                                                                                     ACCEPTED
                                                                                 03-15-00243-CV
                                                                                         6200252
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                            7/23/2015 3:24:05 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                      NO. 03—l5—00243—CV
                                                                 FILED IN
                             IN THE
                                                          3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                     COURT OF APPEALS                     7/23/2015 3:24:05 PM
                 THIRD DISTRICT OF TEXAS                    JEFFREY D. KYLE
                                                                  Clerk

                  AUSTIN, TEXAS DIVISION


                         KRISTIN LEE
                            Appellant

                                V.


K & N MANAGEMENT, INC. D/B/A RUDY’S COUNTRY STORE AND
                            BAR—B—Q
                            Appellee


         On Appeal from the 98”‘ Judicial District Court,
                      Travis County, Texas


                     BRIEF OF APPELLEE

                                     ETHAN F. GOODWIN
                                     State Bar No.2   24064492
                                     e-mail:
                                     ethan.goodwin@farmersinsurance.com

                                     CLARK, TREVINO & ASSOCIATES
                                     1701 Directors Boulevard, Suite 920
                                     Austin, Texas 78744
                                     Telephone: (512) 445-1580
                                     Telecopier: (512) 383-0503

                                     ATTORNEY FOR APPELLEE
                                          TABLE OF CONTENTS

INDEX OF AUTHORITIES                        ....................................................................................             ..   i




STATEMENT OF THE CASE                           ...............................................................................             ..    2

ISSUES PRESENTED ............................................................................................ 2                             ..




        Whether the         court erred by granting summary judgment on
                              trial
        grounds that the plant growth was not dangerous when Rudy’s showed
        that it was not, when Appellant failed to respond, and when the Final
        Summary Judgment does not state the grounds on which it was granted?

        Whether there is some basis upon which a fact ﬁnder can assess Rudy’s
        opportunity to discover the plant growth when Appellant failed to                                               show
        how long it was present prior to Appellant’s fall?
STATEIVHENT OF FACTS ......................................................................................                                 ..    3


SUMMARY OF THE ARGUIVIENT                                ......................................................................             ..    4

ARGUMENT AND AUTHORITIES                                  .....................................................................             ..    5


        The       court did not err in granting summary judgment because
               trial
        Appellee showed the plant growth at issue was not dangerous and
        Appellant failed to address the challenged essential element.

        There      is   no basis upon which a             can assess Rudy’s
                                                                     fact finder
        opportunity to discover the plant growth because Appellant failed to
        show how long it was present prior to Appellant’s fall.

CONCLUSION              ...............................................................   .;   .........   .........................   ..    10

PRAYER        ...............................................................................................................          ..    10

CERTIFICATE or COMPLIANCE ....................................................................                                         ..    11

CERTIFICATE OF SERVICE ..............................................................................                                  ..    ll
                                             INDEX OF AUTHORITIES
Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989)                                   .......................................................          ..   5


City ofHousz‘on            V.    Clear Creek Basin Auth, 589 S.W.2d 671 (Tex. 1979)                                        ........... ..           9

Dolceﬁno        v.   Randolph, 19 S.W.3d 906 (Tex. App. ~ Houston                                      [14‘h    Dist]
2000, pet. denied)               ....................................................................................................          ..   6

Dow Chem.            Co.    v.   Francis, 46 S.W.3d 237 (Tex. 2001)                          ........................................          ..   5


Frost Nat’! Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) ................................                                                     ..   5


Keetch    v.   Kroger, 845 S.W.2d 262 (Tex. 1992) .................................................. ..                                   6,        7

King Ranch,          Inc.    v.    Chapman, 118 S.W.3d 742 (Tex. 2003)                               ................................ ..            6

Merriman        v.   XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013)                                      ...............................         ..   6

Saenz v. Southern Un. Gas Co., 999 S.W.2d 490 (Tex. App. — E1Paso 1999,
pet. denied)         ..............................................................................................................            ..   6

Wal-Mart Stores,                Inc.   V.   Gonzalez, 968 S.W.2d 934 (Tex.1998)                            .......................   ..   7,        9

