                                                                          ACCEPTED
                                                                      13-15-00072-CV
                                                      THIRTEENTH COURT OF APPEALS
                                                             CORPUS CHRISTI, TEXAS
                                                                6/16/2015 11:18:38 AM
                                                               CECILE FOY GSANGER
                                                                               CLERK
                  NO.13-15-00072-CV


           IN THE COURT OF APPEALS       FILED IN
                                 13th COURT OF APPEALS
     THIRTEENTH COURTS OF APPEALS  DISTRICT
                              CORPUS  CHRISTI/EDINBURG, TEXAS
        CORPUS CHRISTI/EDINBURG,TEXAS
                                 6/16/2015 11:18:38 AM
                                          CECILE FOY GSANGER
                                                Clerk


                  JIMMIE DONNAN

                                   Appellant

                         1~~

HIMCO REALTY CORPORATION AND MAURICE REYNOLDS

                                   Appellees


                 APPELLEES' BRIEF


                        Respectfully submitted,

                        HUNTER*BARKER*FANCHER,LLP

                        F. Edward Barker
                        State Bar No.01741000
                        Floyd W.Brown,Jr.
                        State Bar No.00796254
                        555 N. Carancahua,Suite 1200
                        Corpus Christi, Texas 78401-0843
                        Telephone: 361-884-8777
                        Facsimile: 361-882-9437
                        ATTORNEYS FOR APPELLEES
                        HIMCO REALTY CORPORATION
                        AND MAURICE REYNOLDS
                           LIST OF PARTIES

Appellant
Jimmie Dorman

Appellant's Counsel
John J. Hopkins
State Bar No. 00796775
THE LAW OFFICES OF THOMAS J. HENRY
521 Starr Street
Corpus Christi, Texas 78401
Telephone: 361-986-0600
Facsimile: 361-985-0601

Appellees
KIMCO Realty Corporation and
Maurice Reynolds

Appellee's Trial Counsel

F. Edward Barker
State Bar No. 01741000
HUNTER*BARKER*FANCHER,LLP
555 N. Carancahua, Suite 1200
Corpus Christi, Texas 78401-0843
Telephone: 361-884-8777
Facsimile: 361-882-9437

Appellee's Appellate Counsel

Floyd W. Brown, Jr.
State Bar No. 00796254
HUNTER*BARKER*FANCHER,LLP
555 N. Carancahua, Suite 1200
Corpus Christi, Texas 78401-0843
Telephone: 361-884-8777
Facsimile: 361-882-9437



                                   ii
                            TABLE OF CONTENTS

List ofParties.................................. ................... ii

Index of Authorities................................................ iv

Statement of the Case............................................... v

Statement Concerning Oral Argument..................................vii

Issues Presented....................................................vii

Statement of Facts.................................................. 1

Summary of Argument...............................................2

Argument.........................................................4

     I.     Standard of Review....................................... 4

     II.    Reply Issue No. 1: The Trial Court ruled correctly in finding no-
            evidence of actual or constructive knowledge of a premises defect 4

            A. Appellant's misstatement ofthe Record .................... 4

            B. There is no evidence of actual or constructive knowledge of an
            alleged defect ........................................... 6

            C. Reliance on Cohen v. Land~y's Inc. is misplaced ............. 9

            D. Appellant waived argument by failing to raise issue at Trial Court
            ...................................................... 11

     III.   II. Reply to issue No. 2: Appellant has waived issue No. 2 by failing to
            briefthe issue before this Court .............................. 13

     IV.    Conclusion ............................................ 14
     V.     Prayer..................................................14


                                        iii
                         INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases

City ofHouston v. Clear Creek Basin Authority, 589 S.W.2d 671,678(Tex. 1979)
................................................................ 11

CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102(Tex. 2000) ............7,13,

Cohen v. Landry's Inc., 442 S.W.3d 818(Tex. App.-Houston[14th Dist.] 2014, pet.
denied) ..................................................... 9,10,11

