Amy Sipes and Tana Trevino v. Sunmount Corporation and the State of Texas - Department of Transportation ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00126-CV
Amy Sipes and Tana Trevino § From the 236th District Court
v. § of Tarrant County (236-180975-99)
Sunmount Corporation and The § March 14, 2013
State of Texas - Department of
Transportation § Opinion by Justice Dauphinot
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment. It is ordered that the judgment of the
trial court is reversed and the case is remanded to the trial court for further
proceedings consistent with this opinion.
It is further ordered that Appellees Sunmount Corporation and The State of
Texas – Department of Transportation shall pay for all of the costs of this appeal,
for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Ann Dauphinot
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00126-CV
AMY SIPES AND TANA TREVINO APPELLANTS
V.
SUNMOUNT CORPORATION AND APPELLEES
THE STATE OF TEXAS -
DEPARTMENT OF
TRANSPORTATION
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Amy Sipes and Tana Trevino appeal from the trial court’s grant of
summary judgment on their claims against Sunmount Corporation and the Texas
Department of Transportation (TxDOT). In two issues, Sipes and Trevino argue
that neither the law of the case doctrine nor collateral estoppel bars their claims.
1
See Tex. R. App. P. 47.4.
In a cross-appeal, Sunmount and TxDOT argue that the trial court erred by not
awarding them court costs. Because we hold that the summary judgment
grounds asserted by Sunmount and TxDOT do not support the trial court’s
judgment, we reverse.
Background
Sipes and Trevino sued the City of Grapevine (the City), Jerry Gaston,
Sunmount, and TxDOT for claims based on a car accident in which Sipes’s car
was struck by another vehicle in a construction zone. After Sipes and Trevino
settled with Gaston, the trial court signed an agreed order of dismissal of their
claims against him. The trial court granted summary judgment for Grapevine and
severed the claims against TxDOT and Sunmount. The events giving rise to the
claims in this case were set out by this court and by the Supreme Court of Texas
in the appeal in the severed suit against the City, and we will not recite them here
except when necessary for addressing the issues on appeal.2 The instant appeal
is from the judgment rendered in the severed suit against TxDOT and Sunmount.
After the trial court severed the claims against the City, Sipes and Trevino
amended their petition. In their Amended Seventh Amended Original Petition,
Sipes and Trevino alleged that Sunmount and TxDOT were negligent by: failing
to follow the traffic control plan; revising the traffic control plan without the
approval of the registered professional engineering company that had prepared
2
City of Grapevine v. Sipes, 195 S.W.3d 689 (Tex. 2006); Sipes v. City of
Grapevine (Grapevine), 146 S.W.3d 273 (Tex. App.—Fort Worth 2004).
2
the plan; and failing to request the professional engineering company to review
and revise the traffic control plan “after receiving repeated notice of the dramatic
increase in the number of traffic accidents at the subject intersection since the
initiation of construction.” They also alleged that Sunmount and TxDOT were
grossly negligent. Trevino asserted a claim as a bystander for mental anguish
and also sought compensation for loss of consortium.
In the trial court, Sunmount filed a motion for traditional summary judgment
asserting (1) that Sipes’s and Trevino’s claim was for premises liability; (2) that
Sipes and Trevino were licensees; (3) that as licensees, Sipes and Trevino were
required to prove that Sunmount had a duty to warn them of the condition; and
(4) that Sunmount did not have a duty if Sipes and Trevino knew about the
condition. Sunmount pointed out language from this court’s opinion in Grapevine
and then relied on that language to show its right to summary judgment. In that
opinion, we stated:
By [A]ppellants’ own admissions, they knew they were entering a
construction zone, and Sipes admitted that there were sufficient
signs to alert her to unexpected dangers at the intersection. Traffic
barricades, barrels, and signs are not unexpected or unusual and, in
this case, they did not impair [A]ppellants’ ability to travel on the
road. Therefore, we conclude that the obstruction about which
[A]ppellants complain was a premises defect about which they had
adequate warning. We hold that the trial court did not err by
granting the City’s summary judgment on the premises liability
issue.3
3
Grapevine, 146 S.W.3d at 283 (emphasis added).