Wal—Mart Stores,                Inc. V. Reece, 81           S.W.3d 812 (Tex. 2002) ..........................                 ..   6, 7, 8


Wal-Mart Stores,                Inc.   v.   Spares, 186        S.W.3d 566, 567 (Tex. 2006)                      ......................         ..   7

Wong v.        Tenet Hosps. Ltd., 181 S.W.3d 532 (Tex. App.                                   — E1 Paso 2005, no pet.)                         ..   5


STATUTES AND RULES:
TEX. R. Crv.P. 166a(i) .............................................................................................                           ..   9

TEX. R. APP. P. 9.4(i)(2)(B) ...................................................................................                          ..    11
                                  NO. 03—15—00243-CV


                                         IN THE
                                 COURT OF APPEALS
                          THIRD DISTRICT OF TEXAS
                            AUSTIN, TEXAS DIVISION


                                      KRISTIN LEE
                                        Appellant

                                             V.


  K & N MANAGEMENT, INC. D/B/A RUDY’S COUNTRY STORE AND
                                        BAR—B—Q
                                         Appellee


               On Appeal from the 98"‘ Judicial District Court,
                                  Travis County, Texas


                                 BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS:
      K & N Management, Inc. d/b/a Rudy’s Country Store and Bar—B-Q (“Rudy’s”
or “Appellee”) respectfully asks the Appellate Court to affirm the Final       Summary

Judgment of the   trial court,   that Appellant Kristin   Lee take nothing on her claims,

and respectfully shows the following:
                                 STATEMENT OF THE CASE:
         Appellant brought this suit to recover personal injury damages.                     CR.        5   —   6.


Appellant sued Rudy’s on premises                    liability   and negligent     activity theories            of

recovery after she allegedly slipped and              fell   on some plant growth on a walkway on

Rudy’s premises. C.R. 4 —             5.   Appellee, after an adequate time for discovery, ﬁled

its   First   Amended    Traditional and           No-Evidence Motion        for   Summary Judgment

(“Rudy’s Motion”) on            all   of Appellant’s claims. C.R. 57          ~    110.    Judge Rhonda

Hurley, on April    8,   2015, granted both motions in favor ofAppe11ee by                   letter ruling.


C.R. 187. The Final       Summary Judgment was entered on April                     10, 2015.     CR.       188

—     190. This appeal followed.            C.R. 191    ~    198. Appellant’s only issue         on appeal

concerns Rudy’s constructive knowledge of the plant growth on her premises

liability claim.   See Appellant’s Brief.

                                       ISSUES PRESENTED:

1.       Whether the trial court erred by granting summary judgment on grounds                              that


the plant growth     was not dangerous when Rudy’s showed                      that   it   was   not,   when

Appellant failed to respond, and             when    the Final   Summary Judgment does not state

the grounds     on which   it   was granted?

11.      Whether there     is    some      basis    upon which a     fact   ﬁnder can assess Rudy’s

opportunity to discover the plant growth               when Appellant failed to show how long it

was present prior to Appellant’s            fall?
                                  STATEMENT OF FACTS:
       Appellant, after admittedly consuming alcohol at Chuy’s during a four hour

dinner,   went to Rudy’s   “to get chocolate       pudding” with her mother, Mary Lee, and

brother. C.R. 57,   69 — 70, 84 — 86. Mary Lee drove, Appellant’s brother occupied

the passenger seat next to        Mary   Lee, and Appellant sat in the rear passenger seat

behind her brother. C.R. 57 — 5 8, 71 — 72, 79 — 80.            When they arrived at Rudy’s,

Mary Lee    did not park in a designated parking space; instead, she pulled up next to

a Walkway to let Appellant out. C.R. 58, 71, 80. Appellant was Wearing rubber ﬂip-

ﬂops when she got out of the            car,   “took a couple of steps and then was on the

ground.” C.R. 58, 72   — 73,      82.


       Appellant could not recall What caused her to            fall.   C.R. 58, 72, 78, 83, 87          ~

88.   Appellant, however,     Was       able to recall opening the door of the car, looking

Where she was going to     step    on the Walkway, and seeing           that   it   was   clear of plants.


