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Date: 10-12-2017

Case Style: Gloria Prada v. Sherlock's Addison, LLC and Texas Healthcare Neck & Backs Clinics, P.A.

Case Number: 05-17-00009-CV

Judge: Brown

Court: Texas Court of Appeals, Fifth District on appeal from the County Court at Law No.2, Dallas County

Plaintiff's Attorney: Steven L. Eason and Roger Fuller

Defendant's Attorney: Charles Edwin Waterbury for Texas Healthcare Neck & Back, P.C.

David Lee Harvey Payne and Jason Scofield for Sherlock's Addison, LLC

Description: Gloria Prada appeals the trial court’s take-nothing summary judgment on her premises liability and negligent activity claims against Sherlock’s Addison, LLC. In a single issue, Prada contends the trial court erred in granting summary judgment because fact issues exist. Because Prada’s response to Sherlock’s Addison’s no-evidence motion did not address all the challenged elements of either claim, we affirm.
Prada’s original petition alleged that she went to Sherlock’s Addison, a restaurant/pub, as a business invitee in September 2013. While in the women’s restroom, she fell suddenly face first onto the concrete floor and was injured. An employee was mopping the restroom floor at the time, and there were no warning signs about the wet floor. Prada alleged two theories of negligence, premises liability and negligent activity. See Occidental Chem. Corp. v. Jenkins,
478 S.W.3d 640, 644 (Tex. 2016) (explaining distinctions between ordinary negligence claim
and premises liability claim when person is injured on property of another).
Sherlock’s Addison filed a combined no-evidence and traditional motion for summary
judgment. In addition to traditional grounds for summary judgment, Sherlock’s Addison
asserted Prada had no evidence to support either her negligence claim or her premises liability
claim and specified the elements it challenged. Prada filed a response to the summary judgment
motion, to which she attached excerpts from three depositions. The trial court granted
Sherlock’s Addison’s motion for summary judgment without specifying the grounds and ordered
that Prada take nothing.1
In one issue, Prada contends the trial court erred in granting summary judgment because
there are fact issues. Sherlock’s Addison responds that we should affirm the summary judgment
because Prada did not provide evidence to raise a fact issue on all the elements challenged in the
no-evidence motion for summary judgment.
A party moving for a no-evidence summary judgment must assert that there is no
evidence of one or more of the essential elements on which the nonmovant would have the
burden of proof at trial. See TEX. R. APP. P. 166a(i); Pollard v. Hanschen, 315 S.W.3d 636, 638
(Tex. App.—Dallas 2010, no pet.). Once a proper motion is filed, the burden shifts to the
nonmovant to present evidence raising an issue of material fact as to the challenged elements.
Levine v. Unique Beverage Co., No. 05-11-01467-CV, 2013 WL 1281896, at *2 (Tex. App.—
Dallas March 19, 2013, pet. ref’d) (mem. op.). It is the nonmovant’s burden under rule 166a(i)
to identify evidence and explain why it demonstrates a fact issue exists. B.C. v. Steak N Shake
Operations, Inc., No. 05-14-00649-CV, 2017 WL 3725726, at *3 (Tex. App.—Dallas Aug. 30,
1 Texas Healthcare Neck & Back Clinics, P.A., intervened in the lawsuit. The clinic alleged Prada owed money for medical treatment and
sought recovery from Sherlock’s Addison. The clinic has not appealed the trial court’s take-nothing judgment against it.
2017, no pet. h.). A trial court must grant a no-evidence summary judgment motion if the nonmovant does not produce evidence raising a fact issue on a challenged element. Hoyt v. Kim, No. 05-16-00404-CV, 2017 WL 1550038, at *6 (Tex. App.—Dallas Apr. 28, 2017, no pet.) (mem. op.); see TEX. R. APP. P. 166a(i).
In its summary judgment motion, Sherlock’s Addison asserted Prada could not prove her negligence claim because she had no evidence of a duty owed, a breach of any duty, or damages. It further asserted Prada had no evidence that any act or omission of Sherlock’s Addison was the proximate cause of Prada’s injuries. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (setting out elements of negligence cause of action). Prada’s response to the motion for summary judgment does not mention her damages or the issue of causation. Prada did not meet her burden to identify evidence and explain why it demonstrates fact issues exist regarding those elements of her negligent activity claim.
In her appellate brief, Prada asserts she offered evidence of damages in the form of affidavits from her medical providers. She provides three references to the clerk’s record. These references are to (1) an ambulance bill, (2) a dental bill, and (3) a dental treatment plan. These documents were exhibits to a deposition presented by Sherlock’s Addison in support of its traditional summary judgment motion; the documents were not attached to or even mentioned in Prada’s response to the motion for summary judgment. At a minimum, Prada was required to identify in her response the portions of the movant’s evidence she is relying on to show a fact issue exists. See Steak N Shake, 2017 WL 3725726, at *3; Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858, at *3 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.). Further, Prada’s failure to identify any evidence of causation is alone reason to uphold the trial court’s summary judgment on her negligent activity claim.
Regarding Prada’s premises liability claim, Sherlock’s Addison asserted in its motion for summary judgment that Prada had no evidence (1) Sherlock’s Addison had actual or constructive knowledge of a defective or dangerous condition on the premises, (2) that the condition posed an actual risk of harm, (3) that Sherlock’s Addison failed to exercise reasonable care to reduce or eliminate the risk, or (4) that the failure to exercise reasonable care proximately caused Prada’s injuries. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (setting out elements of premises liability claim). Again, Prada’s response did not mention or identify any evidence of causation. Prada’s failure to identify and produce evidence of proximate cause means that summary judgment was proper on her premises liability claim as well. We conclude the trial court did not err in granting a no-evidence summary judgment for Sherlock’s Addison. We overrule Prada’s sole issue.

Outcome: We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:


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