3
Using that language, Sunmount first asserted a right to judgment based on
the doctrine of collateral estoppel. Sunmount argued that Sipes and Trevino
could not re-litigate the issue of whether they had been adequately warned of the
intersection’s dangers because Sipes and Trevino did not appeal that part of this
court’s judgment, and the Texas Supreme Court did not address it on review.
Thus, Sunmount argued, the part of this court’s opinion regarding premises
defect and adequate warnings became the law of the case. Sunmount
contended that Sipes and Trevino therefore could not prove that Sunmount failed
to warn them of the condition of the intersection or that they did not know about
the condition of the intersection, and thus Sunmount had conclusively negated an
essential element of their claims.
As another ground for summary judgment, Sunmount also argued that
even aside from collateral estoppel and law of the case, it had produced as
summary judgment evidence “the exact same evidence” that this court had relied
on in reaching its holding that Sipes and Trevino were adequately warned about
the conditions of the intersection. Because this court had already held that this
evidence was sufficient to show that Sipes and Trevino had been adequately
warned, they could not establish that they had not been adequately warned, and
Sunmount was therefore entitled to summary judgment.
TxDOT also filed a summary judgment motion, making the same
arguments as Sunmount. The trial court granted summary judgment for
4
Sunmount and TxDOT and rendered a final judgment that Sipes and Trevino
take nothing on their claims. Sipes and Trevino then brought this appeal.
Standard of Review
We review a summary judgment de novo.4 We consider the evidence
presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not.5 We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.6 A
defendant who conclusively negates at least one essential element of a cause of
action is entitled to summary judgment on that claim.7
Analysis
In their first issue, Sipes and Trevino argue that the trial court’s summary
judgment should be reversed because the doctrine of the law of the case does
not bar their claims. In their second issue, they argue that the summary
judgment should be reversed because collateral estoppel does not preclude their
claims.
4
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
5
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
6
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
7
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
5
Before we address Sipes and Trevino’s issues, we first consider Sunmount
and TxDOT’s argument that the summary judgment must be affirmed because
Sipes did not challenge one of their summary judgment grounds: that Sunmount
and TxDOT could not be liable because Sipes and Trevino knew about the
condition of the intersection. Sunmount and TxDOT argue that although Sipes
and Trevino did include argument in their brief about the adequacy of warnings,
they did not include argument about whether they knew about the intersection’s
condition. Sunmount and TxDOT argue that because the brief included no
challenge to this ground, we must therefore affirm the summary judgment on that
ground.8
We disagree with Sunmount and TxDOT’s characterization of Sipes and
Trevino’s brief. Although their brief was not as well articulated as it could have
been, we conclude from reading their brief in its entirety that they do maintain
that they did not know that their view would be obstructed at the intersection. For
example, Sipes and Trevino state that “[a]lthough the traffic barrels and cement
barriers indicated that [Sipes and Trevino] were driving through a construction
zone, their awareness of that fact did not apprise them of the obstructed view of
eastbound vehicles traveling to the intersection on their left.” Sipes and Trevino
also state that although Sunmount and TxDOT argue that they were warned of
8
See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)
(holding that summary judgment must stand since it may have been based on a
ground not specifically challenged on appeal).
6
the dangers of the obstructed view at the intersection, they only admitted that
they were aware that they were traveling in a construction zone. Elsewhere,
Sipes and Trevino again assert that they were aware only that they were
traveling in a construction zone. On that same page, Sipes and Trevino state
that Sunmount and TxDOT had “actual knowledge of the specific visibility
problem” but that Sipes and Trevino “were unaware of the danger until they
attempted to cross the intersection.” Because we conclude that Sipes and
Trevino assigned error to Sunmount and TxDOT’s summary judgment ground
alleging that they knew of the dangerous condition, we decline to affirm the trial
court’s judgment on the basis that they did not challenge all asserted summary
judgment grounds.
We now turn to Sipes and Trevino’s issues. Under their first issue, Sipes
and Trevino argue that the doctrine of the law of the case does not apply. They
make several arguments under this issue. First, they contend that we held in
Grapevine that the City did not own or control the intersection. They argue that if
the City did not own or control the intersection, it had no duty to Sipes and
Trevino with respect to the condition of the intersection.9 They maintain that
although this court stated that the condition of the intersection was a premises
9
See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (holding
that Denton was not liable for the dangerous condition of a storage building
because it neither (1) created the dangerous condition nor (2) owned, occupied,
or controlled the premises).
