AFFIRM; and Opinion Filed July 31, 2018.




                                                                     In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                         No. 05-18-00427-CV

                                         LISA LEE, Appellant
                                                V.
                               GLOBAL GAMING LSP, LLC D/B/A LONE STAR
                                  PARK AT GRAND PRAIRIE, Appellee1

                                   On Appeal from the 68th Judicial District Court
                                               Dallas County, Texas
                                        Trial Court Cause No. DC-14-01943

                                           MEMORANDUM OPINION2
                                     Before Justices Francis, Fillmore, and Whitehill
                                              Opinion by Justice Fillmore

           Lisa Lee sued Global Gaming LSP, LLC d/b/a Lone Star Park at Grand Prairie (Global

Gaming), claiming she was injured when she fell on a poorly illuminated step while an invitee at

Lone Star Park. Lee appeals the trial court’s grant of Global Gaming’s motion for no-evidence

summary judgment, asserting in two issues that she produced more than a scintilla of evidence


     1
        In her amended notice of appeal, Lee named Global Gaming LSP and Lone Star Park at Grand Prairie Texas as appellees. Lee originally
sued Global Gaming LSP and served it with citation. In Lee’s first amended petition, the only named defendant was Lone Star Park at Grand
Prairie. Although citation was issued for Lone Star Park at Grand Prairie, the record does not contain a return of service. Lee, in her second
amended petition, changed the named defendant in the style to “Global Gaming,” but indicated in the body of the pleading that the defendant was
“Lone Star Park.” Global Gaming LSP, LLC d/b/a Lone Star Park at Grand Prairie filed an answer, stating it was originally sued as Global Gaming
LSP and subsequently sued as Lone Star Park at Grand Prairie. Based on this record, we conclude the only appellee in this appeal is Global Gaming
LSP, LLC d/b/a Lone Star Park at Grand Prairie.
      2
        By order dated March 24, 2015 in Misc. Docket No. 15-9054, the Texas Supreme Court, pursuant to its docket equalization authority,
directed this Court to transfer the first twenty-one cases filed after March 2, 2015, to the Eighth District Court of Appeals at El Paso. This appeal
was filed on March 3, 2015, and was one of the twenty-one cases this Court transferred to the Eighth District Court of Appeals. By order dated
April 12, 2018, in Misc. Docket No. 18-9055, the Texas Supreme Court directed the Eighth District Court of Appeals to transfer this appeal back
to this Court. The Eighth District Court of Appeals issued an order dated April 17, 2018, transferring this appeal back to this Court. Upon our
receipt of the record of this case from the Eighth District Court of Appeals, we expedited resolution of the appeal.
creating a genuine issue of material fact on each challenged element of her “cause of action.” For

the reasons that follow, we affirm.

                                      Procedural Background

       Lee’s original petition was filed by trial counsel on February 25, 2014. In that petition,

Lee alleged that on or about March 3, 2012, she fell on a poorly illuminated step on the premises

of Lone Star Park and sustained a serious and permanent injury to her right knee. She alleged that

immediately after her fall, a Lone Star Park employee told her that “everybody falls there.” Lee

claimed that Global Gaming and its agents, servants, and employees negligently permitted a

dangerous condition on the property to persist and negligently or willfully failed to warn her of the

dangerous condition. Lee sought to recover damages for past and future medical expenses,

physical pain and suffering, mental anguish, physical impairment, lost wages, and disfigurement.

       One day after trial counsel filed Lee’s original petition, Lee filed a motion for substitution

of counsel, seeking to represent herself in the litigation pro se. By order dated March 5, 2014, the

trial court granted Lee’s motion for substitution of counsel. Over the course of the next year, Lee

filed four amended original petitions and a “motion to recover for personal injury damages

suffered.”

        Lee’s “Second Amended Plaintiff’s Original Petition,” filed on February 11, 2015, was

actually her fourth amended petition and the live pleading at the time the trial court granted

summary judgment. Construed liberally, that amended petition stated claims based on Global

Gaming negligently permitting a dangerous condition on the property to persist and failing to warn

Lee of the dangerous condition. Lee asserted she was damaged in an amount “within the

jurisdictional limits” of the trial court and incurred special damages consisting of unspecified past

and future lost wages.




