Patricia Palmer v. Performing Arts Fort Worth, Inc. ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00434-CV
PATRICIA PALMER APPELLANT
V.
PERFORMING ARTS FORT APPELLEE
WORTH, INC.
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Patricia Palmer appeals the trial court’s order granting summary
judgment in favor of appellee Performing Arts Fort Worth, Inc. We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
Performing Arts, which owns and operates Bass Hall, has a license from
the Board of Directors of Tax Increment Reinvestment Zone Number Three, City
of Fort Worth, Texas (TIRZ) allowing its patrons to use a parking garage across
the street from the hall during performances.2 The license agreement allows
Performing Arts to grant patrons of Bass Hall “access to the Garage during the
‘Permitted Hours’” to park their cars during the performances. The lease limits
the number of parking spaces patrons may use to 700, states that Performing
Arts “shall be responsible, at [its] sole expense, for facilitating the orderly entry
and exit of Patrons to the Garage,” and that Performing Arts “shall bear the cost
of and be solely responsible, and shall contract with third parties reasonably
acceptable to [Crescent], for any additional staffing, attendants, or security
required or reasonably requested by [Crescent] in connection with parking
coordination for Patrons’ use of the Garage.”
Palmer attended a performance at Bass Hall on November 4, 2007. She
parked her car in the parking garage and attended the performance across the
street. While returning to her car after the performance, Palmer stepped off a
curb in the parking garage and fell, injuring her ankle and shoulder.
2
Crescent Real Estate Funding, L.P. is the owner of the garage. Crescent
leased the garage to TIRZ, which in turn granted Performing Arts a license to the
garage pursuant to a license agreement dated April 22, 1999. Neither Crescent
nor TIRZ was a party to this lawsuit.
2
Palmer sued Performing Arts for negligence for the allegedly hazardous
and dangerous condition on the property. Performing Arts filed a traditional and
no evidence motion for summary judgment. Performing Arts argued under the
traditional summary judgment standard that Palmer’s negligence claim fails as a
matter of law because she should have asserted a premises liability claim, but
did not. In its no-evidence argument, Performing Arts argued that Palmer has
produced no evidence to support any of the elements of a negligence claim.
Palmer responded and objected to Performing Arts’s motion as untimely
under the trial court’s scheduling order. The scheduling order required that
dispositive motions be filed by September 15, 2010, and Performing Arts did not
file its motion until June 17, 2011. Palmer’s response addressed Performing
Arts’s no-evidence arguments, but it did not address the argument that Palmer
filed a negligence claim but should have filed a premises liability claim. It did,
however, refer to the case as a “premises case[].”
After a hearing in July, 2011, the trial court granted Performing Arts’s
traditional and no-evidence summary judgment motions. On September 19,
2011, Palmer filed an objection to the trial court’s failure to rule on her objection
to the timeliness of Performing Arts’s summary judgment motion. That same
day, the trial court overruled Palmer’s objection. Palmer then filed this appeal.
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Discussion
I. Scheduling Order
In her first issue, Palmer argues that summary judgment is improper
because the motion was filed (1) during her attorney’s vacation; (2) after the
court’s established deadline for dispositive motions; and (3) without permission or
leave from the court.
A. Attorney’s vacation
Palmer complains that Performing Arts filed the motion for summary
judgment during her attorney’s vacation, and the court scheduled the hearing for
the day before he was to return. Palmer’s attorney submitted a letter to the court
indicating that he would be on vacation from June 20, 2011 to July 15, 2011.
Palmer argues that the trial court should “accommodate attorney vacations” and
it erred when it “impliedly modified its scheduling order without notice to the
parties.”
Local rules stipulate that resetting a trial date because of an attorney’s
vacation is at the court’s discretion and that the attorney is to notify the court of
his unavailability as soon as the trial setting is received. Tarrant (Tex.) Civ. Dist.
Ct. Loc. R. 1.11. Performing Arts filed its motion for summary judgment on June
17, 2011, three days before Palmer’s attorney’s vacation. Palmer filed her
response on July 8, 2011, and her counsel attended the hearing. Palmer raised
no objection nor provided any notice of unavailability to the trial court. See In re
Estate of Henry, 250 S.W.3d 518, 527 (Tex. App.—Dallas 2008, no pet.) (holding
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that trial court did not abuse its discretion by implicitly modifying its scheduling
order by allowing a late-filed amended pleading because “[a]lthough appellee
asserted ‘surprise,’ he [did] not claim he did not receive adequate notice and
opportunity to respond”). Because Palmer did not complain to the trial court that
the hearing interfered with her attorney’s vacation, we cannot say that the trial
court abused its discretion by holding the hearing.
