Date: 09-30-2002

Case Style: Donna Mitchell and Timothy Mitchell v. Bank of America, et al.

Case Number: 05-00-01977-CV

Judge: David F.Farris

Court: Texas Court of Appeals, Fifth District

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description: In seven points of error, Donna and Timothy Mitchell (the Mitchells) contend the trial court erred in granting summary judgment in favor of Bank of America National Association (the Bank) because (1) there are issues of fact regarding whether the Bank breached its contractual or bailment obligations, was negligent, was liable under the theory of premises liability, or caused the Mitchells' loss; (2) the Mitchells were not allowed to complete discovery prior to the granting of the summary judgment; and (3) the granting of summary judgment deprived the Mitchells of their constitutional rights. In four points of error, the Mitchells challenge the trial court's granting of summary judgment in favor of WHKOD Real Estate Limited Partnership (WHKOD), arguing (1) the trial court did not allow the Mitchells to complete discovery; (2) there is an issue of fact regarding WHKOD's liability under a premises liability theory; and (3) the granting of summary judgment deprived the Mitchells of their constitutional rights.

We affirm the summary judgment in favor of WHKOD and the summary judgment in favor of the Bank on the Mitchells' negligence claims. We reverse the summary judgment in favor of the Bank on the Mitchells' premises liability, breach of contract, and breach of bailment claims and remand those claims to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The Mitchells rented a safety deposit box (the box) from the Bank at a location on Greenville Avenue in Dallas, Texas. Believing the rental on the box to be past due, the Bank drilled the box, removed and completed an inventory of the contents, and sent the contents to the Bank's vault in Oak Cliff, Texas for storage. When the Mitchells learned of the removal of their property from the box, they became upset and loudly discussed the value of the contents in the lobby of the Bank.

Approximately one week later, the Bank informed the Mitchells the contents of the box had been returned to the Greenville Avenue location. The Mitchells retrieved the contents the next day, placed the contents into a bag, and put the bag under the front seat of their automobile. Shortly after leaving the Bank, the Mitchells' vehicle had a flat tire. A stranger offered his assistance with changing the tire. While the Mitchells and the stranger were attempting to change the tire, the bag containing the contents of the safety deposit box was removed from the Mitchells' vehicle, allegedly by an associate of the stranger.

The Mitchells claim someone employed by or associated with the Bank learned of the contents of the box because the Bank failed to keep the contents of the box and the inventory of the contents secure. The Mitchells further contend an employee of WHKOD overheard their discussion about the contents of the box. One or more of these individuals, or a person associated with them, then decided to rob the Mitchells. The Mitchells allege a participant in the scheme let the air out of the Mitchells' tire at the Bank and followed them until the tire became flat. The Mitchells sued both the Bank and WHKOD. The trial court granted summary judgment for both defendants.

VIOLATION OF CONSTITUTIONAL RIGHTS

In their seventh point of error against the Bank and fourth point of error against WHKOD, the Mitchells contend the entry of summary judgment deprived the Mitchells to their right to (1) due course of law pursuant to article I, section 19 of the Texas Constitution; (2) equal protection of the laws pursuant to article I, section 3 of the Texas Constitution and the Fourteenth Amendment to the United States Constitution; and (3) due process of law pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. The Mitchells did not raise these issues in the trial court and, accordingly, have failed to preserve these complaints for our review. Tex. R. App. P. 33.1(a); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (appellant failed to raise constitutional argument in response to summary judgment motion and thus did not preserve it for appeal); Dryer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (appellant waived due process and equal protection challenges by failing to raise them in trial court). Point of error seven against the Bank and point of error four against WHKOD are overruled.

COMPLETION OF DISCOVERY

In their sixth issue against the Bank and first issue against WHKOD, the Mitchells contend the trial court erred in overruling the Mitchells' motions for continuances. See Footnote 4 We review the trial court's ruling on a pre-summary judgment motion for continuance for abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 45 Tex. Sup. Ct. J.1031, 2001 WL 1902793, at *2 (July 3, 2002).