Corbin v. Safeway Stores, 648 S.W.2d 292, 295 (Tex. 1983) ............. 7, 13

Del Largo Partners v. Smith, 307 S.W.3d 762, 767(Tex. 2010) ........... 6, 13

F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo
1941, writ refld w.o.m.)............................................. 7

H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259(Tex. 1992) ...... 13, 14

McDaniel v. ContinentalApartments.Ioint Venture,887 S.W.2d 167, 171(Tex. App.-
Dallas 1994, writ denied) ........................................... 14

Smith v. Tilton, 3 S.W.3d 77, 84(Tex. App.-Dallas 1999, no pet.) ......... 7,13

Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex. 2002) ............. 7

Wooldridge v. Gross National Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.-Waco
1980, no writ) ................................................... 12


Court Rules

Tex. R. Civ. P. 166a(c) ............................................. 11
Tex. R. Civ. P. 166a(i) ............................................. 4,6


                                      iv
                         STATEMENT OF THE CASE

      This is an appeal from a Summary Judgment granted on October 17, 2014 in

 Cause No. 2013-CCV-60590-2,Jimmie Dorman v. Kimco Realty Corporation ,et al,

by County Court at Law No. 2, Nueces County, Texas,the Honorable Lisa Gonzales

presiding.(CR 1325).Plaintiff/Appellant filed suit on April 2,2013 seeking personal

injury damages allegedly sustained from a fall that occurred on November 5, 2012.

(CR 12-19). Plaintiff/Appellant originally brought suit against KIMCO Realty

Corporation and Maurice Reynolds,the owner ofIsland Gate Plaza Shopping Center

and the property manager ofthe facility.(CR 12-19).Plaintiff/Appellant amended her

Petition to join Bed Bath &Beyond, Inc. and Elite Commercial Services, Inc. on

March 17, 2014 and April 14, 2014 respectively.(CR 267-275 and CR 316-324).

Plaintiff/Appellant asserted claims sounding in premises liability and negligence

against KIMCO Realty Corporation and Maurice Reynolds(CR 316-324).

      On February 21, 2014 Defendants/Appellees filed a Traditional Motion for

Summary Judgment relating to Plaintiff/Appellant's negligence related allegations.

(CR 228-253). On June 10,2014 Defendants/Appellees filed a No-Evidence Motion

for Summary Judgment relating toPlaintiff/Appellant's premises liability allegations.

(CR 355-367). Bed Bath &Beyond and Elite Commercial Services filed dispositive

motions on September 10,2014 and September 18,2014.(CR 542-774)respectively


                                         v
(CR 542-774; 781-801). Plaintiff/Appellant filed a Joint Response to all of the

Defendants' Motions for Summary Judgments relating to Plaintiff's negligence

claims on October 3, 2014.(CR 847-888). Plaintiff/Appellant also filed a Joint

Response to all of the Defendants' Motions for Summary Judgment relating to

Plaintiff's premises liability claims on October 3, 2014.(CR 889-1168).

      On October 16, 2014 and October 17, 2014 The Honorable Lisa Gonzalez

granted each Defendant's Traditional and No-Evidence Motions for Summary

Judgments.(CR 1317-1326). Appellant filed a Notice of Appeal solely as to her

claims against KIMCO Realty Corporation and Maurice Reynolds.(CR 2168-2169).

Appellant's appeal is limited to her premises liability claims against KIMCO Realty

Corporation and Maurice Reynolds.(Appellant's Brief pg. 5).




                                        vi
              STATEMENT CONCERNING ORAL ARGUMENT

         This is an appeal from a No-Evidence Summary Judgment granted in a

premises liability suit based upon no evidence of actual or constructive knowledge

ofthe alleged premises defect. Appellees contend oral argument is unnecessary in this

case. In the event this Honorable Court requests oral argument from Appellant,

Appellees would respectfully request the opportunity to participate in arguments and

be afforded the opportunity to respond to Appellant's argument.

                              ISSUES PRESENTED

Re~ly to Issue No. 1: The Trial Court ruled correctly in finding no evidence of actual

or constructive knowledge of a premises defect.

