Jeanette Engler and Richard Lichdean v. the Ritz-Carlton Hotel Company ( 2023 )

AFFIRMED and Opinion Filed April 28, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00067-CV
JEANETTE ENGLER AND RICHARD LICHDEAN, Appellants
V.
THE RITZ-CARLTON HOTEL COMPANY, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-17624
MEMORANDUM OPINION
Before Justices Carlyle, Garcia, and Rosenberg1
Opinion by Justice Garcia
Appellants Jeanette Engler and Richard Lichdean sued appellee The Ritz-
Carlton Hotel Company (“RC”), alleging that their wedding at the Ritz-Carlton
Dallas hotel was ruined by a burglary in Engler’s bridal suite during the rehearsal
dinner. The trial judge rendered a take-nothing summary judgment in favor of RC.
Engler and Lichdean appeal. We affirm.
1
The Hon. Barbara Rosenberg, Justice, Assigned
I. BACKGROUND
A. Factual Allegations
Appellants alleged the following facts in their live pleading at the time of
judgment.
Appellants got engaged and visited the Ritz-Carlton Dallas hotel before
choosing it as their wedding venue. Hotel personnel “represented that they would
ensure the security of the guests and their rooms, and they promised to immediately
resolve any problems that may occur at their hotel.” Appellants chose the Ritz-
Carlton Dallas hotel as their wedding venue and arrived on March 9, 2017, for the
four-day celebration. Engler’s room was suite 705.
Appellants’ rehearsal dinner was the evening of March 10. At around 6:00
p.m., Engler interacted with Valeria Gomez, who was an employee of Premier
Cleaning Services and a borrowed servant of RC. Gomez entered Engler’s suite and
announced she was there for “turndown service.” Gomez left, and soon thereafter
Engler also left to attend the rehearsal dinner. When Engler left, “she confirmed that
both entry doors to her suite were shut, locked, and secured.”
While Engler was gone, Gomez returned to Engler’s suite to perform
turndown and cleaning services. She propped open the main entry door to the suite
–2–
while performing those services. A burglar (identified in summary-judgment
evidence as Omar Rimlawi) accessed the room through the propped-open door.2
When Engler returned to her suite at around 10:10 p.m., she discovered that
the suite had been ransacked. Numerous items were stolen, including an engagement
ring and wedding band, designer cosmetics, wedding gifts, medications, and jewelry.
Other items were ruined or scattered throughout the room. Lichdean called the
police. After the police arrived, they observed Engler’s state of mind and took her
away in handcuffs for a mental-health evaluation. She was released at about 4:00
a.m. and returned to the hotel. She was not allowed to return to her suite but instead
was given a standard non-suite room. The wedding still took place, but Engler and
Lichdean experienced and continued to experience severe emotional and
psychological distress stemming from the burglary.
B. Procedural History
In 2018, appellants sued RC and Premier. Their claims against Premier were
disposed of via pretrial motions, and on appeal they do not attack the judgment as it
concerns Premier.
2
The summary-judgment evidence contains Gomez’s deposition testimony that she closed the door
when she entered the room to perform housekeeping services. However, it also contains deposition
testimony from another housekeeper, Maria Moreno, that at around 7:15 or 7:20 she joined Gomez in
working on Engler’s room, and the door was open when she arrived there. Moreno also said that she and
Gomez left the room together and closed the door and that she never saw a man in the room. As our analysis
below shows, the discrepancy in the evidence does not affect the outcome of this appeal.
–3–
In October 2020, appellants filed their Seventh Amended Petition, which was
their live pleading at the time of judgment. Appellants asserted the following claims
against RC:
• Negligent hiring, supervision, training, and retention;
• General negligence;
• Negligent undertaking;
• Gross negligence
• Intentional infliction of emotional distress;
• Violations of the Deceptive Trade Practices-Consumer
Protection Act (“DTPA”);
• Premises liability; and
• Breach of contract.
Soon thereafter, RC filed a First Amended Traditional and No-Evidence
Motion for Partial Summary Judgment (“First MSJ”) that attacked appellants’ claims
for (i) DTPA violations, (ii) gross negligence and exemplary damages,
(iii) intentional infliction of emotional distress, and (iv) negligent hiring, training,
supervision, or retention. The First MSJ also attacked appellants’ ability to recover
mental-anguish or emotional-distress damages under any legal theory. Appellants
filed a response to the motion. They later filed a supplemental response, which RC
moved to strike.
