Opinion issued October 6, 2005

  In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-04-00426-CV

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EARL AARON JR., Appellant  

V.

MAGIC JOHNSON THEATRES, JOHNSON DEVELOPMENT CORP. D/B/A CALIFORNIA JOHNSON DEVELOPMENT CORP., AND S & J THEATRES INC., Appellees

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On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2002-52165  

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MEMORANDUM OPINION  

          Appellant, Earl Aaron Jr., challenges the trial court’s rendition of summary judgment in favor of appellees, Magic Johnson Theatres, California Johnson Development Corp. d/b/a California Johnson Development Corp., and S & J Theatres Inc. (together “Magic”), in his premises liability suit. In five issues, Aaron contends that the trial court erred in granting Magic’s no-evidence summary judgment motion and in denying him an oral hearing on Magic’s summary judgment motion and his motion requesting additional time to file an affidavit.   

          We affirm.

Factual and Procedural BackgroundIn his first amended petition, filed on November 10, 2003, Aaron alleged that, on October 20, 2000, while walking to his seat in a Magic movie theatre, he “tripped on the stairs as a result of [Magic’s] negligence and defective condition of the premises.” Aaron further alleged that, “a dangerous condition which posed an unreasonable risk of harm existed on [Magic’s] premises which was a proximate cause of the injuries, specifically the stairs were improperly lit and the stairs and handrails were improperly designed.” He also alleged that Magic “failed to provide adequate lighting of the area in question,” “failed to maintain and inspect said area,” “failed to use due care in the design of the stairs and railings,” and “failed to warn him of the unsafe conditions.”   

          On October 17, 2003, Magic filed a no-evidence summary judgment motion, in which it asserted that Aaron could produce no evidence that (1) Magic breached a duty to Aaron, or, in other words, failed to act as a reasonable owner or operator of a movie theatre in creating an allegedly dangerous condition; (2) Magic had actual or constructive knowledge of the allegedly defective condition; and (3) Magic proximately caused Aaron’s injuries.

          In his response to Magic’s motion, filed on November 3, 2003, Aaron asserted that Magic “used a summary judgment motion to circumvent special exception practice.” On December 1, 2003, Aaron filed a second response to Magic’s no-evidence summary judgment motion, in which he asserted that (1) Magic breached its duty to Aaron because, “[w]hile at the movie theatre, [Aaron] fell due i[n] part to [Magic’s] failure to turn the lights on” and because the “lack of floor lights on [the] steps create[d] a dangerous condition”; (2) Magic “had the required knowledge” because Magic “created the dangerous [condition] in that [Magic] is the only one that would have had control over whether the floor lights are turned on or turned off” and because Magic “admit[s] that it is the possessor of the movie theatre”; and (3) Aaron’s own testimony that “his rib was cracked coupled with his medical records” and that “he did not experience pain until after the fall satisfies the element that [Aaron’s] failure to turn the lights on in the theatre was the cause in fact of [Aaron’s] injury.” Aaron also asserted that “a genuine issue of fact exists as to [Aaron’s] claim of negligence and [p]remises liability and submits summary judgment evidence, attached hereto, filed with this response and incorporated by such reference for all purposes as if recited verbatim herein.” However, there is no evidence in the record that Aaron attached any summary judgment evidence to his second response at the time his second response was filed. Furthermore, in the second response, Aaron’s counsel also requested a continuance in order to “obtain an affidavit” from Aaron, “who is employed overseas and [counsel] needs additional time to forward and receive mail from [Aaron] to file with summary judgment response.”

          On December 31, 2003, Aaron filed his own affidavit testimony and medical records in response to Magic’s no-evidence summary judgment motion. Also on December 31, 2003, the trial court, without specifying the grounds upon which it relied, signed an order granting Magic’s summary judgment motion.

Standard of Review   

            To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s cause of action or affirmative defense. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not properly be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex.App.—Houston [1st Dist.] 2002, no pet.). Motion for Additional Time

          In his first issue, Aaron argues that the trial court erred in denying him an oral hearing regarding his “Request for Additional Time to Submit Summary Judgment Proof and Request for Oral Hearing” and on Magic’s no-evidence summary judgment motion because this prevented him “from securing a record” and “[t]his is one of those instances where the reporters’ record is necessary but unavailable.” In his second issue, Aaron argues that the trial court erred in denying his “Request for Additional Time to Submit Summary Judgment Proof and Request for Oral Hearing” because this “prevented appellant from presenting facts that were essential in raising genuine issues of material fact on the challenged elements.”  

