Hicham Watanabe v. Summit Path Partners, LLC Hocine Aitmohand AJ Ahmed and Edward Hua ( 2021 )

Opinion issued August 10, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00302-CV
———————————
HICHAM WATANABE, Appellant
V.
SUMMIT PATH PARTNERS, LLC; HOCINE AITMOHAND; A. J.
AHMED; AND EDWARD HUA, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2014-40945
OPINION
This is a premises liability case. Hicham Watanabe was injured in an assault
in a parking lot. He sued his employers as well as the owner and the operator of the
parking lot. The defendants filed multiple motions for summary judgment. The
trial court granted take-nothing summary judgment in favor of each of the
defendants. On appeal, Watanabe contends that the trial court erred by entering
these summary judgments.
We affirm.
Background
I. Ownership, possession, and use of the premises
Defendant Summit Path Partners, LLC owns property on the north and south
sides of Nett Street in Houston, Texas. At the relevant time, the property on the
north side of Nett Street, 4709 Nett Street, consisted of two parking lots, separated
by a building.1 The property on the south side of Nett Street included 4701 Nett
Street, a building operated as the Nox nightclub, another building beside the Nox
nightclub, and parking adjacent to both buildings.
At the time of Watanabe’s assault, 4709 Nett Street was leased to Hocine
Aitmohand, who operated two self-parking lots on the property. He employed
attendants for each of his two parking lots. The Nox nightclub, 4701 Nett Street,
was leased to EA-BBC, LLC, whose members were A.J. Ahmed and Edward Hua.
Nox offered valet parking, which Watanabe managed. He earned about $60
per night and worked about four nights a week. Watanabe testified by deposition
1
On appeal, the record includes references identifying the property on the north
side of Nett Street as 4709 Nett Street, 4700 Nett Street, 4709 Allen Street, and the
north lot. There is no dispute that the assault, which is the subject of the
underlying suit, occurred on the property on the north side of Nett Street, which
was used at the time as a parking lot.
2
that he never personally parked cars; instead, he collected money from patrons
when they pulled up near the nightclub building requesting valet service, managed
others who parked cars, and delivered the money to Ahmed or Hua. Watanabe also
testified that on busy nights, he paid Aitmohand or his parking attendant for the
right to valet park cars in the 4709 Nett Street parking lots. He said that he had
done so on the night he was assaulted.
II. The assault
Watanabe was working as a valet on the night of Tuesday, March 26, 2013.
At about 2:30 a.m. the next morning, as Nox closed to customers, Watanabe
prepared to bring a box with “a few keys” into the nightclub. He noticed that,
across the street, one of Aitmohand’s parking lot attendants, Samsung, had been
accosted by four men, who were agitated and yelling. Watanabe testified:
I heard Samsung. I heard yelling and I was just across the street . . . I
saw Samsung, [Aitmohand’s parking attendant], surrounded by four
guys. . . . He was really standing, like, right here in front of his
parking lot, just in front of his parking lot, really on the curb. . . .
Exactly across the street. . . . I saw him really scared, like very scared,
and the guys were yelling at him, was jumping at him, and I knew—
like right away, I knew he was really in trouble right away and I
couldn’t just, you know, walk away . . . .
Watanabe crossed the street and approached the men to deescalate the
situation. The four men informed Watanabe that someone had broken into their
cars, which were parked in the other of Aitmohand’s two parking lots. Although
Samsung was still there, the other parking lot’s attendant had already left.
3
Watanabe said that the men “asked Samsung to follow them” back to their cars in
the other lot. When Samsung refused to go with the men, Watanabe agreed to do
so. Watanabe testified by deposition:
And I said, “You know, guys can you just show me the car, you
know? I might help you, you know. I mean, you know, we’re going to
fix you—you know the owners. The owner club and—and
[Aitmohand], you know hey can fix that for you, so no worries.” So I
was—I took him away from him because they were really—I mean,
the way how they were talking and the way how they were mad, I
mean, they were like—they were—you know, they were all, like, fight
with him and he’s an old man . . . .
Watanabe followed them to the back of the other parking lot where their cars
were parked. He testified: “It was really dark.” As they approached the two
damaged cars, the men asked who would repair their cars, and they declined
Watanabe’s offer to contact the police. When they arrived at the cars, Watanabe
saw two cars with significant amounts of broken glass. He commented on the
amount of damage, and then one of the men, later identified as Terrance Williams,
punched him in the eye. After momentarily blacking out, Watanabe returned to the
Nox nightclub. Watanabe said that nobody there would call for emergency services
on his behalf. Bleeding and unable to see out of one eye, he drove home. After
arriving home, his wife ensured that he was taken by ambulance to a hospital; he
was later transferred to another hospital, where he underwent surgery for broken
facial bones and damage to his eye and spent several days recuperating.
4
Williams later pleaded guilty to assault, and he was sentenced to four years
of probation. He was also ordered to pay Watanabe $7,000 in restitution.
III. Watanabe’s lawsuit
A. Pleadings
In July 2014, Watanabe filed suit against Summit Path, Hocine Aitmohand,
A. J. Ahmed, and Edward Hua for damages “caused by criminal conduct
committed by Terrance Williams.” At no point, however, did Watanabe sue
Williams, who actually perpetrated the assault. Watanabe alleged that:
• he was an invitee on the premises owned by Summit Path,
• the assault was foreseeable to Summit Path and Aitmohand due to the
high rate of violent crime in the area,
• Summit Path was negligent for failing to provide adequate lighting
and trained security guards,
• Ahmed and Hua failed to use ordinary care in providing a reasonably
safe workplace,
• Ahmed and Hua were negligent for failing to provide adequate
lighting and trained security guards,
• These acts and omissions were the proximate cause of the injuries that
arose from his assault.
The original petition was not accompanied by a request for disclosure. The
defendants answered, and all defendants designated Williams a responsible third
party under the provisions of the Civil Practice and Remedies Code.2 Watanabe
2
See TEX. CIV. PRAC. & REM. CODE §§ 33.001–.017.
5
filed an amended petition on January 19, 2016, naming EA-BBC, LLC as a
defendant.
B. Motions for summary judgment
1. Ahmed & Hua’s initial summary-judgment motions were
denied.
In March 2015, Ahmed and Hua filed a traditional motion for summary
judgment in which they asserted that they did not owe a duty to Watanabe because
they had no control over Williams or the parking lot where the assault occurred.
The trial court denied this motion. Ahmed and Hua filed another motion for
summary judgment on January 4, 2016, arguing that they had been sued in the
wrong capacity because they operated Nox as EA-BBC, LLC.3 The trial court
denied this motion as well.
2. Ahmed, Hua, and EA-BBC file traditional and no-evidence
motions for summary judgment in September 2017.
