in favor of Sunblossom after overruling appellants' objections to Sunblossom's motion, sustaining Sunblossom's objections to the 911 printouts offered by appellants, but overruling Sunblossom's objections to the affidavits of Xiao Yu Zhong and of Ying Chun Ma. The record on appeal also contains the reporter's record of the hearing on appellants' motion for reconsideration, during which the trial court denied appellants' request to provide authenticated copies of the 911 records on which they had previously relied.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery has passed, the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex. R. Civ. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

A party who files a no-evidence summary judgment motion pursuant to rule 166a(i) has essentially moved for pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582. We review the evidence presented by the summary judgment record in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). The evidence produced must amount to more than a scintilla in order to raise a genuine issue of material fact. Madison v. Williamson, 241 S.W.3d 145, 151 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). Evidence amounts to more than a scintilla if the evidence enables reasonable and fair-minded people to differ in the conclusions to be drawn from that evidence. See id. at 151-52. Evidence fails the scintilla test if it gives rise to only surmise or suspicion about the fact to be proven. See id. at 152.

When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. Rogers v. Ricane Enter., 772 S.W.2d 76, 79 (Tex. 1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1988, writ denied). Conversely, 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).

Preliminary Discussion--Nature of the Case

Appellants' contentions on appeal incorporate contentions that they alleged both negligence and premises-liability theories of liability against Sunblossom. Sunblossom disagrees and contends that appellants' pleadings allege only premises liability. Because Sunblossom filed no special exceptions to the pleadings, we construe them liberally in favor of appellants, see Attorney General of Texas v. Lavan, 833 S.W.2d 952, 954 (Tex. 1992), to discern every fact "that can reasonably be inferred" from the facts specifically alleged. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).

Though similar to and grounded in simple negligence, a premises-liability action requires more specific proof and is based on allegations that a real-property premises is unsafe. See Clayton Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (holding that premises-liability case requires specific instructions beyond simple negligence); see also Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (describing negligence as "simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done" and premises liability as "failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about"). A complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises-liability claim. Timberwalk, 972 S.W.2d at 753. To hold the landowner liable under an exception to the rule that persons generally have no duty to protect another from criminal acts by a third party, the claimant must be an invitee and the landowner must have retained control over security and safety of the premises. See id. at 756; Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999); Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).

It is undisputed that appellants are tenants at the apartment complex owned by Sunblossom and are thus Sunblossom's invitees. See Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333, 336 (Tex. App.--Houston [1st Dist.] 1999, pet. denied). Appellants' live pleadings allege the following: that Xiao Yu Zhong sustained "massive injuries" when he was robbed and assaulted after he had parked his car on the premises and was walking to his apartment; that Sunblossom had "such control over the premises" that Sunblossom owed certain duties to appellants; that Sunblossom had actual knowledge of the dangerous condition of the premises, which Xiao Yu Zhong did not; and that Sunblossom failed to protect Xiao Yu Zhong from the danger, both by adequately warning and by making the premises reasonably safe, which failure proximately caused his injuries. Appellants further alleged specific acts and omissions by Sunblossom that included lack of adequate lighting, lack of proper maintenance and inspection, failure to take corrective action after a similar event, failure to warn of lack of safety, and failure to provide adequate security to protect tenants.

Having reviewed appellants' pleadings in the requisite liberal light, see Lavan, 833 S.W.2d at 954, we hold that appellants claimed a status as Sunblossom's invitees that tracked the elements required to invoke a premises-liability claim against Sunblossom; the allegations far exceed simple negligence and differ from those required to trigger a negligent-activity claim. See Timberwalk, 972 S.W.2d at 753 (stating that claimant did not allege she was injured "by or as a contemporaneous result of any activity of defendants" so as to state negligent-activity claim). Accordingly, Sunblossom properly relied on appellants' pleadings as having invoked a premises-liability claim that imposed on appellants the more rigorous proof required by a premises-liability cause of action. See id.

Analysis

A. Challenges to Sunblossom's Rule 166a(i) Motion

In their first and second issues, appellants argue that summary judgment was improper because Sunblossom's motion did not comply with rule 166a(i). See Tex. R. Civ. P. 166a(i).

1. Claimants Properly Identified

In their first issue, appellants reassert their contention that rule 166a(i) required Sunblossom to identify each individual claimant and to challenge the elements required for recovery by each individual claimant. The trial court expressly overruled appellants' objection, both orally and in writing, during the hearing on Sunblossom's motion for summary judgment. See Tex. R. App. P. 33.1(a)(2)(A) (governing preservation of appellate complaints).