C.R. 58, 80   — 81. Appellant      felt that    she could see clearly Where she             was stepping

and what she was stepping on. C.R. 58,             82. Appellant, despite the             aforementioned

recollections,   was not   sure    why    she   fell.   C.R. 58, 83, 87        —    88.   After she   fell,


Appellant got back into the car without inspecting the scene to determine what,                          if


anything, caused her to    fall   and Went home before going to the hospital. C.R. 58, 72

— 74, 76 — 77.
          Appellant’s mother did not see where Plaintiff stepped or what caused her to

fall.   C.R. 58, 92 — 93. She did not investigate the scene immediately after Appellant

fell.    C.R. 58, 93. Plaintiff’ s mother contends that Justin House, a family friend and

Rudy’s employee            at that time, told her   son the following day that Plaintiff stepped

onto some groundcover that protruded onto the walkway and caused her to                               fall.   C.R.

58, 92    ~ 93. Before that, Appellant’s mother “literally thought she just tripped over

her     own two    feet.” C.R. 58,     92 — 93.

          Justin   House     testified that the area     where Appellant         fell   was   “well-lit”      and

that if    someone was stepping out of a               car,   they’d easily be able to see what, if

anything,     was on the sidewalk. C.R.             5 8, 99.    He   did not dot see anything on the

sidewalk that concerned him that Appellant might                     fall   prior to her actually falling.

C.R. 58     — 59,   100.    While Justin House did not actually see what Appellant stepped

on    that caused her to fall or actually         go   to that area after the fall,        he   testified that


there    was some      plant growth on the sidewalk after she               fell in   “one spot.” C.R. 59,

100 ~l04, 108         ~   109.

                                 SUMMARY OF THE ARGUMENT:
I.        The plant growth was not dangerous              as a matter of law. Appellant conceded


the issue    by    failing to    respond and present any evidence otherwise.

H.        Rudy’s cannot be charged with constructive knowledge because Appellant

failed to    show how long the plant growth existed prior to Appellant’s                      fall.
                               ARGUMENT AND AUTHORITIES:
1.         The       court did not err in granting summary judgment because
                   trial
           Appellee showed the plant growth at issue was not dangerous and
           Appellant failed to address the challenged essential element.

           The Final Summary Judgment in this case does not state the grounds on which

it   was    granted.        C.R. 188    ~    190.       “Where the    trial        court has granted              summary

judgment Without            stating the     grounds for doing so       .   .   .   We must consider all grounds

for judgment presented in the                motion and affirm        if   any has meri               .”   Wong   1/.   Tenet

Hosps. Ltd., 181 S.W.3d 532, 536 (Tex. App. —El Paso 2005, no pet.). The appellate

court may, in other words, affirm the                     summary judgment on any one meritorious

ground alleged.            Dow Chem.        Co.   v.   Francis, 46 S.W.3d 237, 242 (Tex. 2001); Carr

v.   Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

           Rudy’s showed         in   its   traditional        summary judgment motion                      that the plant


growth      at issue       was not dangerous           as a matter of law.               C.R. 60       —   61, 108      —   109.


Rudy’s, in other words, disproved the facts of one of the essential elements of

Appellant’s premises liability claim.                   Ia’.   “A defendant who conclusively negates at

least   one of the essential elements of a cause of action                           .   .   .   is entitled to   summary

judgmen       .”    Frost Nat’l Bank          v.    Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

Appellant did not contest Rudy’s entitlement to traditional summary judgment in her

Response. C.R. 111 ~ 117. Therefore, the trial court did not err by granting Rudy’s

traditional      summary judgment motion.
        Rudy’s, in     its   no-evidence summary judgment motion, also contended there

was no evidence        that   any condition on          its   premises posed an unreasonable risk of

harm to Appellant. C.R.          62. Appellant failed to address the no~evidence challenge


in her Response. C.R. 111             —   117. TEX. R. CIV. P. 166a(i), consequently, required


the   trial   court to grant Rudy’s no—evidence                  summary judgment motion because

Appellant failed to produce any summary judgment evidence that raised a genuine

issue of material fact.         Dolceﬁno         v.   Randolph, 19 S.W.3d 906, 917 (Tex. App. —

Houston       [14th Dist.   2000, pet. denied); Saenz           v.   Southern Un. Gas Co., 999 S.W.2d

490, 493 (Tex. App.          — El Paso    1999, pet. denied).          An appellate court must affirm a
no-evidence summary judgment                 if   the records        shows there   is   no evidence on the

challenged element. Merriman                V.   XTO Energy,          Inc.,   407 S.W.3d 244, 248 (Tex.

