Samuel Abdo v. Richmond Stop Food Mart Husam Ent. Inc and Mohid Almohamad ( 2021 )

Opinion issued August 3, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00031-CV
———————————
SAMUEL ABDO, Appellant
V.
RICHMOND STOP FOOD MART, HUSAM ENT. INC., AND MOHID
ALMOHAMAD, Appellees
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2017-81085
MEMORANDUM OPINION
Appellant Samuel Abdo (“Abdo”) appeals the no-evidence summary
judgment granted by the trial court in favor of appellees Husam Ent. Inc. (“Husam”)
and Mohid Almohamad (“Almohamad”) (collectively, “appellees”).1 In three issues
on appeal, Abdo contends (1) genuine issues of material fact precluded the summary
judgment, (2) appellees improperly asserted pleading defects as a basis for summary
judgment, and (3) the trial court abused its discretion by refusing to reconsider the
summary judgment.
We affirm.
Background
Abdo alleges that while visiting a business owned by appellees in May 2016,
he was physically assaulted by an employee and sustained injuries.2 Six months later,
Abdo filed a personal-injury lawsuit and asserted claims for premises liability,
negligence, and gross negligence against appellees. Specifically, Abdo asserted that
appellees failed to warn of or make safe an unreasonably dangerous condition of
their premises and were negligent in the hiring, training, and supervision of their
employee.
1
Although Richmond Stop Food Mart is included as an appellee in the style of this
appeal, the record reflects that Richmond Stop Food Mart is an assumed name for
appellee Husam Ent. Inc. and, thus, is not a separate entity. See CA Partners v.
Spears, 274 S.W.3d 51, 69 n.11 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (“An ‘assumed name’ is a word or phrase by which a person may be made
known to the public, and is not a legal entity.”).
2
Neither the circumstances of the alleged assault nor the identity of the perpetrator
are alleged in Abdo’s petition.
2
More than a year and a half after Abdo filed his petition, appellees moved for
a no-evidence summary judgment. Appellees contended that although the discovery
period had ended and they put Abdo on notice his claims were not viable by filing
special exceptions, Abdo did not propound “any discovery to discern the existence
of any evidence to support his allegations” against appellees. Appellees asserted in
their motion that there was no evidence of the essential duty, breach, and causation
elements of the premises liability, negligence, and gross negligence claims. In
addition, appellees specifically asserted there was no evidence:
• Husam or Almohamad had any connection to the alleged assault;
• Husam or Almohamad owned any business visited by Abdo on the date
of the alleged assault; or
• Husam had any employees on the date of the alleged assault.
Abdo did not respond to the no-evidence motion before the date it was initially
set for a hearing. Instead, he moved for a continuance on the ground that he had not
received adequate notice of the setting. The trial court granted Abdo’s motion for
continuance and reset the no-evidence motion for a hearing on a later date.
The day after the trial court granted the continuance, Abdo filed a “Motion for
Leave to File Response to Defendants’ No Evidence Motion for Final Summary
Judgment.” In the motion, Abdo requested that the summary-judgment hearing be
continued for a second time to allow additional discovery. He also addressed the
no-evidence summary-judgment standard, purported to present summary-judgment
3
evidence, and requested that, “upon consideration,” the trial court deny appellees’
no-evidence motion for summary judgment. The record does not indicate whether
the trial court ruled on this motion, and Abdo did not file any other document in
connection with appellees’ no-evidence motion.
One month later, the trial court granted the no-evidence motion in favor of
appellees. The order dismissed “all of [Abdo’s] claims,” and noted below the trial
court’s signature that “despite the court granting a motion for continuance for [Abdo]
on the previously scheduled hearing date[,] [Abdo] failed to provide an evidentiary
response to the no-evidence motion for summary judgment.”
Abdo timely moved for reconsideration and a new trial, arguing, among other
things, that the trial court’s statement in the summary-judgment order that he failed
to file an evidentiary response to the no-evidence motion was incorrect because his
motion for leave was responsive to the no-evidence motion. The trial court denied
the motion for reconsideration and request for a new trial. This appeal followed.