The trial judge signed an order granting RC’s First MSJ that did not state the
reasons for the ruling. The judge also signed a separate order granting RC’s motion
–4–
to strike appellants’ supplemental summary-judgment response. Appellants do not
complain on appeal about the striking of their supplemental response, so we will not
discuss that response further in this opinion.
In September 2021, the trial judge signed a partial-summary-judgment order
in appellants’ favor, ruling that Gomez was a “borrowed employee” of RC at the
time of the incident at issue in this case.
Also in September 2021, RC filed a motion for summary judgment (“Second
MSJ”) in which it argued that appellants’ case was governed solely by premises-
liability law and that RC was entitled to summary judgment on appellants’ premises-
liability claims because it owed appellants no legal duty and because proximate
causation was lacking. Appellants filed a response to the Second MSJ.
On October 26, 2021, the trial judge signed an order that sustained certain
objections RC lodged against some of appellants’ evidence, granted RC’s Second
MSJ, and rendered judgment that appellants “take nothing on their causes of action
against” RC. Appellants filed a motion to reconsider that order and a supplemental
motion to reconsider that order. On November 4, 2021, the trial judge signed a
modified order that allowed appellants to amend one of their summary-judgment
affidavits and then overruled certain objections RC had made to that affidavit. The
modified order still granted RC’s Second MSJ “in all respects” and still rendered
judgment that appellants take nothing on their causes of action against RC. The
modified order also contained express rulings that (1) appellants’ premises-liability
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claims failed because the criminal conduct of an unknown third party was not
foreseeable to RC and (2) appellants’ general-negligence and other claims were
foreclosed as a matter of law because appellants’ claims sounded solely in premises
liability under cases such as Timberwalk Apartments, Partners, Inc. v. Cain, 972
S.W.2d 749 (Tex. 1998). That same day, the trial judge signed a take-nothing final
judgment in RC’s favor.
Appellants timely filed a motion for new trial, which the trial judge denied.
Appellants then timely perfected this appeal.
C. Issues on Appeal
Appellants raise two issues on appeal. In their first issue, they argue that the
trial judge erred by granting summary judgment in RC’s favor. In their second issue,
they argue that the trial judge erred by denying their motion for new trial based on
newly discovered evidence.
II. ISSUE ONE: SUMMARY JUDGMENT
A. Standard of Review
RC raised both traditional and no-evidence grounds in its summary-judgment
motions.
We review a summary judgment de novo. See Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex. 2013).
When we review a traditional summary judgment in favor of a defendant, we
determine whether the defendant conclusively disproved an element of the plaintiff’s
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claim or conclusively proved every element of an affirmative defense. Alexander v.
Wilmington Sav. Fund Soc’y, FSB, 555 S.W.3d 297, 299 (Tex. App.—Dallas 2018,
no pet.). We take evidence favorable to the nonmovant as true, and we indulge every
reasonable inference and resolve every doubt in the nonmovant’s favor. Id. A matter
is conclusively established if ordinary minds could not differ as to the conclusion to
be drawn from the evidence. Id.We review a no-evidence summary judgment under the same legal-
sufficiency standard as a directed verdict. Merriman, 407 S.W.3d at 248. We
consider the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant that a reasonable jury could credit and
disregarding contrary evidence and inferences unless a reasonable jury could not. Id.
The nonmovant bears the burden of producing summary-judgment evidence
sufficient to raise a genuine issue of material fact as to each challenged element. Id.
B. The First Summary-Judgment Order
We first address appellants’ attacks on the order granting RC’s First MSJ. To
recap, in that order the trial judge dismissed appellants’ claims for negligent hiring,
training, retention, and supervision; DTPA violations; and intentional infliction of
emotional distress. The judge also ruled that appellants could not recover mental-
anguish damages, emotional-distress damages, or exemplary damages.
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1. Negligent Training
On appeal, appellants argue that the trial judge erred by granting summary
judgment on their negligent-training claim. Appellants do not argue that the trial
judge erred by dismissing their claims for negligent hiring, retention, and
supervision, so we do not disturb the summary judgment as to those liability theories.
See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per curiam).