Re~ly to Issue No.2: Appellant waived Issue 2 by failing to briefthe issue before this

Court.




                                         vii
                          STATEMENT OF FACTS

      On November 5, 2012 Jimmie Donnan was walking on a sidewalk in front of

the Bed Bath &Beyond store located at the Island Gate Shopping Center in Corpus

Christi, Texas.(CR 13)Ms.Dorman alleges that she tripped on a plumbing drain cap

cap located in the sidewalk and sustained injuries as a result ofthe fall.(CR 13)Ms.

Dorman brought suit against Kimco Realty Corporation, the management company

for Island Gate Shopping Center and the property manager, Maurice Reynolds.(CR

12)Plaintiff later joined Elite Commercial Services, Inc. and Bed Bath &Beyond,

Inc. (CR 316) Plaintiff made allegations sounding in negligence and premises

liability.(CR 318-321)In Plaintiff's Petition she alleged "it is unclear whether the

unsafe condition was a condition that existed on the premises or had recently

arisen from some sort of activity."(emphasis added)(CR 318)

      On February 21,2014 Defendants,KIMCO Realty and Maurice Reynolds,filed

a Traditional Motion for Summary Judgment addressing Ms. Donnan's negligence

theories ofrecovery.(CR 228)On June 10, 2014 KIMCO Realty and Reynolds filed

a No-Evidence Motion for Summary Judgment addressing Plaintiff's premises

liability claims. On October 3,2014 Plaintifffiled separate Responses to Defendants'

Traditional and No-Evidence Motion for Summary Judgments.(CR 847, 889). On

October 17,2014 the Honorable Lisa Gonzales signed an Order granting Defendants'


                                         1
Traditional and No-Evidence Motions for Summary Judgment.(CR 1325)

      Plaintiff/Appellant has brought this appeal complaining of the Trial Court's

granting of Defendant/Appellees' No-Evidence Motion for Summary Judgment

relating to her premises liability claim.(Appellant's Brief pg. 5).

      The Trial Court properly granted Appellees' Motion for Summary Judgment

as there is no evidence that Defendants had actual or constructive knowledge of an

alleged premises defect. There was no evidence that Appellees had actual knowledge

of an alleged defect, as admitted by Appellant.(Appellant's Brief pg. 10)Similarly,

there is no temporal evidence establishing constructive knowledge of an alleged

defect.

                         SUMMARY OF ARGUMENT

      To prevail in a premises liability claim the claimant must present evidence that

the defendant had actual or constructive knowledge of an alleged defect in the

premises.In the absence ofevidence ofactual knowledge there must be evidence that

a defect existed for a period oftime sufficient to establish that the defendant should

have known of the defect. Without some temporal evidence, there is no basis upon

which a factfinder can reasonably assess the opportunity the premises owner had to

discover the condition and therefore constructive knowledge cannot be found.




                                          2
       Appellant, in Response to Appellees' No-Evidence Motion for Summary

Judgment, acknowledged that there was no evidence of actual knowledge on behalf

of Defendants, KIMCO Realty and Maurice Reynolds. (CR 895) Additionally,

Appellant failed to produce any evidence that KIMCO Realty or Maurice Reynolds

had constructive knowledge of an alleged defect. Appellant admitted that it was

unknown ifthe alleged defect had just occurred or had existed on the premises for a

period oftime.(CR 318)Summary Judgment was properly granted as to Appellant's

premises liability cause of action.

      Appellant did not raise a point issue error regarding to her negligence related

causes of action. Appellant did present an issue that the Appellees were negligent in

failing to provide safe ingress and egress onto the property.(Appellate's Brief page

6)Appellant failed to briefthis issue and therefore the issue is waived. Irrespective

ofthe waiver,the issue presented, as worded,relates to Appellate's premises liability

cause of action.




