                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00088-CV


TIMOTHY LIPPOLDT                                                      APPELLANT

                                         V.

SALLIE M. QUILLIAN,                                                     APPELLEE
INDIVIDUALLY AND AS TRUSTEE
OF THE ROZELL QUILLIAN 2009
FAMILY TRUST


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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                        TRIAL COURT NO. C2015069

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

       Appellant Timothy Lippoldt sued Appellee Sallie M. Quillian, individually

and as trustee of the Rozell Quillian 2009 Family Trust (the Trust), for injuries he

sustained while on property owned by her. The trial court granted summary

      1
          See Tex. R. App. P. 47.4.
judgment for Quillian on all of Lippoldt’s claims, and Lippoldt now appeals the

summary judgment as to his premises liability claim. In two issues, he argues

that genuine issues of fact exist regarding (1) whether the level of control

Quillian, as landlord, maintained over the portion of the premises on which he, an

invitee, was injured gave rise to a duty owed to him and (2) whether she, as a

landlord maintaining control over common areas, breached the duties of ordinary

care she owed him as an invitee who was injured as a result of a condition of the

common area. Because we hold that the summary judgment is proper, we affirm

the trial court’s judgment.

Background

      Lippoldt was injured when car jacks failed and allowed the sport utility

vehicle (SUV or Hummer) they had supported to collapse on top of him. The

incident left Lippoldt partially paralyzed. At the time of the incident, Lippoldt had

been assisting Ryan Gibson and the SUV’s owner in repairing the SUV. The

repairs were being made on property in Granbury, Texas, leased by Gibson from

Quillian. Quillian states that she is the owner of the property; she executed the

lease as trustee in the space provided for the landlord’s signature, under which

appears the typewritten name of the Trust. Lippoldt sued the owner of the SUV,

Gibson, and Quillian, individually and as trustee of the Trust. Only Lippoldt and

Quillian are parties to this appeal.

      Lippoldt alleged a premises liability claim against Quillian, asserting that an

alleged condition on the premises—namely, Quillian’s allowing Gibson “to store


                                         2
and utilize inadequate and/or defective car repair equipment on [the] premises”—

posed an inherent risk to him and others and was unreasonably dangerous.

Lippoldt alleged that Quillian “breached the duty of ordinary care by neither

adequately warning [him] of the condition nor making the condition reasonably

safe” and by

      [f]ailing to supervise [the] tenants to ensure the safety of
      licensees;[2] . . . [a]llowing improper and/or defective equipment on
      the premises; . . . [f]ailing to warn [Lippoldt] and others of the
      dangerous condition; and . . . [f]ailing to remedy or make safe the
      dangerous condition.
      Lippoldt also alleged that Quillian was negligent by failing to use “ordinary

care in maintaining the premises in a safe condition by inspecting the property for

any dangerous conditions and by making safe any latent defect or giving warning

of any defect.” He alleged that she had a legal duty to control or avoid increasing

the danger from a condition at least partially created by her failure to supervise

Gibson.

      Lippoldt further claimed that this conduct constituted negligence per se,

contending that Quillian had violated section 301.2 of the International Property

Maintenance Code, which he later stated had been adopted by Hood County.

      Lippoldt further alleged, as an “alternative to other counts,” a negligent

activity claim based on Gibson’s storage and use of the car jack and Quillian’s


      2
     Lippoldt claimed invitee status in his response to Quillian’s motion for
summary judgment and also does so in his brief on appeal.



                                        3
alleged control over the premises, authority to oversee the tenants’ activities, and

actual or constructive knowledge of the potential danger of Gibson’s negligent

activity.

       Finally, Lippoldt asserted a claim of gross negligence against Quillian.

       Quillian filed a combined no-evidence and traditional motion for summary

judgment. She asserted that Gibson began storing car jacks on the property

without her knowledge or consent and that, except for one room, she retained no

control over the barn. She also asserted that she had no knowledge that Gibson,

Lippoldt, and the SUV’s owner performed automobile repairs on the property.

       As no-evidence grounds, she asserted that there was no evidence that she

or the Trust owed or breached any duty to support a premises liability,

negligence, or negligence per se claim; owed any duty to support a negligent

activity claim; or had any actual, subjective awareness of an extreme risk

involved with any activities going on at the rented property to support a gross

negligence claim.