RC sought summary judgment on appellants’ negligent-training claim on four
grounds: (1) RC owed appellants no duty to train Gomez because there was no
evidence that Gomez was performing work she had not performed before; (2) there
was no evidence that Gomez was an employee of RC; (3) there was no evidence that
RC negligently trained Gomez; and (4) there was no evidence that RC’s allegedly
negligent training proximately caused appellants’ damages.
On appeal, appellants contend that they adduced evidence that Gomez, the
housekeeper who allegedly allowed Engler’s suite to be burglarized, did not follow
RC’s security protocols and industry standards on the occasion in question. They
further argue that this evidence gives rise to inferences that Gomez was inadequately
trained and that appellants’ damages were a foreseeable result of the inadequate
training.
We conclude that appellants have not raised a genuine fact issue on the cause-
in-fact component of the element of proximate cause. See In re Molina, 575 S.W.3d
76, 81 (Tex. App.—Dallas 2019, orig. proceeding [mand. denied]) (“Proximate
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cause has two sub-elements—cause in fact and foreseeability.”). Appellants bore the
burden to adduce evidence from which a reasonable person could conclude that
Engler’s room would not have been burglarized if RC had trained Gomez to follow
RC’s protocols and industry standards while working in guests’ rooms. But they cite
no evidence, and we see none, raising a reasonable inference that Gomez would have
acted any differently on the occasion in question if RC had trained her differently.
Indeed, appellants’ summary-judgment evidence included deposition testimony by
Gomez to the effect that the Ritz-Carlton Dallas hotel taught her to require strangers
encountered inside a room to go outside the room and use their own key card to open
the door. It would be sheer speculation to conclude that appellants’ damages would
have been avoided if RC had given Gomez different training.
We overrule appellants’ first issue with respect to their claims for negligent
training.
2. DTPA Violations
Appellants alleged that RC was liable to appellants under various DTPA
provisions for committing the following prohibited acts:
(a) causing confusion or misunderstanding as to the source of the
services; specifically the housekeeper services as set forth below:
....
(b) representing that services have characteristics, uses, and benefits
which they did not have:
....
–9–
(c) representing that services are of a particular standard, quality, or
grade, when they are of another:
....
(d) [f]ailing to disclose information concerning services known at
the time of the transaction . . . to induce the Plaintiffs into a
transaction they otherwise would not have entered had the
information been disclosed.
See TEX. BUS. & COM. CODE ANN. § 17.46(b)(2), (5), (7), (24). Appellants also
alleged that RC was liable under the DTPA for unconscionable acts. See id
§ 17.50(a)(3). Each distinct DTPA allegation was followed by several sentences
setting forth specific supporting facts.
RC’s First MSJ raised several different grounds challenging appellants’ five
distinct DTPA theories described above.
On appeal, appellants’ argument concerning their DTPA claims totals just
over three pages. Therein they briefly and without citation to case law assert that
RC’s “numerous and detailed representations” were “false, misleading, deceptive,
unconscionable, and producing causes” of their damages. Because appellants cite no
authority to justify disrupting the trial court’s conclusion on this matter we reject
appellants’ argument. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d
893, 896 (Tex. App.—Dallas 2010, no pet.) (“If we are not provided with existing
legal authority that can be applied to the facts of the case, the brief fails.").
We overrule appellants’ first issue with respect to their DTPA claims.
–10–
3. Intentional Infliction of Emotional Distress
RC’s First MSJ raised no-evidence challenges to four elements of appellants’
claims for intentional infliction of emotional distress. Specifically, RC argued that
appellants had no evidence that (1) RC acted intentionally or recklessly; (2) RC’s
conduct was extreme and outrageous; (3) RC’s conduct proximately caused
appellants to suffer emotional distress; or (4) appellants’ emotional distress was
severe. See Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex. 1996) (per curiam)
(reciting elements of intentional infliction of emotional distress).
On appeal, however, appellants do not address these no-evidence grounds.
Rather, they argue that the trial judge erred in granting summary judgment on their
intentional-infliction-of-emotional-distress claims because the trial judge later ruled
that (1) Gomez was RC’s borrowed employee and (2) appellants’ claims sounded
only in premises liability. RC argues, and we agree, that appellants have thus failed
to address independent grounds on which the summary judgment could have been
granted, namely the no-evidence grounds that RC raised in the First MSJ.