          First, we note that, in a summary judgment hearing, a reporter’s record is “neither necessary nor appropriate to the purposes of such a hearing.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993)). Rule 166a expressly forbids the taking of oral testimony at a summary judgment proceeding. Tex. R. Civ. P. 166a(c). Accordingly, there is no reason to create a record of the hearing. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (stating that “[t]o permit ‘issues’ to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing”). Furthermore, the trial court can decide the motion for summary judgment on submission, without an appearance by the parties before the court. Martin v. Martin, Martin & Richards, 989 S.W.2d 357, 359 (Tex. 1998). Accordingly, Aaron was not entitled to an oral hearing regarding Magic’s summary judgment motion. Additionally, we note that the record does not support the contention that any request for oral hearing was expressly denied.

          Second, in regard to Aaron’s issue concerning his “Request for Additional Time,” we note that Aaron has attached, as an appendix to his brief, his “Request for Additional Time to Submit Summary Judgment Proof and Request for Oral Hearing,” which indicates that it was filed on December 22, 2003. However, Aaron’s motion was not included in the record of this case on appeal.   

          We cannot consider documents attached to an appellate brief that do not appear in the record. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.). This Court must hear and determine a case on the record as filed and may not consider documents attached as exhibits to briefs. Id. Moreover, a party moving for a continuance of a summary judgment hearing must obtain the trial court’s written ruling to preserve a complaint for appellate review. Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 690 (Tex. App.—Tyler 1996, no writ); Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 656 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.). Here, there is no evidence in the record that the trial court denied or even ruled on Aaron’s “Request for Additional Time to Submit Summary Judgment Proof and Request for Oral Hearing.” Because Aaron never obtained a ruling on his “Request for Additional Time,” Aaron waived any error relating to the trial court’s failure to continue the summary judgment hearing. Tex. R. App. P. 33.1(a).   

          We overrule Aaron’s first and second issues.  

  Premises Liability

          In his third and fourth issues, Aaron argues that the trial court erred in granting Magic’s no-evidence summary judgment motion because the summary judgment evidence filed by Aaron on December 31, 2003, raised genuine issues of material fact on the elements of breach of duty, knowledge, and proximate cause and would enable reasonable and fair-minded people to differ in their conclusions. In his fifth issue, Aaron argues that the trial court erred in granting Magic’s summary judgment motion because the court did not assume that all of Aaron’s proof was true, did not indulge every reasonable inference in his favor, and did not resolve all doubts about the existence of a genuine issue of material fact against Magic.

          We note, initially, that Magic asserts that the trial court did not abuse its discretion in granting Magic’s no-evidence summary judgment motion on December 31, 2003, because Aaron presented no summary judgment evidence at the December 22, 2003 hearing and subsequently did not file an affidavit explaining the need for additional time, a verified motion for continuance, or a motion for leave of court to file late evidence. Magic further asserts that “the only evidence that [Aaron] did submit to support his allegations was filed after the deadline imposed by the court for the filing of such affidavit.”

          The record shows that Aaron filed his summary judgment evidence, which consisted of his own affidavit and his medical records, on the same day that the trial court signed the order granting Magic’s motion for summary judgment. If a party files late summary judgment evidence, and no order appears in the record granting leave to file, the evidence will not be considered as being before the court. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). Here, there is no indication in the record that the trial court granted leave to Aaron to file his late summary judgment evidence. Thus, the trial court was within its discretion to disallow late-filed summary judgment evidence. See Tex. R. Civ. P. 166a; Benchmark Bank, 919 S.W.2d at 663. On appeal, we are not to consider as grounds for reversal of a summary judgment issues not expressly presented to the trial court by written motion, answer or other response. Tex. R. Civ. P. 166a(c); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 643 (Tex. App.—Amarillo 2002, pet. denied).

          However, even assuming that the trial court considered Aaron’s late-filed summary judgment evidence, we conclude that Aaron did not raise a genuine issue of material fact regarding Magic’s actual or constructive knowledge of the alleged defects. In a premises liability case, the duty owed to the plaintiff depends on the plaintiff’s status at the time of the incident. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004).   Here, neither party disputes that Aaron was Magic’s invitee at the time of his injury. To prevail on a premises liability claim, a plaintiff-invitee must prove that (1) the land owner or occupier had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the land owner or occupier failed to exercise reasonable care to reduce or eliminate the risk, and (4) the land owner’s or occupier’s failure to use such care proximately caused the plaintiff’s injuries. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996); Restatement (Second) of Torts § 343 (1965). This duty, however, neither made Magic an insurer of Aaron’s safety, nor did it make Magic strictly liable for his injuries. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).  