On September 1, 2017, Ahmed, Hua, and EA-BBC filed a traditional motion
for summary judgment. Ahmed and Hua argued that they did not owe Watanabe a
duty of care at the time of the assault because they “did not personally own or
occupy the premises where the alleged assault took place nor did they have control
3
The assault occurred on March 27, 2013. Ahmed and Hua’s second motion for
summary judgment, which for the first time raised the identity of EA-BBC, LLC,
was filed more than two years after the assault. The statute of limitations for
premises liability claims is two years. See TEX. CIV. PRAC. & REM. CODE
§ 16.003; S.E.A. Leasing, Inc. v. Steele, No. 01-05-00189-CV, 2007 WL 529931,
at *1 (Tex. App.—Houston [1st Dist.] Feb. 22, 2007, pet. denied) (mem. op.).
6
or supervision of the individual that committed the alleged assault.” They also
argued that they did not invite Watanabe to the premises where the assault
occurred. EA-BBC argued that Watanabe’s claims against it were barred by the
statute of limitations.
Ahmed, Hua, and EA-BBC attached the following summary judgment
evidence: Ahmed’s affidavit, Hua’s affidavit, and Watanabe’s first amended
petition. Both Ahmed and Hua averred:
....
2. At all times on March 27, 2013 the nightclub called NOX was
operated by the limited liability company EA-BBC, LLC
registered with the Texas Secretary of State.
3. I am not an agent, director, or shareholder of Summit Path
Partners, LLC.
4. I do not personally own or lease the property located at 4700
Nett Street, Houston, Texas 77007.
5. I did not individually contract or hire Plaintiff Hicham
Watanabe as a valet driver on or about March 27, 2013.
6. At no time did I individually compensate Plaintiff Hicham
Watanabe, monetarily or in any other form, for valet services
performed by Plaintiff Hicham Watanabe on or about March
27, 2013.
7. At no time did I receive compensation in an individual capacity,
monetarily or in any other form, for allowing Plaintiff Hicham
Watan[a]be to perform valet services at 4700 Nett Street,
Houston, Texas 77007 on or about March 27, 2013.
7
On September 1, 2017, Ahmed, Hua, and EA-BBC also filed a no-evidence
motion for summary judgment. They asserted that there is no evidence of
proximate cause or duty.
On January 16, 2018, Watanabe responded to the traditional motion for
summary judgment, arguing that Ahmed, Hua, and EA-BBC did not conclusively
prove that they were not liable for his injuries. He argued that there was a fact issue
for the trier of fact, without identifying the fact issue. Watanabe attached as
summary-judgment evidence his affidavit, and the trial court’s two interlocutory
orders denying earlier motions for summary judgment.
In his affidavit, Watanabe averred:
1. I was an employee of the defendant[s] Edward Hua, and Arif
Ahmed on the night of March 27, 2013 when I valet parked cars
at 4709 Allen Street Houston, TX 77007 and 4701 Nett Street
Houston Texas 77007 (Nox nightclub). I valet parked cars at
both locations at the behest and for the benefit of the
Defendants Ahmed and Hua.
2. The Defendants Ahmed and Hua were aware that they had
permission to park at 4709 Allen Street Houston, TX 77007,
and 4701 Nett Street Houston Texas 77007 as long as they
maintained it in a “clean and orderly manner.” This was the
case on March 27, 2013 when Plaintiff was assaulted. The same
arrangements had been in place for more than a year.
3. Payments from valet customers at both locations were turned
over to the defendants Hua and Ahmed every night I worked.
8
4. Summit Path Partners owned the property Nox was located on
AND the property at 4709 Allen Street Houston, TX 77007 . . .
on March 27, 2013 where the assault took place.
5. There was no lighting on the premises, or security. None of the
defendants in this case provided lighting or security for the
parking lot area, which includes Summit, the movant herein.
The property owner’s representative knew or should have
known of these facts. Summit was also aware or should have
been aware through a reasonable inquiry that Nox was a night
club and that the cars of patrons were routinely parked on the
lot at 4709 Allen Street Houston TX 77007 where no lighting
and no security existed. Nox night club only had permissive
use of the parking lot and did not retain control of the
premises.
Watanabe responded and attached as summary-judgment evidence: (1) his
third amended petition, (2) his affidavit, (3) Ahmed and Hua’s first two summary-
judgment motions and the orders denying them.
3. Summit Path
In July 2017, Summit Path filed a motion for summary judgment arguing
that it was not in possession of the premises at the time of the assault because the
parking lots were leased to Aitmohand and the nightclub lease had been transferred
to EA-BBC, LLC. Summit Path also argued that it had no duty to protect
Watanabe from the criminal acts of Williams. Summit Path’s summary-judgment
evidence consisted of (1) a copy of Watanabe’s original petition, (2) an affidavit
from John De Meritt, the managing member of the successor-in-interest to Summit
9
Path, ShepNett Holdings LLC, and (3) the commercial lease pertaining to 4701
Nett Streeet.
De Meritt explained the history of the lease and the entities to which it had
been assigned.4 He also averred that EA-BBC had sole management and control
over 4701 Nett Street, including “signs and lighting” and access, and that Summit
Path had no control over EA-BBC, the Nox Club, or its parking lot.
4
De Meritt averred:
On September 1, 2010 Summit Path Partners LLC became the lessor
(landlord) of the property located at 4701 Nett Street, Houston, TX
77007. The original lease had been entered into between AADK
Ventures, LLC, (lessee) and the owner of the property at that time,
Stony Leather, Inc. (lessor).
On September 1, 2010, per the property purchase terms the lease was
assigned to Summit Path Partners, LLC. This original commercial
lease with AADK was dated June 18, 2008 and was still in effect at
the time that Summit Path became the new owner and lessor of the
property. The lessee (Tenant), AADK Ventures, Inc., operated a club
on the property called Nox. The Lease of the property located at
4701 Nett Street, Houston, TX 77007 continued on the terms set
forth in the original lease. The lessee, AADK (tenant) paid its
monthly rent to Summit Path.
In 2011, AADK sold the club called Nox to EA-BBC, the
corporation of which Edward Hua (one of the co-defendants) was an
officer. EA-BBC assumed the lease from ADDK [sic]. This original
lease and its terms continued between EA-BBC and Summit Path
until 2014. EA-BBC (now owner of Nox Club) paid its monthly rent
for the property lease to Summit Path. This is the lease that was in
effect on March 27, 2015, [sic] the date of the alleged incident made
the subject of the Plaintiff’s Original Petition.