                                                –2–
            On January 28, 2015, Global Gaming filed a motion for no-evidence summary judgment

on Lee’s negligence claim on grounds there was no evidence of a legal duty owed to Lee, a breach

of any legal duty owed to Lee, or that any breach proximately caused Lee’s fall and any resulting

injury. To the extent Lee also asserted a premises liability claim, Global Gaming sought summary

judgment on grounds there was no evidence: (1) of a hidden danger on the premises presenting an

unreasonable risk of harm and of which it failed to warn Lee or failed to correct; (2) Lee’s fall was

reasonably foreseeable; or (3) any failure to correct, or warn Lee of, a hidden danger on the

premises proximately caused Lee’s fall and any resulting injury.

            Lee responded to the motion for no-evidence summary judgment on January 29, 2015, by

filing an “Affidavit of Evidence” with attached photographs that she claims depict Global

Gaming’s venue and her knee injury and disfigurement.3 In her affidavit, Lee attested that she is

“the custodian of the records of photography” and the copies of photographs attached to the

affidavit “are the original or exact duplicates of the original,” which are “kept by [Lee] in the

regular course of business.” Several days later, on February 2, 2015, Lee filed a “First Amended

Affidavit of Evidence.” The amended affidavit was substantively identical to the first affidavit,

but Lee attached to the amended affidavit additional photographs she claims depict Global

Gaming’s venue and her knee injury and disfigurement.

            On February 9, 2015, Lee filed “Plaintiff’s First Amended Response For No-Evidence

Summary Judgment.”4 Lee’s unverified response asserted, among other things, that “[p]laintiff

allegation on the incident that happened on March 3, 2012 on the premises are trues [sic] and

correct,” “the plaintiff produces summary judgment of evidence to the court,” and “Global Gaming



      3
        Also on January 29, 2015, Lee filed a “Motion of Non-Evidence Summary Judgement” complaining that Global Gaming had no evidence
“about the damages caused by the fall.” On March 2, 2015, Global Gaming filed a verified objection and motion to set aside Lee’s “Motion of
Non-Evidence Summary Judgement” on the ground it was untimely filed in contradiction to the trial court’s uniform scheduling order. The trial
court did not rule on Lee’s “Motion of Non-Evidence Summary Judgement.”
     4
         The record indicates this was Lee’s first response to the motion for no-evidence summary judgment.

                                                                      –3–
LSP has not explained why the area where the fall occurred (step, floor, lighting, and seating)

reconstructed from original form. No response from defendant during discovery period, which

creates a genuine issue of material fact in support of the challenged element, the court must grant

the motion.” Finally, Lee requested in the response a “no evidence summary judgment on

defendant No-evidence (Motion)” because the defendant “has not produced proof of burden to

show the evidence on the grounds of not being negligence [sic]” and “has not produce [sic]

evidence of summary judgement (motion) to produce proof of any or all proof that the defendant

premises presented unreasonable risk of harm.”

        In a February 25, 2015 verified “motion to recover for personal injury damages suffered,”

Lee claimed an entitlement to damages for past and future medical expenses, physical pain and

mental anguish, loss of earning capacity, physical impairment, and disfigurement. In the verified

motion, Lee asserted she had incurred $82,222.52 in medical expenses and sought “general

damages” in the amount of $600,000.

        Global Gaming replied to Lee’s responses to its motion for no-evidence summary

judgment, objecting that Lee failed to serve the summary judgment evidence on Global Gaming

as required by the rules of civil procedure and the photographs referenced by Lee “in and of

themselves” were not relevant. Global Gaming argued Lee had presented: (1) no evidence of a

negligent act by Global Gaming or its agents in support of her negligence cause of action; (2) no

evidence in support of a premises liability claim that her fall was reasonably foreseeable; and (3)

no “admissible evidence in proper form” in support of a premises liability claim that there was any

failure of the part of Global Gaming to correct or warn Lee of a hidden danger on its premises

presenting an unreasonable risk of harm and that proximately caused Lee’s fall and alleged

injuries.




                                               –4–
        On March 2, 2015, the day before the hearing on Global Gaming’s motion for no-evidence

summary judgment, Lee filed an “Objection to Defendant Summary Judgment, Verified Responses

to Defendant’s No-Evidence Summary Judgment and First Supplemental Responses.” In this

verified response, Lee asserted, among other things, that the “record does not show any defense

made by the defendant,” she had “brought forth evidence that will show the court of the negligence

of the defendant,” and “all the information and evidence presented as fact supports the premises

liability.”

