Ruben Grijalva v. Bally Total Fitness Corporation ( 2015 )

Opinion issued April 2, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00217-CV
———————————
RUBEN GRIJALVA, Appellant
V.
BALLY TOTAL FITNESS CORPORATION, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2011-42189
MEMORANDUM OPINION
Appellant, Ruben Grijalva, suffered an injury to his right middle finger
while working out at the fitness facility owned by appellee, Bally Total Fitness
Corporation (“Bally”). Grijalva sued Bally for various causes of action including
breach of contract, negligence, intentional infliction of emotional distress, breach
of warranty, and fraudulent inducement, and Bally moved for traditional and no-
evidence summary judgment on all of Grijalva’s claims. The trial court granted
the summary judgment motion in a general order dismissing Grijalva’s claims.
Grijalva now appeals, arguing that (1) the trial court erred in granting Bally’s
motion for summary judgment because Bally did not present any argument
addressing the no-evidence portion of its motion at the summary judgment hearing;
(2) the waiver and release contained in Bally’s records does not bar his negligence
claim; (3) Bally had actual or constructive notice that the weight that caused his
injury was on the floor; (4) his claim of intentional infliction of emotion distress is
supported by his assertion that Bally exhibited extreme and outrageous conduct;
(5) Bally breached its contract with him; (6) Bally induced him into a contract that
it had no intention of performing; and (7) Bally breached “the common law express
warranty.”
We affirm.
Background
Grijalva joined the Bally Total Fitness health club in Humble, Texas in 2008
and signed a five-page Membership Agreement which provided details regarding
the cost of his membership. The first page of the Membership Agreement
addressed the features and cost of Grijalva’s “premier” level membership and the
names of the people who were included in his membership plan. At the bottom of
2
the first page, the agreement stated, “This is Page 1 of 5 of your Contract. Please
count these pages.” The second page of the Membership Agreement contained
additional notices regarding legal rights and obligations, including, approximately
one inch above the signature line, the following statement: “WAIVER AND
RELEASE. This Contract contains a WAIVER AND RELEASE in Paragraph 1
which applies to you. . . . BY SIGNING BELOW, YOU ACKNOWLEDGE
RECEIPT OF A FULLY COMPLETED COPY OF THIS CONTRACT
EXECUTED BY BOTH YOU AND THE COMPANY.” The Membership
Agreement was signed by both Grijalva and a Bally representative on May 3, 2008.
The first paragraph of the third page of the Membership Agreement
provided:
1. WAIVER AND RELEASE. All Members must sign a Waiver and
Release before using any club. You . . . agree that if you are present
for any reason, have interaction of any kind with or from anyone else,
engage in any physical exercise or activity or use any facility, on club
property or elsewhere at a club-sponsored event or program, you do so
at your own risk. You assume this risk for all likely and unlikely,
reasonably and unreasonably expected experiences or occurrences. . . .
You agree . . . to release and discharge us . . . from any and all claims
or causes of action arising out of our negligence. This Waiver and
Release of liability includes, without limitation, injuries which may
occur as a result of (a) your use of any facility or its improper
maintenance, (b) your use of any exercise equipment which may
malfunction or break, (c) our improper maintenance of any exercise
equipment, (d) our negligent instruction or supervision, (e) our
negligent hiring or negligent retention of any employee, (f) loss of
consortium, (g) your slipping and falling while in any club or on the
surrounding premises or (h) first aid, emergency treatment or any
other services which are negligently rendered or failed to be rendered
3
by released parties, emergency personnel or Good Samaritans, or our
negligently preventing a Good Samaritan from rendering first aid.
YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY
READ THIS WAIVER AND RELEASE AND FULLY
UNDERSTAND THAT IT IS A RELEASE OF ALL LIABILITY.