Accordingly, we must overrule appellants’ first issue with respect to their
intentional-infliction-of-emotional-distress claims. See Malooly Bros., Inc. v.
Napier, 461 S.W.2d 119, 121 (Tex. 1970); see also Rosetta Res. Operating, LP v.
Martin, 645 S.W.3d 212, 227–28 (Tex. 2022).
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4. Gross Negligence and Exemplary Damages
RC’s First MSJ attacked appellants’ claims for gross negligence and
exemplary damages in four independent ways. First, RC argued that the claims for
exemplary damages were barred under Texas Civil Practice and Remedies Code
§ 41.005(a) and that appellants had no evidence that any of the § 41.005(b)
exceptions to the § 41.005(a) bar applied. Second, RC argued that appellants had no
evidence to support three essential elements of their gross-negligence claims as
predicates for recovering exemplary damages. Specifically, RC argued that
appellants had no evidence (1) of the objective prong of the definition of gross
negligence, i.e., an extreme degree of risk, (2) of the subjective prong of that
definition, i.e., actual, subjective awareness and conscious indifference, or (3) that
any gross negligence was committed by an RC vice principal. See TEX. CIV. PRAC.
& REM. CODE ANN. § 41.003(a)(3) (providing that gross negligence is a predicate
for recovering exemplary damages); id. § 41.001(11) (defining gross negligence);
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex. 1998) (holding that
corporation can be liable for exemplary damages “if it commits gross negligence
through the actions or inactions of a vice principal”).
In their appellate brief, appellants argue that the summary judgment should be
reversed because the record contains some evidence that RC was grossly negligent.
Their argument fails for two reasons.
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First, although appellants mention § 41.005 in passing, they present no
argument as to why RC’s independent ground based on § 41.005(a) was not a proper
basis for summary judgment. This omission precludes us for reversing the dismissal
of appellants’ exemplary-damages claim. See Rosetta Res. Operating, 645 S.W.3d
at 227–28.
Second, although appellants argue that Gomez ignored RC’s security
protocols with conscious indifference to appellants’ rights, safety, and welfare, they
present no argument that Gomez was an RC vice principal or that any RC vice
principal acted with gross negligence relevant to the incident in question. See CIV.
PRAC. & REM. § 41.001(11)(B) (defining gross negligence in part as “proceed[ing]
with conscious indifference to the rights, safety, or welfare of others”). This
omission also precludes reversal of the summary judgment as to appellants’ claims
for gross negligence and exemplary damages. See Rosetta Res. Operating, 645
S.W.3d at 227–28.
We overrule appellants’ first issue with respect to their claims for gross
negligence and exemplary damages.
5. Mental-Anguish Damages
Finally, RC obtained partial summary judgment that, under Texas law,
appellants could not recover mental-anguish or emotional-distress damages under
any of their causes of action. Appellants argue that the trial judge erred by granting
summary judgment on this basis.
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We need not address appellants’ argument because we are affirming the take-
nothing summary judgment on other grounds as to all of appellants’ claims. This
renders harmless any error in the trial judge’s determination that appellants cannot
recover mental-anguish or emotional-distress damages as a remedy for any of those
claims. See TEX. R. APP. P. 44.1(a) (harmless-error rule in civil cases); id. 47.1
(opinion must address every issue “raised and necessary to final disposition of the
appeal”).
C. The Second Summary-Judgment Order
1. Background
After the trial judge signed the first summary-judgment order in RC’s favor,
appellants still had claims pending against RC for general negligence, negligent
undertaking, premises liability, and breach of contract. RC then filed the Second
MSJ, in which it argued (1) appellants’ claims sounded only in premises liability,
and (2) appellants’ premises-liability claims failed for various reasons.
The trial judge granted the Second MSJ in an order that specified the judge’s
reasons for doing so: (1) appellants’ negligence and other claims were foreclosed
because their claims were only premises-liability claims, and (2) appellants’
premises-liability claims failed because the criminal conduct in question was not
foreseeable to RC and thus RC owed appellants no legal duty. The trial judge
therefore rendered final judgment that appellants take nothing from RC.
–14–
We note that appellants do not challenge the summary judgment on their
negligent-undertaking claim, so we will not disturb the judgment as to that claim.
See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per curiam).