                                          3
                      ARGUMENTS AND AUTHORITIES

I.    STANDARD OF REVIEW

      In a No-Evidence Motion for Summary judgment the movant "must state the

elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). Ifthe movant has

identified specific elements he claims lack evidence, the Appellate Court must

determine de novo whether the non-movant has produced more than a scintilla of

probative evidence to raise a genuine issue of material fact. Clearview Props., L.P.

v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 137(Tex. App.-Houston[14th Dist.]

2009, pet. denied). If the non-movant fails to produce summary judgment evidence

that raises a genuine issue of material fact the trial court must grant the No-Evidence

Motion for Summary Judgment. Tex. R. Civ. P 166a(I).

II.   Re~ly Issue No. 1: The Trial Court ruled correctly in finding no-evidence
of actual or constructive knowledge of a premises defect.

      A. Appellant's misstatement of the Record

      Appellant has brought this appeal complaining of the granting of Appellees'

Motion for Summary Judgment relating to Appellant's premises liability claim.

(Appellant's Brief pg. 5) In support of her arguments Appellant alleges that

Appellees' Summary Judgment was based, in part, upon the affidavit of Maurice

Reynolds. (Appellant's Brief pg. 9). Appellant further alleges that the alleged
premises defect, a drain cap, was only accessible by Appellants.(Appellant's Brief

pg. 10)Appellees' arguments relating to these statements are incorrect and border on

contemptuous.

      Appellees filed a No-Evidence Motion for Summary Judgment relating to

Appellant's premises liability claim.(CR355-358). Appellees did not rely upon the

affidavit of Maurice Reynolds in support oftheir No-Evidence Motion for Summary

Judgment.(CR355-358)Appellees moved for summaryjudgment based upon the lack

of evidence of actual or constructive knowledge of a defect, an essential element to

Appellant's premises liability claim.(CR355-358). In doing so Appellees were not

required to rely upon any evidence pursuant to Tex. R. Civ. P. 166a(i). Appellant bore

the burden of producing evidence of actual or constructive knowledge.

      Additionally, Appellant is incorrect in misleading this Court by alleging that

the drain cap was only accessible by or through the acts of the Appellees.

(Appellant's Brief pg. 10) Appellant directs the Court to the testimony of Steve

Eshleman in support of this argument.(Appellant's Brief pg. 10) The testimony of

Mr. Eshleman in no way indicated that the drain cap was only accessible by

Appellees. In fact, the drain cap is open to the general public and can be manipulated

by any individual walking on the sidewalk.(CR1143-1146)These arguments should

be disregarded by this Court as the arguments are incorrect and unsupported by the


                                          5
Record in this matter.

      B. There is no evidence of actual or constructive knowledge of an alleged
      defect

      To prevail in a premises liability action the plaintiff must produce evidence

ofthe following elements:(1)the plaintiff was an invitee;(2)the defendant was the

possessor ofthe premises;(3)a condition on the premises posed an unreasonable risk

ofharm;(4)the defendant knew or reasonably should have known ofthe danger;(5)

that the defendant breached its duty ofordinary care by failing to adequately warn the

plaintiffofthe condition or failing to make the condition reasonably safe; and(6)the

defendant's breach proximately caused the plaintiff's injury. Del Largo Partners v.

Smith,307 S.W.3d 762,767(Tex.2010); Corbin v. Safeway Stores,648 S.W.2d 292,

295 (Tex. 1983).

      A defendant has actual knowledge of a premises defect if it actually knew of

the defect. Keetch v. The Kroger Co.,845 S.W.2d 262,265(Tex. 1992). Constructive

knowledge is based upon the defect existing long enough that the defendant should

have known of the defect. See, Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815

(Tex. 2002).The rule requiring proof that a dangerous condition existed for some

length oftime before a premises owner may be charged with constructive knowledge

is firmly rooted in Texas jurisprudence. Wal-Mart Stores, Inc. 81 S.W.3d at 815.



                                         .~
There is no rule oflaw that is better established in this state. F. W. Woolworth Co. v.

Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo 1941, writ refd w.o.m.).