          Aaron contends that “Magic’s response to [a] request for production wherein Magic admits that it is the possessor of the movie theatre is clear evidence that Magic had knowledge that the floor lights were not on in the theatre.” Aaron asserts that a plaintiff may establish that a land owner or possessor had actual or constructive knowledge of some condition on the premises by showing that the land owner or possessor caused or created the condition. Aaron further asserts that “[o]nly the possessor or owner of the property would have had such control over the lighting system.” In his affidavit, Aaron testified, in relevant part:

As I proceeded to go to my seat, I tripped on the step and began to fall. As I began to fall, I reached out hoping to find something to break my fall. However, there was nothing there. I was not able to see the steps as I approached because there were no visible lights on the steps. I could not determine where the steps began because of lack of lighting. . . .  I am certain that if there had been lights on the steps while I was walking, I would have been able to identify where the steps began.  

          The threshold issue in a premises liability claim is whether the defendant had actual or constructive notice of the allegedly dangerous condition. Motel 6 G.P., Inc., 929 S.W.2d at 3. An invitee must show that a land owner or occupier knew, or after a reasonable inspection should have known, of an unreasonably dangerous condition. Id. at 3–4; see also Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992). Even with such an inference of knowledge, it still must be shown that the owner or occupier knew or should have known of the condition. Id. Furthermore, constructive knowledge can also be established by showing that the condition existed long enough for the owner or occupier to have discovered it upon reasonable inspection. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).   

          Contrary to Aaron’s assertion, the fact that Magic possessed or controlled the movie theatre does not itself raise a scintilla of evidence that Magic had actual or constructive knowledge of the alleged defects. A premises owner or occupier is not strictly liable for defects on its premises. Daenen, 15 S.W.3d at 101. As noted, in order for an invitee to prevail on a premises liability claim, it must be shown that a land owner or occupier had actual or constructive notice of the allegedly dangerous condition. Motel 6 G.P., Inc., 929 S.W.2d at 3. Thus, it follows that mere possession or control of the premises is not enough to hold a land owner or occupier liable for an allegedly dangerous condition on the premises. See id.

          Furthermore, Aaron’s affidavit testimony and his medical records do not give rise to a fact issue regarding Magic’s actual or constructive knowledge of the allegedly defective lighting. A statement of subjective belief, which is not supported by other summary judgment proof, is not sufficient to negate a summary judgment. See Rizkallah v. Conner, 952 S.W.2d 580, 586 (Tex. App.—Houston [1st Dist.] 1997, no writ). Similarly, a “naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force.” Coastal Transp. Co. v. Crown Cent. Petroleum, 136 S.W.3d 227, 232 (Tex. 2004) (citation omitted). Aaron’s own observations of the alleged lack of lighting do not raise a fact issue regarding whether Magic knew or should have known after a reasonable inspection about any defective lighting.

          Aaron also asserts that Magic had knowledge of the alleged defects under a “claim of res ipsa loquitur.” The doctrine of res ipsa loquitur is used in certain limited types of cases where circumstances surrounding an accident constitute sufficient evidence of the defendant’s negligence to support such a finding. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). It merely permits an inference of negligence upon circumstantial evidence of negligence. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 435 (Tex. App.—Houston [14th Dist.] 1995, no pet.). The doctrine does not apply to support a finding of Magic’s actual or constructive knowledge of the alleged defects in this premises liability case.  

          The evidence offered by Aaron to prove that Magic either knew or by the exercise of reasonable care should have discovered the allegedly defective condition is so weak as to do no more than create a surmise or suspicion of its existence. Because Aaron did not produce more than a scintilla of evidence establishing that Magic had actual or constructive knowledge of the alleged defects, we hold that Aaron did not raise a fact issue regarding one of the elements of his premises liability claim. Accordingly, we further hold that the trial court did not err in granting Magic’s no-evidence summary judgment motion in regard to Aaron’s premises liability claim.

          We overrule Aaron’s third, fourth, and fifth issues.   

  Conclusion

          We affirm the judgment of the trial court.  

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Higley.