       As traditional grounds, Quillian asserted that the Trust was not the owner

of the property; that control of the premises had been transferred to Gibson as

the tenant and therefore neither she nor the Trust owed a duty to Lippoldt to

support a premises liability or negligence claim; that section 301.2 of the

International Property Maintenance Code, which Lippoldt relied on for his

negligence per se claim, imposed no duty outside the common law standard of

care; that neither she nor the Trust committed a negligent act; and that neither of


                                         4
them had an actual, subjective awareness of any risk to support a gross

negligence claim. As evidence, Quillian attached her own affidavit.

      Quillian stated in her affidavit that she owned the property leased to

Gibson. When she leased the property to him, she knew of no defects in or on

any part of the leased property.       She stated that she “transferred the entire

portion of the land to the control of Ryan Gibson, except for a large barn located

on the property.” After the lease was signed, she and Gibson agreed that he

would be allowed to store some items in the barn, but she “had [had] and still

ha[d] no knowledge of what items he stored in the barn.” She asserted that once

he began storing items in the barn, she retained no control over it except for a

room in the back in which her daughter stored some furniture. Quillian stated

that she was not aware that Lippoldt had been invited to the property, and she

did not consent to or instruct anyone to invite him there.

      Along with his summary judgment response, Lippoldt objected to factual

assertions made in Quillian’s motion and objected to her statements that the

written lease was modified orally as being in violation of the statute of frauds. He

attached as evidence his own affidavit, the affidavit of Gibson, and a copy of the

lease. The lease, which listed the Trust as the landlord, expressly did not include

the barn. The lease described the leased premises by address and as “4.850

acres SUBD” in Hood County. The lease stated that the tenant “may use the

Property as a private residence only” and that the “[t]enant may not permit any

part of the Property to be used for . . . the repair of any vehicle.”


                                           5
      In Lippoldt’s affidavit, he stated that he was unaware that Gibson stored

defective jacks in the barn and used them in automotive repair and that his lease

prohibited him from repairing vehicles on the property; that Gibson told him that

he usually dealt with Quillian’s daughter regarding his lease; that at one time

Quillian’s daughter saw them repairing a truck; that items were stored in the barn

that were not Gibson’s; and that a third party was allowed by Quillian to store his

tractor in the barn.

      Gibson stated in his affidavit that most of his dealings regarding the lease

were with Quillian’s daughters, that Quillian’s children periodically accessed the

entire barn and kept property stored there, that a third party was allowed by

Quillian to store his tractor there, and that Quillian’s daughter saw Gibson and

Lippoldt repairing a truck on the property.

      The trial court granted summary judgment for Quillian without specifying

the grounds. Lippoldt filed a motion for new trial that was denied by operation of

law. He then filed this appeal challenging the summary judgment only as to his

premises liability claim.

      Standard of Review

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s




                                         6
claim or defense.3 The motion must specifically state the elements for which

there is no evidence.4         The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact.5

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.6           We review a no-

evidence summary judgment for evidence that would enable reasonable and fair-

minded jurors to differ in their conclusions.7 We credit evidence favorable to the

nonmovant if reasonable jurors could, and we disregard evidence contrary to the

nonmovant unless reasonable jurors could not.8 If the nonmovant brings forward




      3
          Tex. R. Civ. P. 166a(i).
      4
          Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
      5
      See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
      6
          Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
      7
       Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005)).
      8
      Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006)).



                                           7
more than a scintilla of probative evidence that raises a genuine issue of material

fact, then a no-evidence summary judgment is not proper.9

      We review a traditional summary judgment de novo.10 We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not.11 We

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor.12 A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim.13

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i).14 If the appellant failed to produce more than a scintilla of evidence




      9
     Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).
      10
           Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      11
       Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      12
           20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      13
        Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert.
denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).
      14
           Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).



                                          8
under that burden, then there is no need to analyze whether the appellee’s

summary judgment proof satisfied the rule 166a(c) burden.15

Analysis

      In Lippoldt’s first issue, he asserts that the evidence demonstrates a

genuine issue of material fact regarding whether the level of control Quillian, as

landlord, maintained over the portion of the premises on which he, an invitee,

sustained serious physical injuries gave rise to a duty owed him by Quillian. In

his second issue, Lippoldt argues that the evidence demonstrates a genuine

issue of material fact regarding whether Quillian as landlord breached the duties

of ordinary care owed him, an invitee who suffered serious physical injuries as a

result of the condition of the common area of the leased property. In both issues,

Lippoldt presupposes that he was injured by a condition of the property.