7
defect “about which [Sipes and Trevino] had adequate warning,”10 that statement
was irrelevant to this court’s holding. They point out that in contrast to the City,
Sunmount and TxDOT owned or controlled the intersection.11
In a reply brief, Sipes and Trevino elaborate on this argument. They
reassert that the City did not own or control the intersection and assert that once
this court reached that holding, any discussion by this court about the adequacy
of warnings was unnecessary to the disposition of the appeal because if the City
did not own or control the intersection, it had no duty to Sipes and Trevino
regarding the intersection’s condition.
We must first point out that in considering the primary question of law we
determined in the section of Grapevine relied on by Sunmount and TxDOT—
whether the obstruction to Sipes’s and Trevino’s view was a special defect or a
premises defect—we applied a test that has been done away with by the
Supreme Court. In Grapevine, we considered whether the obstruction was a
special defect by considering whether it was unexpected or unusual.12 The
Supreme Court has since made clear that the only test for a special defect is
whether the condition is of the same class as excavations or obstructions on the
10
Grapevine, 146 S.W.3d at 283.
11
See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (noting
that a premises-liability defendant may be held liable for a dangerous condition
on property it did not own if it assumed control over the property).
12
Grapevine, 146 S.W.3d at 282–83.
8
road, not whether the condition was something unexpected or out of the
ordinary.13 The fact that a condition presents some unusual quality may be
relevant to whether the condition is like an excavation or obstruction, but its
ordinariness alone does prevent it from being a special defect.14 Thus, with
respect to this part of our holding, our opinion cannot be the law of the case. 15
But even assuming that we would still hold that the obstruction alleged in this
case was, as a matter of law, not a special defect, we still decline to apply the
law of the case doctrine here.
We agree with Sipes and Trevino that our holding regarding the use or
condition of tangible property rendered any discussion of premises defect
unnecessary to affirm the trial court’s summary judgment. The City argued that it
could not be liable because it did not own, use, or control any property at the
intersection.16 Regarding Sipes and Trevino’s allegation that immunity was
waived based on the City’s use of tangible property, we stated that the City had
“supported its motion with evidence that the State owned the right-of-way at the
13
Denton Cnty. v. Beynon, 283 S.W.3d 329, 331–32 (Tex. 2009).
14
City of Denton v. Paper, 376 S.W.3d 762, 765 (Tex. 2012) (listing
characteristics to consider in determining whether a particular condition is like an
excavation or obstruction).
15
See In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex. App.—San
Antonio 1999, no pet.) (holding that even if the law of the case applied to the
court’s prior statement, supervening and controlling case law overruled it).
16
Grapevine, 146 S.W.3d at 281; see Page, 701 S.W.2d at 835.
9
intersection, maintained control over the construction project, and placed the
traffic control devices at the intersection.”17 We held that the City’s act in moving
some of the traffic control devices was too attenuated from the events that gave
rise to the accident to be a proximate cause of Sipes’s and Trevino’s injuries.18
Having agreed that the City had established that it did not own or control
the intersection, we could not have then affirmed a judgment finding the City
liable for a premises defect at the intersection because, if the City did not own or
control the intersection, it had no duty to Sipes and Trevino with respect to the
intersection.19 We therefore did not need to decide either whether the condition
was a special defect or a premises defect or whether Sipes and Trevino had
been warned about the intersection’s condition in order to affirm the judgment in
favor of the City. Because the statement on which Sunmount and TxDOT rely
was not necessary to our judgment in Grapevine, we sustain Sipes’s first issue.20
17
Id. at 282.
18
Id.
19
See Page, 701 S.W.2d at 835.
20
See Smith v. Alston, 40 Tex. 139, 141 (1874) (noting that “[d]icta, or even
matters of argument not necessary to the decision of a question before the court,
as is well known, is never regarded as deciding the law of the case”); Four Bros.
