Jose Antonio Herrera v. AMD Property Maagement, Inc. ( 2009 )

Opinion issued February 26, 2009

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-08-00437-CV

__________

JOSE ANTONIO HERRERA, Appellant

V.

AMD PROPERTY MANAGEMENT, INC., Appellee

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On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2007-14694

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MEMORANDUM OPINION  

Appellant, Jose Antonio Herrera, challenges the trial court's rendition of summary judgment in favor of appellee, AMD Property Management, Inc., in Herrera's suit against AMD for premises liability, negligence, and gross negligence. In four issues, Herrera contends that the trial court erred in "not finding [a] duty owed to [Herrera]," "not finding foreseeability of harm," denying him the opportunity to depose a witness, and granting AMD more relief than it requested.

We affirm.

Factual and Procedural Background

In his fourth amended petition, Herrera alleged that, on March 11, 2005, he was a tenant at an apartment complex owned or managed by AMD and was robbed and shot by an unknown suspect in the apartment complex parking lot. In support of his claim for premises liability, Herrera alleged that, at the time of the shooting, the apartment complex was located in a "high crime area" with "constant criminal activity," this created "a dangerous condition," AMD had actual or constructive knowledge of this condition "as demonstrated by past criminal activity on the property," and the condition posed an unreasonable risk of harm. Herrera further alleged that AMD failed to provide adequate lighting, provide "necessary and proper procedures," properly maintain the fence, take corrective action, provide gates or locked doors, provide an adequate number of trained security guards, and warn Herrera of the conditions. In support of his negligence claim, Herrera alleged that AMD breached its duty to Herrera to use ordinary care to protect its invitees from criminal acts of third parties. Herrera also sought exemplary damages, alleging that AMD had actual subjective awareness of the risk involved but proceeded with conscious indifference.

AMD filed a no-evidence summary judgment motion, in which AMD asserted that there is no evidence that any property condition caused the incident and that there is no evidence of duty with respect to each of the defective conditions alleged by Herrera. ⁽¹⁾ AMD also argued that Herrera's negligence claim failed because Herrera had clearly pleaded a premises liability claim, not a claim based upon a negligent activity. Finally, AMD argued that Herrera's claim for gross negligence failed because there is no evidence that AMD proceeded in conscious indifference to the his rights.

Herrera filed a response to AMD's no-evidence summary judgment motion. Herrera attached to his response a copy of a sworn statement from Luz Alvarado, the office manager for the apartment complex. Herrera cited Alvarado's testimony that the "part of town" in which the apartments was located was a "high crime" area. Herrera also cited Alvarado's testimony that there were some "incidents" at the apartments, the apartment complex owner had suggested putting "razor wire" on the back fence, she had expressed her concerns about people jumping the gates at the complex, there were people "always making holes in the iron fences," and she had suggested "getting more courtesy officers" and cameras at the apartment complex "to deter" crime. Herrera then set forth a list of alleged "service calls" made from the apartments in regard to criminal activity for a six-month period from December 1, 2004 to May 31, 2005 and copies of printouts that he contended were official records from the Houston Police Department reflecting those calls. Herrera did not provide any explanation as to how any of his evidence responded to the specific contentions made in AMD's no-evidence summary judgment motion. AMD filed a reply, asserting that Herrera had failed to, among other things, respond to its no-evidence challenge as to causation for any of his claims.

The trial court granted, "in its entirety," AMD's no-evidence summary judgment motion on all of Herrera's causes of action. In its order, the trial court also specifically stated that it granted summary judgment on Herrera's negligence claim because Herrera was complaining of a condition, not an activity, and thus Herrera's claim was one for premises liability rather than simple negligence. In regard to Herrera's claim for premises liability, the trial court determined that none of Alvarado's statements provided even a scintilla of evidence to defeat AMD's motion. In regard to the purported criminal records presented by Herrera, the trial court stated that it was not clear from these records how many of the identified incidents were separate or related, whether the incidents reflected merely service calls or actual crimes, or whether the facts or circumstances surrounding the incidents that were reflected in the records were similar to the instant incident. The trial court stated, "In order to defeat a motion for no-evidence summary judgment, the plaintiff must do more than attach paper or exhibits to a response and expect the [c]ourt to decipher such 'evidence.'" In regard to Herrera's claim for gross negligence, the trial court noted that Herrera had provided no response on this cause of action.

The trial court also addressed in its order an apparent dispute regarding Herrera's attempts to depose a man referred to by the parties as "Lipmann." The trial court ruled that the deposition should not occur because Herrera did not show that Lipmann had any unique knowledge regarding the facts of the case.

Standard of Review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party's cause of action. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.--Dallas 2000, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Moreover, we note that if summary judgment may have been rendered, properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Inadequate Briefing

In the argument section of his briefing on his first issue, which pertains to the element of duty in regard to Herrera's causes of action, Herrera provides only a single record reference to the evidence that he attached to his summary judgment response. Although he generally cites and discusses law on the element of duty, he provides no discussion of any specific piece of evidence, or even a discussion of the evidence in general. He also does not explain how any of his evidence relates to the element of duty.

In the argument section of his briefing on his second issue, which pertains to forseeability, Herrera does not provide a single citation to the record. Other than making an unsupported and inexplicable assertion that Herrera was an "unforeseeable victim regardless of his status" as an invitee, licensee, or trespaser, Herrera provides no discussion as to how the law and authorities he cites relate to the facts of the instant case.

In regard to the third issue, which pertains to his attempt to depose "Lippman," we conclude that Herrera's arguments are incomprehensible. In this section of his briefing, Herrera also makes no assertion that he sought a continuance or any other relief on his alleged discovery dispute or that the trial court erred in denying a continuance before it granted summary judgment.

In the argument section of his briefing on his fourth issue, which pertains to the scope of the relief granted by the trial court, Herrera inexplicably complains that AMD's summary judgment motion "does not address the criminal conduct that has been committed" at the apartments. Herrera does not offer any further discussion of this random argument, nor does he explain how this assertion, which appears entirely unrelated to the issue, shows that the trial court erred in granting AMD's no-evidence summary judgment motion.

In sum, Herrera's briefing is almost entirely devoid of any substantive argument on the actual issues presented, the facts of the underlying case, or on the summary judgment granted by the trial court. It is also incomprehensible in many places and lacks appropriate record citations. We conclude that Herrera has inadequately briefed his issues and has waived all of his issues for our review. See Tex. R. App. P. 38.1(h) ("The brief must contain clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").

Even assuming that Herrera had adequately briefed his first and second issues of duty and forseeability by generally citing to law on these issues, Herrera did not address AMD's primary argument in its no-evidence summary judgment motion that Herrera could present no evidence of causation. Because causation is an element of all of Herrera's claims, and because causation was clearly raised in AMD's no-evidence summary judgment motion, even if we considered the arguments raised by Herrera as to duty and forseeability to be adequately briefed, we would be required to affirm the summary judgment on the basis that Herrera did not address the alternative summary judgment grounds. Ellis, 68 S.W.3d at 898.

Conclusion

We affirm the judgment of the trial court.

   Terry Jennings

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

1. AMD also specifically asserted that there is no evidence that (1) it had failed to provide adequate lighting, gates, locked doors, fences, or guards, or that there is any causal link between the failure to provide adequate lighting, gates, locked doors, fences, or guards and the incident, (2) it had a legal duty to follow different policies or procedures or that there is any causal link between the unspecified policies and procedures that it followed and the incident, (3) there are any defects of which AMD failed to warn Herrera or that there is any casual link between the alleged defects and the incident, and (4) AMD could have taken measures to prevent the unknown criminal suspect from coming onto the property.