      In her primary response, Quillian argues, as she did in her reply to

Lippoldt’s response to summary judgment and in the summary judgment hearing,

that Gibson’s use, condition, and storage of purportedly defective car jacks did

not give rise to a premises liability claim against her because the jacks were not

a condition of the premises. We agree.

      When a person is injured on another’s property, the injured person may

have either a negligent activity claim or a premises liability claim against the



      15
           Id.



                                         9
property owner.16 They are independent theories of recovery.17 The Supreme

Court of Texas and this court have recognized that a claim based on “negligent

activity      encompasses    a   malfeasance     theory   based    on   affirmative,

contemporaneous conduct by the owner that caused the injury, while [a]

premises liability [claim] encompasses a nonfeasance theory based on the

owner’s failure to take measures to make the property safe.”18          Whether a

specific case involves a negligent activity or a premises defect is an issue of

law.19

         In Williams, the plaintiff fell and landed on his back on one of many drill

pipe thread protectors left lying on the ground, and the court concluded that the




         16
       Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016);
see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (op. on reh’g).
         17
        See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.
1997); Billmeier v. Bridal Shows, Inc., No. 2-08-314-CV, 2009 WL 1176441, at *4
(Tex. App.—Fort Worth Apr. 30, 2009, no pet.) (mem. op.).
         18
        Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)
(footnotes omitted); Calhoun v. F. Hall Mowing Co., No. 02-09-00459-CV, 2011
WL 167231, at *5 (Tex. App.—Fort Worth Jan. 13, 2011, no pet.) (mem. op.).
         19
         Lopez v. Homebuilding Co., Inc., No. 01-04-00095-CV, 2005 WL
1606544, at *2 (Tex. App.—Houston [1st Dist.] July 7, 2005, no pet.) (mem. op.)
(relying on Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606–07 (Tex. 2002),
Coastal Marine Serv., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (op. on
reh’g), and Williams, 952 S.W.2d at 527); see also Sampson v. Univ. of Tex. at
Austin, No. 14-0745, 2016 WL 3212996, at *2 (Tex. June 10, 2016) (“Whether a
claim is based on a premises defect is a legal question.”).



                                          10
case involved a premises defect, not a negligent activity.20 In Sampson, the

plaintiff tripped on an extension cord lying across a “pedestrian walkway.”21 The

supreme court held that the claim was a premises defect claim and focused on

the fact that the cord was not being put “into action or service at the time of the

injury.”22 Instead, the static cord hanging over the concrete with a gap between

the cord and the ground created a tripping hazard, a dangerous condition, on the

campus.23 On the other hand, when a dirt hauler moved dirt with his tractor while

people were working in a construction area, and the tractor’s box blade crushed

a worker’s finger, that injury was caused by a negligent activity, not a condition of

the premises.24

      Lippoldt did not fall on or trip over Gibson’s jacks. Instead, according to his

own amended petition, the jacks were being used when they gave way, and the

SUV fell on him. Thus, we conclude as a matter of law that this is a negligent

activity case, not a premises liability case.25     On appeal, Lippoldt does not


      20
           Williams, 952 S.W.2d at 526, 527.
      21
           Sampson, 2016 WL 3212996, at *1.
      22
           Id. at *5.
      23
           Id.
      24
           See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985).
      25
       See id.; Rodriguez v. Gulf Coast & Builders Supply, Inc., No. 14-05-
00930-CV, 2006 WL 3797722, at *1, *4 (Tex. App.—Houston [14th Dist.] Dec.
28, 2006, no pet.) (mem. op.) (determining roommate who was underneath


                                          11
challenge the summary judgment on his negligent activity claim or any other

claim other than his premises liability claim. We therefore hold that the trial court

correctly granted summary judgment for Quillian on the grounds that there was

no evidence that she (or the Trust) owed or breached any duty to support a

premises liability claim. Accordingly, we overrule Lippoldt’s two issues.

Conclusion

      Having overruled Lippoldt’s two issues, we affirm the trial court’s judgment.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DELIVERED: December 22, 2016




independent contractor’s truck on company lot replacing axle parts when jack
collapsed and truck’s chassis pinned him to ground, seriously injuring him, had a
negligent activity claim, not a premises liability claim).



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