2. General Negligence
Appellants argue that the trial court erred by concluding that they had failed
to produce evidence supporting claims for general negligence as opposed to claims
for premises liability. RC argues the opposite.
a. Applicable Law
Under Texas law, a person who claims to have been injured on another’s
property “may have either a negligence claim or a premises-liability claim against
the property owner.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex.
2017). A claim sounds in negligence if the injury resulted from a contemporaneous,
negligent activity on the property. Id. The claim sounds in premises liability if the
injury resulted from the property’s condition rather than an activity. Id. Negligence
and premises-liability claims are thus separate and distinct theories of recovery
requiring proof of different, though similar, elements. Id. Generally, the theories can
be distinguished on the principle that “negligent activity” encompasses malfeasance
theories based on affirmative, contemporaneous conduct by the owner that caused
the injury, while “premises liability” encompasses nonfeasance theories based on
the owner’s failure to take measures to make the property safe. Id.–15–
“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) (footnote omitted). The
proper categorization of the claim is generally determined by the malfeasance–
nonfeasance distinction mentioned above. See Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010) (claims against bar for injuries sustained in bar brawl
were premises-liability claims because they were primarily based on nonfeasance).
b. Application of the Law to the Facts
The parties dispute whether appellants’ harm was caused by a
contemporaneous negligent activity or by Gomez’s nonfeasance. We agree with RC
that this is a case of nonfeasance and therefore that appellants failed to demonstrate
a viable negligence claim.
Appellants argue in their appellate brief that they were injured “because
[Gomez] opened the locked wedding suite door and did not follow [RC’s] protocol
and industry standards.” Specifically, Gomez failed to ask Omar Rimlawi to use his
own key to open the door to the suite, which would have revealed that “he was likely
a criminal and not a guest.” Thus, the essence of appellants’ negligence claim is
Gomez’s failure to take certain actions—her failure to require Rimlawi to prove that
he had a key to the room according to RC protocols and industry standards. Thus,
this is a nonfeasance case, and nonfeasance cases are typically premises-liability
cases. See United Scaffolding, 537 S.W.3d at 471.
–16–
Appellants cite no cases that support their position that Gomez’s conduct rises
to the level of active malfeasance, and we have found none. The supreme court’s
Del Lago Partners opinion, however, supports our conclusion that this is a
nonfeasance case. In that case, a bar patron sued the bar’s owner for injuries the
patron suffered during a brawl involving roughly twenty to forty men. See Del Lago
Partners, 307 S.W.3d at 766. The case was tried and submitted to the jury as a
premises-liability case rather than a negligent-activity case, and the supreme court
concluded that was correct because the plaintiff complained primarily of the bar
owner’s nonfeasance in failing to intervene while the fight was brewing and failing
to react promptly once it started. Id. at 776. This is analogous to the present case:
appellants complain primarily that Gomez failed to act reasonably by following RC
protocols once she discovered Rimlawi inside Engler’s suite. Instead, according to
Gomez’s deposition testimony, she simply left the suite without requiring Rimlawi
to produce a working room key and without telling any other RC personnel about
her encounter with Rimlawi. This allegedly negligent conduct constitutes
nonfeasance rather than malfeasance.
c. Conclusion
We conclude that the allegations and evidence in this case do not support
appellants’ contention that they have valid general-negligence claims against RC.
Accordingly, we overrule appellant’s first issue with respect to their general-
negligence claims.
–17–
3. Premises Liability
The trial judge granted summary judgment on appellants’ premises-liability
claims specifically because (1) Rimlawi’s criminal act was not foreseeable to RC
and (2) RC therefore owed no legal duty to appellants. Appellants argue that the trial
judge erred, contending that Rimlawi’s criminal act was foreseeable both as a matter
of common sense and because the evidence showed that there had been previous
crimes in the area and within the hotel itself.
a. Applicable Law
The Timberwalk case furnishes the controlling legal principles. As a general
rule, a person has no legal duty to protect another from the criminal acts of a third
person. 972 S.W.2d at 756. An exception to this rule is that a premises owner owes
a duty of ordinary care to protect invitees from third-party criminal acts if the owner
knows or has reason to know of an unreasonable and foreseeable risk of harm to
invitees. Id.