No-Evidence Summary Judgment
Texas Rule of Civil Procedure 166a(i) provides that “[a]fter adequate time for
discovery, a party without presenting summary judgment evidence may move for
summary judgment on the ground that there is no evidence of one or more essential
elements of a claim . . . on which the adverse party would have the burden of proof
at trial.” TEX. R. CIV. P. 166a(i). In his first and second issues, respectively, Abdo
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argues that the trial court erred by granting a no-evidence summary judgment under
Rule 166a(i) because (1) he presented evidence raising a genuine issue of material
fact as to the challenged elements of his claims and (2) appellees improperly asserted
pleading defects as a basis for the no-evidence summary judgment.
A. Standard of review
We review a trial court’s decision to grant a motion for summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
A no-evidence motion for summary judgment is essentially a directed verdict
granted before trial, to which we apply a legal-sufficiency standard of review. King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). In general, a party
seeking a no-evidence summary judgment must assert that no evidence exists as to
one or more of the essential elements of a claim on which the nonmovant would
have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil
Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no
pet.). 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. TEX.
R. CIV. P. 166a(i). A no-evidence summary judgment will be sustained on appeal
when (1) there is a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered
by the nonmovant to prove a vital fact, (3) the nonmovant offers no more than a
5
scintilla of evidence to prove a vital fact, or (4) the nonmovant’s evidence
conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.
B. No fact issues precluded summary judgment
In his first issue, Abdo argues that the trial court erred in granting summary
judgment for appellees because “there are genuine issues of material fact for every
element of [his] negligence claim.” Construing Abdo’s brief liberally, as we must,
we understand this first issue to concern the trial court’s summary judgment on both
his negligence and premises liability claims.3 See Tello v. Bank One, N.A., 218
S.W.3d 109, 122–23 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (courts of
appeals must construe appellant briefs reasonably and liberally); see also W. Invs.,
Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (negligence and premises liability
claims are closely related but distinct).
Abdo does not dispute that appellees challenged both his negligence and
premises liability claims in the no-evidence motion for summary judgment. The
record reflects that the no-evidence motion specifically identified the duty, breach,
and causation elements as to which appellees contended there was no evidence.
Concluding that Abdo failed to respond by presenting evidence of these elements,
the trial court granted the no-evidence motion. See Patidar v. Bank of Am., N.A., 442
3
Abdo’s brief cannot be reasonably read as including any challenge to the dismissal
of his gross negligence claim on summary judgment.
6
S.W.3d 789, 793 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Generally, a
failure to respond to a no-evidence motion is fatal to the nonmovant’s ability to assert
on appeal that the trial court erred in granting the motion.”); Landers v. State Farm
Lloyds, 257 S.W.3d 740, 746 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(“Absent a timely response, a trial court must grant a no-evidence motion for
summary judgment that meets the requirements of Rule 166a(i).”).
According to Abdo, the trial court should have treated his motion for leave—
to which he attached some evidence—as a response to the no-evidence motion. We
agree that parts of Abdo’s motion for leave can be considered responsive to the
no-evidence motion. The motion for leave set out the standard for a no-evidence
summary judgment, purported to present “summary judgment evidence,” and
requested that the no-evidence motion be denied “upon consideration.” E.g., State
Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (to determine nature of
pleading, courts should look to its substance rather than its form). But nothing
presented in Abdo’s motion for leave raised a fact issue that would have precluded
summary judgment. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157
(Tex. 2004) (courts should affirm summary judgment if any of the theories presented
to court and preserved for appellate review are meritorious); Cincinnati Life Ins. Co.
v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (appellant courts may affirm summary
7
judgment on ground different from that relied on by trial court, in interest of judicial
economy, as long as alternative ground was included in motion).
Abdo, as the nonmovant, was required to present evidence that qualified as
“summary judgment evidence,” which is evidence that meets the technical
requirements for summary-judgment proof. TEX. R. CIV. P. 166a(i); In re
Guardianship of Virgil, 508 S.W.3d 591, 595 (Tex. App.—El Paso 2016, no pet.).