Texas Rule of Civil Procedure 166a(g) permits the trial court to grant a continuance prior to ruling on a motion for summary judgment when the party opposing summary judgment presents affidavits asserting "he cannot for reasons stated present by affidavit facts essential to justify his opposition." Tex. R. Civ. P. 166a(g); see Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 328 (Tex. App.-Waco 2000, pet. denied). To support the requested continuances, the Mitchells were required to "file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d 640, 647 (Tex. 1996). The Mitchells' motion to continue the hearing on WHKOD's motion for summary judgment was neither verified nor supported by affidavit.

In response to the Bank's motion for summary judgment, the Mitchells filed a combined response to the motion for summary judgment and motion for continuance in which they claimed to need responses to their written discovery and the depositions of two employees of the Bank. Although this pleading was not verified, it was supported by the affidavit of Timothy Mitchell in which he stated the Mitchells had not had an adequate time to conduct discovery "because the motion for summary judgment was filed along with [the Bank's] original answer." The Mitchells received the requested discovery prior to the hearing on the Bank's motion for summary judgment. Although the Mitchells subsequently listed additional discovery they believed they needed in their reply to the Bank's response to the motion for continuance, the reply was neither verified nor supported by affidavits.

The Mitchells received all requested discovery that was supported by either a verified motion for continuance or by affidavit. Thus, the trial court did not abuse its discretion in denying the requested continuances. Point of error six against the Bank and point of error one against WHKOD are overruled.

MOTIONS FOR SUMMARY JUDGMENT

The Mitchells contend in their remaining issues the trial court erred in granting summary judgment in favor of the Bank and WHKOD.

Standard of Review

To obtain a traditional summary judgment, a defendant must conclusively prove all elements of the movant's cause of action or defense as a matter of law. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000). The burden does not shift to the plaintiff to present evidence creating a fact issue until the defendant produces evidence entitling it to a summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). We take all evidence favorable to the non-movant as true and indulge every reasonable inference in the non-movant's favor. KPMG Peat Marwick v. Harrison County Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

Premises Liability

A.

The Bank

In their fourth issue against the Bank, the Mitchells allege the trial court erred in granting summary judgment on the Mitchells' premises liability claims because there is an issue of fact regarding whether the Bank had actual or constructive knowledge of potential criminal activity on the premises and failed to protect the Mitchells against that foreseeable danger. The Bank moved for summary judgment on the grounds (1) the criminal conduct of the third person was not foreseeable and was a superseding and intervening cause and (2) the Bank's conduct was not the cause in fact of the injury. The Bank's relevant summary judgment evidence consisted of the receipt demonstrating the Mitchells received their property and the police report indicating the robbery did not occur on the Bank's premises.

Negligence in the context of premises liability means the "failure to use ordinary care to reduce or eliminate an unreasonable risk of harm caused by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about." Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). Although a premises occupier generally does not have the "obligation to prevent criminal acts of third parties who are not subject to the premises occupier's control," he "does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); see Cain, 972 S.W.2d at 756.

Because this was a traditional motion for summary judgment, the Bank had the burden of establishing the third party's conduct was not foreseeable as a matter of law. Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999). The Bank was required to prove more than that the intervening third party criminal conduct occurred. Id. It had the burden to prove the conduct was not foreseeable. Id. In order to establish the third party's conduct was not foreseeable as to the Mitchells' premises liability claim, the Bank was required to offer summary judgment of its lack of knowledge of recent, similar crimes on or near the premises. See Cain, 972 S.W.2d at 757. The Bank offered no summary judgment evidence establishing the crime was not foreseeable.

The Bank next contended its conduct was not the cause in fact of the injury. Cause in fact means the act or omission was a substantial factor in bringing about the injury and without it harm would not have occurred. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). The act or omission is not required to be the sole cause of the injury. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992). The Mitchells contend the Bank's failure to provide adequate security or surveillance of the parking lot in order to deter someone from letting the air out of their tire and following them from the Bank was a cause in fact of their injury. The Bank offered no summary judgment evidence to negate these allegations.

The Bank failed to carry its summary judgment burden to establish as a matter of law the third person's criminal conduct was not foreseeable or the Bank's failure to provide adequate security was not a cause in fact of the Mitchells' injury. Accordingly, the trial court erred in granting summary judgment in favor of the Bank on the Mitchells' premises liability claims. Point of error number four against the Bank is sustained.

