trudy-russ-v-william-h-daniel-individually-max-a-daniel-jr ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Trudy Russ

Appellant

Vs.                   No. 11-01-00050BCV  B Appeal from Dallas County

William H. Daniel, Individually;

Max A. Daniel, Jr., Individually;

and William H. Daniel and Max A. Daniel, Jr.,

Partners and d/b/a University Annex

Appellees

Trudy Russ filed suit against William H. Daniel and Max A. Daniel, Jr., individually and as partners d/b/a University Annex (Daniel), Godo and Godo, Inc., individually and d/b/a Avon Cleaners, Avon Cleaners and Pat Godo, individually.  Russ claimed that she slipped and fell while working for Avon Cleaners, a dry cleaning business located in a shopping center owned by Daniel.  According to Russ, Avon Cleaners had leaks in its roof that caused a concrete ramp to be slippery.  Russ slipped while walking on the concrete ramp.  Russ reached a settlement with Avon Cleaners and Pat Godo, the owner of Avon Cleaners; and her claims against them were dismissed. Only her claim against Daniel remained. This is an appeal from a summary judgment for Daniel.

To recover damages in a slip-and-fall case, a plaintiff must prove that the owner of the property had actual or constructive knowledge of some condition on the premises, that the condition posed an unreasonable risk of harm, that the defendant did not exercise reasonable care to reduce or eliminate the risk, and that the defendant=s failure to use such care proximately caused plaintiff=s injuries. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex.1998). Over a year after Russ filed suit, Daniel filed a two-part motion for summary judgment: (1) a traditional motion under TEX.R.CIV.P. 166a(c), claiming that Avon Cleaners had contractually assumed the duty to maintain the roof; and (2) a no-evidence motion under TEX.R.CIV.P. 166a(i), claiming that there was no evidence that (a) Daniel had actual or constructive notice of a dangerous condition which posed an unreasonable risk of harm and (b) there was a condition that involved an unreasonable risk of harm. Russ did not file a response to the motion for summary judgment.

  Daniel=s motion for summary judgment was to be heard on September 13, 2000.  That morning, Russ=s counsel and Daniel=s counsel signed a written agreement that complied with TEX.R.CIV.P. 11, canceling the September 13 hearing.  Daniel=s counsel agreed not to reschedule the hearing before October 13; and, in exchange for the extension of time, Russ=s counsel agreed not to object to a rescheduled hearing Aon the basis that Plaintiff [had] not had adequate opportunity to conduct discovery.@  The rehearing was rescheduled and held on October 13.

Russ states her one issue as follows:

DID THE TRIAL COURT ERR IN GRANTING DANIEL=S MOTION FOR SUMMARY JUDGMENT and/DENYING RUSS=S MOTION FOR NEW TRIAL?

a. Did the Trial Court abuse its discretion in continuing to enforce an unenforceable Rule 11 agreement in both Motions?

b. Did the Trial Court Abuse its Discretion in failing to grant a Motion for New Trial when Pat Godo=s Affidavit was presented, creating genuine issues of material fact?

Russ argues that the trial court abused its discretion in enforcing the Rule 11 agreement because it was never filed. The Rule 11 agreement was not made in open court; therefore, to be enforceable, the agreement had to (1) be in writing, (2) be signed by both counsel, and (3) be filed with the papers as part of the record.  Rule 11. The Afiling@ requirement is met as long as the agreement is filed before a party seeks to enforce it.  Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995). The record reflects that the agreement was filed before Daniel sought to enforce it.  Russ filed the Rule 11 agreement as an exhibit to her motion to continue the October 13 hearing on Daniel=s motion for summary judgment; thus, the agreement was filed Awith the papers as part of the record.@  The Rule 11 agreement was enforceable.

Russ claims that the trial court erred in failing to grant her motion for new trial based on newly-discovered evidence.  A party seeking a new trial based upon a claim of newly-discovered evidence must demonstrate:

(1) that the evidence has come to her knowledge since trial;

(2) that it was not owing to the want of due diligence that the newly-discovered evidence was not discovered sooner;

(3) that the newly-discovered evidence is not cumulative; and

(4) that the evidence is so material that it would probably produce a different result if a new trial were granted.

Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983).

The Anewly-discovered evidence@ produced by Russ was an affidavit by Pat Godo that she was not responsible for the common area of the premises where Russ fell.  Russ did not demonstrate that she had exercised diligence in trying to obtain the new evidence before the summary judgment hearing.  Jackson v. Van Winkle, supra at 810.  Moreover, Godo=s affidavit did not provide evidence that Daniel had actual or constructive notice of a dangerous condition which posed an unreasonable risk of harm.  The trial court did not err in denying Russ=s motion for new trial.

In her brief and at oral argument, Russ=s counsel argued that Daniel=s trial counsel fraudulently induced her to enter the Rule 11 agreement by agreeing that he would make Daniel available for depositions before October 13.  The purpose of the requirements for a valid Rule 11 agreement is to avoid misunderstandings and controversies that flow from verbal agreements.  Padilla v. LaFrance, supra at 460.  Any such agreement by trial counsel should have been included in the Rule 11 agreement.         

With her motion to continue the October 13 hearing until she had an opportunity to take  Daniel=s depositions, Russ attached an affidavit of Yolando Williams, who heard the two attorneys on September 13 agree to October 4 for the depositions of Russ and Daniel. Daniel=s counsel who signed the Rule 11 agreement left the law firm representing Daniel shortly after September 13.  Russ attempted to take Daniel=s deposition by agreement after October 4.  She did not notice their depositions. The trial court denied Russ=s motion for continuance and granted Daniel=s motion for summary judgment.  The implicit premise of Russ=s argument on appeal appears to be that the trial court abused its discretion in failing to grant a continuance of the summary judgment hearing.  Although we find that the trial court did not abuse its discretion, Daniel=s request for sanctions is denied.  The sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

April 11, 2002                                                               TERRY McCALL

Do not publish.  See TEX.R.APP.P. 47.3(b).                 JUSTICE

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.^[1]

---

^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.