Christopher Norman v. Christopher Henkel and Lisa Henkel , 465 S.W.3d 281 ( 2015 )

Affirmed and Opinion On Remand filed April 14, 2015.
In The
Fourteenth Court of Appeals
NO. 14-12-00995-CV
CHRISTOPHER NORMAN, Appellant
V.
CHRISTOPHER HENKEL AND LISA HENKEL, Appellees
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1005041
OPINION ON REMAND
Appellant Christopher Norman sued appellees Christopher and Lisa Henkel
after Norman slipped on a patch of ice and fell on the Henkels’ property. Norman
appeals from the trial court’s summary judgment in favor of the Henkels. Initially,
this court reversed the trial court’s summary judgment, holding that Lisa’s warning
to Norman “don’t slip” was inadequate as a matter of law to discharge the
Henkels’ duty to warn Norman, an invitee, of a condition on the Henkels’ property.
See Norman v. Henkel, 407 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist.]
2013), rev’d, Henkel v. Norman, 441 S.W.3d 249 (Tex. 2014). The Texas
Supreme Court disagreed, reversing and remanding to this court for consideration
of Norman’s remaining issues. Henkel, 441 S.W.3d at 253. We now address his
two remaining issues.
I.
DISCHARGE OF DUTY VS. PROPORTIONATE RESPONSIBILITY
In his second issue on appeal, Norman contends “the trial court erred by
holding that a warning discharges a defendant’s duty in a premises liability claim
rather than presenting an issue of proportionate responsibility.” In its opinion in
this case, the Texas Supreme Court noted that premises owners such as the
Henkels have a “duty” to warn invitees of conditions posing unreasonable risks of
harm. Id. at 251. Further, an owner’s warning may be “adequate as a matter of
law to discharge a property owner’s duty to an invitee” such as Norman. Id. at
252 (emphasis added). Accordingly, the supreme court has impliedly rejected
Norman’s argument. We will not revisit it.
Norman’s second issue is overruled.
II.
OTHER SUMMARY JUDGMENT CLAIMS
In his third issue, Norman contends “the trial court erred by granting final
summary judgment on claims on which the Henkels did not seek summary
judgment.” See, e.g., Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.
1993) (“[S]ummary judgment cannot be affirmed on grounds not expressly set out
in the motion or response.”). Norman contends he pleaded claims for negligence
and gross negligence in addition to premises liability, and the Henkels sought
summary judgment “only on Norman’s premises liability claim.” We disagree.
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In the one-paragraph “Grounds” section of the Henkels’ motion, the Henkels
argued, “The evidence leaves no genuine issue of material fact upon which
reasonable minds could differ, and because Plaintiff fails to raise a fact question as
to negligence, Defendants are entitled to summary judgment as a matter of law.”
(emphasis added). Thus, the Henkels expressly moved for summary judgment on
Norman’s negligence claim. See Wortham v. Dow Chem. Co., 179 S.W.3d 189,
201 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (motion encompassed
negligence claim by stating that movant was “not liable under the theory of
negligence”).
Further, the Henkels repeatedly asserted they were entitled to summary
judgment on Norman’s “claims.” In the “Conclusion and Prayer” section of the
motion, the Henkels sought “summary judgment on Plaintiff’s claims against
Defendants in its entirety.” Although the Henkels did not use the words “gross
negligence,” they sought summary judgment on the “entirety” of Norman’s
“claims.” Assuming without deciding that a motion for summary judgment must
address a gross negligence “claim” when it already addresses all underlying
negligence claims, 1 we hold that the motion encompassed Norman’s gross
negligence claim. See Martinez v. IBP, Inc., 961 S.W.2d 678, 685 (Tex. App.—
Amarillo 1999, pet. denied) (motion encompassed every claim in live pleading,
including gross negligence, when it attacked “all claims”); see also Wortham, 179
S.W.3d at 201–02 & n.16 (affirming summary judgment on gross negligence when
the motion referred to “negligence”; refusing to separately address the appellants’
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Compare Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (holding that “ordinary negligence and gross negligence are not separate
causes of action”), with Cobb v. Dall. Fort Worth Med. Ctr.—Grand Prairie, 48 S.W.3d 820,
826 (Tex. App.—Waco 2001, no pet.) (summary judgment on gross negligence could not be
affirmed because the issue of gross negligence was not expressly presented in the motion when
the movant “did not present any specific argument on gross negligence”).
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arguments regarding gross negligence because a finding of ordinary negligence is a
prerequisite to a finding of gross negligence; overruling appellants’ issue
contending that gross negligence claim was not addressed in the motion). Norman
does not otherwise challenge the granting of the summary judgment on negligence
or gross negligence.
Norman’s third issue is overruled.
III.
CONCLUSION
Having overruled Norman’s remaining issues on appeal, we affirm the trial
court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, McCally, and Brown.
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