B. Deadline for motions
Palmer also complains that the motion was filed after the deadline set forth
in the trial court’s scheduling order. The court has the “inherent right to change
or modify any interlocutory order or judgment down to the time when the
judgment on the merits of the case becomes final.” Hill v. W. E. Brittain, Inc., 405
S.W.2d 803, 808 (Tex. Civ. App.—Fort Worth 1966, no. writ.) (citing Bachman
Ctr. Corp. v. State, 359 S.W.2d 290, 292 (Tex. Civ. App.—Dallas 1962, writ ref’d
n.r.e.)). Rule 166 of the Texas Rules of Civil Procedure states that the court shall
issue an order at the pretrial conference, and “such order . . . shall control the
subsequent course of the action.” Tex. R. Civ. P. 166. The rule also directs
courts to dispose of cases without “undue expense or burden,” id., and courts
may modify an order to prevent manifest injustice, see Trevino v. Trevino, 64
S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no pet.). The court may modify
by affirmative direction, a written order, an oral direction in the record, Susanoil,
Inc. v. Cont’l Oil Co., 516 S.W.2d 260, 264 (Tex. Civ. App.—San Antonio 1973,
no writ.), or by implicit modification, such as setting a hearing, Trevino, 64
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S.W.3d at 170; Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 262 (Tex.
App.—Corpus Christi 1994, writ denied). Therefore, the trial court was within its
discretion to implicitly modify the scheduling order by setting Performing Arts’s
motion for a hearing.
C. Permission from the court
Finally, Palmer argues that Performing Arts filed its late motion without
permission or leave from the court. Often, courts will allow a late filed motion in
order to prevent an unnecessary trial. Trevino, 64 S.W.3d at 170. Given the
wide discretion of the trial court in managing its docket, absent a showing of clear
abuse, we will not interfere with the exercise of that discretion. Id. (citing Clanton
v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)). Because Palmer received adequate
notice and an opportunity to respond, the trial court did not abuse its discretion
by allowing the late submission of the motion.3 We overrule her first issue.
3
At oral argument, Palmer argued that it was also an abuse of discretion
for the trial court to hear Performing Arts’s motion because it had denied her
motion for an expert witness as untimely. Palmer makes no argument or citation
in support of this claim in her response to the motion for summary judgment or in
her brief on appeal. An appellate court cannot reverse based on “unassigned
error,” i.e., a ground not presented in the appellate briefs. Pat Baker Co. v.
Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see Tex. R. App. P. 53.2(f); Sonat
Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.
2008). We therefore do not address this argument.
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II. No-evidence Summary Judgment
In her third issue, Palmer argues that the trial court erred by granting
Performing Arts’s no-evidence summary judgment because she submitted
sufficient evidence to substantiate a premises liability cause of action.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). 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. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of rule
166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
appellant failed to produce more than a scintilla of evidence under that burden,
then there is no need to analyze whether the appellee’s summary judgment proof
satisfied the less stringent rule 166a(c) burden. Id.
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When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard
evidence contrary to the nonmovant unless reasonable jurors could not. Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (quoting Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward
more than a scintilla of probative evidence that raises a genuine issue of material
fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell,
288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).
To prevail under a premises liability claim,4 Palmer must prove that (1)
Performing Arts owed a duty to Palmer; (2) Performing Arts was a possessor of
the premises; (3) the curb constituted an unreasonable risk of harm; (4)
4
Performing Arts challenged Palmer’s negligence cause of action and
argued that Palmer’s stated claim was more properly construed as a premises
liability claim. On appeal Palmer addressed only premises liability, and
Performing Arts responded that even if construed as a premises liability claim,
Palmer failed to meet the elements. Therefore, we consider the issue as argued
and do not discuss Palmer’s negligence claim.
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Performing Arts knew or reasonably should have known of the condition of the
curb; (5) Performing Arts failed to exercise reasonable care to protect Palmer
from danger; and (6) Performing Arts’s failure was the proximate cause of the
injury to Palmer. See Del Lago Partners v. Smith, 307 S.W.3d 762, 788 (Tex.
2010); Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 883
(Tex. 2009).