One way to establish the foreseeability prong of the exception to the no-duty
rule is through evidence of specific crimes on or near the premises. Id. In
determining foreseeability under this approach,
courts should consider whether any criminal conduct previously
occurred on or near the property, how recently it occurred, how often it
occurred, how similar the conduct was to the conduct on the property,
and what publicity was given the occurrences to indicate that the
landowner knew or should have known about them.
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Id. at 757 (footnote omitted); see also Park v. Exxon Mobil Corp., 429 S.W.3d 142,
145 (Tex. App.—Dallas 2014, pet. denied) (summarizing the “Timberwalk factors”
as proximity, recency, frequency, similarity, and publicity).
b. Application of the Law to the Facts
We first address and reject appellants’ contention that crime is so common
that urban premises owners should automatically foresee the risk of certain criminal
activity—namely thefts from unlocked premises. The Timberwalk court implicitly
rejected this position, noting that crime can potentially occur at any time or place,
especially in a large city, but nevertheless refusing to impose a duty of care
universally on all premises owners. See 972 S.W.2d at 756. Appellants also point
out that RC had specific policies in effect to prevent third parties from entering
guests’ rooms during room-service activities. The existence of such policies,
however, also fails to establish foreseeability. See Park, 429 S.W.3d at 149 (“The
mere act of taking preventative measures to protect against the possibility of future
crime is not the same as foreseeing that criminal activity.”).
Next we consider appellants’ alternative contention that they adduced
sufficient evidence of the Timberwalk factors to support imposing a duty on RC to
protect invitees from third-party criminal acts.
Our review of this contention is hampered because the relevant argument
section of appellants’ brief contains no specific assertions about the kinds of crimes
in the area that appellants supposedly proved and no record references. We do find
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a discussion of “[e]vidence of crime in and around The Ritz-Carlton hotel” in
appellants’ statement of the facts, but those record references are solely to
appellants’ evidence filed in response to RC’s First MSJ, which differs from their
evidence filed in response to the relevant motion, RC’s Second MSJ. For example,
one lengthy quotation in this part of appellants’ brief comes from a report by Richard
Hudak that appellants did not attach to or reference in their response to the Second
MSJ; accordingly, we will not consider that material. See Carter v. City of Garland,
No. 05-16-00903-CV, 2017 WL 2118785, at *3 (Tex. App.—Dallas May 16, 2017,
no pet.) (mem. op.) (evidence in court’s file but neither incorporated by reference
into summary-judgment response nor made the object of judicial notice was not
properly before the trial court). The other quotations come from an expert report by
Dr. Gary Deel. Although appellants did not attach that report to their response to
RC’s Second MSJ, they did attach Deel’s declaration under penalty of perjury that
includes essentially the same statements. We will consider those passages in Deel’s
declaration as though appellants had relied on them in their appellants’ brief.3 See
Horton v. Stovall, 591 S.W.3d 567, 570 (Tex. 2019) (per curiam) (“[N]othing
prevents courts from undertaking reasonable efforts to locate evidence described in
a party’s brief . . . .”).
3
We note that RC lodged objections to all these passages, the trial judge overruled the objections, and
RC reurges its objections on appeal. Because we conclude that the passages do not raise a genuine issue of
material fact, we need not consider RC’s objections.
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Deel said the following in his declaration:
Available data indicates that The Ritz-Carlton Dallas’s location had a
risk of property crime that was roughly six times (6x) higher than the
surrounding state and county averages, and nearly (10x) higher than the
national average. Specifically, the “CAP Index” report indicates that,
for the year 2017, at 2121 McKinney Ave, Dallas, TX, the risk of
larceny (theft) was more than ten times (10x) the national average.
....
I ran a report using BestPlaces.net, which uses data from the FBI’s
Uniform Crime Reporting Program report from 2002, and it showed,
for the area surrounding The Ritz-Carlton Dallas, that [the] property
crime rate was approximately double that of the City of Dallas, Dallas
County, the State of Texas, and the United States, and this was data
from 2002.
I reviewed Dallas Police Calls for service, for three (3) years prior to
the incident at issue in this lawsuit, for 2121 McKinney Ave, Dallas,
TX, which is the address for The Ritz-Carlton Dallas. The Dallas Police
Calls for service, during the aforementioned time period indicated that
there were seventy-three (73) calls for service for crimes (alleged
and/or actual), which averages to approximately three (3) per month.