IN ADDITION, YOU DO HEREBY WAIVE ANY RIGHT THAT
YOU MAY HAVE, BY OR ON BEHALF OF YOURSELF, YOUR
SPOUSE OR ANY CHILD (MINOR OR OTHERWISE) TO BRING
A LEGAL ACTION OR ASSERT A CLAIM FOR INJURY OR
LOSS OF ANY KIND AGAINST US FOR OUR NEGLIGENCE OR
ARISING OUT OF OR RELATING TO PARTICIPATION BY
YOU, YOUR SPOUSE OR CHILD IN ANY OF THE ACTIVITIES,
OR USE OF THE EQUIPMENT, FACILITIES OR SERVICES WE
PROVIDE AS DESCRIBED IN THIS PARAGRAPH, OR ON
ACCOUNT OF ANY ILLNESS OR ACCIDENT OR DAMAGE TO
OR LOSS OF YOUR PERSONAL PROPERTY.
The Membership Agreement contained numerous additional provisions on the
remainder of page three and pages four and five addressing cancellation rights,
refund provisions, various additional notices as required by law, and further details
regarding the nature and timing of payments and the covered members.
Grijalva alleged that he was injured at a Bally location on July 20, 2009, as
he was lifting fifty-five pound dumbbells. He noticed another Bally member
lifting weights nearby. After Grijalva completed his exercises, he lowered the
weights to the floor and his right middle finger was caught between his own
weights and the set of weights left on the floor by the other member. Grijalva’s
finger required reconstructive surgery, and, as of the time of this suit, his finger
remained disfigured and not fully functional.
4
Grijalva sued Bally for premises liability, negligence, intentional infliction
of emotional distress, breach of common law warranty, fraudulent inducement, and
breach of contract. Grijalva asserted that he was an invitee at the Bally health club
when he was working out there on July 20, 2009. He alleged that “[t]here were
several weights or dumbbells left around the various benches nearby [the bench
where he was lifting weights] that were not returned to their regular and specified
rack locations.” In particular, Grijalva noticed another Bally member lifting
eighty-pound dumbbells at an adjacent bench. Grijalva asserted that after the other
Bally member left, the eighty-pound weights either rolled over to his bench or
were intentionally left near his bench by the other Bally member. Grijalva stated
that he was unaware of the presence of the eighty-pound weights near his bench,
and as he dropped his own weights, his right middle finger was smashed between
his own dumbbell and the eighty-pound dumbbell that was left in the vicinity of his
bench, thereby causing him “severe and debilitating injuries.” Grijalva alleged that
Bally did not have any employees or agents picking up weights or dumbbells left
on the floor and that Bally’s employees also failed to summon emergency medical
care for him and “instead continued business as usual at the gym, causing
[Grijalva’s] finger to further deteriorate.” Grijalva also asserted that his “finger
has been disfigured and he cannot return to his employment as a carpenter.”
5
Regarding his premises liability claim, Grijalva asserted that Bally breached
its duty to maintain a safe premises for invitees by failing to return the weights to
their safe positions in the racks or by failing to make the condition of the premises
reasonably safe for him and that this breach proximately caused his injury.
Grijalva also argued that the failure to ensure that the dumbbells were returned to
their storage locations and to assign employees to monitor the premises and
remove weights and dumbbells from the floor constituted general negligence and
proximately caused his injuries.
Grijalva also asserted a cause of action for intentional infliction of emotional
distress, arguing that Bally failed to assist him “in mitigating the extent of injuries
to his finger” by “failing to summon medical assistance immediately.” He alleged
that Bally’s conduct was “wanton and reckless” and “extreme and outrageous” and
that he suffered severe emotional distress as a result. He also asserted claims for
breach of common law warranty, fraudulent inducement, and breach of contract,
based on Bally’s alleged failure to keep the gym in a reasonably safe condition.
He sought compensatory and exemplary damages.
Bally moved for traditional and no-evidence summary judgment. Bally
moved for traditional summary judgment on its affirmative defense that Grijalva
waived his right to pursue his negligence claims against Bally by executing a valid
waiver and release provision in the Membership Agreement. Bally also argued
6
that Grijalva could not provide any evidence of essential elements of his premises
liability, intentional infliction of emotional distress, breach of warranty, breach of
contract, and fraudulent inducement claims.
In his response, Grijalva argued that he did not sign a waiver and release in
the Membership Agreement. He cited his deposition testimony in which he stated
that he did not “speak and write English properly,” that the Membership
Agreement he was given was “all about the money,” and that the waiver was not
discussed when he signed the Membership Agreement. He also argued that the
waiver did not meet the fair notice requirements because it was not conspicuous,
and he argued that the waiver did not meet the express negligence requirement.