Boat Works, Inc. v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 653, 662 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (declining to apply the law of the
case doctrine to a statement that was not necessary to the determination of the
case); In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867, 870 (Tex. App.—
Beaumont 2000, no pet.) (same); Chavana, 993 S.W.2d at 315; Huckabay v.
Irving Hosp. Auth., 879 S.W.2d 64, 66 n.1 (Tex. App.—Dallas 1993, writ dism’d
by agr.) (same).
10
Sipes and Trevino’s second issue challenges the trial court’s application of
collateral estoppel. We agree with Sipes and Trevino for the same reason we
stated under their first issue. Even if the other elements of collateral estoppel—
that the facts sought to be litigated in the second action were fully and fairly
litigated in the first action and that the parties were cast as adversaries in the first
action21—were present here, which we do not hold, the statement relied on by
Sunmount and TxDOT to establish summary judgment was not essential to our
holding that summary judgment for the City was correct. Collateral estoppel
cannot be based on this court’s statement about the adequacy of any warning.
Finally, we consider Sipes and Trevino’s argument that summary judgment
should not have been granted on the ground that Sunmount and TxDOT
produced evidence showing as a matter of law that they had been warned of and
knew of the dangerous condition at the intersection. Sunmount and TxDOT had
asserted as a ground for summary judgment that they had produced “the exact
same evidence” that had led this court to hold that the obstruction was a
premises defect “about which [Sipes and Trevino] had adequate warning.” As
stated, that statement by this court was not necessary to our holding in
Grapevine and therefore was not binding on the trial court. Thus, to affirm the
21
Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801–02, 803 (Tex.
1994) (setting out the elements of collateral estoppel and discussing the
purposes of the doctrine).
11
summary judgment on this ground requires us to consider the sufficiency of the
evidence on its own merits and not merely in light of our previous statement.
In this appeal, Sipes and Trevino point to evidence that they contend
raised a fact issue about whether the evidence had established their knowledge
of the dangerous condition—the obstructed view—and the adequacy of
Sunmount and TxDOT’s warning as a matter of law. The dangerous condition
alleged in this case was the danger from presently approaching eastbound traffic
of which northbound traffic did not and could not know because of an obstruction
to their view of eastbound traffic.22 That is, the problem was not just that
northbound drivers could not see to their left, it was that they could not see
oncoming traffic to their left. The testimony from Sipes and Trevino was that they
did perceive that they were entering a construction zone, a fact we noted in
Grapevine.23 Having reviewed the record, we hold that nothing in the record
established as a matter of law that Sipes and Trevino knew that they were
approaching an intersection at which their view would be obstructed. Nothing in
the record established as a matter of law that they knew or should have known
that a vehicle was travelling toward them at the moment they entered the
22
See Texas Dep’t of Transp. v. Olson, 980 S.W.2d 890, 895 (Tex. App.—
Fort Worth 1998, no pet.) (holding that TxDOT’s negligence in permitting
shrubbery, bushes, and high grass to obscure drivers’ views at an intersection
was a ground on which the jury could find proximate cause of an accident at the
intersection).
23
Grapevine, 146 S.W.3d at 283.
12
intersection. And nothing in the record established as a matter of law that they
were warned of this danger, much less that the warning was adequate to have
allowed Sipes and Trevino to avoid harm.24 Accordingly, we agree with Sipes
and Trevino that summary judgment could not have been granted on this ground.
We sustain Sipes and Trevino’s second issue.
Cross-Appeal
In their sole issue in their appeal, Sunmount and TxDOT argue that the
trial court erred by not awarding them court costs as the prevailing parties in the
litigation. Because we reverse the trial court’s summary judgment, we overrule
this issue as moot.
Conclusion
Having sustained Sipes and Trevino’s issues, and having overruled
Sunmount and TxDOT’s sole issue on cross-appeal, we reverse the trial court’s
summary judgment and remand this case for further proceedings.
24
See W. Auto Supply Co. v. Campbell, 373 S.W.2d 735, 736 (Tex. 1963)
(setting out the duty of a possessor of land with respect to dangerous conditions
as including a duty to either make the condition reasonably safe or give a
warning adequate to enable visitors to avoid the harm); see also Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (“In some
circumstances, no warning can suffice as reasonably prudent action to reduce or
remove an unreasonable risk.”).
13
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: March 14, 2013
14