10
The lease for 4701 Nett Street included a provision specifying the use and
hours of the premises, which stated: “The Property maintains operating hours
of . . . 24/7/365. However, the use of the adjacent parking lot shall be restricted to
5 pm until 7 am Monday through Friday and 3 pm until 7 am on weekend days
(Saturday and Sunday).” The lease also included the following special provision,
which refers to an exhibit that is not part of the appellate record:
Tenant may use the land shown on Exhibit #1 for the sole use of a
parking lot and for only those hours as described herein and for no
other purposes. The use of such land for parking shall be permitted for
the same term as the Term set forth herein for the Leased Premises.
The Land shall be maintained and keep [sic] in a clean and orderly
manner at all times.
Watanabe filed a response to this motion for summary judgment. He argued
that the assault occurred at 4709 Nett Street, not 4701 Nett Street. He argued that
there were genuine issues of material fact regarding Summit Path’s control over
4709 Nett Street that precluded summary judgment and that Summit Path’s
evidence regarding 4701 Nett Street did not establish its entitlement to summary
judgment.
Watanabe attached his affidavit as summary-judgment evidence. In his
affidavit, he averred that he was an employee of Ahmed and Hua on March 27,
2013, when he valet parked cars at both 4701 Nett Street and “4709 Allen Street
(formerly 4700 Nett Street).” Watanabe averred that “Ahmed and Hua were aware
that they had permission to park at 4709 Allen Street . . . formerly 4700 and 4701
11
Nett Street . . . as long as they maintained it in a ‘clean and orderly manner.’” He
averred that he collected money from valet customers and turned it over to Ahmed
and Hua, that Summit Path owned both 4701 Nett Street and 4709 Allen Street,
and that there was “no lighting on the premises, or security.”5 Summit Path
objected to Watanabe’s affidavit on the basis that it contains hearsay, but it did not
obtain a ruling on this objection.
Watanabe also attached as summary-judgment evidence his amended
petition, police records pertaining to the “beat” (2A50) that included Nox
nightclub, and a map purportedly from the Harris County Appraisal District
(“HCAD”) that showed 4701 and 4709 Nett Street. Summit Path objected to the
police records as irrelevant arguing that the incidents described were dissimilar to
Watanabe’s assault. Summit Path objected to the HCAD map based on hearsay due
to the lack of a business-record foundation and the existence of “hearsay
markings.” Summit Path did not obtain a ruling on these objections.
Summit Path filed another motion for summary judgment in December
2017. Summit Path argued for summary judgment on no-evidence and traditional
grounds. It asserted that there was no evidence that it (1) owed a duty to Watanabe,
(2) breached a duty to Watanabe, or (3) proximately caused his injuries. Summit
Path argued that it had no duty to protect Watanabe from the criminal act of
5
This is the same affidavit that Watanabe attached to his response to summary-
judgment motion filed by Ahmed, Hua, and EA-BBC.
12
Williams because there was no evidence that the assault was foreseeable to
Summit Path or its agents. Summit Path also argued that it was not in possession of
the premises at the time of Watanabe’s assault, and there is no evidence that it
owed or breached any duty to Watanabe.
Summit Path also argued for summary judgment on traditional grounds
asserting that, contrary to Watanabe’s pleading, Watanabe was a trespasser not an
invitee at the time of the assault. It argued that because the duty owed to a
trespasser is minimal, it was not liable for the injuries caused by Watanabe’s
assault. Further, it asserted that it was not liable to Watanabe as a matter of law
because it was not in possession of the premises at the time of the assault. It argued
that Aitmohand was solely in control of the premises under their existing, oral,
month-to-month lease. Summit Path also argued that it owed no duty to Watanabe,
as a matter of law, because the assault was unforeseeable. In support of this
ground, Summit Path offered police reports for the fewer than ten crimes that
occurred at 4709 Nett Street over the three years preceding Watanabe’s assault.
Summit Path also argued that there was no causation, as a matter of law, because
Williams was the cause of Watanabe’s injuries.
In January 2018, Watanabe filed a response to Summit Path’s December
2017 motion for summary judgment. He attached the following summary-
judgment evidence to this response: his pleading, his affidavit, police reports, and
13
Ahmed and Hua’s motion for summary judgment and the court order denying it.
On January 22, 2018, Watanabe filed a motion for leave to supplement his
summary-judgment evidence “past the seven-day notice requirement” with an
affidavit from Robert Bell, whom Watanabe offered as an expert witness.6 Bell
averred that the assault was foreseeable because the location was in a high-crime
area. He also averred that the assault could have been prevented by adequate
lighting and employment of two uniformed police officers on the lot while the
nightclub was open and past closing time.
Summit Path objected to Watanabe’s use of his third amended petition as
summary-judgment evidence. Ahmed, Hua, and EA-BBC objected to the affidavit
of Robert Bell and moved to strike it. The trial court did not rule on either of these
objections.
4. Rulings on motions for summary judgment filed by EA-
BBC, Edwards, Hua, and Summit Path.
On January 25, 2018, the trial court granted the defendants’ motions for
summary judgment without specifying the grounds for the ruling. The trial court
also dismissed all of Watanabe’s claims and ordered that he take nothing.
However, because Aitmohand had not, at that time, moved for summary judgment,
6
The record does not include a ruling specifically granting leave to file the Bell
affidavit, but the summary-judgment order granting the motion for summary
judgment stated that the court considered “the motions, responses, arguments of
counsel, pleadings on file, and evidence,” and it was dated January 30, 2018,
which was eight days after the Bell affidavit was filed.
14
in April 2018, the trial court granted Watanabe’s motion to modify, vacated the
January 2018 order, and granted take-nothing summary judgment in favor of
Summit Path, EA-BBC, Ahmed, and Hua.
5. Aitmohand
In September 2018, Aitmohand filed a motion for summary judgment
asserting that there was no evidence of proximate cause and challenging the
element of duty. Watanabe responded but he did not attach summary-judgment
evidence. Instead, he
incorporate[d] by reference the arguments presented and the evidence
filed in response to the multiple motions for summary judgment
previously filed in this case. Specifically, Watanabe incorporates by
reference the arguments and evidence that he filed into this case on
April 13, 2015, January 19, 2016, September 5, 2017, and two (2)
responses filed on January 15, 2018.
In January 2019, the trial court granted Aitmohand’s motion for summary
judgment, and Watanabe appealed. On appeal, Summit Path filed a responsive
brief, and Ahmed, Hua, and EA-BBC filed a responsive brief. Aitmohand did not
file a brief or appear in the court of appeals.
Analysis
On appeal, Watanabe argues that the trial court erred by granting summary
judgment in favor of (1) Summit Path, (2) Ahmed, Hua, and EA-BBC, and
(3) Aitmohand. We consider general legal principles applicable to this case, and
then we address each of Watanabe’s contentions separately.