Grijalva’s response also addressed Bally’s no-evidence contentions on his premises
liability, intentional infliction of emotional distress, breach of contract, fraudulent
inducement, and breach of warranty claims. He attached his deposition testimony
and an affidavit, a copy of the Membership Agreement, copies of his medical
records, the deposition of a Bally employee, Luis Hernandez, the deposition of his
cousin who was present at the time of the injury, Noe Sauzo, a list of the Bally
members who were present during the time when he was injured, and a copy of a
sign asking Bally members to re-rack their weights.
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The trial court granted summary judgment, dismissing Grijalva’s claims.
The order did not identify any particular grounds supporting its grant of summary
judgment. This appeal followed.
Summary Judgment Standard of Review
We review summary judgments de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). When a summary judgment order does not
specify the grounds on which it was granted, 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).
After adequate time for discovery has passed, a party may move for
summary judgment on the ground that there is no evidence of one or more essential
elements of a claim. TEX. R. CIV. P. 166a(i). Once the movant specifies the
elements on which there is no evidence, the burden shifts to the nonmovant to raise
a fact issue on the challenged elements. Id.; Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006).
Traditional summary judgment is proper only when the movant establishes
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c). In reviewing a traditional summary
judgment, we must indulge every reasonable inference in favor of the nonmovant,
8
take all evidence favorable to the nonmovant as true, and resolve any doubts in
favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.
When a defendant moves for traditional summary judgment, he 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 his affirmative
defense, thereby defeating the plaintiff’s cause of action. See Little v. Tex. Dep’t of
Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004); Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995) (per curiam); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995).
Bally’s Motion for Summary Judgment on Waiver and Release Grounds
In his second issue, Grijalva challenges Bally’s motion for summary
judgment on its affirmative defense of waiver and release.
A release operates to extinguish a claim or cause of action and is an absolute
bar to the released matter. Dresser Indus., Inc. v. Page Petroleum, Inc., 853
S.W.2d 505, 508 (Tex. 1993). “[R]eleasing ‘a party in advance of liability for its
own negligence’” constitutes “an extraordinary shifting of risk.” Storage &
Processors, Inc. v. Reyes, 134 S.W.3d 190, 193 (Tex. 2004) (quoting Dresser
Indus., Inc., 853 S.W.2d at 507); Akin v. Bally Total Fitness Corp., No. 10-05-
00280-CV, 2007 WL 475406, at *1 (Tex. App.—Waco Feb. 14, 2007, pet. denied)
(mem. op.). Accordingly, to be valid, a release must satisfy the fair notice
9
requirements of the express negligence doctrine and conspicuousness. See Reyes,
134 S.W.3d at 192; Dresser Indus., Inc., 853 S.W.2d at 508–09.
The supreme court established the express negligence test to cut through the
ambiguity of indemnity agreements. Sydlik v. REEIII, Inc., 195 S.W.3d 329, 333
(Tex. App.—Houston [14th Dist.] 2006, no pet.); see Dresser Indus., Inc., 853
S.W.2d at 507–08. The express negligence test requires that parties seeking to
indemnify themselves from their own negligence must express that intent in
specific terms. Dresser Indus., Inc., 853 S.W.2d at 508 (holding that release
provisions that do not express parties’ intent within four corners of document are
unenforceable as matter of law); Sydlik, 195 S.W.3d at 333. The provision is either
clear and enforceable or it is not. Sydlik, 195 S.W.3d at 333; see Dresser Indus.,
Inc., 853 S.W.2d at 508. The supreme court has also held that the release
provision must “mention” the claim to be released. Victoria Bank & Trust Co. v.
Brady, 811 S.W.2d 931, 938 (Tex. 1991); Sydlik, 195 S.W.3d at 333. Any claims
not clearly within the release’s subject matter are not released, and we narrowly
construe general categorical release clauses. Brady, 811 S.W.2d at 938; Sydlik,
195 S.W.3d at 333.
The requirement of conspicuousness mandates “that something must appear
on the face of the [contract] to attract the attention of a reasonable person when he
looks at it.” Reyes, 134 S.W.3d at 192 (quoting Dresser Indus., Inc., 853 S.W.2d
10at 508–11 (adopting definition of conspicuous provided in section 1.201 of
Business and Commerce Code)); see also TEX. BUS. & COM. CODE ANN.
