Cynthia Holland v. Memorial Hermann Health System ( 2015 )

Opinion issued November 24, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00283-CV
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CYNTHIA HOLLAND, Appellant
V.
MEMORIAL HERMANN HEALTH SYSTEM, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2013-17174
MEMORANDUM OPINION
Appellant, Cynthia Holland, challenges the trial court’s rendition of
summary judgment in favor of appellee, Memorial Hermann Health System
(“Memorial”), in Holland’s suit against it for premises liability. In her sole issue,
Holland contends that the trial court erred in granting Memorial summary
judgment on the ground that it did not own or control the premises where she
tripped and fell.
We reverse and remand.
Background
In her original petition, Holland alleges that on April 7, 2011, she “tripped
and fell on the uneven and cracked pavement” in the parking lot of “Memorial
Hermann Katy Hospital” (“Katy Hospital”). She further alleges that “the premises
in question” are owned by Memorial, which owed her a legal duty “to protect and
safeguard [her] from unreasonably dangerous conditions on the premises or to
warn [her] of their existence.” Memorial moved for summary judgment, arguing
that because it did not own or control the premises in question, it, as a matter of
law, did not owe Holland any such legal duty. After the trial court granted
Memorial’s motion, Holland filed a motion for new trial, which the trial court
denied.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
establishing that it is entitled to judgment as a matter of law and there is no
genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it
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must either (1) disprove at least one essential element of the plaintiff’s cause of
action or (2) plead and conclusively establish each essential element of its
affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey, 900
S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a
disputed, material fact issue precluding summary judgment, evidence favorable to
the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546, 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor of
the non-movant and any doubts must be resolved in her favor. Id. at 549. When a
summary judgment does not specify the grounds on which the trial court relied, the
reviewing court will affirm the judgment if any theory advanced in the motion is
meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173
(Tex. 1995); Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex.
App.—Houston [1st Dist.] 1995, writ denied).
Summary Judgment
In her sole issue, Holland argues that the trial court erred in granting
Memorial summary judgment on the ground that it did not own or control the
premises where she fell because she pleaded that she “tripped and fell” in the
parking lot of Katy Hospital, but Memorial attached to its motion evidence
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showing that it did not own or possess a parking lot adjacent to “Memorial
Hermann Memorial City Hospital” (“Memorial City Hospital”).
To prevail on a premises-liability claim, “a plaintiff must prove that the
defendant possessed—that is, owned, occupied, or controlled—the premises where
[the] injury occurred.” Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635
(Tex. 1999).
In support of its argument that it owed Holland no legal duty because it did
not own or control the parking lot in which she tripped and fell, Memorial attached
to its summary-judgment motion a copy of Holland’s original petition; a map from
the Harris County Appraisal District; a redacted lease agreement, purportedly
concerning the parking lot area at issue; its answers to Holland’s requests for
disclosure and production; and various property-tax statements and receipts from
the Harris County Tax Assessor-Collector. Memorial asserted that this evidence
established that it did not own or control the parking lot at Memorial City Hospital.
On appeal, Holland emphasizes that the map from the Harris County
Appraisal District, attached to Memorial’s motion, does not mention Katy Hospital
and “nothing in the record indicates that this is a map of the premises of Katy
Hospital.” Similarly, she points out that “the name of . . . Katy Hospital appears
nowhere in the [lease] agreement,” contained in Memorial’s answer to Holland’s
requests for disclosure and production, “[i]t is not apparent from the face of the
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document that it applies to . . . Katy Hospital, and no testimony in the record
supports this prospect.” Further, in a footnote to her brief, Holland notes that the
lease agreement appears to pertain to “Memorial City Hospital, judging by the
document request to which it purports to respond.” She also notes that although
the property-tax statements and receipts from the Harris County Tax Assessor-
Collector reference a number of addresses, they do not refer to the address of Katy
Hospital. Holland argues that because nothing in Memorial’s summary-judgment
evidence establishes that it did not own or control the parking lot at Katy Hospital,
Memorial did not establish, as a matter of law, that it owed her no legal duty.
In response, Memorial argues that because Holland did not, in her response
to its summary-judgment motion, complain that its evidence did not refer to Katy
Hospital’s premises, she has waived the issue. It also asserts that “[t]he
uncontroverted evidence establishes that the incident occurred at Memorial City
[Hospital].”
Only when a movant meets its burden of establishing each element of the
claim or defense on which it seeks summary judgment does the burden then shift to
the non-movant to disprove or raise an issue of fact as to at least one of those
elements. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995);
Hahn v. Love, 321 S.W.3d 517, 523 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). However, if the movant does not satisfy its initial burden, then the burden
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does not shift, and the non-movant need not respond or present any evidence. See
State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S.
Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). Why? Because “summary
judgments must stand or fall on their own merits, and [a] non-movant’s failure to
answer or respond cannot supply by default the summary judgment proof
necessary to establish the movant’s right” to judgment. McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Thus, a non-movant who
does not raise an issue in response to a summary-judgment motion may still
challenge, on appeal, “the legal sufficiency of the grounds presented by the
movant.” Id. And Holland has not waived her challenge that Memorial’s
summary-judgment evidence did not, as a matter of law, establish that it owed her
no legal duty.
In regard to Memorial’s summary-judgment evidence, we note that although
it asserts in its brief that “[t]he uncontroverted evidence establishes that the
incident [in question] occurred at Memorial City [Hospital],” rather than at Katy
Hospital as Holland alleges in her petition, Memorial refers the Court only to
documents contained in the appendix to its brief to support its assertion. 1 Notably
1
We note that Memorial does also direct the Court to Holland’s requests for
production, which it attached to its summary-judgment motion, and state, in its
brief, that the requests “asked for documents pertaining to . . . Memorial City
[Hospital].” In response to Holland’s request, Memorial objected and responded:
“[Memorial] is currently investigating the existence of any documents reflecting
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though, an appellate court cannot, in deciding an issue, consider documents
attached to a brief; it must consider the case based solely on the record filed. 2 See
Samara v. Samara, 52 S.W.3d 455, 456 n.1, 458–59 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied); Till v. Thomas, 10 S.W.3d 730, 733–34 (Tex. App.—
Houston [1st Dist.] 1999, no pet.).
Although Memorial presented summary-judgment evidence that it did not
own or control the parking lot of Memorial City Hospital, it failed to present
summary-judgment evidence that this parking lot is where Holland actually fell.
Thus, Memorial did not establish, as a matter of law, that it owed Holland no legal
duty in regard to her claim for premises liability. Accordingly, we hold that the
trial court erred in granting Memorial summary judgment.
We sustain Holland’s sole issue.
changes or repairs to the area where we understand the fall occurred.” This is not
sufficient evidence to establish that, as a matter of law, Holland fell in the parking
lot of Memorial City Hospital. See Schulz v. State Farm Mut. Auto. Ins. Co., 930
S.W.2d 872, 876 (Tex. App.—Houston [1st Dist.] 1996, no writ) (explaining
“[a]nswers to interrogatories and discovery responses may only be used against
the party who answered them” and party’s “reliance upon . . . answers she
provided to discovery . . . did not provide competent summary judgment
evidence”).
2
Memorial admits in its brief that the evidence “establish[ing] [that Holland] fell at
Memorial City [Hospital]” is not in the record.
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Conclusion
We reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
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