Affirmed and Memorandum Opinion filed November 24, 2015.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00556-CV

                        YVONNE VILLALON, Appellant
                                          V.
                         MARIA S. GALINDO, Appellee

                     On Appeal from the 281st District Court
                             Harris County, Texas
                       Trial Court Cause No. 2011-39836

                   MEMORANDUM OPINION
      The issues in this appeal stem from a negligence claim against a homeowner
in a slip-and-fall suit. On appeal, we analyze the legal sufficiency of the evidence
supporting the trial court’s take-nothing judgment following a bench trial and
address the plaintiff’s claims that the trial court erred in not making findings of fact
and conclusions of law and in denying the plaintiff’s motion for a new trial. We
affirm.
             I.            FACTUAL AND PROCEDURAL BACKGROUND

      Appellant/plaintiff Yvonne Villalon was leasing a house owned by
appellee/defendant Maria Galindo. Villalon slipped and fell down the stairs that
led to the front door of the home, sustaining injuries. Villalon filed suit against
Galindo asserting a negligence claim based on premises liability. Villalon also
pleaded a separate general-negligence claim.

      At a bench trial, Villalon testified that the stairs were dangerous and that
before her fall she had informed Galindo’s husband that the stairs were unsafe.
Villalon stated that her boyfriend, who was living with her in the leased house,
offered to help pay to fix the stairs. According to Villalon, Galindo’s husband
agreed to make the repair, but he did not do so before Villalon’s fall. Villalon
provided evidence that she incurred medical bills as a result of injuries she
sustained in the fall. Villalon testified that she experienced severe pain and
believed that she would always have back pain as a result of the fall. Galindo
testified that the stairs were not unreasonably dangerous and that, in any event, she
did not have notice that the stairs were unreasonably dangerous.

      The trial court signed a final judgment that Villalon take nothing on her
claims against Galindo. Villalon now challenges the judgment on appeal.

                               II.             ANALYSIS

      A. Sufficiency of the Evidence

      In her first issue, Villalon asserts that the trial court reversibly erred in ruling
against her premises-liability claim. Under this issue, Villalon states several times
that there was more than a scintilla of evidence supporting her claim.               This
argument, if true, might show that the trial court erred in granting summary
judgment, but the trial court did not grant summary judgment. See Sampson v.

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Ayala, No. 14-08-01002-CV, 2010 WL 1438932, at *5 (Tex. App.—Houston [14th
Dist.] Apr. 13, 2010, no pet.) (referring to party’s right to have fact finder
determine material fact issues) (mem. op.).               In the context of a take-nothing
judgment from the trial court following a bench trial at which the trial court was
the fact finder, the existence of more than a scintilla of evidence supporting
Villalon’s claim does not show any reversible error. See Merckling v. Curtis, 911
S.W.2d 759, 766–67 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

       Under her first issue, Villalon also asserts that the only evidence before the
trial court regarding her claim was the evidence she submitted in support of the
claim.1 Villalon also states that her evidence was “unrefuted.” We liberally
construe Villalon’s brief to include an argument that the trial evidence is legally
insufficient to support the trial court’s failure to find in Villalon’s favor as to her
negligence claim based on premises liability.

       In an appeal from a judgment rendered after a nonjury trial, we review the
trial court’s findings using the same standards of review applicable to a jury’s
verdict. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3
1
  To the extent Villalon’s appellate brief could be liberally construed to include an argument that
the trial court erred in allowing Galindo to testify at trial because Galindo did not timely respond
to Villalon’s discovery requests, Villalon failed to preserve error in the trial court as to this
complaint. Before trial, Villalon raised the issue of Galindo’s failure to respond to discovery.
The trial court confirmed that Galindo intended to present only her own testimony. Villalon
stated she had no objection to Galindo testifying since she is the named opposing party. At
times, Villalon objected to specific questions and the trial court “carried the objection” with the
examination. The record does not contain a ruling on any of these objections. As a prerequisite
to presenting a complaint for appellate review, a party generally must have timely and
sufficiently presented its complaint to the trial court and the trial court must have ruled on the
complaint, either expressly or implicitly, or refused to rule on the complaint and the complaining
party objected to the refusal. See Tex. R. App. P. 33.1(a); Gonzales v. Houston Indep. School
Dist., No. 14-14-00206-CV, 2015 WL 3424601, at *2 (Tex. App.—Houston [14th Dist.] May 28,
2015, no pet.) (mem. op.). To the extent Villalon is arguing that evidence presented by Galindo
should have been excluded, Villalon failed to preserve error in the trial court either by failing to
voice a complaint or by failing to obtain an adverse ruling from the trial court. See Dolcefino v.
Randoph, 19 S.W.3d 906, 925–26 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