15
I. Summary judgment standards of review
We review a trial court’s summary judgment de novo. Lujan v. Navistar,
Inc., 555 S.W.3d 79, 84 (Tex. 2018). In doing so, “we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.” Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If the trial court does not state the
grounds upon which it grants summary judgment, an appellate court will affirm the
judgment if any of the grounds set forth by the movant is meritorious. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
A. No-evidence motion for summary judgment
A no-evidence motion for summary judgment under Rule 166a(i) is
essentially a pretrial motion for directed verdict. TEX. R. CIV. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for
discovery, a party without the burden of proof may, without presenting evidence,
seek summary judgment on the ground that there is no evidence to support one or
more essential elements of the non-movant’s claim or defense. TEX. R. CIV. P.
166a(i). The motion must specifically state the elements for which there is no
evidence. Id.; Timpte Indus., 286 S.W.3d at 310. The trial court is required to grant
the motion unless the nonmovant produces summary judgment evidence that raises
a genuine issue of material fact. TEX. R. CIV. P. 166a(i).
16
We review no-evidence summary judgments under the same legal
sufficiency standard as directed verdicts. Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex. 2013); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750
(Tex. 2003). Under that standard, evidence is considered in the light most
favorable to the nonmovant, crediting evidence a reasonable jury could credit and
disregarding contrary evidence and inferences unless a reasonable jury could not.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per
curiam); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). A no-evidence
challenge will be sustained when
(a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to
prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.
King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)).
To defeat summary judgment, the nonmovant is required to produce more
than a scintilla of probative evidence to raise a genuine issue of material fact on the
challenged elements. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,
172 (Tex. 2003). That burden is not met when the evidence is “so weak as to do no
more than create a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d
at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In
17
determining whether the nonmovant has produced more than a scintilla of
evidence, we review the evidence in the light most favorable to the nonmovant,
crediting such evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 822,
827.
B. Traditional motion for summary judgment
To prevail on a traditional motion for summary judgment, the movant must
show that no genuine issue of material fact exists and that it is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c); Lujan, 555 S.W.3d at 84. “If the
movant carries this burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precluding summary judgment.” Lujan, 555 S.W.3d at 84;
see Maldonado v. Maldonado, 556 S.W.3d 407, 414 (Tex. App.—Houston [1st
Dist.] 2018, no pet.). “A genuine issue of material fact exists if more than a
scintilla of evidence establishing the existence of the challenged element is
produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
II. Premises liability
A. Premises liability is a special form of negligence.
The common-law doctrine of negligence consists of: (1) a legal duty owed
by one person to another, (2) a breach of that duty, and (3) damages proximately
resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998).
18
“Depending on the circumstances, a person injured on another’s property may have
either a negligence claim or a premises-liability claim against the property owner.”
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016); see Keetch
v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). “When the injury is the result of
a contemporaneous, negligent activity on the property, ordinary negligence
principles apply,” but a “claim against a property owner for injury caused by a
condition of real property generally sounds in premises liability.” Occidental
Chem. Corp., 478 S.W.3d at 642, 644. “A complaint that a landowner failed to
provide adequate security against criminal conduct is ordinarily a premises liability
claim.” Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.
1998); see West v. SMG, 318 S.W.3d 430, 437–38 (Tex. App.—Houston [1st Dist.]
2010, no pet.).
B. Duty in premises liability cases depends on the status of the plaintiff.
The threshold question in a premises liability case is whether the defendant
owes a duty to the injured plaintiff. See Hillis v. McCall, 602 S.W.3d 436, 440
(Tex. 2020). The existence of a duty is a question of law for the court to decide
based on the facts of the case. Id. For a duty to exist, the defendant must have
possession or control over the premises where the injury occurred. Cty. of
Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). The nature of the duty owed
depends on whether the plaintiff is an invitee, licensee, or trespasser. Hillis, 602
19
S.W.3d at 440; W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Mellon
Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality op.); Mayer v.
Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).7
1. Invitee
“An invitee is ‘one who enters the property of another with the owner’s
knowledge and for the mutual benefit of both.’” Austin v. Kroger Tex., L.P., 465
S.W.3d 193, 202 (Tex. 2015) (quoting Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3
(Tex. 1996); accord Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex.
1975); Mayer, 278 S.W.3d at 909. The duty owed by an owner or occupier of
premises to an invitee is not that of an insurer. CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 101 (Tex. 2000). An owner or occupier of land must use reasonable
7
In her dissenting opinion in Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex.
1999), Justice O’Neill explained the reason for the distinctions based on the
plaintiff’s status:
The premises liability classifications reflect policy judgments
carefully developed over time to balance the landowner’s interest in
the free use and enjoyment of his land against the interests of
persons injured by the land’s condition. The categories and their
corresponding duties place rational limits on the liability of
landowners, assuring that property owners do not become absolute
insurers against all risk of injuries that others might sustain on their
property. These distinctions afford a degree of certainty to what
would otherwise be an amorphous standard of liability, and provide
relatively predictable rules by which landowners and entrants may
assess the propriety of their conduct.
5 S.W.3d at 670.
20
care to protect an invitee from known conditions that create an unreasonable risk of
harm and conditions that should be discovered by the exercise of reasonable care.
Id.; Mayer, 278 S.W.3d at 910. A landowner must make safe or warn against any
concealed, unreasonably dangerous conditions of which the landowner is, or
reasonably should be, aware, but the invitee is not. Austin, 465 S.W.3d at 203. A
landowner generally has no duty to warn invitees of hazards that are open, obvious,
or known to the invitee. Id. at 204.
2. Licensee
A licensee enters and remains on a premises with the owner’s consent and
for the licensee’s own convenience, or on business with someone other than the
owner. Mayer, 278 S.W3d at 910 (citing Am. Indus. Life Ins. Co. v. Ruvalcaba, 64
S.W.3d 126, 134 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)). “The duty
owed to a licensee requires that ‘a landowner not injure a licensee by willful,
wanton or grossly negligent conduct, and that the owner use ordinary care either to
warn a licensee of, or to make reasonably safe, a dangerous condition of which the
owner is aware and the licensee is not.’” Sampson v. Univ. of Tex. at Austin, 500
S.W.3d 380, 391 (Tex. 2016) (quoting State Dep’t of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992)). Absent willful, wanton, or grossly
negligent conduct, a licensee-plaintiff must prove:
(1) a condition of the premises created an unreasonable risk of
harm to the licensee;
21
(2) the owner actually knew of the condition;
(3) the licensee did not actually know of the condition;
(4) the owner failed to exercise ordinary care to protect the licensee
from danger;
(5) the owner’s failure was a proximate cause of injury to the
licensee.”
Payne, 838 S.W.2d at 237.
3. Trespasser
“A trespasser enters another’s property without lawful authority, permission,
or invitation.” Mayer, 278 S.W.3d at 910; see Mellon Mortg., 5 S.W.3d at 671 (J.
