David H. Girdner and Kyle Brown, Individually, and Girdner-Brown Funeral Home, a Texas General Partnership v. Thomas E. Rose ( 2006 )

Opinion filed November 9, 2006

Opinion filed November 9, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00216-CV

                                                    __________

             DAVID H. GIRDNER AND KYLE BROWN, INDIVIDUALLY,

         AND GIRDNER-BROWN FUNERAL HOME, A TEXAS GENERAL

                                        PARTNERSHIP, Appellants

                                                             V.

                                       THOMAS E. ROSE, Appellee

                                          On Appeal from the 42nd District Court

                                                          Taylor County, Texas

                                                 Trial Court Cause No. 45,972-A

                                              M E M O R A N D U M   O P I N I O N

This is a property damage suit.  The trial court granted Thomas E. Rose=s no-evidence motion for summary judgment finding that David H. Girdner and Kyle Brown, individually, and Girdner-Brown Funeral Home, a Texas General Partnership, produced no evidence that Rose breached a duty owed to them. We affirm.

                                                             I.  Background Facts

Girdner and Brown own Girdner-Brown Funeral Home.  Rose owns Thomas Everett Fine Furniture located across the street from the funeral home and a warehouse adjacent to the funeral home.  In the early morning hours of December 27, 2003, a fire started in the alley behind the warehouse.  The fire damaged the structure and contents of the funeral home and warehouse.  Girdner was already involved in litigation with Rose and with the funeral home=s landlord, Margie C. Grissom.  Girdner had previously filed a declaratory judgment action against them alleging that he and Grissom=s husband had executed a lease with an option to purchase the property where the funeral home was located.  After the fire, Girdner filed an amended petition adding Brown and the funeral home as plaintiffs.  Girdner and Brown alleged that the fire was caused by Rose and Grissom=s negligence, and they sought personal and business-related damages.

The trial court severed the fire-related claims, and the declaratory judgment action proceeded to trial.  The trial court conducted a bench trial, found that Girdner had no claim or right to the funeral home property, and entered a declaratory judgment adverse to him. Grissom then filed a motion for summary judgment in the fire-claim action, and Girdner and Brown nonsuited their claims against her.

Rose also filed a no-evidence motion for summary judgment in the fire-claim action.  Rose argued that, because Girdner had no right or claim to the funeral home property, he and Brown were trespassers. Rose argued further that there was no evidence he had injured them willfully, wantonly, or through gross negligence and, therefore, that he had no liability as a matter of law.  Girdner and Brown responded with an amended petition that included claims for negligence, gross negligence, and arson. They requested actual and exemplary damages and attorney=s fees. The trial court granted Rose=s motion for summary judgment and entered the judgment upon which this appeal is based.

                                                                       II.  Issues

Girdner and Brown challenge the trial court=s judgment with two issues.  First, they contend that the trial court abused its discretion by failing to give them an opportunity to amend their petition before granting Rose=s no-evidence motion for summary judgment. Second, they argue that  the trial court incorrectly granted Rose=s no-evidence motion for summary judgment.

                                                            III. Standard of Review

Trial courts must grant a no-evidence motion for summary judgment unless the nonmovant produces evidence that raises a genuine issue of material fact on the challenged elements of his claim or defense.  Tex. R. Civ. P. 166a(i).  We review evidence presented in response to a no-evidence motion for summary judgment in the same way we review evidence presented in support of, or in response to, a traditional motion for summary judgment: we accept as true evidence favorable to the nonmovant and indulge every reasonable inference and resolve all doubts in favor of the nonmovant.  Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App.CEastland 2000, pet. denied).  If the nonmovant presents more than a scintilla of evidence on the disputed element, summary judgment is improper.  Id.

                                                                   IV. Discussion

Girdner and Brown argue initially that Rose=s no-evidence motion was used as a substitute for special exceptions and, therefore, that the trial court abused its discretion by not affording them an opportunity to amend their petition.  This argument fails because Rose=s motion did not assert a pleading deficiency B  it challenged the presence of any evidence supporting Girdner=s and Brown=s claims.

