In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00906-CV

____________

STEVEN KIPP and KAREN KIPP, Appellants

V.

DYNCORP TECHNICAL SERVICES, LLC and COMPUTER SCIENCE CORPORATION, Appellees

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On Appeal from the 151st Judicial District Court

Harris County, Texas

Trial Court Cause No. 2003-49608

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MEMORANDUM OPINION

This is a premises-liability case in which appellants, Steven and Karen Kipp, bring five issues to challenge a no-evidence summary judgment rendered in favor of appellees, Dyncorp Technical Services, LLC (Dyncorp) and Computer Science Corporation (CSC). The Kipps contend (1) that Dyncorp and CSC filed a defective no-evidence motion for summary judgment, which should, therefore, be treated as a traditional motion for summary judgment; (2) that Dyncorp and CSC did not present a certain ground for summary judgment to the trial court and are thus precluded from prevailing on that ground on appeal; and (3) that the evidence produced in response to Dyncorp's and CSC's motion for summary judgment was sufficient to raise a fact issue to defeat the motion. We affirm.

Background

In 2002, Steven Kipp was an employee of United Space Alliance, which worked under contract with NASA. He worked as a software engineer in Building 5 of the Lyndon B. Johnson Space Center, where space simulation and astronaut training was conducted. Kipp is an epileptic.

Dyncorp was the operations-support provider for the premises. Due to an outbreak of conjunctivitis, also known as pink eye, Dyncorp increased the potable hot water temperature in the lavatories in Building 5. Kipp acknowledged during discovery that he was aware that the hot water temperature had been elevated. He was also aware that the reason for the change was to prevent the astronauts training in Building 5 from contracting pink eye and thus delaying a launch.

On August 23, 2002, while he was taking a break outside Building 5, Kipp experienced an aura that he recognized, from his 30 years as an epileptic, as a symptom of an impending seizure. Having learned that running warm water over his hands sometimes alleviates onset of his seizures, Kipp went to the nearest sink. While manipulating the handles of the sink to lower the water temperature, Kipp experienced a seizure and lost consciousness. During the seizure, Kipp's hands remained under the flowing hot water and were scalded.

Kipp and his wife filed a premises-liability action against Dyncorp, CSC, and others, seeking damages for the claimed injuries to Kipp's hands and for his wife's derivative claim for loss of consortium. Dyncorp and CSC were the sole remaining defendants when trial was reset for June 19, 2006. On May 2, 2006, they filed a no-evidence motion for summary judgment, contending there was no evidence to show either that Dyncorp and CSC proximately caused Kipp's injury or that Dyncorp and CSC were liable under a premises liability theory. The trial court rendered a no-evidence summary judgment in favor of Dyncorp and CSC.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex. R. Civ. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

A party who files a no-evidence summary judgment motion pursuant to rule 166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 (Tex. App.--Houston [1st Dist.] 1999, no pet.). We review the evidence presented by the summary judgment record in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, 206 S.W.3d at 581 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d 193, 208 (Tex. 2002)).

When the trial court's judgment does not specify which of several grounds proposed was dispositive, we affirm on any ground offered that has merit and was preserved for review. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000) (stating general rule); see Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (applying rule to Tex. R. Civ. P. 166a(i) motion) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (applying rule to Tex. R. Civ. P. 166a(c) motion); Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.--Houston [14th Dist.] 2004, pet. denied) (applying rule to Tex. R. Civ. P. 166a(i) motion)). If the appealing party does not assert a broad challenge to rendition of summary judgment or fails to challenge a ground on which the movant asserted a right to summary judgment in the trial court, we must affirm--without considering whether the summary judgment was rendered properly or improperly on the unchallenged ground. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (affirming summary judgment because "it may have been based on a ground not specifically challenged" on appeal and "there was no general assignment that the trial court erred in granting summary judgment") (supporting citations omitted); Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of summary judgment without properly assigned error); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Whether Motion Sufficed under Rule 166a(i)