B.

WHKOD

In its second and third issues against WHKOD, the Mitchells argue there are issues of fact regarding WHKOD's liability on the Mitchells' premises liability cause of action. WHKOD moved for summary judgment on the Mitchells' premises liability claim on the grounds it was not the cause in fact of appellants' injury and the third person's conduct was not foreseeable. In a premises liability case, a property owner only owes a duty to those who may be harmed by the criminal acts of a third party when the "risk of criminal conduct is so great that it is both unreasonable and foreseeable." Cain, 972 S.W.2d at 756. To establish a third party's criminal conduct was foreseeable, "the evidence must reveal 'specific previous crimes on or near the premises.'" Id. at 756 (quoting Walker, 924 S.W.2d at 377). We consider the proximity, similarity, recency, frequency, and publicity of previous criminal conduct in determining whether the general danger of a criminal act was foreseeable. Id. at 757.

WHKOD submitted summary judgment evidence that the crime did not occur on the premises and its property manager did not have knowledge of any crimes similar to the one at issue in the four and one-half years prior to the filing of the motion for summary judgment. The Mitchells offered summary judgment evidence that WHKOD was aware of a theft from a vehicle in the parking lot of the premises and a "domestic robbery" from an ATM on the premises within the six months prior to the robbery and that Donna Mitchell told a police officer that she believed the thief "may" have followed the Mitchells from the Bank. Although the Mitchells attempt to also rely on their own affidavits filed in response to WHKOD's motion for summary judgment to establish the robbery was foreseeable to WHKOD, the trial court granted WHKOD's objections to these affidavits and struck the substantive portions of the affidavits in their entirety.

The only evidence the crime commenced on the premises is Donna Mitchell's statement the thief may have followed them. Further, a theft from a parked car and a "domestic robbery" from an ATM are not similar to the elaborate scheme alleged by the Mitchells. See id. at 758 (previous crimes "must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger"); Todd v. Pin Oak Green, 75 S.W.3d 658, 661 (Tex. App.-Texarkana 2002, no pet.). In addition, the two crimes relied upon by the Mitchells did not occur with a frequency that would put WHKOD on notice that criminal conduct might occur. See Cain, 972 S.W.2d at 758. Accordingly, the Mitchells failed to raise an issue of material fact on whether the crime was foreseeable to WHKOD, and the trial court did not err in granting WHKOD's motion for summary judgment. We overrule points of error two and three against WHKOD.

Negligence

In their third and fifth points of error against the Bank, the Mitchells argue the trial court erred in granting summary judgment on the Mitchells' negligence claims because the Bank had a duty to act reasonably and to not expose the Mitchells' property to an unreasonable risk. The Mitchells' negligence cause of action is based on the Bank's actions in drilling the box, failing to contact the Mitchells prior to drilling the box, failing to keep the inventory list secure, and failing to produce the surveillance videotapes from the date of the robbery. The Bank moved for summary judgment on the Mitchells' negligence claims on the grounds its conduct was not the cause in fact of the injury and the loss was not foreseeable and offered summary judgment evidence that proved the Mitchells received the contents from the safety deposit box. The Mitchells responded with evidence that many people could have had access to the inventory list of the contents from the box and Timothy Mitchell's affidavit in which he testified he believed an employee of the Bank or an individual associated with an employee of the Bank was involved in the robbery.

To be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent; the negligence must also be a substantial factor in bringing about the plaintiff's harm. Allbritton, 898 S.W.2d at 775. The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable people to regard it as a cause. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991). At some point in the causal chain, a defendant's conduct is too remotely connected with the plaintiff's injury to constitute legal causation. Allbritton, 898 S.W.2d at 775.

Although the Mitchells claim the Bank's removal of the contents from the box and the mishandling of the inventory list caused the robbery, the summary judgment evidence failed to raise an issue of fact on cause in fact. Cause in fact cannot be established by Timothy Mitchell's conjecture, guess, and speculation that any unauthorized person saw the list or used the list to plan the robbery of the Mitchells. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Further, even if the Bank, as alleged by the Mitchells, improperly removed the contents of the safety deposit box and negligently handled the inventory list, that negligence would have done nothing more than create a condition that made the injury possible and would not constitute a cause in fact. Id.