O’Neill, dissenting) (“A trespasser enters another’s property without express or
implied permission.”); Tex.–La. Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d
302, 306 (1936) (“A trespasser is defined by Corpus Juris as follows: ‘A person is
a trespasser where he enters upon the property of another without any right, lawful
authority, or express or implied invitation, permission, or license, not in the
performance of any duty to the owner or person in charge or on any business of
such person, but merely for his own purposes, pleasure, or convenience, or out of
curiosity, and without any enticement, allurement, inducement, or express or
implied assurance of safety from the owner or person in charge.’”). “The only duty
a premises owner or occupier owes a trespasser is not to injure him willfully,
22
wantonly, or through gross negligence.” Tex. Utils. Elec. Co. v. Timmons, 947
S.W.2d 191, 193 (Tex. 1997).
C. Duty to protect others from third-party criminal acts
“Generally, a person does not have a duty to protect others from third-party
criminal acts.” Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 17
(Tex. 2008); Timberwalk, 972 S.W.2d at 756; West, 318 S.W.3d at 438. The
exception to this rule, is that “property owners owe a duty to those who may be
harmed by the criminal acts [of third parties] only when the risk of criminal
conduct is both unreasonable and foreseeable.” Mellon Mortg., 5 S.W.3d at 655
(citing Timberwalk, 972 S.W.2d at 756 (holding that premises owner has duty to
use ordinary care to protect invitees from criminal acts of third parties when he
“knows or has reason to know of an unreasonable and foreseeable risk of harm to
the invitee”)). This exception applies to a premises owner or operator who has
“retain[ed] control over the security and safety of the premises.” Timberwalk, 972
S.W.2d at 756. To determine whether an unreasonable risk of criminal activity was
foreseeable to the defendant before the alleged criminal act occurred, we consider
the following factors:
(1) whether any criminal conduct previously occurred on or near
the property;
(2) how recently such conduct occurred;
(3) how often such conduct occurred;
(4) how similar the prior conduct was to the conduct that occurred
on the property; and
23
(5) what publicity surrounded the occurrences to indicate that the
land owner/occupier knew or should have known about them.
Id. at 757. Only after foreseeability has been established by the Timberwalk factors
will a court determine the parameters of the defendant’s duty. Id.
III. Summit Path
Summit Path filed two motions for summary judgment. The first was filed in
July 2017, and it was drafted as if the assault occurred at 4701 Nett Street, the Nox
nightclub. Summit Path argued that it had no duty to protect Watanabe against the
criminal action of a third party because EA-BBC had sole control of the leased
premises, and it attached summary-judgment evidence establishing that EA-BBC
was the then-current lessee.
In its December 2017 motion for summary judgment, Summit Path argued
that there was no evidence it owed Watanabe a duty, breached said duty, or
proximately caused his injuries. Summit Path also moved for traditional summary
judgment on the ground that it did not owe a duty to Watanabe. In support of this
ground for summary judgment, Summit Path made various arguments including
that (1) Watanabe was not an invitee, (2) Aitmohand had sole control of the
premises, and (3) the assault was unforeseeable, and it therefore could not be held
liable for Williams’s crime.
Whether Summit Path owed a duty to Watanabe is determined by
considering three questions: (1) did Summit Path retain control over the premises?
24
(2) was the risk of criminal activity foreseeable? and (3) was Watanabe an invitee,
licensee, or trespasser?
A. Summit Path retained some control of the premises.
First, Summit Path argued that it did not retain control over the premises
because Aitmohand had sole control of the premises at the time of the assault. Its
summary-judgment evidence included an affidavit from Kal Malik, the managing
member of ShepNett Holdings LLC, which was formerly known as SummitPath
Partners LLC. Malik averred that he had personal knowledge of the oral lease
agreement between Summit Path and Aitmohand. He said that beginning in March
2012, Summit Path had an oral month-to-month lease agreement with Aitmohand
for the property at 4709 Nett Street, which Aitmohand used to operate a valet and
self-parking service. The lease gave Aitmohand exclusive use of the property
“strictly between the hours of 5 PM and 6 AM and for no other purpose” except
valet and self-parking. The lease was in effect on March 27, 2013, when Williams
assaulted Watanabe. In addition, “[d]uring the term of the Lease, the Property was
not subject to any other lease or similar agreements during the specified hours of
the Lease.” Malik averred that “Aitmohand was in sole control of the Property,”
and Summit Path “was not present and did not occupy the Property during
Aitmohand’s hours of operation while the Lease was in effect.” He also said that
25
Summit Path “never gave [Watanabe] authorization to enter or use any of its
properties.”
Considering this evidence in the light most favorable to Watanabe, we
conclude that a reasonable jury could infer that Summit Path retained control over
the premises at issue during the hours that Aitmohand did not use the premises for
his parking business. The summary-judgment evidence does not conclusively
negate Summit Path’s control over the premises. For the purpose of our duty
analysis, we assume without deciding that Summit Path had control over the
premises.
B. The risk of criminal activity was foreseeable.
Second, we consider whether the risk of criminal activity was foreseeable.
Whether the evidence demonstrates that an unreasonable risk of criminal activity is
foreseeable is a fact-specific inquiry. E.g., Timberwalk, 972 S.W.2d at 756; Mayer,
278 S.W.3d at 913, 919–22. In Xiao Yu Zhong v. Sunblossom Gardens, L.L.C., No.
01-08-00470-CV, 2009 WL 1162213, at *3 (Tex. App.—Houston [1st Dist.] Apr.
30, 2009, pet. denied) (mem. op.), this court held that the assault and robbery of the
plaintiff, who was a tenant at the defendant apartment complex, was not
foreseeable under Timberwalk because the summary-judgment evidence failed to
show any prior crime involving violence against a person on the premises or in the
vicinity. 2009 WL 1162213, at *3; see also Scurlock v. Pennell, 177 S.W.3d 222,
26
226 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (summary judgment evidence
failed to raise question of fact on foreseeability when nonmovant offered no
evidence of number, recency, location, similarity, or publicity of prior burglaries).
In Mellon Mortgage, the plurality held that the risk of violent crime in a parking
garage was foreseeable, generally, when the summary-judgment evidence showed
that in the two years preceding the plaintiff’s sexual assault, “190 violent crimes,
including rape and murder, were reported near the garage,” equating to “a
frequency of roughly one violent crime every four days.” 5 S.W.3d at 657.