In their first and third issues, the Kipps contend that we must construe Dyncorp's and CSC's motion for summary judgment as a traditional motion, filed pursuant to rule 166a(b), rather than a no-evidence motion, because the motion did not state the grounds on which Dyncorp and CSC contended there was no evidence. See Weaver, 4 S.W.3d at 829 n.2 (ruling that conclusory motion did not comply with rule 166a(i) and declining to apply rule 166a(i) standard of review). Rule 166a does not prohibit combining a traditional motion for summary judgment as a matter of law pursuant to subsection (c) of the rule with a no-evidence motion that relies on subsection (i). Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004). A motion that combines both bases for summary judgment is sufficient if it sets forth its grounds clearly and complies otherwise with rule 166a. See id. at 651.

A. Requirements of Rule 166a(i)

A no-evidence motion for summary judgment must state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). As the comment to rule 166a(i) instructs, "The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case." Tex. R. Civ. P. 166a, 1997 Comment; see Kadhum v. Homecomings Fin. Network, Inc., No. 01-05-00705-CV, 2006 WL 1125240, *4 (Tex. App.--Houston [1st Dist.] April 27, 2006, no pet.) (noting that comment "is intended to inform the construction and application of the rule"; citing comment and Weaver, 4 S.W.3d at 829 n.2). In Weaver, this Court applied the traditional standard of review for summary judgments, holding that the defendant's motion for summary judgment was insufficient under Texas Rule of Civil Procedure 166(a)(i) for the following reasons: it was conclusory, it did not allege that Weaver lacked evidence, and it did not challenge a particular element. Weaver, 4 S.W.3d at 829 & n.2.

A no-evidence motion for summary judgment must, therefore, explicitly state that there is no evidence of one or more elements of the opponent's claim or claims, which the motion must also identify. See Kadhum, 2006 WL 1125240 at *4 (citing Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.--Houston [14th Dist.] 2004, pet. denied); Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 279-80 (Tex. App.--El Paso 2004, no pet.)). The dispositive inquiry is whether the motion provides fair notice to the nonmovant of the basis on which summary judgment is sought. See Waite v. Woodward, Hall & Primm, P.C., 137 S.W.3d 277, 281 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (holding that motion did not provide fair notice that movant sought traditional, as opposed to no-evidence summary judgment); accord Binur, 135 S.W.3d at 651 (holding that movant did not waive no-evidence grounds asserted in motion for summary judgment, either by combining no-evidence and traditional grounds in same motion for summary judgment or by attaching proof to motion in support of traditional grounds).

B. Discussion

Dyncorp and CSC entitled their motion a "no-evidence motion for summary judgment." The motion cited rule 166a(i) expressly and invoked the no-evidence standard of review. Though Dyncorp and CSC also argued that they were entitled, in the alternative, to summary judgment under traditional, rule 166a(b) standards, the motion concluded by asking the trial court to grant the no-evidence motion and to grant dismissal with prejudice. The Kipps' response acknowledged the motion as a no-evidence motion filed pursuant to rule 166a(i). In rendering summary judgment in favor of Dyncorp and CSC, moreover, the judgment of the trial court specified that it was granted on no-evidence grounds.

The Kipps' live pleadings assert claims for negligence under a premises-defect theory of liability and allege that Dyncorp and CSC owed Kipp a duty as their invitee. To prevail on their premises-liability claim, the Kipps had to prove that (1) Dyncorp and CSC had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) Dyncorp and CSC did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) their failure to use reasonable care to reduce or eliminate the unreasonable risk of harm proximately caused the Kipps' injuries. See LMB, Ltd., 201 S.W.3d at 688. The proximate cause element has two components, cause-in-fact and foreseeability. Id.

At the conclusion of the introductory portion of their motion for no-evidence summary judgment, Dyncorp and CSC argued there was "no evidence that has been produced or developed by [the Kipps] that [Dyncorp and CSC were] negligent or even owe[d the Kipps] a duty." Dyncorp and CSC further specified additional no-evidence contentions, in two differently numbered sections of the argument portion of their motion. In the first section, they argued that the Kipps "cannot establish" that Dyncorp and CSC proximately caused the Kipp's injuries under the "substantial factor" standard for either the cause-in-fact element of proximate cause or the foreseeability element of proximate cause. See generally Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991) (adopting Restatement (Second) of Torts § 431 cmt. a (1965) (substantial factor test for cause-in-fact analysis)); Doe v. Boys Clubs. Inc., 907 S.W.2d 472, 477 (Tex. 1995) (addressing foreseeability element of proximate cause).