The Mitchells failed to raise an issue of fact that the Bank's actions in removing the contents of the safety deposit box, failing to notify the Mitchells the box would be opened, and in creating and handling the inventory list of the contents was a cause in fact of the Mitchells' injury. See Footnote 5 The Mitchells' final claim, that the Bank's failure to produce the video surveillance tapes from the date of the robbery was a cause in fact of the injury, is also without merit. Conduct by the Bank that occurred after the robbery could not be a cause in fact of the injury. Points of error three and five against the Bank are overruled.

Breach of Contract and Bailment Agreement

In their first point of error against the Bank, the Mitchells contend material issues of fact preclude the granting of summary judgment on their breach of contract and breach of bailment causes of action. In their second point of error against the Bank, the Mitchells further argue the trial court erred in entering summary judgment on their bailment cause of action because the Bank failed to exercise reasonable care over the bailed goods.

A.

Breach of Contract

The Bank moved for summary judgment on the Mitchells' breach of contract claim on the grounds the lease for the box contained an exculpatory clause that expressly relieved the Bank of responsibility for the contents of the box. The clause relied upon by the Bank provided the Bank had "no possession or custody of, nor control over, the contents of the Box, and the Lessee assumes all risks in connection with the depositing of such contents therein." However, the lease also gave the Bank the right to remove the contents of the box if the rent on the box was not timely paid and to hold those contents subject to a lien for the unpaid rent and the costs to open the box.

The interpretation of a contract is a matter of law for the court. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The exculpatory clause only relieved the Bank from responsibility for the contents of the box so long as the contents remained in the box outside the Bank's possession, custody, and control. Once the Bank opened the box and exercised possession and control over the contents, the exculpatory clause would no longer apply. Because the existence of the exculpatory clause was the only grounds relied upon by the Bank in its motion for summary judgment, the trial court erred in granting summary judgment on the Mitchells' breach of contract claim. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002) ("A court cannot grant summary judgment on grounds that were not presented."). We express no opinion on whether the Bank breached its contract by opening the box or the Mitchells incurred any damages due to any breach.

We sustain point of error one against the Bank as it pertains to the Mitchells' breach of contract cause of action.

B.

Bailment

The Bank moved for summary judgment on the Mitchells' breach of bailment claim on the grounds the lease superseded any common law bailment claim. Generally, bailment relationships are governed by common law principles of negligence. Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 432 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). However, the parties to the bailment can abrogate the law of bailment through an express written agreement that clearly varies the liability imposed by the law. Id. To the extent the lease agreement clearly addressed the duties and liabilities of the Bank for the Mitchells' property, the lease agreement controls. Id.

To establish a bailment, there must be a delivery of personal property from one person to another for a specific purpose. Smith v. Radam, Inc., 51 S.W.3d 413, 417 (Tex. App.-Houston [1st Dist.] 2001, no pet.). The lease clearly provides that so long as the contents of the box remained in the box, there was no delivery of the property to the Bank. Accordingly, no bailment occurred due to the deposit of the Mitchells' property into the box.

However, the lease authorized the Bank to remove the contents of the box for the non- payment of rent. The lease thus contemplated a delivery of the property to the Bank under certain circumstances and did not change the duties imposed by law once the Bank exercised its right to take control of the property. The trial court thus erred in granting summary judgment for the Bank on the grounds the Mitchells' common law cause of action for breach of bailment was superseded by the written contract. We express no opinion on whether the Bank breached its bailment obligations or whether any damages resulted from any such breach.

Points of error one and two against the Bank are sustained.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: We affirm the trial court's entry of summary judgment in favor of WHKOD and in favor of the Bank on the Mitchells' negligence claims. We reverse the trial court's entry of summary judgment in favor of the Bank on the Mitchells' premises liability, breach of contract, and bailment claims and remand those claims to the trial court for further proceedings.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None