Out of the seventy-three (73) calls for service for crimes at [2]121
McKinney Ave, Dallas, TX, at least twenty-nine (29) calls were
specifically for thefts and/or burglaries, which averages to
approximately one per month.
The first paragraph quoted above suffers from several defects. It covers only
the year 2017, and the incident made the basis of this lawsuit occurred on March 10,
2017. Thus, only a fraction of the data cited in that paragraph is relevant, and the
paragraph does not distinguish between crimes that occurred before and after the
relevant date. Nor does the paragraph give any absolute numbers about the crimes
committed at the hotel’s location. Because of this imprecision, the paragraph is not
probative proof of either the recency or the frequency of crimes before the incident
–21–
in question. Additionally, the paragraph gives no details about the other crimes
beyond the fact that they involved theft. The supreme court has made clear that the
details of other allegedly similar crimes are important when assessing the
foreseeability of a particular crime. See Trammell Crow Cent. Tex., Ltd. v. Gutierrez,
267 S.W.3d 9, 16 (Tex. 2008) (discounting the probative value of other violent
crimes based on various dissimilarities from the murder involved in the particular
case); see also Timberwalk Apartments, 972 S.W.2d at 756 (evidence must reveal
“specific prior crimes on or near the premises” to establish foreseeability) (emphasis
added). Here, the evidence gives no details about the other crimes at all, and it would
be speculation to assume that they involved facts similar to the facts presented in the
instant case. Finally, there is no evidence that any of the cited data for 2017 was
publicized or known to RC in advance of March 10, and logically most of that data—
the part covering the year after March 10—could not have been. In sum, the first
paragraph is not probative evidence that the crime involved in this case was
foreseeable.
We reject appellants’ reliance on the second paragraph quoted above because
it addresses crime rates in 2002—some 15 years before the incident made the basis
of this lawsuit. This information is too remote from the relevant time period to show
that the crime risk was foreseeable to RC. See Trammell Crow, 267 S.W.3d at 13
(considering crimes committed during the two years before the incident in question);
Park, 429 S.W.3d at 146 (same). The paragraph also includes no information
–22–
suggesting any similarity between the crimes in the BestPlaces.net report and the
crime involved in this case.
Finally, the third paragraph quoted above also falls short of raising a genuine
fact issue on foreseeability. It does not adequately prove the recency of the other
crimes mentioned therein; it covers a three-year time period, and it does not specify
when during that period the other crimes occurred. It also does not prove the
frequency of the other crimes because the paragraph actually describes the number
of police calls for “alleged and/or actual” crimes, not the number of actual crimes
that occurred. That is, the paragraph leaves us to speculate how many of the police
calls involved actual crimes as opposed to false or mistaken reports. Finally, the
paragraph does not give any details about the police calls arising from alleged “thefts
and/or burglaries” to show that those incidents were similar to the incident made the
basis of this suit. The umbrella terms “theft” and “burglary” could involve crimes
(such as pickpocketing, vehicle break-ins, and thefts by hotel guests or employees)
quite dissimilar from the room burglary involved in this case. Without any details
showing recency, frequency, and similarity, the third paragraph quoted above fails
to raise a genuine fact issue as to the foreseeability of the crime at the heart of this
lawsuit.
c. Conclusion
We overrule appellants’ first issue as to their premises-liability claims.
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4. Breach of contract
Appellants alleged that RC breached a contract with them in several ways.
Although neither of RC’s summary-judgment motions expressly addressed
appellants’ breach-of-contract claims, its Second MSJ sought judgment on all
remaining claims, which included breach of contract, on the theory that premises
liability was the only legal theory potentially available to appellants on the facts of
the case.
On appeal, appellants make two arguments regarding their breach-of-contract
claims. First, they argue that we should reverse if we conclude “that premises
liability law does not apply to this case.” We have concluded that premises-liability
law does apply to this case, so we reject this argument.
Second, appellants argue that their breach-of-contract claims should not be
foreclosed even if premises-liability law properly applies to this case. In support,
appellants recite the elements of a breach-of-contract claim under Texas law, with
two case citations, and assert that “the trial court did not grant summary judgment
as to the evidence establishing those elements.” They continue, “Thus, the question
of whether there exists evidence to establish the elements of breach of contract is
independent of the question of whether a premises liability claim exists or not.” Then
they conclude, “In short, no matter what this Court rules on any other aspect of this
case, the trial court’s grant of summary judgment as to [appellants’] breach of
contract claim[s] should be reversed.”