Most cases lie between Xiao Yu Zhong and Scurlock—where there was no
evidence of relevant prior crime—and Mellon Mortgage—where there was
abundant evidence of relevant prior crime. In most cases, there is some evidence of
prior crime on or near the premises but not “roughly one violent crime every four
days.” Id. In these cases, courts have more carefully scrutinized the evidence
offered to satisfy the Timberwalk factors in determining which specific crimes
could make future violent crime foreseeable to a premises owner. E.g., Trammell
Crow, 267 S.W.3d at 13, 17 (holding that “repeated occurrences of theft,
vandalism, and simple assaults . . . do not suggest the likelihood of murder” and
further holding that even evidence of ten previous violent crimes were not
“sufficiently frequent and similar [to the crime of murder] to give rise to a duty in
this case”); Mayer, 278 S.W.3d at 921–22 (rejecting evidence of violent crimes
27
that occurred five years before murder of plaintiffs’ decedents as too remote to
make murder foreseeable and rejecting evidence that auto-related crime had nearly
doubled in two years before murder as too dissimilar to make murder foreseeable);
see also Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 398–99 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied) (courts generally rely on small
geographic areas, such as one square mile from center point of premises, to
determine whether crimes were in vicinity of the premises).
In response to Summit Path’s July 2017 motion for summary judgment,
Watanabe provided offense reports from the Houston Police Department from the
“beat” that included Nox and the parking lot where he was assaulted and an
affidavit from Robert Bell, whom Watanabe offered as an expert on crime. We
consider this evidence in light of the Timberwalk factors.
From September 11, 2010 through March 16, 2013, there were nine crimes
of violence committed at 4700 Nett Street or in the parking lot or road near 4700
Nett Street. Another 21 violent offenses occurred in the vicinity ranging from 0.2
miles from the premises where Watanabe was assaulted to 1.6 miles from it. Three
of the offenses, including one domestic violence offense, occurred more than one
mile from the premises. One of the offenses occurred at 4700 Nett Street on
September 11, 2010, and the remainder of the offenses occurred between February
12, 2012 and March 16, 2013. All of the offenses were crimes of violence such as
28
assault, aggravated assault, robbery by force, and aggravated robbery. While some
crimes involved the use of firearms, others involved punching or physical assault.
Disregarding the domestic violence offense, the 2010 offense, and the two
additional offenses that occurred more than one mile away from the premises at
issue in this case, there were 26 violent offenses in the vicinity of parking lot
where Watanabe was assaulted between February 12, 2012 and March 16, 2013,
equating to roughly one violent offense every 15 days.
Watanabe also relied on an affidavit from Robert Bell, who averred that he
had “over twenty years of experience as a Houston Police Sergeant, and officer
supervising and coordinating security for night clubs throughout the Houston
area.” He opined that the parking lot where Watanabe was assaulted “and the
whole Washington Avenue Night Club Corridor is in a High Crime area.” He also
stated his opinion that the assault was foreseeable because of the prevalence of
crime generally in the area and that a property owner “would know or should have
known of the high incidence” of crime in the vicinity.
There is no evidence in the summary-judgment record about what Summit
Path actually knew about prior crime in the area. No evidence about whether the
offenses were publicized was offered in response to the summary judgment
motion. But Summit Path owned both Nox and the parking lots leased by
Aitmohand, and evidence regarding both leases is in the summary-judgment
29
record. Therefore, we can conclude that Summit Path knew that there was a
nightclub operating until at least 2:00 a.m. across the street from lots used for valet
and self-parking.
Considering the summary-judgment evidence in the light most favorable to
Watanabe, we conclude that there is evidence sufficient to create a genuine
question of material fact about whether Watanabe’s assault was foreseeable. For
the purpose of our duty analysis, we assume without deciding that Watanabe’s
assault was foreseeable to Summit Path under the Timberwalk factors.
C. Watanabe was a licensee.
The third question we must answer when determining whether Summit Path
had a duty to Watanabe is his status on the premises. He contends he was an
invitee because he parked cars in the parking lots as part of his role managing valet
parking for Nox. In his affidavit, Watanabe averred that Hua and Ahmed had
permission to use the parking lots leased to Aitmohand and, further, he had paid
Aitmohand’s attendant for the right to valet park cars on the lot that night. At oral
argument, he asserted that he was an invitee because he entered the premises to aid
Samsung. Summit Path argues that Watanabe was a trespasser because he was not
present with permission or for any benefit of Summit Path. It argues that Watanabe
entered the parking lot “to involve himself in an argument that one of Mr.
30
Aitmohand’s parking lot attendants was having with three [four] customers,
including Terrance Williams.”
The summary judgment evidence is not conclusive about whether Hua and
Ahmed had a right to use the parking lots that were leased to Aitmohand. The Nox
lease refers to a right to use certain parking identified in an attached diagram, but
no such diagram appears in the appellate record. In addition, affidavits from
Watanabe and from Malik present contrary explanations of the right to use the
parking lot.
The summary-judgment evidence is not in dispute, however, about what
brought Watanabe to the premises and eventually led to the assault. He testified
that he saw and heard a heated verbal altercation among Samsung and four men, he
believed there was a reasonable risk it would escalate to physical violence, and
because Samsung is an “old man,” Watanabe felt morally compelled to go to his
aid. No summary-judgment evidence contradicts this account.
“Public policy favors public-spirited citizens volunteering to rescue persons
apparently in dangerous circumstances, as well as attempting to prevent the spread
of dangerous conditions that may arise on the property of others.” Pifer v. Muse,
984 S.W.2d 739, 741 (Tex. App.—Texarkana 1998, no pet.). “[W]hen a dangerous
condition arises on an absent owner’s property that threatens the safety of another
party or the public generally, the law will imply that the owner would acquiesce in
31
passersby or other witnesses going upon his property in an attempt to rescue
persons in danger or to reduce the risk to the property and the public generally.”8
Id. at 742–43. Under Texas law, a person who enters a premises to volunteer
assistance is treated as an implied licensee in law. Allen v. Albright, 43 S.W.3d
643, 648 (Tex. App.—Texarkana 2001, no pet.); Pifer, 984 S.W.2d at 741 (“[W]e
conclude that Pifer was a volunteer, because the summary judgment evidence
shows that he was trying to rescue someone he thought was in danger. A volunteer
occupies roughly the same position as an implied licensee.”). “Anyone invited to
transact business or do work on private premises not open to the public normally
has the assurance that the place is prepared for him; but one who comes to
volunteer assistance . . . is treated as a licensee.” Prestwood v. Taylor, 728 S.W.2d
455, 462 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (quoting Prosser, Law of
Torts § 61, at 388–89 (4th ed. 1971)); see Sw. Bell Tel. Co. v. Johnson, No. 01-89-
00933-CV, 1990 WL 57008, at *5 (Tex. App.—Houston [1st Dist.] May 3, 1990,
no writ) (quoting Prestwood, 728 S.W.2d at 462) (mem. op.; not designated for
publication).