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(Tex. 2009).
      When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not.
See id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair-minded people to make the findings at issue. See id. The
factfinder is the sole judge of witness credibility and the weight to give to
testimony. See id. at 819.
      To prevail on a negligence claim based on a premises-liability theory in
which Villalon is an invitee, Villalon had the burden of proving, among other
things, a condition on the premises that created an unreasonable risk of harm. See
Scott and White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412–13 (Tex. 2010).
Villalon testified that there was a hole in the porch and that the stairs were uneven,
angled downward, and slippery due to a glossy paint. The trial court admitted into
evidence exhibits tendered by Villalon that contained pictures of the stairs.
According to Villalon, she informed Galindo’s husband that the stairs were unsafe,
and Villalon’s boyfriend told Galindo’s husband that he would be willing to help
Galindo pay to fix the stairs. Villalon explained that Galindo’s husband said he
would fix the stairs, but he never did. Villalon testified that she slipped on the
stairs on a day when it was drizzling outside. The evidence submitted by Villalon
would support a finding that the stairs were a condition on the premises that
created an unreasonable risk of harm. See id.

      Though Villalon suggests in various parts of her brief that her evidence
regarding the condition of the stairs was uncontroverted, the record reflects that


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Galindo testified at trial regarding the condition of the stairs. Galindo testified that
the stairs were not unsafe, that they were not “sloping,” and that they were “rough”
rather than glossy. According to Galindo, she had been renting out this property
since 1989 and had not had any prior complaints from tenants about the safety of
the stairs. The evidence submitted by Galindo would support a finding that the
stairs did not create an unreasonable risk of harm. See id.

      The trial court, as fact finder, is the sole judge of witness credibility and the
weight to give to testimony. See City of Keller, 168 S.W.3d at 819. The trial court
could discredit Villalon’s evidence and credit Galindo’s testimony. See id. The
pictures of the stairs and Galindo’s testimony would enable reasonable and fair-
minded people to determine that the preponderance of the evidence does not
support a finding that a condition on the premises created an unreasonable risk of
harm. See id. at 823, 827. Considering the evidence in the light most favorable to
the challenged finding, indulging every reasonable inference that would support it,
crediting favorable evidence if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not, the trial evidence would
enable reasonable and fair-minded people to determine that the preponderance of
the evidence does not support a finding that a condition on the premises created an
unreasonable risk of harm. See id. Therefore, the evidence is legally sufficient to
support the trial court’s failure to find that that a condition on the premises created
an unreasonable risk of harm. See id.; White Oak Operating Co., LLC v. BLR
Const. Companies, LLC, 362 S.W.3d 725, 737–38 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (concluding evidence was legally sufficient to support
factfinder’s failure to find fraud); Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d
194, 200–01 (Tex. App.—Texarkana 2000, pet. denied) (concluding evidence was
legally sufficient to support factfinder’s failure to find that defendant was


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negligent); Merckling, 911 S.W.2d at 766–67 (concluding evidence was legally
sufficient to support factfinder’s failure to find that defendant was negligent).
      Having concluded that all of the arguments under Villalon’s first issue are
incorrect, we overrule that issue.

      B. Purported General-Negligence Claim

      In her second issue, Villalon asserts that the trial court reversibly erred by
impliedly ruling against her alleged general-negligence claim, which Villalon
asserts is independent of her negligence claim based on a premises-liability theory.
In her live petition, Villalon purported to assert a separate general-negligence
claim against Galindo. Villalon did not specifically allege a negligence claim
based on a negligent-activity theory. See Rodriguez v. Gulf Coast & Builders
Supply, Inc., No. 14-05-00930-CV, 2006 WL 3797722, at *1, *3 (Tex. App.—
Houston [14th Dist.] Dec. 28, 2006, no pet.) (mem. op.). At trial Villalon did not
assert a negligent-activity theory, nor did she introduce evidence that would
support such a theory. See id. On this record, the trial evidence did not provide a
basis for the trial court to properly render judgment in Villalon’s favor on a
general-negligence claim independent of her negligence claim based on a
premises-liability theory. See id. Therefore, the trial court did not err in failing to
render judgment in Villalon’s favor as to this claim. Accordingly, we overrule
Villalon’s second issue.