In the second section of their argument section, Dyncorp and CSC focused on all elements of proof that the Kipps would have to establish to prevail on their premises-liability claim, as follows: that a condition on the premises posed an unreasonable risk of harm; that Dyncorp and CSC knew or should have known of the danger; ⁽¹⁾ yet failed to exercise ordinary care to protect Kipp, either by failing to adequately warn or by making the condition reasonably safe. Having first stated the specifics of their no-evidence grounds, Dyncorp and CSC summarized them as contending that the Kipps "have failed to produce any evidence in support of a premises theory."

We hold that Dyncorp's and CSC's motion complied with rule 166a, clearly stated the no-evidence grounds asserted in the motion, and sufficiently challenged the existence of any material issue of fact on all elements of the Kipps' premises-liability claim, including both components of probable cause, to a degree sufficient to provide fair notice to the Kipps that Dyncorp and CSC had invoked rule 166a(i) and sought to prevail on that basis. See Binur, 135 S.W.3d at 651; Waite, 137 S.W.3d at 281. At that point, therefore, the burden shifted to the Kipps to present summary judgment evidence to defeat Dyncorp's and CSC's no-evidence motion. Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582; Weaver, 4 S.W.3d at 829-30.

We overrule the Kipps' first and third issues.

Whether Failure to Challenge All Possible Grounds Bars Review of Merits
In their second, fourth, and fifth issues, the Kipps contend that they provided sufficient summary judgment evidence to raise an issue of fact to defeat Dycorp's and CSC's motion concerning the following: proximate cause and whether Dyncorp and CSC actually knew or should have known of the dangerous condition in building D. Yet, Dyncorp and CSC moved for no-evidence summary judgment by challenging whether evidence existed as to all elements of the Kipps' premises-liability claim and not solely the dual components of proximate cause and whether Dyncorp and CSC had actual or constructive knowledge of the alleged danger. In addition to challenging those elements on no-evidence grounds, Dyncorp's and CDC's motion for summary judgment also challenged the two additional elements that the Kipps would have to prove in order to prevail, specifically, whether any evidence existed regarding a condition on the premises that created an unreasonable risk of harm and whether they breached any duty to Kipp, either by failing to warn him of the alleged danger or make the condition safe. See generally LMB, Ltd., 201 S.W.3d at 688; Comm. on Pattern Jury Charges, State Bar of Tex. Premises Tex. Pattern Jury Charges PJC 66.3 (2000 ed.).

DTS and CSC alleged that the Kipps had no evidence of any elements of their premises liability claims, and the trial court did not specify the no-evidence grounds on which it relied in rendering no-evidence summary judgment. Accordingly, the Kipps must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. See FM Props. Operating, 22 S.W.3d at 872-73; Price, 224 S.W.3d at 336. But the Kipps' issues on appeal do not address two of the possible grounds on which the trial court may have rendered no-evidence summary judgment. Moreover, they have not asserted a broad, global challenge contending that the trial court erred by rendering summary judgment. See Malooly Bros., 461 S.W.2d at 121. Under the circumstances, we affirm, without regard to whether the trial court's ruling was correct or erroneous. See FM Props. Operating, 22 S.W.3d at 872-73; Malooly Bros., 461 S.W.2d at 121; Ellis, 68 S.W.3d at 898; see also Vawter, 786 S.W.2d at 264 (proscribing reversal of summary judgment without properly assigned error).

Conclusion

We affirm the judgment of the trial court.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

1. In their fourth issue, the Kipps contend that Dyncorp's and CSC's motion did not challenge the alternative "should have known of the danger" element of the Kipps' premises-liability claim. The record contradicts the Kipps' contention; accordingly, we overrule the fourth issue.