He submitted four documents with his motion for leave: (1) his petition; (2) his
responses to appellees’ request for disclosures; (3) an assumed name certificate
indicating Husam was conducting business in 2010 under the name Richmond Stop
Food Mart; and (4) a “Houston Police Department [HPD] – Officer Incident Notice.”
Abdo contends these four documents raised fact issues as to the duty, breach, and
causation elements of his negligence and premises liability claims.
Two of the documents Abdo submitted—his pleading and his own discovery
responses—fail the measure of competent summary-judgment evidence. Pleadings
generally do not constitute competent summary-judgment evidence and should not
be considered in determining whether the summary-judgment evidence raises a
genuine issue of material fact. Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391,
401 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also Laidlaw Waste Sys.
(Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (party’s pleadings
are not substitute for competent evidence, even if pleadings are sworn or verified);
8
Derbigny v. Bank One, 809 S.W.2d 292, 295 (Tex. App.—Houston [14th Dist.]
1991, no writ) (“Pleadings simply outline the issues; they are not evidence, even for
purposes of summary judgment, let alone a trial on the merits.”). In addition, Abdo
has cited, and we have found, no case allowing a party to use its own responses to a
request for disclosure to defeat a motion for summary judgment. See, e.g., Affiliated
Capital Corp. v. Commercial Fed. Bank, 834 S.W.2d 521, 529 (Tex. App.—Austin
1992, no writ) (nonmovant’s own interrogatory answers not summary-judgment
proof).
Even construing the remaining documents in the light most favorable to Abdo,
we do not find any genuine issue of material fact as to the challenged elements of
the negligence and premises liability claims. The assumed name certificate is dated
March 5, 2010. At most, it supports that Almohamad was the registered agent of
Husam on that date and that Husam then operated a business under the assumed
name of Richmond Stop Food Mart at the address where Abdo alleges the assault
occurred more than six years later. Although the certificate includes language to the
effect that Husam intended to use the assumed name for a period of ten years, there
is no evidence in the record that either appellee still owned or operated a business at
that address at the time of the alleged assault.
9
The HPD Incident Notice does not fill any gaps in Abdo’s proof. It reads:
This notice indicates that an incident number was assigned to an assault at the same
address included in the assumed name certificate in May 2016. But this notice does
not name the business, if any, operating at that location at the time of the assault.
Nor does it identify any person involved in the incident as either the complainant or
the assailant. Thus, although Abdo alleges that appellees are liable to him because
he was assaulted by their employee on their premises, there is a complete absence of
summary-judgment evidence to support that allegation.4
4
Abdo further asserts that a fact issue was raised by a police report on the assault that
he presented at the hearing on his motion for reconsideration. We do not consider
the police report for two reasons. First, our review is limited to what the appellate
record shows was before the trial court at the time of its ruling. See E.B. Smith Co.
v. U.S. Fidelity & Guar. Co., 850 S.W.2d 621, 624 (Tex. App.—Corpus Christi–
Edinburg 1993, writ denied). Second, the police report is attached to Abdo’s
appellate brief as an appendix but is not included in the appellate record. See Garcia
v. Sasson, 516 S.W.3d 585, 589 n.2 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(documents attached as appendices are not part of appellate record and cannot be
considered by appellate court); Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d
767, 773–74 (Tex. App.—El Paso 2015, no pet.) (“Even when a party asserts that
the attached documents were filed with the trial court, if the documents were not
10
Absent such evidence, there is no genuine issue of material fact as to whether
appellees owed Abdo a legal duty at all, let alone whether any breach of duty
proximately caused his injuries. See Doe v. Boys Clubs of Greater Dall., Inc., 907
S.W.2d 472, 477 (Tex. 1995) (negligence cause of action, requires evidence of
existence of duty, breach of duty, and damages proximately caused by breach); see
also W. Invs., 162 S.W.3d at 550 (noting same elements for negligence cause of
action and observing premises liability is special form of negligence where duty
owed to plaintiff derives from plaintiff’s status at time incident occurred). Because
the motion for leave did not raise any genuine issue of material fact as to the
challenged elements of Abdo’s negligence and premises liability claims, we
conclude the trial court did not err in granting summary judgment on no-evidence
grounds.