      C. Findings of Fact

      In her third issue, Villalon asserts that the trial court reversibly erred by
failing to issue findings of fact and conclusions of law. Months before trial, in
January 2014, Villalon filed proposed findings of fact and conclusions of law. The
trial took place on April 23, 2014, and the trial court signed a judgment the next
day. Villalon did not file a request for findings of fact and conclusions of law
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within twenty days of the trial court’s judgment. A month later, on May 23, 2014,
Villalon filed a notice of past due findings of fact and conclusions of law. The trial
court signed an order in which the court stated that the record contained no timely
request for findings of fact and conclusions of law. In its order, the trial court
stated that Villalon’s January 2014 proposed findings (filed before trial) did not
provide proper notice to the court.

      On appeal, Villalon asserts that, although the document in the clerk’s record
is entitled “proposed findings,” the substance of her proposed findings is a request
for findings of fact and conclusions of law. Galindo argues that the substance of
the document was not a request for the trial court to make findings of fact and
conclusions of law, but instead was a document filed to comply with the trial
court’s pre-trial requirement that each party file proposed findings before trial.

       Texas Rule of Civil Procedure 296, entitled “Requests for Findings of Fact
and Conclusions of Law,” provides:

      In any case tried in the district or county court without a jury, any
      party may request the trial court to state in writing its findings of fact
      and conclusions of law. Such request shall be entitled, “Request for
      Findings of Fact and Conclusions of Law” and shall be filed within
      twenty days after judgment is signed with the clerk of the court, who
      shall immediately call such request to the attention of the judge who
      tried the case. The party making the request shall serve it on all other
      parties in accordance with Rule 21a.
Tex. R. Civ. P. 296.

      Villalon filed proposed findings with the trial court months before trial and
none after trial. The proposed findings contain several blank spaces and do not
contain any request for the trial court to enter findings or take any action. These
proposed findings were not filed within twenty days after the judgment was signed.
The substance of the proposed-findings document is not a request for findings of

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fact and conclusions of law, and it did not put the trial court on notice that Villalon
was requesting the trial court to enter findings of fact and conclusions of law.
Because Villalon did not file a timely request for findings of fact and conclusions
of law, Villalon has waived this issue. See Evans v. Linares, No. 14-14-00468-CV,
2015 WL 1874232, at *3 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, pet.
filed) (mem. op.); In re J.B.H., No. 14-05-00745-CV, 2006 WL 2254130, at *2
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (mem. op.). Accordingly, we
overrule Villalon’s third issue.

      D. Denial of Motion for New Trial

      In her fourth issue, Villalon asserts that the trial court erred in denying her
motion for new trial because Galindo did not oppose the motion. Villalon argues
that there is “no legitimate reason why a trial judge would deny a new trial when
there is no written nor oral opposition to same.” Villalon also asserts that the
failure to file a response in opposition to a motion for new trial “can only be
construed as no opposition to same.”

      Villalon relies on Harris County Local Rule 3.3.2, which states that
“[f]ailure to file a response may be considered a representation of no opposition.”
Harris County Local Rule 3.3.2 (emphasis added). Villalon cites no case in which
a court holds that this local rule requires a court to treat a failure to file a response
as a representation of no opposition. Under the unambiguous language of this rule,
the trial court was not required to treat Galindo’s failure to file a response to the
motion for new trial as a representation of no opposition. See id. Villalon has not
cited and research has not revealed any authority under which the trial court would
be required to treat Galindo’s failure to respond as a representation of no
opposition. In this context, though it may be prudent to always file a response, a
party nonetheless may choose not to respond because the party deems the motion

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to be lacking in merit or because the party is trying to conserve resources.

         As movant, it was Villalon’s burden to show her entitlement to the relief she
sought in her motion for new trial. The trial court did not abuse its discretion in
denying Villalon’s motion for new trial. Therefore, we overrule Villalon’s fourth
issue.

                               III.            CONCLUSION

         The evidence is legally sufficient to support the trial court’s failure to find
that a condition on the premises created an unreasonable risk of harm. The trial
court did not err in failing to render judgment in Villalon’s favor as to a purported
general-negligence claim independent of her negligence claim based on a
premises-liability theory. Villalon’s challenge to the trial court’s failure to file
findings of fact and conclusions of law lacks merit because Villalon failed to
timely request findings of fact and conclusions of law. The trial court did not
abuse its discretion in denying Villalon’s motion for new trial. Having overruled
all of Villalon’s issues, we affirm the trial court’s judgment.




                                         /s/       Kem Thompson Frost
                                                   Chief Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.




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