2013);_Kz'ng Ranch, Inc.        v.   Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The record

is clear;     Appellant presented no evidence on the challenged element.                         CR.   111     —

117. Therefore, the trial court did not err in granting                   Rudy’s no—evidence summary

judgment motion.

2.       There is no basis upon which a fact finder can assess Rudy’s opportunity
         to discover the plant growth because Appellant failed to show how long
         it   was present prior to Appel1ant’s fall.

         Appellant must prove that the plant growth that she claims caused her to                            fall


existed for so long that Appellants               had a reasonable opportunity           to discover   it.   See

Wal—marz‘ Stores       v.   Reece, 81 S.W.3d 812, 814 (Tex. 2002); Keetch                   V.   Kroger      C0,,
845 S.W.2d 262, 265 (Tex. 1992). In other words, there must be some evidence of

how long the plant growth existed prior to Appellant’s fall in order to charge Rudy’s

with constructive knowledge. Reece, 81 S.W.3d                         at 816.   “Without some temporal

evidence, there         is   no basis upon which the           fact   ﬁnder can reasonably assess the

opportunity the premises owner had to discover the dangerous condition.” Reece,

81 S.W.3d        at   816; see also Wal-Mart Stores, Inc.              v.   Spares, 186   S.W.3d 566, 567

(Tex. 2006)(evidence that employee                       was   in close proximity to spill legally


insufficient to support a         ﬁnding of constructive notice without evidence of how or

when    it   came     to be   on the   floor).    Otherwise, “constructive knowledge” would be

imputed on a landowner the instant a dangerous condition is created, whether or not

there   was a reasonable opportunity to discover it. Reece, 81 S.W.3d                       at   815.

        “When circumstantial evidence is relied upon to prove constructive notice the

evidence must establish that            it is    more   likely than not that the dangerous condition


existed long      enough      to give the proprietor a reasonable opportunity to discover the


condition.” Wal—Marz‘ Stores, Inc.                v.   Gonzalez, 968 S.W.2d 936, 936 (Tex. 1998).

Circumstantial evidence from which “equally plausible but opposite inferences                              may

be drawn”        is   speculative and, thus, legally insufficient to support a ﬁnding of

constructive knowledge. Id.              The Texas Supreme Court in Reece also reiterated that

a court      may not “refus[e] to apply the             ‘time—notice rule’ simply because         it   might be
impossible for the Plaintiff to                    show   actual or constructive knowledge.” Reece, 81


S.W.3d        at 816.


             There   is   no evidence of how long the plant growth existed before Appellant

fell.    C.R. 61 — 62, 72, 78, 83, 87                 ~ 88. Appellant could not recall what caused her

to   fall.    C.R. 58, 72, 78, 83, 87 ~88. Appellant was not sure                         why     she   fell.   C.R. 58,

83, 87       — 88. Appellant did not inspect the                     scene after she    fell to   determine what,       if


anything, caused her to               fall.       C.R. 58, 72       — 74, 76 — 77.    Appellant, thus, could not

describe the alleged defect or attribute any characteristic to                             it   that   would    indicate


that    it   had been there long enough                that    it   should have been discovered. C.R. 61                —

62, 72, 78, 83, 87            ~ 88.

             Appellant’s mbther, likewise, did not see where Appellant stepped or What

caused her to         fall.   C.R. 58, 92 ~ 93. Appellant’s mother, just like Appellant, did not

investigate the scene immediately after Appellant                             fell.    CR.      58, 93.   Appellant’s

mother        “literally   thought that she just tripped over her                 own two feet.” CR.            58,   92 —

93. Appel1ant’s mother’s testimony, just like Appellant’s testimony, failed to                                     show

how long the plant growth existed prior to Appellant’s fall.                              C.R. 58, 92      — 93.