Rule 166a(i) permits a party to "move 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). "The motion must state the elements as to which there is no evidence." Id. Nothing in rule 166a(i) required Sunblossom to list the individual claimants seeking recovery on the premises-liability theory of recovery. See id. Furthermore, it is undisputed, given appellants' concession in the trial court, that all recovery is premised on recovery by Xiao Yu Zhong. Because the claims of all remaining appellants derive from the premises-liability claim of Xiao Yu Zhong, no evidence of the elements of his claim constitutes no evidence of their claims as a matter of law. See Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002) (holding that family members constitute single claimant for purposes of settlement-credit statute).

We hold, therefore, that the trial court correctly overruled appellants' similarly phrased objection in the trial court, and we overrule their first issue.

2. Claims

In their second issue, appellants contend that Sunblossom's rule 166a(i) motion was conclusory, on the grounds that Sunblossom's summary-judgment contentions did not address appellants' claim for negligence or negligent activity. Through this issue, appellants essentially challenge this Court's jurisdiction to consider this appeal, given that failure to dispose of a properly pleaded cause of action would render the summary judgment interlocutory and nonappealable. See generally Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (holding that judgment was not final because it did not dispose of claims of a defendant). As explained above, however, appellants grounded their claims to recover damages from Sunblossom on principles of premises liability and tracked the requisite elements in their pleadings. Sunblossom relied on those pleadings in moving for no-evidence summary judgment by contending that appellants could not provide any evidence of the following: (1) that Sunblossom had actual or constructive knowledge of a condition on the Sunblossom premises; (2) that the condition posed an unreasonable risk of harm; (3) that Sunblossom did not exercise reasonable care to eliminate that risk, and (4) that Sunblossom's failure to exercise reasonable care proximately caused the injuries to Xiao Yu Zhong. See, e.g., Timberwalk, 972 S.W.2d at 753 (stating elements of premises-liability claim). Sunblossom's motion complied with rule 1661(i) by specifying the elements of appellants' premises-liability claim and by stating that appellants had no evidence to support any of the requisite elements.

We overrule issue two.

B. Challenge to Excluded 911 Records

In their fourth issue, appellants contend that the trial court erred by sustaining Sunblossom's objections to the 911 records that appellants produced in response to Sunblossom's motion for no-evidence summary judgment. ⁽¹⁾

Documents submitted as summary-judgment proof must be sworn or certified. Tex. R. Civ. P. 166a(f). Appellants contend that the 911 records are competent summary judgment proof under Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) and Tex. R. Evid. 902 (regarding self-authentication). Relying on Republic Nat'l Leasing, this Court has recognized that copies of original private documents like promissory notes, leases, and contracts may constitute competent summary judgment evidence if accompanied by a properly sworn affidavit stating that the attached documents are "true and correct" copies of the originals. St. Paul Cos. v. Chevron U.S.A., Inc., 798 S.W.2d 4, 6 (Tex. App.--Houston [1st Dist.] 1990, writ dism'd by agreement) (citing Republic Nat'l Leasing Corp., 717 S.W.2d at 607). Neither Xiao Yu Zhong nor Ying Chun Ma stated in their affidavits that the 911 records they obtained were true and correct copies of original documents.

Furthermore, the Rules of Evidence and summary-judgment practice treat public records differently from private records. See Tex. R. Evid. 902(4). And though Rules 1003 and 1004(d) recognize that a "duplicate" of the original is admissible to the same extent as the original when the original of a document is not available, rule 1003 does not apply when as here, its authenticity is questioned. See Tex. R. Evid. 1003(1).

Appellant also invokes the principle that a copy of a public record is considered authentic if a sponsoring witness vouches for its authenticity or if the document meets the certification requirements for self-authentication contained in Rule 902. See ESIS, Inc., v. Johnson, 908 S.W.2d 554, 561 (Tex. App.--Fort Worth 1995, writ denied) (citing Tex. R. Evid. 1005 and Castro v. Sebesta, 808 S.W.2d 189, 195 (Tex. App.--Houston [1st Dist.] 1991, no writ) (op. on reh'g)). As we have stated, no sponsoring witness vouched for the authenticity of the 911 records on which appellants relied here.

Likewise, appellants offered nothing in support of the 911 records to satisfy the requirements for self-authentication established by rule 902, which governs "Self-Authentication" and provides,

A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with . . . this rule or complying with any statute or other rule prescribed pursuant to statutory authority.

