barbara-ann-stallings-v-robert-c-henderson-ii-md-arturo-carrillo ( 2004 )

NO. 07-03-0434-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 2, 2004
______________________________
BARBARA ANN STALLINGS,
Appellant
v.
ROBERT C. HENDERSON, II, M.D., ARTURO CARRILLO, M.D., and
ROGENDRY, LTD., a limited partnership, and ARTURO CARRILLO
MEDICAL SERVICES, a Limited Partnership
Appellees
_________________________________
FROM THE 251st DISTRICT COURT OF POTTER COUNTY;
NO. 90,578-C; HON. PATRICK PIRTLE, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Barbara Ann Stallings (Stallings) appeals from an order granting the motion for
summary judgment of, and denying her recovery against, Robert C. Henderson, II, M.D.,
Arturo Carrillo, M.D., and Rogendry, Ltd., a limited partnership, and Arturo Carrillo Medical
Services, a limited partnership (collectively referred to as Henderson). She sued
Henderson to recover damages allegedly suffered when falling in the Henderson parking
lot. Henderson moved for summary judgment, alleging two grounds. The first dealt with
whether a landowner has the duty to protect against the natural accumulation of ice in its
parking lot, while the second concerned whether the condition of the lot posed an
unreasonable risk of harm since Stallings “was fully aware of the winter weather . . . and
the risks associated with” it. In the order of the court granting the motion for summary
judgment and denying her relief, the trial court said nothing of the grounds upon which it
relied. On appeal, Stallings presents four issues, each of which addresses the first ground
stated in the motion, i.e. the existence of a duty to act. None address the second ground.
We affirm the order of summary judgment.
One moving for summary judgment may raise as many grounds as he chooses.
However, if several are raised and the trial court fails to specify, in its order, the particular
ground upon which it relied in granting the motion, an obstacle arises. Under that
circumstance, the non-movant must address each ground on appeal and illustrate why
none would support the judgment. Miller v. Galveston/Houston Diocese, 911 S.W.2d 897,
899 (Tex. App.–Amarillo 1995, no writ). Failing to do so entitles the appellate court to affirm
on any unaddressed ground. Id.
As previously mentioned, Henderson posed two grounds for summary judgment.
The ground upon which the trial court relied in granting the relief went unspecified in its
order. Moreover, Stallings attacked only the first one in her appellate issues and brief.1
1
The record does contain a letter from the trial court wherein it stated that “I am persuaded that
naturally occurring ice in a parking lot does not pose an unreasonable risk of dang er, as a m atter of law.”
(Emphasis in original). Yet, to the extent that the document suggests the court found the initial ground
asserted by Henderson to be persuasive, the letter is of no consequence. This is so because “we must look
only to the order granting su mmary judg ment” to determine the grounds upon wh ich the trial court relied,
irrespective of any judicial com me nts tha t ma y appea r in a letter. Strather v. Dolgencorp of Tex., Inc., 96
S.W .3d 420, 423 (T ex. A pp.– Tex arka na 2 002 , no pet.).
2
Thus, we are compelled to affirm the order on the ground that went unaddressed. Miller
v. Galveston/Houston Diocese, supra.
Accordingly, the order granting summary judgment and denying Stallings recovery
is affirmed.
Brian Quinn
Justice
3