Furthermore, the trial court did not deprive Girdner and Brown of the opportunity to amend their petition.  In fact, they filed their third amended petition in direct response to Rose=s summary judgment motion.  In their summary judgment response, Girdner and Brown argued that Rose=s motion was premature because discovery had not been completed.  But, at no time prior to the trial court=s summary judgment ruling did they make any effort to file an additional amended petition.

Finally, Girdner and Brown do not indicate what they could have asserted in an amended petition that would have precluded summary judgment.  For each of these reasons, Girdner and Brown have failed to demonstrate an abuse of discretion, and their first issue is overruled. 

Girdner and Brown next argue that the trial court erred by granting Rose=s summary judgment motion.  They contend that Rose failed to offer any summary judgment evidence but, instead, made unsupported allegations that they were trespassers.  A no-evidence motion for summary judgment does not require Rose to produce any evidence. Moreover, Girdner=s and Brown=s rights to the property had been resolved approximately seven months previously in the declaratory judgment action.^[1]  Rose=s motion referred the trial court to that judgment, and the trial court was well within its authority to take judicial notice of its previous finding.  See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.CAustin 1994, no writ) (trial courts may take judicial notice of their own records).

To overcome Rose=s no-evidence motion, Girdner and Brown were required to produce evidence that Rose injured them willfully, wantonly, or through gross negligence.  They direct this court to their summary judgment response, contending that it sufficiently established that Rose was grossly negligent by stacking cardboard in the alley B which he knew was flammable; that there had been two previous fires in the alley; and that it was against Abilene ordinances to store flammable materials in the alley.

The Texas Supreme Court has defined gross negligence as an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.  Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994). Evidence of simple negligence alone is not sufficient to establish gross negligence.  La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999).  The defendant=s state of mind is what separates ordinary negligence from gross negligence. The plaintiff must show that the defendant knew about the peril but that his acts or omissions demonstrate that he did not care.  Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex. 1985).

Girdner and Brown point to Girdner=s affidavit where he testified that Rose was grossly negligent because he stacked flammable cardboard in the alley.  A bare statement such as this is conclusory and is insufficient to defeat a no-evidence motion for summary judgment.  See In re Estate of Grimm, 180 S.W.3d 602, 607-08 (Tex. App.CEastland 2005, no pet.).

Girdner and Brown produced no evidence that Rose was subjectively aware that storing cardboard in the alley created an extreme degree of risk.  Girdner and Brown contend in their brief that there had been two prior fires in the alley.  Their evidence for this is Girdner=s affidavit.  But Girdner did not testify that there had been two previous fires; he testified that he was at Rose=s deposition and remembered Rose testifying about two prior fires.  Rose=s deposition was included in their summary judgment response.  Rose did not testify that there had been two previous alley fires; he testified that there had been one previous fire and that it had been in the dumpster.  Thus, there was no evidence that the stacked cardboard had ever caught fire before.

Nor was there any evidence that the cardboard constituted an extreme degree of risk. More than a remote possibility of injury or even a high probability of minor harm, rather the likelihood of serious injury, is required.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001).  Rose confirmed that cardboard was stacked in the alley on the night of the fire. Rose paid a gentleman, who collected cardboard from local businesses, to collect their cardboard and take it to a recycling center.  Rose=s cardboard had been collected the day before and, on this night, was stacked six by eight feet wide and two feet tall. Taking as true Girdner=s statement that Rose violated city ordinances by stacking cardboard in the alley, this might be sufficient to establish a negligence per se cause of action, but not gross negligence.  The mere fact that cardboard is flammable is insufficient to make a two-foot tall stack an extreme degree of risk.

Because Girdner and Brown produced no evidence that Rose injured them willfully, wantonly, or through gross negligence, the trial court did not err when it granted the no-evidence motion for summary judgment, and Girdner and Rose=s second issue is overruled.

                                                                     V.  Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

November 9, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

---

^[1]Girdner also appealed the trial court=s declaratory judgment. In a Girdner v. Rose, No. 11- 04-00272-CV separate opinion, we are modifying and affirming that judgment. Although Brown and the Partnership were not parties to that proceeding, Girdner claimed that the funeral home was operated on property covered by a lease with an option to purchase that he had executed individually.  Neither Brown nor the Partnership claimed right of possession beyond this lease in response to the no-evidence motion for summary judgment.