§ 1.201(b)(10) (Vernon 2006) (defining “conspicuous” as “so written, displayed, or
presented that a reasonable person against which it is to operate ought to have
noticed it”). “Language may satisfy the conspicuousness requirement by appearing
in larger type, contrasting colors, or otherwise calling attention to itself.” Reyes,
134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274–75 (Tex.
1997)); see Dresser Indus., Inc., 853 S.W.2d at 510–11.
Bally moved for summary judgment on Grijalva’s negligence claims based
on the waiver and release in the Membership Agreement. Grijalva argues that he
did not sign a waiver. Grijalva points out that, while he signed the second page of
the Membership Agreement, the waiver and release provision is on the third page
of the agreement, and he did not sign or initial that particular provision. He also
points to his deposition testimony, in which he stated that the waiver and release
provision was not discussed at the time he signed the Membership Agreement.
However, Grijalva admits that he signed the Membership Agreement, and
the copy of the agreement that he filed with his response to Bally’s motion for
summary judgment included the waiver and release provision. The Membership
Agreement further stated, approximately one inch above Grijalva’s signature:
“WAIVER AND RELEASE. This Contract contains a WAIVER AND RELEASE
11
in Paragraph 1 which applies to you. . . . BY SIGNING BELOW, YOU
ACKNOWLEDGE RECEIPT OF A FULLY COMPLETED COPY OF THIS
CONTRACT EXECUTED BY BOTH YOU AND THE COMPANY.” Thus, the
evidence presented by Grijalva indicates that he signed the Membership
Agreement containing the waiver and release. Grijalva points to no authority, nor
could we find any, providing that the waiver and release provision must be signed
or initialed separately from the remainder of the agreement or that it must be
discussed to be enforceable, so long as it meets the fair notice requirements
discussed below.
Grijalva also argues that the waiver and release provision in the Membership
Agreement did not meet the fair notice requirements of conspicuously and
expressly mentioning that claims for negligence were released. We disagree.
As discussed above, the Membership Agreement stated, approximately one
inch above Grijalva’s signature, in capital letters and bold typeface, that the
agreement contained a waiver and release provision that applied to Grijalva. The
specific terms of the waiver were set out at the top of the next page, identified in
all capital letters and in bold typeface by the heading “WAIVER AND
RELEASE.” The heading and portions of the waiver clause itself appeared in all
capital letters and in bold typeface. See Reyes, 134 S.W.3d at 192 (“Language may
12
satisfy the conspicuousness requirement by appearing in larger type, contrasting
colors, or otherwise calling attention to itself.”).
Thus, the waiver here “appear[ed] on the face of the [contract] to attract the
attention of a reasonable person when he looks at it.” See id. We conclude that the
waiver and release provision in the Membership Agreement was conspicuous. See
id.; see also Akin, 2007 WL 475406, at *2 (concluding health club’s release clause
was conspicuous when release language appeared in larger, bold type, was
enclosed by box, and was expressly referenced by paragraph number just above
signature line).
Grijalva further argues that the “express negligence” requirement was not
met because the waiver did not specifically mention waiver of claims arising from
weights left on the floor. However, the wavier did expressly state, “You
agree . . . to release and discharge us . . . from any and all claims or causes of
action arising out of our negligence,” and it provided a non-exclusive list of
specific injuries that may occur as a result of:
(a) your use of any facility or its improper maintenance, (b) your use
of any exercise equipment which may malfunction or break, (c) our
improper maintenance of any exercise equipment, (d) our negligent
instruction or supervision, (e) our negligent hiring or negligent
retention of any employee, (f) loss of consortium, (g) your slipping
and falling while in any club or on the surrounding premises or
(h) first aid, emergency treatment or any other services which are
negligently rendered or failed to be rendered by released parties,
emergency personnel or Good Samaritans, or our negligently
preventing a Good Samaritan from rendering first aid.