We overrule Abdo’s first issue.5
properly included in the appellate record, [courts] are unable to consider them in
[their] review.”); see also TEX. R. APP. P. 34.5 (placing burden on appellant to
request and provide a complete record).
5
Because we have concluded that the trial court did not err in granting the
no-evidence summary judgment based on the complete absence of evidence of the
challenged elements of Abdo’s negligence and premises liability claims, we do not
reach Abdo’s second issue complaining that the trial court improperly based its
summary-judgment ruling on alleged pleading defects. TEX. R. APP. P. 47.1.
11
Motion to Reconsider No-Evidence Summary Judgment
In his third issue, Abdo contends the trial court should have reconsidered the
summary judgment and ordered a new trial because its conclusion that he failed to
file an evidentiary summary-judgment response was erroneous.
The abuse-of-discretion standard applies to our review of both a motion to
reconsider a prior summary judgment and the denial of a motion for new trial. See
In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (motion for new trial); Macy v. Waste
Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(motion to reconsider). A trial court abuses its discretion when it acts without
reference to any guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219,
222 (Tex. 1999). Further, we may not reverse a trial court’s judgment unless we
conclude the complained-of error probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting the case on
appeal. TEX. R. APP. P. 44.1(a); Mullins v. Martinez R.O.W., LLC, 498 S.W.3d 700,
705 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
The arguments made in Abdo’s motion for reconsideration and for a new trial
do not raise any issues beyond those we have already considered in determining the
merit of the trial court’s summary judgment. Accordingly, we hold that Abdo has
not shown that the trial court reversibly erred in refusing to reconsider its summary
12
judgment or order a new trial on his negligence and premises liability claims against
appellees.
We overrule Abdo’s third issue.
Rule 45 Sanctions
In their appellate brief, appellees ask this Court to sanction Abdo under Texas
Rule of Appellate Procedure 45 for filing a frivolous appeal.6 See TEX. R. APP. P. 45.
(“If the court of appeals determines that an appeal is frivolous, it may—on motion
of any party or on its own initiative, after notice and a reasonable opportunity for
response—award each prevailing party just damages.”). If, after considering the
record, we make an objective determination that an appeal is frivolous, we are
authorized to award damages under Rule 45. Mailhot v. Mailhot, 124 S.W.3d 775,
778 (Tex. App.—Houston [1st Dist.] 2003, no pet.). To determine whether an appeal
6
Appellees also request sanctions under Chapter 10 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE §§ 10.001–.006. Chapter 10 of
the Civil Practice and Remedies Code “allow[s] a trial court to sanction an attorney
or a party for filing motions or pleadings that lack a reasonable basis in fact or law.”
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We do not consider this request.
The trial court did not assess sanctions against Abdo under Chapter 10. Even
presuming the trial court denied requests by appellees for Chapter 10 sanctions,
appellees have not filed a notice of appeal from the trial court’s final judgment.
Thus, they may not seek to alter the trial court’s judgment to award them more relief
than the trial court granted in its final judgment dismissing Abdo’s claims. See TEX.
R. APP. P. 25.1(c) (“Any party who seeks to alter the trial court’s judgment . . . must
file a notice of appeal.”); see also Feldman v. Watts, 586 S.W.3d 591, 597–98 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (parties not entitled to seek award of
sanctions under Chapter 10 on appeal when they failed to file notice of appeal from
trial court’s judgment).
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is objectively frivolous, we review the record from the advocate’s viewpoint and
decide whether the advocate had reasonable grounds to believe the case could be
reversed. Id. But Rule 45 does not mandate that this Court award damages in every
case in which an appeal is frivolous. Glassman v. Goodfriend, 347 S.W.3d 772, 782
(Tex. App.—Houston [14th Dist.] 2011, pet. denied). The decision to award such
damages falls within the Court’s discretion, which we exercise with prudence and
caution after careful deliberation. Mailhot, 124 S.W.3d at 778. With these principles
in mind, we conclude that Rule 45 damages are not warranted in this case.
We deny appellees’ request.
Conclusion
We affirm the judgment of the trial court.
Amparo Guerra
Justice
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
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