8
This is an extension of the public policy embodied in the rescue doctrine, which
was historically applied to questions of foreseeability and contributory negligence
before the enactment of the proportionate responsibility statute. See Pifer v. Muse,
984 S.W.2d 739, 742–43 (Tex. App.—Texarkana 1998, no pet.); Boss v. Prince’s
Drive–Ins, 401 S.W.2d 140 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.).
32
The summary-judgment evidence conclusively demonstrates that Watanabe
was a volunteer-rescuer when he went to the parking lot to attempt to deescalate
the situation. He also testified that he volunteered to go with the men to see the
damage to their vehicles to remove them from Samsung. We hold that Watanabe
was an implied licensee when he went to the premises and at the time of the
assault.
D. Summit Path did not owe Watanabe a duty to warn or make safe
because the hazard in this case was known to Watanabe.
Having assumed for the sake of analysis that Summit Path retained control
of the premises and that criminal activity was generally foreseeable, we must now
determine the parameters of the duty Summit Path owed to Watanabe as an implied
licensee.
In Allen v. Albright, 43 S.W.3d 643, 645 (Tex. App.—Texarkana 2001, no
pet.), Allen ran into a burning house to rescue Albright, an 88-year-old widow. It
was undisputed that the fire was an arson caused by a third party, a juvenile
offender. Id. Allen injured his hip while kicking in the door to Albright’s house to
rescue her after he heard her cry out for help. Id. His hip injury required surgery,
caused him to miss work, and required rehabilitation. Id. Allen alleged that
Albright was aware of the dangerous condition in her burning house and failed to
warn him “that the front door was locked, of her location in the house, of the
layout of the house, or of the darkness and smoke inside the house.” Id. at 647. The
33
court of appeals noted that “the risks these conditions imposed were foreseeable to
Mr. Allen because before he entered the house, he knew it was on fire, knew the
house was dark and smoky, and knew the front door was locked.” Id.In this case, the risk of being injured in a physical altercation with the four
angry men who had verbally accosted Samsung was foreseeable to Watanabe
because before he went to the parking lot, he observed the heated verbal exchange,
knew that the area was dark, and believed there was a risk of a physical altercation,
which he was hoping to avert. Because Watanabe was a licensee, Summit Path was
not liable for injuries to him unless they were “caused by willful, wanton, or
grossly negligent conduct” or unless it knew but failed to notify Watanabe of a
dangerous condition on the property that was unknown to Watanabe. See Pifer,
984 S.W.2d at 742. Because the dangerous conditions were known to Watanabe in
this case, Summit Path owed no duty to warn or make the conditions safe for him.
See id.
We conclude that there is no evidence that Summit Path owed or breached a
duty to Watanabe in light of the summary-judgment evidence. Accordingly, we
conclude that the trial court correctly granted summary judgment in favor of
Summit Path. We overrule Watanabe’s fourth issue.
34
IV. EA-BBC, Ahmed, and Hua
In the trial court, EA-BBC, Ahmed, and Hua filed a motion for summary
judgment that combined traditional and no-evidence arguments. Ahmed and Hua
argued that they were not liable in the capacity in which they were sued because
they operated Nox as EA-BBC. EA-BBC argued the affirmative defense of
limitations.
A. Watanabe nonsuited EA-BBC.
Watanabe argues that the court erred by granting take-nothing summary
judgment in favor of EA-BBC and asks this court to reverse and remand for further
proceedings. Watanabe’s issue is moot, however, because he previously nonsuited
EA-BBC as a matter of law.
Watanabe’s assault occurred on March 27, 2013. The statute of limitations
for negligence and for premises liability is two years. See TEX. CIV. PRAC. & REM.
CODE § 16.003; S.E.A. Leasing, Inc. v. Steele, No. 01-05-00189-CV, 2007 WL
529931, at *1 (Tex. App.—Houston [1st Dist.] Feb. 22, 2007, pet. denied) (mem.
op.). The statute of limitations expired after Thursday, March 27, 2015.
EA-BBC was not named in the original petition filed on July 16, 2014. EA-
BBC was added as a defendant in Watanabe’s first amended petition and request
for disclosure, which was filed and served January 19, 2016, 298 days after
35
limitations expired. On September 1, 2017, EA-BBC answered, pleading a general
denial and the affirmative defense of limitations.
Thirteen days later, on September 14, 2017, Watanabe filed his second
amended petition. EA-BBC is not named as a defendant and no causes of action
are pleaded against EA-BBC in this petition. On October 15, 2017, Watanabe filed
and served his third amended petition. Like the original petition and the second
amended petition, the third amended petition does not name EA-BBC as a
defendant nor does it plead any claims against EA-BBC or otherwise mention the
entity anywhere in the pleading.
“An amended pleading supersedes and supplants earlier original pleadings.”
Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 679 (Tex. App.—Houston [1st
Dist.] 1986, writ ref’d n.r.e.) (citing TEX. R. CIV. P. 65 (“Unless the substituted
instrument shall be set aside on exceptions, the instrument for which it is
substituted shall no longer be regarded as part of the pleading in the record of the
cause . . . .”)). “[C]auses of action not contained in amended pleadings are
effectively dismissed at the time the amended pleading is filed.” FKM P’ship, Ltd.
v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008).
“Parties to a suit are just as effectively dismissed from a suit by omitting their
names from an amended pleading as where a formal order of dismissal is entered.”
Mercure Co., 715 S.W.2d at 679; see Randolph v. Walker, 29 S.W.3d 271, 274
36
(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“When a party’s name is
omitted from an amended pleading, he is as effectively dismissed as where a
formal order of dismissal is entered.”). “Thus, the right to complain on appeal
regarding an erroneous ruling dismissing a claim is lost when the aggrieved party
files an amended pleading abandoning the claim upon which the trial court ruled.”
Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 WL
1969507, at *9 (Tex. App.—Dallas Apr. 24, 2020, pet. denied) (mem. op.)
(explaining that amended pleadings filed after adverse summary judgments waived
error as to the interlocutory summary judgments).
Watanabe nonsuited his claims against EA-BBC by entirely omitting it from
his second and third amended petitions before the court granted summary
judgment. We overrule Watanabe’s second and third issues.
B. Ahmed and Hua did not owe a duty to Watanabe because they did
not own or control the premises where he was assaulted.
Whether Ahmed and Hua owed a duty to Watanabe is determined by
considering three questions: (1) did Ahmed and Hua have control over the
premises where Watanabe was assaulted? (2) was the risk of criminal activity
foreseeable? and (3) was Watanabe an invitee, licensee, or trespasser?
