Frances Pooser v. Cox Radio, Inc. D/B/A 99.5 KISS Radio Station

MEMORANDUM OPINION
No. 04-08-00270-CV
Frances POOSER,
Appellant
v.
COX RADIO, INC. d/b/a 99.5 KISS Radio Station,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-01929
Honorable Karen H. Pozza, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: January 28, 2009
AFFIRMED
This is a personal injury case arising out of injuries Appellant Francis Pooser sustained
while attending a rock concert. The trial court granted traditional and no-evidence summary
judgment motions filed by Appellee Cox Radio, Inc. d/b/a 99.5 KISS Radio Station (Cox Radio).
We affirm the judgment of the trial court.
04-08-00270-CV
BACKGROUND
In April 2004, Pooser attended a concert at the Verizon Wireless Amphitheater in Selma,
Texas. Pooser’s ticket stated that the concert was “present[ed]” by Cox Radio and was called the
“Big F Show.” Pooser alleges that the ticket referenced a specific seat by section, row, and seat
number, 1 but unknown to her until she arrived at the concert, she actually did not have an
assigned seat but instead was directed to a standing room only section just in front of the stage —
the “mosh pit.” 2 While in the mosh pit, Pooser sustained a head injury.
Pooser sued Cox Radio and others alleging breach of contract and negligence. Cox
Radio filed traditional and no-evidence summary judgment motions asserting that it had no duty
to Pooser because it did not own, occupy, or have control over the Amphitheater. Cox Radio
supported its traditional motion with affidavits from its general manager and its
marketing/promotions director, as well as excerpts of Pooser’s deposition. Pooser’s response to
these motions asserted that a fact issue existed as to whether Cox Radio owed a duty to Pooser to
provide a safe environment for concertgoers and to warn her that she did not have an assigned
seat.
Based on scheduling conflicts, Pooser filed a motion for continuance explaining that her
attorney had previously scheduled conflicts on the date of the hearing. Although the motion was
filed, Pooser never requested the matter be set for a hearing. To the contrary, seven days prior to
the hearing, Pooser filed an amended response to her previously filed response to Cox Radio’s
motions for summary judgment. Neither Pooser, nor her attorney, attended the summary
1
The ticket identified the section as “ORCHGA,” the row as “GA1,” and the seat as “21.”
2
A “mosh pit” is a standing room only area where concertgoers engage in aggressive dancing and jumping,
including purposefully colliding with one another and leaping from the stage. MERRIAM-WEBSTER DICTIONARY 809
(11th ed. 2003).
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judgment hearing. The trial court granted summary judgment on both motions and Pooser’s
subsequently filed motion for new trial was denied. This appeal followed.
SUMMARY JUDGMENT
A. Standard of Review
To obtain a traditional summary judgment, a party moving for summary judgment must
show that no genuine issue of material fact exists and that the party is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing
the grant of a summary judgment, we indulge every reasonable inference and resolve any doubts
in favor of the respondent. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition,
we assume all evidence favorable to the respondent is true. Johnson, 891 S.W.2d at 644; Nixon,
690 S.W.2d at 548-49. A defendant is entitled to summary judgment if the evidence disproves,
as a matter of law, at least one element of the plaintiff’s cause of action. Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary
judgment, the burden shifts to the respondent to present evidence that would raise a genuine
issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).
In reviewing a no-evidence summary judgment, the court examines the record in the light
most favorable to the non-movant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.
2003). The movant must state the elements on which there is no evidence and the “court must
grant the motion unless the [non-movant] produces summary judgment evidence raising a
genuine issue of material fact.” TEX. R. CIV. P. 166a(i). “Less than a scintilla of evidence exists
when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a
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fact.” King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63
(Tex. 1983)). “More than a scintilla of evidence exists [if it would allow] ‘reasonable and fair-
minded people to differ in their conclusions.’” Id. (quoting Merrill Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
B. Traditional Summary Judgment
Cox Radio asserts that summary judgment was properly granted because it had no duty to
Pooser because it did not own, lease, occupy, or have any right of control over the Amphitheater.
1. Duty Owed to Pooser
“The nonexistence of a duty ends the inquiry into whether negligence liability may be
imposed.” Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Cox Radio alleges mere
promotion of an event does not equate to a right to control the security at that event. See Triplex
Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex. 1995). Furthermore, a person or entity is
under no legal duty to control the conduct of others, Tex. Home Mgmt. Inc. v. Peavy, 89 S.W.3d
30, 34 (Tex. 2002), and there is no general duty to act reasonably toward others, see Rocha v.