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We conclude that appellants’ second argument is waived for inadequate
briefing. As discussed above, some fact patterns require a claimant to proceed under
premises-liability law instead of general negligence principles. See, e.g., United
Scaffolding, 537 S.W.3d at 480–81. RC’s Second MSJ implicitly asserted that this
rule also applies to breach-of-contract claims. Appellants seem to posit that the rule
should not apply to breach-of-contract claims because such claims have different
elements from premises-liability claims, but the same is true for general-negligence
claims. See id. at 471 (noting that elements of premises liability and negligence are
similar but different). Appellants cite no legal authority to support the premise that
a claimant can assert a breach-of-contract claim based on facts that would support a
premises-liability claim. Accordingly, the argument has been forfeited. See TEX. R.
APP. P. 38.1(i) (argument in appellant’s brief must be supported “with appropriate
citations to authorities”); Bolling, 315 S.W.3d at 895 (“[W]e are not responsible for
doing the legal research that might support a party’s contentions.”).
Accordingly, we overrule appellants’ first issue as to their breach-of-contract
claims.
III. ISSUE TWO: MOTION FOR NEW TRIAL
In their second issue on appeal, appellants argue that the trial judge abused
her discretion by denying their motion to new trial. Specifically, they argue that they
proved their entitlement to a new trial based on newly discovered evidence. We
conclude that appellants have not shown an abuse of discretion.
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Appellants were required to show (1) evidence came to their knowledge after
the trial (or summary judgment, as the case may be); (2) it was not owing to the want
of due diligence that the knowledge of the evidence did not come sooner; (3) the
new evidence was not cumulative; and (4) the new evidence was so material it would
probably produce a different result if a new trial were granted. See Johnson v. Legacy
Bank of Tex., 167 S.W.3d 643, 645–46 (Tex. App.—Dallas 2005, no pet.). We
review the trial judge’s ruling for abuse of discretion. See id. at 646.
In the argument section of their brief, appellants do not cite or otherwise
identify any specific “newly discovered evidence” that would have produced a
different result had it been available for use on summary judgment. But in the
statement-of-facts section of their brief, appellants specifically cite some of the
allegedly newly discovered evidence—specifically, the deposition of Lester
Washington, a former Marriott security area director—for the premise that RC
specifically used the CAP Index to determine the security needs for RC properties
in Dallas. We therefore consider this citation in our analysis of appellants’ second
issue.
We conclude that the trial judge did not abuse her discretion by refusing to
grant appellants’ new-trial motion based on Washington’s testimony about the CAP
Index. Appellants are correct that Washington testified that Marriott International
considered, among other things, third-party crime information called the CAP Index
when it decided what security staffing should be provided at a particular hotel
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location, including the Ritz-Carlton Dallas hotel. But appellants do not explain how
this evidence would have led to a different outcome in the summary-judgment
proceedings that resolved this case, and the trial judge could reasonably conclude
that it would not have done so. As discussed above, appellants’ premises-liability
evidence failed to raise a genuine fact issue on the essential element of duty because
that evidence did not demonstrate that similar crimes had occurred in the same locale
with enough frequency and recency to impose a duty on RC. This allegedly newly
discovered evidence showing that the CAP Index was part of the information
Marriott used to demonstrate security-personnel needs at the Ritz-Carlton Dallas—
but not what the CAP Index actually showed about the frequency of similar, recent
crimes in the relevant location—does not change that conclusion.
Thus, appellants have not shown that the trial judge acted arbitrarily or
unreasonably by denying appellants’ motion for new trial based on newly discovered
evidence. Accordingly, we overrule appellants’ second issue on appeal.
IV. DISPOSITION
The trial court’s judgment is affirmed.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
220067F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEANETTE ENGLER AND On Appeal from the 192nd Judicial
RICHARD LICHDEAN, Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-18-17624.
No. 05-22-00067-CV V. Opinion delivered by Justice Garcia.
Justices Carlyle and Rosenberg
THE RITZ-CARLTON HOTEL participating.
COMPANY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee THE RITZ-CARLTON HOTEL COMPANY
recover its costs of this appeal from appellants JEANETTE ENGLER and
RICHARD LICHDEAN.
Judgment entered this 28th day of April 2023.
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