Ahmed and Hua challenged the existence of a duty in both their traditional
and their no-evidence motions for summary judgment. In support of their
traditional motion, both Ahmed and Hua provided affidavits in which they each
37
denied having any lease or ownership interest in the lot where Watanabe was
assaulted. They each also denied having any business relationship with Summit
Path regarding that property. Watanabe’s responsive summary-judgment evidence
did not refute Ahmed and Hua’s evidence that they personally had no control over
the premises where Watanabe was assaulted. In addition, Watanabe’s summary-
judgment evidence affirmatively stated that Nox “did not retain control of the
premises” where Watanabe was assaulted. Thus, the summary-judgment evidence
does not raise a genuine question of material fact about whether Ahmed and Hua
had control of the premises at issue, nor is it more than a scintilla of evidence that
Ahmed and Hua had any control over the premises. Accordingly, the trial could
have properly granted a take-nothing summary judgment in favor of Ahmed and
Hua based on either the traditional or no-evidence summary-judgment grounds
regarding the existence of a duty.
On appeal, Watanabe argues that Ahmed and Hua owed him a duty because
he was their employee and not an independent contractor and that they should have
known of the prevalence of violent crime in the area. Neither of these arguments
addresses the preliminary question of whether they had control over the premises
where Watanabe was assaulted. As to their argument that they did not own or
occupy the premises where the assault took place, Watanabe contends: “This goes
to their misuse (or nonuse) of the limited liability form . . . and is insufficient to
38
relieve them of liability.” We disagree. Their affidavits are evidence that they had
no possession or control of the premises for the purpose of determining whether
they owed a duty under premises liability law. Moreover, Watanabe’s affidavit
concedes that the Nox bar—in whatever form it was operated—did not have
possession or control of the premises where he was assaulted.
Finally, Watanabe argues on appeal that the court could not have granted
summary judgment on the basis of duty because it previously rejected that ground
for summary judgment. He argues that “once an issue has been litigated, that issue
may not be relitigated.” This is a reference to the law-of-the-case doctrine, and
Watanabe’s reliance on it is misplaced. The law-of-the-case doctrine is a prudential
doctrine under which issues of law that have been fully and finally litigated by a
court of last resort will ordinarily not be relitigated. See Briscoe v. Goodmark
Corp., 102 S.W.3d 714, 716 (Tex. 2003). The question of whether Ahmed and Hua
had a duty to Watanabe was not fully and finally litigated by the earlier denial of
their motion for summary judgment. The court denied that motion without
explanation about whether the denial was based on the merits, insufficient
summary-judgment evidence, or a procedural deficiency. That ruling was
interlocutory, and “[a] trial court may change or modify a partial summary
judgment at any time before its plenary power expires because it is an interlocutory
39
order.” Fabio v. Ertel, 226 S.W.3d 557, 562 (Tex. App.—Houston [1st Dist.] 2007,
no pet.).
We overrule Watanabe’s first issue.
V. Aitmohand
In his fifth issue, Watanabe argues that the court erred by granting take-
nothing summary judgment in favor of Aitmohand.9
In the trial court, Aitmohand filed a combined traditional and no-evidence
motion for summary judgment. Watanabe argues that Aitmohand did not attach
summary-judgment evidence to his motion. The motion itself states that
Aitmohand’s affidavit is attached as summary-judgment evidence, but no affidavit
is attached to the motion that appears in the record on appeal. Nevertheless, a
movant for summary judgment on no-evidence grounds is not required to attach
summary-judgment evidence to his motion; he must only “state the elements as to
which there is no evidence.” TEX. R. CIV. P. 166a(i). “The court must grant the
motion unless a respondent produces summary judgment evidence raising a
genuine issue of material fact.” Id. In his motion, Aitmohand specifically stated
“there is no evidence to support causation.” He also challenged the evidence of
duty.
9
Aitmohand did not file a brief in this court. We sent a late-brief notice to
Aitmohand’s attorney of record on January 23, 2020. Aitmohand has made no
appearance in this court.
40
Watanabe filed a five-paragraph response to Aitmohand’s motion for
summary judgment. In it he stated that he had sued Aitmohand in 2013, that
Aitmohand answered in 2014, the other defendants filed various motions for
summary judgment, and the dates the court ruled on the motions. Watanabe argued
that Aitmohand did not attach summary judgment evidence and “merely adopted
arguments previously presented by the other defendants.” Watanabe did not attach
any evidence to his response. Instead, he stated:
....
5. Watanabe incorporates by reference the arguments presented
and the evidence filed in response to the multiple motions for
summary judgment previously filed in this case. Specifically,
Watanabe incorporates by reference the arguments and
evidence that he filed into this case on April 13, 2015, January
19, 2016, September 5, 2017, and two (2) responses filed on
January 16, 2018.
A summary-judgment response need not marshal the nonmovant’s evidence,
but at a minimum, it must identify a genuine question of material fact and evidence
that supports the nonmovant’s position. E.g., Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 207 (Tex. 2002) (summary-judgment response met minimum
requirements of Rule 166a(i) by pointing out evidence allegedly raising a fact issue
on the challenged elements); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323,
331 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (summary-judgment response
was deficient because it stated generally that summary-judgment evidence raised
41
fact issue and incorporated by reference more than 600 pages of evidence). “A
party submitting summary judgment evidence must specifically identify the
supporting proof on file that it seeks to have considered.” Denson v. JPMorgan
Chase Bank, N.A., No. 01-19-00107-CV, 2020 WL 7062452, at *3–4 (Tex. App.—
Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.) (quoting Nguyen v. Allstate
Ins. Co., 404 S.W.3d 770, 775 (Tex. App.—Dallas 2013, pet. denied)). “Merely
citing generally to voluminous summary judgment evidence in response to either a
no-evidence or traditional motion for summary judgment is not sufficient to raise
an issue of fact to defeat summary judgment.” Nguyen, 404 S.W.3d at 776. It is not
the role of the trial or appellate court to take on “the onerous task of searching the
summary-judgment evidence to see if a genuine issue of fact had been raised as to
each challenged element.” San Saba Energy, 171 S.W.3d at 331.
Watanabe failed to carry his summary-judgment burden by failing to
identify which evidence created a fact issue on which challenged elements of his
cause of action against Aitmohand. Rather than identifying a genuine question of
material fact relevant to the elements challenged by Aitmohand in his no-evidence
motion for summary judgment, Watanabe invited the trial court to search all his
previous responses to prior motions filed by other parties—more than 250 pages—
and to find a genuine question of material fact that would preclude summary
judgment. This does not satisfy the minimum requirements for a response to a
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motion for summary judgment. See Johnson, 73 S.W.3d at 207; San Saba Energy,
171 S.W.3d at 331. We conclude that the trial court properly granted summary
judgment in favor of Aitmohand, and we overrule Watanabe’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Landau, and Hightower.
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