      The so called time-notice rule is based on the premise that temporal evidence

best indicates whether the owner had a reasonable opportunity to discover and

remedy the a dangerous condition. CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102

(Tex. 2000).Without some temporal evidence, there is no basis upon which the

factfinder can reasonably assess the opportunity the premises owner had to discover

the dangerous condition. WalmartStores,Inc., 81 S.W.3d at 815. Before liability can

be imposed on the premises owner for failing to discover and rectify, or warn of,the

dangerous condition, there must be some proof as to how long the hazard was there.

Id.

      In the case at bar Appellant failed to provide any evidence of actual or

constructive knowledge. Appellant did not direct the Trial Court nor this Honorable

Court to any evidence, much less a scintilla ofevidence, ofactual knowledge.In fact,

Appellant states in her Brief"[t]here has been no evidence discovered that suggest

that any ofthe Appellees had actual knowledge so Appellant must show that they had

constructive knowledge of the defect."(Appellant's Brief pg. 10)




                                          7
       Despite this admission Appellant attempts to misdirectthis Court by suggesting

Appellees had actual knowledge as a result of their alleged exclusive access to the

drain cap. Appellant attempts to imply that Appellees"must have" actual knowledge

because Appellees had exclusive access to the drain cap and must have created the

defect. (Appellant's Brief pg. 10) As mentioned above, Appellant's argument is

unsupported as the drain cap was accessible to the general public.(CR 1143-1146)

There is no evidence that Appellees "must have" created the danger. Appellant's

argument is simply that- argument by counsel completely unsupported by the record

or the evidence. There is no evidence of actual knowledge.

      Likewise,there is no evidence ofconstructive knowledge ofthe alleged defect.

To establish constructive knowledge the Appellant is required to provide some

temporal evidence to establish that the premises owner had an opportunity to discover

the defect. Walma~tStores,Inc. v. Reece,81 S.W.3d at 815. Appellant acknowledges

the lack of temporal evidence in her pleadings wherein she states"it was unclear

whether the unsafe condition was a condition that existed on the premises or had

recently arisen." (CR 837) Appellant did not provide any evidence that would

establish the length of time the allege defect existed before the accident occurred.

Without such evidence there is no evidence of constructive knowledge. Walma~t

Stores, Inc., 81 S.W.3d at 815.
       Realizing the lack oftemporal evidence Appellant attempted to rely upon the

theory of yes ipsa loquito~ in an attempt to establish knowledge.(CR 840)Res Ipsa

does not satisfy a plaintiff's burden to supply evidence of a defendant's knowledge

of a dangerous condition in a premises liability action. Parks v. Steak & Ale ofTex.,

Inc.,2006 WL 66428 at *2-3(Tex. App.-Houston[1 st Dist.] 2006,pet. denied)Thus,

Appellant's attempt to rely upon yes ipsa loquitor to establish actual or constructive

knowledge is unfounded.

        C. Reliance on Cohen v. Landry's Inc. is misplaced

       Appellant relies upon Cohen v. Landry's Inc.' in support of her argument that

Appellees had actual or constructive knowledge of the alleged premises defect.

(Appellant's Brief pgs. 16-17) Appellant's reliance on Cohen is misplaced as the

Houston Court of Appeals found actual or constructive knowledge based upon

completely distinguishable facts.

      In Cohen, the Fourteenth Court of Appeals found that Defendant, Landry's

Inc., knew or should have known ofa slight elevation in the sidewalk caused by tree

roots growing underneath the sidewalk. Cohen v. Landry's Inc.,442 S.W.3d 826-27

The Court referred to an expert report included in the summary judgment evidence




      'Cohen v. Landry's Inc., 442 S.W.3d 818(Tex. App.-Houston[14th Dist.] 2014, pet.
denied)

                                            D
which noted that small changes in elevations ofsidewalks caused by tree roots occur

over a period oftime.Id. Thus,due to the fact that the defect is created over a `period

oftime" a reasonable inspection would have revealed the defect. Id.

      In a case such a Cohen, there is temporal evidence sufficient to establish

constructive knowledge. The summary judgment evidence established that the tree

roots take a period oftime to create the defect in the sidewalk. This period oftime is

sufficient to allow a factfinder to determine that the Defendant should have

discovered the defect.