        The trial court granted Global Gaming’s motion for no-evidence summary judgment

without specifying the bases for its ruling and without explicitly ruling on Global Gaming’s

objections to Lee’s summary judgment evidence. Lee filed a motion and an amended motion for

new trial, which was denied by the trial court in a written order. This appeal followed.

                                      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 there is no evidence to support

an essential element of the nonmovant’s claim or defense. TEX. R. CIV. P. 166a(i). The motion

must specifically state the elements of the claim or defense for which there is no

evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must

grant the motion unless the nonmovant produces evidence that raises a genuine issue of material

fact. See TEX. R. CIV. P. 116a(i) & cmt.—1997; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.

2008) (per curiam).

        We review the rendition of a no-evidence summary judgment de novo. Starwood Mgmt.,

LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). In conducting our review, we apply

the same legal sufficiency standards used to review a directed verdict. Gish, 286 S.W.3d at 310.

We consider the evidence in the light most favorable to the nonmovant, indulging every reasonable

                                               –5–
inference and resolving any doubts against the motion. Smith v. O’Donnell, 288 S.W.3d 417, 424

(Tex. 2009); Gish, 286 S.W.3d at 310. We credit evidence favorable to the nonmovant if a

reasonable factfinder could, and disregard contrary evidence and inferences unless a reasonable

factfinder could not. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

       To defeat a no-evidence summary judgment, the nonmovant is required to produce

evidence that raises a genuine issue of material fact on each challenged element of a claim. TEX.

R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. “A genuine issue of material fact exists if the evidence

‘rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.’” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220

(Tex. 2017) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

Evidence that is “‘so weak as to do no more than create a mere surmise or suspicion’ that the fact

exists” does not create an issue of material fact. Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d

865, 875 (Tex. 2014)). If the nonmovant brings forward more than a scintilla of probative evidence

that raises a genuine issue of material fact on each of the challenged elements, then a no-evidence

summary judgment is not proper. Boerjan v. Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014) (per

curiam).

                                             Analysis

       In two issues, Lee contends the trial court erred in granting Global Gaming’s motion for

no-evidence summary judgment because “more than enough” evidence exists to establish the

“poorly lit stair posed an unreasonable risk of harm” and there is “sufficient evidence” of a genuine

issue of material fact on each element of her “cause of action.”

                                    Negligence Cause of Action

       To the extent Lee asserted a general negligence claim, she has not challenged on appeal

the trial court’s grant of summary judgment on that claim. A “person injured on another’s property

                                                –6–
may have either a negligence claim or a premises-liability claim against the property owner.”

United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017). Negligence and premises

liability claims are based on independent theories of recovery and are not interchangeable. Id.

When, as in this case, the alleged injury is the result of the property’s condition, rather than an

activity, premises-liability principles apply. Id. For these reasons, we analyze Lee’s issues on

appeal only in the context of her premises liability claim.

                                                 Premises Liability Cause of Action

          In response to Global Gaming’s motion for no-evidence summary judgment, Lee filed an

original and amended Affidavit of Evidence, a Motion of Non-Evidence Summary Judgment,5 and

a First Amended Response for No-Evidence Summary Judgment. A summary judgment response

itself is not evidence. See Ellis v. Renaissance on Turtle Creek Condo Ass’n, Inc., 426 S.W.3d

843, 855 (Tex. App.—Dallas 2014, pet. denied) (“[Nonmovant]’s argument in his summary

judgment response does not constitute evidence and therefore cannot raise a fact issue.”). To the

extent Lee has produced evidence in support of her premises liability cause of action, it is contained

within or attached to her original and amended affidavits.

          In her affidavit, Lee attested that she is “the custodian of the records of photography” and

the copies of photographs attached to the affidavit “are the original or exact duplicates of the

original,” which are “kept by [Lee] in the regular course of business. Attached to the affidavit are

copies of photographs that Lee claims depict Global Gaming’s venue and her knee injury and

disfigurement. Lee’s amended affidavit was substantively identical to the first affidavit, but Lee

attached to the amended affidavit additional photographs that she claims depict Global Gaming’s

venue and her knee injury and disfigurement.



     5
       While it is unclear whether Lee intended her “Motion of Non-Evidence Summary Judgment” to constitute a response to Global Gaming’s
motion for no-evidence summary judgment, we will treat her motion as a response.