             Justin House, Appellant’s family friend and                              Rudy’s former employee,

testiﬁed that prior to Appellant’s                    fall,   he did not see anything on the sidewalk that

concerned him.                C.R. 58         ~    59, 100, 182.         Justin   House did not           actually see

Appellant’s feet hit an obstacle that caused her to                          fall.    C.R. 100. After Appellant
fell,    Justin   House claimed he saw a plant            that   he estimated to be ten inches in

diameter from twenty-ﬁve feet away while on the patio inside Rudy’s. C.R. 100                        —

101, 183.         However, Justin House never actually went             to the area   where Appellant

fell    to investigate   what caused her to     fall.   C.R. 101, 183. Justin House’s testimony,

similarly, failed to       show how long         the plant growth that he concluded caused

Plaintiffs     fall existed.


          In order to prevail   on appeal, Appellant must have clearly presented summary

judgment proof to         establish a fact issue. TEX. R. CIV. P. 166a; City            of Houston   v.



Clear Creek Basin Auth, 589 S.W.2d 671, 678 (Tex. 1979). Appellant failed to

sustain her burden of proof because her            summary judgment evidence does not show

when the plant growth came to be on the walkway or how long it was present before

Appellant slipped. C.R. 111            —   117. Appellant argues that constructive          knowledge

should be imputed to Rudy’s because plants grow slowly implying that Rudy’s

should have discovered          it   because “the hazard     at issue   must   logically   have existed

for a considerable time before [Appellant] fell.” See Appellant’s Brief. Appel1ant’s


argument       is   ﬂawed and    legally insufficient to impute constructive            knowledge on

Rudy’s because there are numerous other plausible                  alternative explanations for the


creation of the condition at issue. Gonzalez, 968                S.W.2d 93 6, 936 (Tex. 1998). As

such, Appellant failed to meet her burden and prove the plant growth at issue existed
for so long that   it   should have been discovered through the exercise of reasonable

care.


                                       CONCLUSION:
        Appellant failed to prove the plant growth at issue was dangerous. Appellant,

additionally, failed to prove       Rudy’s constructive knowledge of the alleged plant

growth that she claims caused her          to slip   and   fall.    Therefore, the appellate court

shouldiafﬁrm the Final         Summary Judgment in Appellee’s               favor because Appellant

failed to   meet her burden.

                                           PRAYER:
        WHEREFORE, PREMISES CONSIDERED,                             Rudy’s respectfully asks the

Court to affirm the Final Summary Judgment of the                   trial   court that Appellant take

nothing on her claim against Rudy’s, and for all other relief to which Rudy’s                may be

justly entitled, at   law or   in equity, including costs.

                                              Respectfully submitted,

                                              CLARK, TREVINO & ASSOCIATES
                                              1701 Directors Boulevard, Suite 920
                                              Austin, Texas 78744
                                              Telephone:           5l2 445-1580
                                              Telecopierz          512 383~0503

                                              Bf/”55&wC%/van?/WC
                                                 Ethan F. Goodwirf
                                                 State Bar No. 24064492
                                                 Email address:
                                                 efhan. g00dwin((Dfarmers ins urance. com

                                              ATTORNEY FOR APPELLEE
                                CERTIFICATE OF COMPLIANCE
        I   certify   by   my
                      signature above that I have reviewed Brief of Appellee and
have concluded that every factual statement in it is supported by the Clerk’s Record
and that the number of words in this document, as allowed by TEX. R. APP. P.
9.4(i)(2)(B), is 2,761.

                                 CERTIFICATE OF SERVICE

        hereby certify by my signature above that a true and correct copy of the
        I

document has been delivered by certified mail, return receipt requested, and or
facsimile and or e—mail to the attorneys of record as listed below on the 23rd day of
July,   2015   2
                                                       »




        Price Ainsworth
        Law Offices of Price Ainsworth, P.C.
        3821 Juniper Trace, #310
        Austin, Texas 78738
        (512) 233—111l
        (512) 472-9157 (Fax)