13
The waiver and release thus expressed the parties’ intent to release Bally
from its negligence in specific terms. See Dresser Indus., Inc., 853 S.W.2d at 508;
Sydlik, 195 S.W.3d at 333. The release “mentioned” the specific claims to be
released, including any injury arising from Grijalva’s use of the facility and
exercise equipment, any improper maintenance of the facility or the exercise
equipment, negligent supervision, and negligent services rendered or failed to be
rendered. See Brady, 811 S.W.2d at 938; Sydlik, 195 S.W.3d at 333. This waiver
corresponds to Grijalva’s negligence and premises liability causes of action, in
which he alleged that Bally was negligent in failing to maintain a safe premises for
him by failing to return the dumbbells or weights to their safe positions in the
racks, by failing to make the condition of the premises reasonably safe for him, and
by failing to assign employees to monitor the premises and remove weights and
dumbbells from the floor.
We conclude that Bally established its right to summary judgment on its
affirmative defense of waiver and release as a matter of law, and the trial court did
not err in granting summary judgment on Grijalva’s negligence and premises
liability claims.
We overrule Grijalva’s first issue.
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Bally’s No-evidence Motion for Summary Judgment
In his first issue, Grijalva complains that the trial court erred in granting
summary judgment on Bally’s motion for traditional and no-evidence summary
judgment “without clearly delineating which standard was applied to arrive at the
judgment granted.” Grijalva argues that Bally did not specifically or “tangentially”
argue the no-evidence portion of its motion at the summary judgment hearing.
The trial court was not required to state in its order the basis for granting
Bally’s motion for summary judgment. See Joe, 145 S.W.3d at 157 (holding that
we must affirm summary judgment if any one theory advanced in motion for
summary judgment is meritorious); Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004) (providing that when party has filed traditional and no-evidence
summary judgment motion and trial court’s order does not specify which motion
was granted, we typically first review summary judgment under no-evidence
standard). Nor was Bally required to raise arguments relating to its no-evidence
motion at the hearing in order for the trial court to consider the no-evidence portion
of Bally’s motion. See TEX. R. CIV. P. 166a(i) (requiring only that motion be
written).
Grijalva also argues that Bally’s no-evidence motion for summary judgment
did not clearly delineate one or more elements of a claim on which he could not
prevail except regarding his fraudulent inducement claim. Thus, he argues that
15
Bally’s entire motion should have been treated as a traditional motion for summary
judgment. However, Bally’s motion for summary judgment did assert various
grounds for granting a no-evidence summary judgment, which we discuss in more
detail below.
We overrule Grijalva’s first issue.1
A. Grijalva’s Intentional Infliction of Emotional Distress Claim
In his fourth issue, Grijalva argues that his intentional infliction of emotion
distress (“IIED”) claim is supported by his assertion that Bally exhibited
intentional, extreme, and outrageous conduct in failing to call 9-1-1 or otherwise
respond to his finger injury. Bally argued in its motion for summary judgment that
Grijalva’s IIED claim fails as a matter of law because there is no evidence that
Bally acted intentionally or recklessly or with conduct that was extreme and
outrageous.
In his deposition testimony, Grijalva testified that after he injured his finger,
he went to speak with a Bally employee and had to wait approximately twenty-five
minutes. Grijalva stated that the employee asked if he wanted Bally to call an
ambulance. Grijalva told him no, explaining that his cousin, who was also
1
In his third issue, Grijalva argues that Bally had actual or constructive notice that
the weight that caused his injury was on the floor. However, because we have
held that Bally has established that Grijalva waived his negligence and premises
liability claims, we need not address these arguments. See Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (holding that we will affirm
judgment if any one theory advanced in summary judgment motion is
meritorious).
16
working out at the fitness center, was going to drive him to the hospital. Grijalva
further testified that the hospital was approximately five minutes from the gym and
that his cousin took him to the emergency room where he was treated for the injury
to his finger.