Faltys, 69 S.W.3d 315, 320-21 (Tex. App.—Austin 2002, no pet.) (observing that the question of
how a reasonably prudent person would act under the same or similar circumstances “is the test
for determining when a duty has been breached, not the test for whether a duty exist”). In the
absence of evidence of a special relationship between Cox Radio and the Amphitheater, Cox
Radio had no obligation to control security at the concert. See Riley, 900 S.W.2d at 720.
2. Evidence Proffered in Support of Summary Judgment
Pooser contends that the evidence Cox Radio proffered in support of its traditional
summary judgment motion is conclusory, ambiguous, and the product of interested witnesses.
Accordingly, Pooser argues it cannot support a summary judgment for Cox Radio. “It is the
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general rule that the testimony of an interested witness, such as a party to the suit, though not
contradicted, does no more than raise a fact issue . . . .” Ragsdale v. Progressive Voters League,
801 S.W.2d 880, 882 (Tex. 1990) (per curiam). The exception, however, arises when the
testimony of an interested witness is not contradicted by any other witness. Id. When the
evidence is “clear, direct and positive, and free from contradiction, inaccuracies, and
circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.” Id.; see
also Trico Tech Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam) (“Summary
judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence
is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and
could have been readily controverted.”). This exception is particularly applicable “where the
opposing party has the means and opportunity of disproving the testimony, if it is not true, and
fails to do so.” Ragsdale, 801 S.W.2d at 882 (quoting Anchor Cas. Co. v. Bowers, 393 S.W.2d
168, 169-70 (Tex. 1965)). “‘Could have been readily controverted’ does not mean that the
summary judgment evidence could have been easily and conveniently rebutted, but rather
indicates that the testimony could have been effectively countered by opposing evidence.”
Trico, 949 S.W.2d at 310. In Trico, the Texas Supreme Court specifically concluded that the
testimony of a party’s employee could support a summary judgment. Id.
Here, the affidavit of Cox Radio’s marketing/promotions director provided that Cox
Radio lacked control over the Amphitheater, which was owned by Selma Amphitheater, L.L.C.
d/b/a Verizon Wireless Amphitheater. The affidavit provided clear, direct, and positive evidence
regarding the ownership of the premises where Pooser sustained her injury. Pooser could have
attempted to controvert this evidence, but chose not to do so. See Trico, 949 S.W.2d at 310.
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Cox Radio also tendered the affidavit of its vice president/station manager, with various
documents attached that reflected the contractual relationship between Cox Radio and the
Amphitheater. The documents establish the dates and times for on air broadcasting and a
schedule of promotional activities related to the Big F show. The station manager verified, and
the contract documents support, that Cox Radio, although entitled to engage in promotional
activity, had no control over the premises where the injury occurred. Pooser asserts that this
evidence was ambiguous and that the unsigned documents do not establish the relationship
between Cox Radio and the Amphitheater. The issue, however, is not whether the documents
created an enforceable contractual relationship between Cox Radio and the Amphitheater, but
whether they support the station manager’s clear testimony that Cox Radio’s sole involvement in
the Big F concert was to provide promotional advertising.
Pooser presented evidence that she learned about the concert from Cox Radio, that her
ticket said the concert was “present[ed] by” Cox Radio, and that her ticket clearly indicated she
would have a seat for the concert. She also proffered an affidavit from a security expert who
testified that standing room only seating at rock concerts is dangerous and that security at the Big
F Show was insufficient. This evidence, however, does not raise a fact issue as to whether Cox
Radio had a duty to Pooser based on the injury she sustained in the mosh pit. See Van Horn, 970
S.W.2d at 544 (holding that any breach of duty on the part of the doctor amounted to medical
negligence toward his patient, not a duty to the injured third party).
Because the summary judgment evidence negates the existence of a duty on Cox Radio’s
part, the trial court did not err in granting Cox Radio’s traditional summary judgment motion.
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C. No-Evidence Summary Judgment
Cox Radio’s no-evidence motion for summary judgment challenged both the negligence
and the breach of contract claims asserted by Pooser. Pooser asserts that the trial court erred in
granting this motion because she presented evidence raising fact issues as to each of these causes
of action. Pooser’s brief, however, does not contain an argument in support of her breach of
contract claim. Therefore, the no-evidence summary judgment as to that claim is affirmed. See
TEX. R. APP. P. 38.1(h).