In general, “a person who does not own or possess property assumes no
liability for injury under a premises liability theory, unless he assumes control
over, and responsibility for, the premises.” Villegas v. Tex. Dep’t of Transp., 120
S.W.3d 26, 38 (Tex. App.—San Antonio 2003, pet. denied) (quoting Rendleman
v. Clarke, 909 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d
as moot)). “The relevant inquiry is whether the defendant assumed sufficient
control over the part of the premises that presented the alleged danger so that
the defendant had the responsibility to remedy it.” Cnty. of Cameron v. Brown,
80 S.W.3d 549, 556 (Tex. 2002). Control is “the power or authority to manage,
direct, superintend, restrict, regulate, govern, administer, or oversee.” Gunn v.
Harris Methodist Affiliated Hosps., 887 S.W.2d 248, 252 (Tex. App.—Fort Worth
1994, writ denied). Occupation of a premises is not synonymous with control; a
party may occupy a premises “in whole or in part, without actually controlling it.”
Id. at 251 (refusing to “focus[] on the term ‘occupy’” but looking to control to
determine whether defendant was a possessor).
9
Palmer argues that Performing Arts was a possessor of the premises
because Performing Arts had a license to use the garage and, according to the
contract, assumed responsibility for the entry and exit of the patrons to the
garage. Palmer also claims that Performing Arts was responsible for the garage
security and staffed the garage for this purpose.
The license agreement, which is the basis of Palmer’s argument that
Performing Arts was a possessor or occupier of the garage at the time of
Palmer’s accident, expressly limited Performing Arts’s right of use and access to
the garage. It was allowed to “use the Garage only in accordance with
Landlord’s rules and regulations.” Performing Arts was given a license to use
700 parking spaces for patron parking and “for no other use.” These spaces
could only be used at certain times and on specific days, and even then
Performing Arts had to yield to the “Landlord’s major tenant.” During the
“Permitted Hours” of Performing Arts’s use, other parties continued to use
portions of the garage. A schedule attached to the license agreement specifically
reserved ninety spaces for another tenant who was not Performing Arts or TIRZ.
Crescent, as the owner of the garage, expressly reserved the right “[t]o
decorate and to make repairs, alterations, additions, changes or improvements,
whether structural or otherwise, in, about[,] or on Garage” and the right to
“prohibit all signs, posters, advertisements, or notices from being painted or
affixed or displayed on any portion of the Garage.” Performing Arts had “no
authority or power, express or implied, to create or cause any mechanic’s or
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materialmen’s lien, charge or encumbrance of any kind against the Garage or
any portion thereof.” Performing Arts was only required to pay the cost of repairs
for damage done by it or its patrons, agents, contractors, or employees.
Performing Arts could “review and comment upon any alterations to the Garage
proposed by [TIRZ] and permitted under the Lease, but [Performing Arts had] no
obligations with regard to the expense of such alterations.”
Performing Arts was only allowed to use 700 spaces in the garage and
other tenants continued to use other portions during Performing Arts’s permitted
hours. Thus, by the plain language of the contract, Performing Arts did not have
exclusive control of the parking garage. Further, Performing Arts had no duty to
inspect, maintain, or repair the garage. In fact, Performing Arts could not make
any “repairs, alterations, additions, changes or improvements” to the garage and
could not put up any signs or notices in the garage. Cf. Levesque v. Wilkens, 57
S.W.3d 499, 505 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that
lessee maintained control over the premises when the lessor reserved no rights
in the contract to enter onto the property during the lease term).
After reviewing the summary judgment evidence, we cannot say that
Performing Arts’s use of the garage was such that it had control over the curb
where Palmer fell and thereby owed Palmer a duty of reasonable care. See
Gunn, 887 S.W.2d at 251–52 (upholding summary judgment on a premises
liability claim because, despite admission that defendant occupied the premises,
the evidence “easily infer[red] a lack of control”). Because Performing Arts
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conclusively negated at least one essential element of Palmer’s cause of action,
the trial court did not err by granting summary judgment on her claim against
Performing Arts. See Frost Nat’l Bank, 315 S.W.3d at 508. We overrule her third
issue. Because we uphold the trial court’s judgment on Performing Arts’s no-
evidence summary judgment, we do not need to reach Palmer’s second issue.
See Tex. R. App. P. 47.1.
Conclusion
Having overruled Palmer’s dispositive issues, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: July 19, 2012
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