Grijalva argues that Bally’s failure to call 9-1-1 immediately, which
subjected him to unbearable pain without medical assistance, was intentional,
extreme, and outrageous. “To recover damages for intentional infliction of
emotional distress, a plaintiff must establish that: (1) the defendant acted
intentionally or recklessly; (2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and
(4) the resulting emotional distress was severe.” Hoffmann–LaRoche Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
Bally argues that Grijalva offered no evidence that its conduct was extreme
or outrageous, and we agree. To establish that the defendant’s conduct was
extreme and outrageous, the plaintiff must prove that the defendant’s conduct was
“beyond all possible bounds of decency” and “utterly intolerable in a civilized
community.” Id. (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)).
Even conduct that is tortious or otherwise wrongful, without more, is not “extreme
and outrageous.” Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). Likewise,
“insensitive or even rude” behavior generally does not constitute extreme and
17
outrageous conduct. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). It
is for the court to determine as a threshold question whether a defendant’s conduct
was extreme and outrageous. See Bradford, 48 S.W.3d at 758 (“Whether a
defendant’s conduct is ‘extreme and outrageous’ is a question of law.”).
Moreover, Texas law generally imposes “no duty to take action to prevent harm to
others absent special relationships or circumstances.” Torrington Co. v. Stutzman,
46 S.W.3d 829, 837 (Tex. 2000); see also Creditwatch, Inc. v. Jackson, 157
S.W.3d 814, 818 (Tex. 2005) (holding that IIED claims “cannot be used to
‘circumvent the limitations placed on the recovery of mental anguish damages
under more established tort doctrines’” and that “[t]his tort was never intended as
an easier and broader way to pursue claims already protected by our expanding
civil and criminal laws”) (quoting Zeltwanger, 144 S.W.3d at 447).
Here, the Bally employee offered to call an ambulance approximately
twenty-five minutes after the injury to Grijalva’s finger, but Grijalva refused and
told the employee that his relative would drive him to the hospital. This is not the
type of behavior that Texas courts have found extreme and outrageous. See
Zeltwanger, 144 S.W.3d at 445 (holding that defendant’s actions must be “beyond
all possible bounds of decency” and “utterly intolerable in a civilized society” to
establish extreme and outrageous conduct for IIED claims); see also, e.g., Morgan
v. Anthony, 27 S.W.3d 928, 930–31 (Tex. 2000) (holding that defendant’s conduct
18
in sexually propositioning stranded motorist and continuing to harass her on
highway, in spite of her repeated requests that he leave her alone, by blocking her
access to shoulder, pulling over in front of her, stopping, and requiring her to pass
on multiple occasions, constituted extreme and outrageous conduct); Montemayor
v. Ortiz, 208 S.W.3d 627, 656 (Tex. App.—Corpus Christi 2006, pet. denied)
(illustrations of extreme and outrageous conduct include “a practical joke
suggesting another’s spouse has been severely injured in an accident”; “a private
detective presenting himself as a police officer and threatening arrest . . . unless
certain letters [were] surrendered”; or “a school principal accusing a student of
immoral conduct, bullying her for an hour, and then threatening prison and public
disgrace”); Household Credit Servs., Inc. v. Driscol, 989 S.W.2d 72, 81–82 (Tex.
App.—El Paso 1998, pet. denied) (holding that general pattern of harassing
behavior, including name calling, foul language, threats to make plaintiff’s life
miserable, and bomb and death threats, constituted extreme and outrageous
behavior that could give rise to IIED claim).
Grijalva further complains that Bally’s intentional or reckless delay in
asking whether he needed an ambulance caused him to endure additional pain and
suffering. To establish that the defendant acted intentionally or recklessly in the
IIED context, the plaintiff must prove that “severe emotional distress” was “the
intended consequence or primary risk” of the defendant’s actions. Vaughn v.
19
Drennon, 372 S.W.3d 726, 732 (Tex. App.—Tyler 2012, no pet.) (quoting
Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 67 (Tex. 1998)).
Grijalva, however, failed to provide any evidence that “severe emotional distress”
was “the intended consequence or primary risk” of Bally’s actions. See Johnson,
985 S.W.2d at 67; Vaughn, 372 S.W.3d at 732.
We conclude that the only evidence Grijalva provided to support his IIED
claim does not establish that Bally’s conduct was extreme and outrageous or that it
intentionally or recklessly caused severe emotional distress, and the trial court did
not err in granting Bally’s no-evidence motion on this ground.