                                                                 –7–
       Global Gaming objected to Lee’s summary judgment evidence, contending that none of

attachments to Lee’s affidavits were served on Global Gaming and the photographs were not

relevant. On appeal, Global Gaming argues the photographs relied on by Lee are not relevant, and

were not sufficient to defeat the motion for no-evidence summary judgment, because Lee’s

affidavits do not satisfy the requirements of a business records affidavit under rule of civil

procedure 902(1) and failed to authenticate the attached photographs. Global Gaming did not raise

these objections to Lee’s summary judgment evidence in the trial court.

       The admissibility of evidence in a summary-judgment proceeding is subject to the error

preservation requirements of rule of appellate procedure 33.1(a). See Seim v. Allstate Tex. Lloyds,

No. 17-0488, 2018 WL 3189568, at *2 (Tex. June 29, 2018) (per curiam). To preserve a complaint

for appellate review, a party generally must raise the issue in the trial court through a timely

request, objection, or motion and the trial court must rule or refuse to rule on the issue. TEX. R.

APP. P. 33.1(a). The supreme court has specifically noted that, if a summary judgment affidavit

suffers from a defect in form, “that flaw must be objected to and ruled upon by the trial court for

error to be preserved.” Seim, 2018 WL 3189568 at *4. However, if a summary judgment affidavit

presents a “substantive defect,” the party may complain about the defect for the first time on appeal

and is not subject to the general rules of error preservation. Id.

       A complete absence of authenticating evidence is a defect in substance. Blanche v. First

Nationwide Mortg. Corp. 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.). However, a

complaint that evidence was not properly authenticated is a defect of form. In re B.N.L.-B., 375

S.W.3d 557, 566 (Tex. App.—Dallas 2012, no pet.). We need not decide whether Lee’s affidavits

completely failed to authenticate the photographs, rather than improperly authenticated them,

because even if we consider the photographs, Lee failed to raise a genuine issue of material fact




                                                 –8–
on all elements of her claim challenged in Global Gaming’s motion for no-evidence summary

judgment.

       The elements of a premises liability claim brought by an invitee are: (1) actual or

constructive knowledge of a condition on the premises; (2) unreasonable risk of harm posed by

the condition; (3) failure to exercise reasonable care to reduce or eliminate the risk; and (4) injuries

proximately caused by the failure to exercise reasonable care. See CMH Homes, Inc. v. Daenen, 15

S.W.3d 97, 99–100 (Tex. 2000) (invitee premises liability); Gordon v. Interstate Hotels & Resorts,

Inc., 250 S.W.3d 196, 199 (Tex. App.—Dallas 2008, no pet.). Lee asserts generally on appeal that

she presented sufficient evidence to create a genuine issue of material fact on every element of her

premises liability claim. Her brief, however, contains no argument explaining how her summary

judgment evidence creates a genuine issue of material fact on any element of her premises liability

claim. The summary judgment evidence produced by Lee consists solely of copies of photographs

she claims depict Global Gaming’s venue and her knee injury and disfigurement. This evidence

does not establish: (1) Lee fell on Global Gaming’s premises; (2) the condition of the premises at

the time Lee allegedly fell; (3) Global Gaming had actual or constructive knowledge of a condition

on the premises that posed an unreasonable risk of harm; (4) Global Gaming failed to exercise

reasonable care to reduce or eliminate the risk or warn Lee of the condition; or (5) Lee’s alleged

injuries were proximately caused by the failure of Global Gaming to exercise reasonable care.

Accordingly, Lee has failed to produce more than a scintilla of probative evidence in support of

the challenged elements of her premises liability claim. See CMH Homes, Inc., 15 S.W.3d at 99–

100; Gordon, 250 S.W.3d at 199.




                                                  –9–
      We resolve Lee’s two appellate issues against her and affirm the trial court’s judgment.




                                                /Robert M. Fillmore/
                                                ROBERT M. FILLMORE
                                                JUSTICE




180427F.P05




                                             –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 LISA LEE, Appellant                                   On Appeal from the 68th Judicial District
                                                       Court, Dallas County, Texas,
 No. 05-18-00427-CV          V.                        Trial Court Cause No. DC-14-01943.
                                                       Opinion delivered by Justice Fillmore,
 GLOBAL GAMING LSP, LLC D/B/A                          Justices Francis and Whitehill participating.
 LONE STAR PARK AT GRAND
 PRAIRIE, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee Global Gaming LSP, LLC d/b/a Lone Star Park at Grand
Prairie recover its costs of this appeal from appellant Lisa Lee.


Judgment entered this 31st day of July, 2018.




                                                –11–