Tex. R. Evid. 902(4) (Certified Copies of Public Records). Without the required certification by a records custodian or other person authorized to certify them, the 911 records had no probative value and were incompetent summary-judgment evidence properly excluded as hearsay. See Castro, 808 S.W.2d 189, 195-96; see also Carr v. Hertz Corp., 737 S.W.2d 12, 14 (Tex. App.--Corpus Christi 1987, no writ) (holding that unsworn, unverified driving record attached to summary-judgment response had no probative value in negligent entrustment action); Diaz v. Southwest Wheel, Inc., 736 S.W.2d 770, 773-74 (Tex. App.--Corpus Christi 1987, writ denied) (holding that unauthenticated letter and unauthenticated excerpt of testimony from out-of-state trial was not proper summary-judgment evidence).

As the reporter's record of the hearing on Sunblossom's motion reflects, the trial court sustained Sunblossom's objections to the 911 reports because there was "no affidavit from any person associated with the police department indicating that this is an accurate or complete copy of what it purports to be." We agree. Because appellants did not authenticate the 911 reports and did not establish that they were self-authenticating, the trial court properly excluded the reports as incompetent summary-judgment evidence.

We overrule appellants' fourth issue.

D. Did Appellants Produce a Fact Issue to Defeat Summary Judgment?

In their third issue, appellants contend that their summary judgment evidence was sufficient to defeat Sunblossom's motion. Having overruled appellants' fourth issue above, we consider only appellants' remaining proof, specifically the affidavits of Xiao Yu Zhong and Ying Chun Ma, in addressing this issue.

The grounds on which Sunblossom claimed there was no evidence to support appellants' claims included the contention that Sunblossom had no knowledge that Xiao Yu Zhong would be criminally assaulted on the apartment-complex premises. The duty owed by the defendant to the plaintiff is a preliminary consideration in a premises-liability case. See Barton v. Whataburger, Inc., 276 S.W.3d 456, 462 (Tex. App.--Houston 2008, no pet. h.). The court determines as a matter of law whether the defendant owes a duty, Trammell Crow Cent. Texas, Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008), and the "parameters" of that duty; Timberwalk, 972 S.W.2d at 756. As a general rule, no person has a legal duty to protect another person from criminal acts by a third party. Id.; Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995).

To hold a landlord like Sunblossom liable under an exception to the no-duty rule, the claimant must be an invitee, and the landowner must have retained control over security and safety of the premises, as addressed above. See Mellon, 5 S.W.3d at 655; Timberwalk, 972 S.W.2d at 756. Property owners may owe a duty to those invitees who may be harmed by criminal acts of third parties if the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Mellon, 5 S.W.3d at 655; Timberwalk, 972 S.W.2d at 756; see also Lefmark Mgmt. Co., 946 S.W.2d at 53 ("One who controls the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.").

Foreseeability of an unreasonable risk of criminal conduct is the starting point in determining the extent of any duty owed to prevent criminal acts. Timberwalk, 972 S.W.2d at 756. In considering whether a particular criminal act was so foreseeable and unreasonable as to impose a duty upon a landlord to a tenant-invitee like Xiao Yu Zhong, we first examine the particular criminal conduct that occurred in light of "specific previous crimes on or near the premises." See Mellon Mortgage, 5 S.W.3d at 656; Timberwalk, 972 S.W.2d at 756 (both quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)). Timberwalk describes how we conduct this examination:

In determining whether the occurrence of certain criminal conduct on a landowner's property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.

Timberwalk, 972 S.W.2d at 757. If we determine that the general danger of the criminal act was foreseeable, after applying these factors, we proceed to the second step of the foreseeability analysis and determine whether it was reasonably foreseeable--before Xiao Yu Zhong was injured and not by hindsight--that he or any other similarly situated person would be the victim of the criminal act on which he bases his claims. See id. Conversely, if danger to the claimant is not shown to be foreseeable, the law considers the criminal conduct of the third party a superseding cause of the injury. See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 550 (Tex. 1985); Barton, 276 S.W.3d at 462.

The affidavits of Xiao Yu Zhong and Ying Chun Ma in this case fail to give rise to the requisite issue of material fact that Sunblossom should have foreseen that Xiao Yu Zhong would be robbed and stabbed on the Sunblossom premises. Both affiants stated their concerns about security in the apartment, referred to statements by Sunblossom's managers that the complex provided "24-hour security" and had an access-code gated entry, and expressed reliance on those statements. In addition, both affiants stated that security officers did not patrol the premises, that the access-code gate remained open for long periods of time and was not working on the night Xiao Yu Zhong was attacked, that lights were frequently out on the premises and were not working on the night Xiao Yu Zhong was injured, and that the complex lacked a "security camera or any other device that could help prevent any criminal activity from happening."