      In the case at bar there is no summary judgment evidence that establishes that

the alleged defect, a raised drain cap,takes a period oftime to develop. Appellant's

Briefillustrates the lack ofevidence necessary to establish that the alleged defecttook

time to create. Appellant states the alleged defect must have been "created by

Appellees or, in the alternative, have occurred over a length of time".(Appellant's

Brief pg. 7) Appellant does not know because there is no evidence. Additionally,

Appellant's pleadings illustrate the lack oftemporal evidence necessary to establish

constructive knowledge. Appellant's Third Amended Petition stated "it is unclear

whether the unsafe condition was a condition that existed on the premises or had

recently arisen." (CR 837) The lack of temporal evidence in this case clearly

distinguishes Cohen case from the case at bar.


                                          10
       D. Appellant waived argument by failing to raise issue at Trial Court

       A party responding to a Motion for Summary Judgment must expressly present

to the trial court, by written answer or response, any issues defeating the movant's

entitlement to Summary Judgment. City ofHouston v. Clear Creek Basin Authority,

589 S.W.2d 671,678(Tex. 1979)(the written answer or response must fairly apprise

the movant and the court of the issues the non-movant contends should defeat the

motion)Issues not expressly presented to the trial court by written motion, answer or

response shall not be considered on appeal as grounds for reversal. See, Tex. R. Civ.

P. 166a(c). Summary Judgments must stand or fall on their own merits. Clear Creek,

589 S.W.2d at 678.

      In response to Appellees' No-Evidence Motion for Summary Judgment

Appellant filed over 265 pages of documents. (CR 901-1168) Included in her

summary judgment evidence Appellant filed the report of Gary Nelson, an eighteen

page single spaced report.(CR 1150-1167) Appellant did not direct the Trial Court

nor Appellees to any specific language or portion of the Nelson report, but rather

simply stated that the report illustrates Appellees' failure to "identify, evaluate and

control" premises defects. (CR 897) A failure to identify, evaluate and control

premises defects relate to a party's duty to inspect and warn of premises defects, an

element not attacked by Appellees.


                                          11
      For the first time on appeal Appellant directs the Court to specific language in

the Nelson report and argues that the language illustrates Appellees'failure to inspect

the premises.(Appellant's Brief pg. 16) Appellant failed to direct the trial court to

these arguments and failed to refer the trial court to the specific language in the

report. A trial court is not required to sift through a party's evidence in an attempt to

find a fact issue to defeat a Motion for Summary Judgment. Wooldridge v. Gross

NationalBank,603 S.W.2d 335,344(Tex. Civ. App.-Waco 1980,no writ)Appellant

has waived these arguments for failure to expressly present the arguments to the trial

court. Clear Creek, 589 S.W.2d at 678.

      Irrespective ofAppellant's waiver,the language referred to by Appellant does

not create a fact issue relating to actual or constructive knowledge. The Nelson report

criticizes Appellees for failing to inspect the premises. Failure to inspect is simply

one element of a premises liability claim. A claimant is still required to produce

evidence of actual or constructive knowledge. Del Largo Partners, 307 S.W.3d at

767; Corbin, 648 S.W.2d at 295. There still must be evidence that the condition did

occur for a sufficient length of time so that a reasonable inspection would have

revealed it. CMHHomes,Inc., 15 S.W.3d at 102-03 Appellant produced no temporal

evidence and therefore there is no evidence ofactual or constructive knowledge. The

Trial Court correctly granted Appellees'No-Evidence Motion for Summary Judgment


                                           12
relating to Appellant's premises liability claim.