We overrule Grijalva’s fourth issue.
B. Grijalva’s Breach of Contract, Breach of Warranty, and Fraudulent
Inducement Claims
In his fifth issue, Grijalva argues that Bally breached its contract with him
because it failed to keep the premises safe for his use. He argues that a promise to
keep the premises safe for his use was contained in, or at least implied in, the
Membership Agreement. Bally, however, argues that Grijalva presented no-
evidence of an essential element of his breach of contract claim because the
provisions that he claims Bally breached do not exist in the contract.
Once Bally asserted that Grijalva could provide no evidence of the existence
of an agreement to keep the premises safe, Grijalva bore the burden to adduce
evidence raising a genuine issue of material fact regarding the existence and breach
20
of a term of the contract. See Mack Trucks, Inc., 206 S.W.3d at 582. The elements
of a breach of contract claim are: (1) the existence of a valid contract;
(2) performance or tendered performance by the plaintiff; (3) breach of the contract
by the defendant; and (4) damages sustained by the plaintiff as a result of the
breach. Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.]
2003, pet. denied).
Grijalva claims that Bally breached the Membership Agreement by failing to
keep the premises safe. But he cannot rely on an alleged breach of a promise
outside of the written contract to raise a fact issue on breach. See Zatorski v. USAA
Tex. Lloyd’s Co., No 01-13-01002-CV, 2015 WL 456474, at *4 (Tex. App.—
Houston [1st Dist.] Feb. 3, 2015, no pet. h.) (citing Osborne v. Coldwell Banker
United Realtors, No. 01-01-00463-CV, 2002 WL 1480894, at *8 (Tex. App.—
Houston [1st Dist.] July 11, 2002, no pet.) (mem. op)). Grijalva did not identify
any provision contained in the agreement that Bally breached. See id.Accordingly, summary judgment on Grijalva’s breach of contract claim was
proper. See Mack Trucks, Inc., 206 S.W.3d at 582.
We overrule Grijalva’s fifth issue.
In his sixth issue, Grijalva argues that Bally fraudulently induced him to
enter into the Membership Agreement by making a representation it had no
intention of performing, namely a representation that it would keep the premises
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safe. He also argues that Bally fraudulently induced him to sign the Membership
Agreement by failing to disclose the contents of the contract and failing to discuss
the waiver and release provision. In his seventh issue, Grijalva argues that Bally
breached the common law express warranty when it made representations about
the quality and safety of its facilities that it failed to meet. Bally argued that no-
evidence summary judgment was proper on Grijalva’s fraudulent inducement and
breach of warranty claims because Grijalva admits that Bally did not make any
representations as to the maintenance of the premises.
Grijalva failed to bring forth any evidence of the alleged fraudulent
misrepresentation that Bally would keep the gym in a reasonably safe condition.
See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323,
337 (Tex. 2011) (holding that elements of fraud include making material
representation that was false). Likewise, Grijalva also failed to bring forth any
evidence that Bally made a representation to Grijalva regarding the quality or
characteristics of the services offered by Bally, as required to prevail on his claim
for breach of a common-law express warranty. See Methodist Hosp. v. Zurich Am.
Ins. Co., 329 S.W.3d 510, 527 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied) (holding in part that to prevail on claim for breach of express warranty,
plaintiff must establish that defendant sold services to plaintiff and made
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representation to plaintiff about characteristics of services by affirmation of fact,
promise, or description).
Grijalva points only to the Membership Agreement. However, we have
already concluded that the Membership Agreement contained a conspicuous
waiver and release expressly stating that Grijalva used the facilities at his own risk
and releasing any negligence claims relating to maintenance of the facility or
equipment. Grijalva’s own statements in his deposition and his arguments in his
brief on appeal indicate that he was aware that Bally’s general policy was that gym
members were responsible for returning the weights they used and that gym
members often failed to return their weights to the storage racks.
Thus, we conclude that Grijalva failed to produce evidence on at least one
essential element of his breach of express warranty and fraudulent inducement
claims. The trial court did not err in granting Bally’s no-evidence motion on these
claims.
We overrule Grijalva’s sixth and seventh issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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