As to Pooser’s negligence claim, she argues that the no-evidence summary judgment was
improper because it did not address her claims for negligent failure to perform a contract,
negligent failure to warn, and negligent misrepresentation, about all of which she presented
evidence raising a fact issue. However, because Pooser did not plead any of these causes of
action in her live pleading, we need not consider the merits of her arguments on these unasserted
claims. See Moore v. Moore, No. 04-00-00831-CV, 2001 WL 1360014, *4 n.1 (Tex. App.—San
Antonio Nov. 7, 2001, pet. denied) (not designated for publication).
Even assuming Pooser raised these claims, the trial court still properly granted Cox
Radio’s no-evidence summary judgment motion. Pooser’s claim of negligent failure to perform
a contract depends on the existence of a contract between Pooser and Cox Radio. Pooser argues
that the summary judgment evidence “suggests some type of contractual consumer relationship
between [her] and [Cox Radio].” We disagree. Pooser’s purchase of a ticket to a concert
promoted by Cox Radio does not, in itself, create a contractual relationship between Pooser and
Cox Radio. See Day v. Harkins & Munoz, 961 S.W.2d 278, 281 (Tex. App.—Houston [1st
Dist.] 1997, no writ) (plaintiff’s purchase of concert ticket did not give rise to contractual
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obligation on part of physician who had contracted with venue to be the on-call physician to
provide treatment to plaintiff).
Pooser also contends that Cox Radio had a duty to warn her that she did not have an
assigned seat and that standing room only seating is dangerous. There is no evidence of any
conduct by Cox Radio that would give rise to such a duty. See Riley, 900 S.W.2d at 720. While
a property owner has a duty to warn under certain circumstances, there is no evidence that Cox
Radio owned the Amphitheater or printed the show tickets. See Apolinar v. Thompson, 844
S.W.2d 262, 263-64 (Tex. App.—San Antonio 1992, writ denied) (citing examples of duty to
warn). Nor is there any evidence of prior conduct by Cox Radio that warrants imposition of a
duty to warn.
Finally, Pooser claims that she presented evidence raising a fact issue regarding a claim
for negligent misrepresentation. However, Pooser presented no evidence of any representation
by Cox Radio. In the absence of evidence that Cox Radio had any control over seating
arrangements for the event, the mere fact that Cox Radio is identified as a promoter of the event
on Pooser’s ticket does not mean that Cox Radio represented to Pooser that she has an assigned
seat. See Riley, 900 S.W.2d at 720.
We conclude that the trial court did not err in granting Cox Radio’s no-evidence
summary judgment motion.
MOTION FOR NEW TRIAL
Pooser asserts that the trial court committed reversible error in denying her motion for
new trial. She argues that she was entitled to a new trial because her counsel could not attend the
summary judgment hearing due to multiple scheduling conflicts and the trial court should not
have held the hearing in her absence.
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The standard of review for the trial court’s ruling on a motion for new trial is abuse of
discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Under an abuse of discretion
standard, the court of appeals cannot overrule the trial court’s decision unless the trial court acted
unreasonably or in an arbitrary manner, without reference to guiding rules or principles.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Moreover, the appellate court
cannot substitute its judgment for the trial court’s reasonable judgment, even if it would have
reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); Buller,
806 S.W.2d at 226.
Pooser describes the summary judgment hearing as “ex parte,” but this characterization is
misleading. Pooser, and her counsel, had notice of the hearing, filed a timely response, and
moved for a continuance of the hearing, but failed to set the motion for a hearing. Under these
circumstances, the trial court did not err in conducting the hearing on Cox Radio’s motions for
summary judgment in Pooser’s absence and did not abuse its discretion in denying Pooser’s
motion for new trial. See In re Am. Media Consol., 121 S.W.3d 70, 74 (Tex. App.—San Antonio
2003, orig. proceeding) (“Parties are not entitled to a hearing on a motion for summary
judgment.” (citations omitted)); Enslow v. Caballero, No. 04-06-00083-CV, 2006 WL 2871346,
at *2 (Tex. App.—San Antonio Oct. 11, 2006, no pet.) (mem. op.) (party timely filed defective
summary judgment responses but claimed not to know of defects; trial court did not abuse
discretion in denying motion for new trial).
CONCLUSION
The summary judgment evidence fails to raise a genuine issue of material fact with
regard to the existence of a duty on Cox Radio’s part and thus, the trial court did not err in
granting Cox Radio’s traditional summary judgment motion. Additionally, Pooser failed to
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present more than a scintilla of evidence that would allow reasonable minds to differ with regard
to the no-evidence summary judgment. Finally, because Pooser and her counsel had notice of
the hearing and failed to set the motion for continuance, the trial court did not abuse its discretion
in denying Pooser’s motion for new trial. Accordingly, we affirm the judgment of the trial court.
Rebecca Simmons, Justice
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