III. Reply to issue No.2: Appellant has waived issue No.2 by failing to brief the
issue before this Court

        Appellant presented two issues to the Court, however failed to brief and argue

Issue No. 2.(Appellant's Briefpg.6)Appellant presented an issue stating "[t]he trial

court erred in ruling that Appellees were not negligent in their failure to provide a

safe ingress and egress to the Bed Bath &Beyond." (Appellant's Brief pg. 6)

Appellant failed to briefthis issue and provided no argument or authorities in support

of this issue. Appellant certainly did not make any argument that a "negligent

activity" was occurring at the time ofthe accident. More importantly, Appellant did

not provide any argument relating to this issue. Points oferror asserted on appeal but

not briefed are waived. Smith v. Tilton, 3 S.W.3d 77,84(Tex. App.-Dallas 1999, no

pet.)

        Pleading in the alternative, and only should this Court find that Appellant did

not waive Issue no. 2, Appellant's Issue No. 2 is an attempt to reword a premises

claim and make a claim of negligence. When the alleged injury is the result of a

premises condition the injured party can only recover under a premises defect theory.

H.E. Butt Grocery Co. v. Wainer, 845 S.W.2d 258,259(Tex. 1992)Phrasing ofthe

pleadings to encompass negligence theories does not affect application of premises



                                           13
liability law. McDaniel v. Continental Apartments Joint Venture, 887 S.W.2d 167,

171(Tex. App.-Dallas 1994, writ denied)

       As stated above,in the case at bar there was no evidence presented to the trial

court sufficient to establish actual or constructive knowledge on behalf of the

Appellees. The absence ofan essential element ofAppellant's premises liability claim

made Summary Judgment proper in this matter.

IV.    CONCLUSION

       Appellant failed to provide any evidence that Appellees had actual or

constructive knowledge ofan alleged premises defect. Temporal evidence is required

to establish constructive knowledge and Appellant did not direct the trial court or this

Court to any evidence of the length of time the alleged premises defect existed. As

such, the Trial Court was correct in granting Appellees' Motion for Summary

Judgment.

V.    PRAYER

       Wherefore,premises considered,Appellees respectfully request this Honorable

Court to Affirm the Judgment ofthe Trial Court. Additionally, Appellees pray for any

other relief they are entitled to at law or in equity.




                                           14
     Respectfully submitted,

          T   ~kBARKER~kFANCHER,LLP


     F. Edward Barker
     State Bar No. 01741000
     Floyd W. Brown, Jr.
     State Bar No.00796254
     555 N. Carancahua, Suite 1200
     Corpus Christi, Texas 78401-0843
     Telephone: 361-881-9217
     Facsimile: 361-882-9437
     ATTORNEYS FOR APPELLEE,
     Kimco Realty Corparation and
     Maurice Reynolds




15
     CERTIFICATE OF COMPLIANCE WITH WORD LIMITATIONS

      I certify that have reviewed the Appellee's Briefand have concluded that every

factual statement made herein is supported by competent evidence included in the

appendix or the record.

      Pursuant to the TEXAS RULE OF APPELLATE PROCEDURE 9.4(1)(3), I

hereby certify that the foregoing brief contains 3,456 words (excluding the caption,

table of contents, table of authorities, signature, proof of service, certification, and

certificate of compliance). This is a computer generated document created in Word

Perfect using 14 point typeface. In making this certificate ofcompliance,I am relying

on the word count provided by the software used to prepare this document.

                                                      ER*BA.RKE,~*FANCHER,LLP


                                               F. Edward Barker
                                               State Bar No. 01741000
                                               Floyd W. Brown, Jr.
                                               State Bar No. 00796254
                                               555 N. Carancahua, Suite 1200
                                               Corpus Christi, Texas 78401-0843
                                               Telephone: 361-881-9217
                                               Facsimile: 361-882-9437
                                               ATTORNEYS FOR APPELLEE,
                                               Kimco Realty Corporation and
                                               Maurice Reynolds




                                          16
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instruments
been forwarded to all counsel ofrecord in the manner indicated below on the ~'
                                                                             ~ day
of JUNE, 2015.

      Via E-Serve and Einail and Fax 361-985-0600
      Mr. John J. Hopkins
      The Law Offices of Thomas J. Henry
      521 Starr Street
      Corpus Christi, Texas 78401




                                     F. Edward Barker




                                       ]7