Xiao Yu Zhong and Ying Chun Ma also stated in their affidavits that they observed police cars driving through the complex and that, on investigating, Xiao Yu Zhong learned that the police were responding to reports of criminal activity. To support that statement, however, affiants referred to the 911 reports that the trial court properly excluded, as addressed above. In addition, both affiants stated that a visitor to their apartment had been robbed in the complex and a neighbor burglarized within the year before Xiao Yu Zhong was robbed and stabbed and that both incidents had been reported before his incident. Both affiants concluded by offering their opinion that Xiao Yu Zhong would not have been stabbed five times and robbed "if [Sunblossom] had done what [it] represented or taken measures to deter crime" in the complex.

In assessing the affidavits, we must consider together the Timberwalk factors, specifically proximity, frequency, similarity, and publicity, in determining foreseeability of the crime that occurred. Id. at 759. As the supreme court explained in Timberwalk, the frequency-of-crimes factor lessens, for example, when the similarity factor increases. Id. Likewise, frequent property crimes in the vicinity "is not as indicative of foreseeability" as less frequent violent crimes that take place on the landord's property. Id. In this case, as in Timberwalk, violent crime is the criminal activity that serves as the basis of appellants' complaint. See id. at 759. In Timberwalk, the evidence showed but a single sexual assault within a one-mile radius of the premises and no violent crimes on the premises. Id. Despite evidence of other property crimes in the complex and in neighboring complexes, the risk that the claimant would be sexually assaulted on the apartment premises was not a foreseeable risk that imposed a duty on the property owner. Id.

The same reasoning applies here. Nothing in the affidavit of either Xiao Yu Zhong or Ying Chun Ma refers to any crime involving violence against a person, either on the premises or in the vicinity. Similarly, the two crimes described in the affidavits are analagous to the tire-slashing and car burglary and car theft crimes described in Timberwalk. See id. In addition, both affiants stated their opinion that Sunblossom's having "done what [it] represented or taken measures to deter crime" would have prevented the violent attack on Xiao Yu Zhong." Expert testimony may bear on foreseeability of criminal conduct. E.g., Mellon, 5 S.W.3d at 664 (Baker, J., concurring). But, neither Xiao Yu Zhong nor Ying Chun Ma established the necessary expertise to qualify as expert witnesses. See Tex. R. Evid. 702 (stating qualifications of experts). As statements of opinion by lay, interested witnesses, their opinions were neither readily controvertible, as required by rule 166a(c) nor competent, as required by rule 166a(f). Having failed to establish that the injury to Xiao Yu Zhong was foreseeable, appellants did not establish the first element of the duty analysis contemplated by Timberwalk. See Timberwalk, 972 S.W.2d at 756.

When the claimant's injury is not sufficiently foreseeable to establish a duty in the premises owner, the owner necessarily lacks the requisite knowledge of the likelihood that the claimant would be injured. Sunblossom moved for no-evidence summary judgment in part on that basis, and appellants did not meet their burden to present competent evidence of any issue of material fact to establish knowledge. Because appellants did not meet their summary-judgment on the knowledge element, we need not address whether their proof raised a fact issue on the remaining elements of their claim. See Joe, 145 S.W.3d at 157. We hold that Sunblossom established its right to prevail as a matter of law on appellants' claims, and the trial court properly rendered summary judgment in Sunblossom's favor pursuant to rule 166a(i).

We overrule appellant's third issue.

E. Whether Trial Court Abused its Discretion by Denying Reconsideration

In their fifth issue, appellants contend that the trial court erred by denying their motion for reconsideration, by which they sought to supplement their summary judgment proof, after the trial court had rendered the final summary judgment, by providing authenticated copies of the 911 records originally attached to their response. The motion was overruled by operation of law. We review rulings denying a motion for reconsideration for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Appellants have not demonstrated that the trial court abused its discretion. It is undisputed that the deadline to designate experts had passed, and appellants had never disputed that adequate time for discovery had also passed. See Tex. R. Civ. P. 166a(i). Likewise, though rule 166a(c) permits parties to supplement their summary-judgment proof after the hearing on the motion, they must do so "before judgment with permission of the court." Tex. R. Civ. P. 166a(c).

We overrule appellant's fifth issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

1. The trial court recited its express ruling sustaining Sunblossom's objection at the hearing on the motion for summary judgment, when the court also stated on the record its reasons for that ruling. See Tex. R. App. P. 33.1(a)(2)(A); Aguilar v. LVDVD, L.C., 70 S.W.3d 915, 917-18 (Tex. App.--El Paso 2002, no pet.) (citing Columbia Rio Grande Reg. Hosp. v. Stover, 17 S.W.3d 387, 395-96 (Tex. App.--Corpus Christi 2000, no pet.)).