Opinion issued October 17, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00674-CV
                          ———————————
                      CODY TROSCLAIR, Appellant
                                       V.
            ANTHONY AND KAREN MCMILLAN, Appellees



                  On Appeal from the 164th District Court
                          Harris County, Texas
                      Trial Court Case No. 1113640


                        MEMORANDUM OPINION

     In this premises liability case, appellant, Cody Trosclair, appeals the trial

court’s grant of no-evidence summary judgment in favor of appellees, Anthony

and Karen McMillan. In four issues, Trosclair argues that (1) the McMillans

produced no competent summary judgment evidence to establish that he was a
trespasser at the time of his injury; (2) the McMillans’ use of deposition excerpts

was improper and thus should not have been considered competent summary

judgment evidence; (3) the trial court erred in granting the McMillans’ motion for

summary judgment because they “brought forth the affirmative defense that

[Trosclair] was a trespasser for the first time in the motion for summary

judgment”; and (4) his summary judgment evidence raised a fact question as to his

status at the time he entered the McMillans’ property, precluding summary

judgment.

      We affirm.

                                        Background

      In March 2009, Trosclair traveled to the residence of Amy Easterling for a

party. During the party, Trosclair ventured over to the yard of the McMillans,

Easterling’s neighbors, to jump on their trampoline. Trosclair obtained entrance to

the McMillans’ property via a gate between the fences surrounding both properties.

After his friends had jumped upon the trampoline, Trosclair decided to attempt a

few back flips on the device.         Subsequently, Trosclair ripped through the

trampoline, injuring himself and resulting in the personal injury suit at issue.

      Trosclair filed a premises liability suit against the McMillans, asserting that

the trampoline constituted an unreasonably dangerous condition. The McMillans

subsequently filed a no-evidence motion for summary judgment, contending that

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there was no evidence that they had breached a duty to Trosclair. Specifically,

they argued that Trosclair was a trespasser and that he presented no evidence that

they injured him willfully, wantonly, or through gross negligence. Alternatively,

they argued that, even if Trosclair could be considered a licensee, he presented no

evidence that they knew that the trampoline was a dangerous condition. The

McMillans attached excerpts of Trosclair’s deposition testimony to their motion.1

      Trosclair responded to the motion and presented his affidavit, which he

alleged set forth material facts concerning the McMillans’ duty, breach, causation,

and damages.     Trosclair argued that the McMillans produced “no competent

summary judgment evidence that establishes that [he] was a trespasser at the time

of his injury” because their motion “contains exhibits that would be inadmissible at

trial.” He specifically argued that the McMillans could not use the deposition

excerpts because a party relying upon unfiled discovery products must file a

statement of intent pursuant to Rule of Civil Procedure 166a(d) and because they

failed to include a copy of the verification page signed by the court reporter with
1
      In these excerpts, Trosclair testified to the following facts, among others: he did
      not know the McMillans and had never spoken to them; he entered their yard
      through an unlocked gate in the fence between the McMillans’ and the
      Easterlings’ property; Amy Easterling had told someone in their group that it was
      okay to enter the McMillans’ property; Trosclair did not have any knowledge
      regarding the arrangement between the McMillans and the Easterlings for the use
      of the McMillans’ property; the only permission Trosclair received was from
      Easterling, not from the McMillans, who were not home at the time of the
      accident; he did not have any evidence or reason to believe that the trampoline was
      dangerous at the time he jumped on it; and he did not have any evidence that the
      McMillans knew or had reason to suspect that the trampoline was dangerous.
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the photocopied excerpts. He also argued that the McMillans could not “bring

forth the affirmative defense that [he] was a trespasser for the first time in their

motion for summary judgment.”

      Finally, Trosclair argued that he had raised at least a scintilla of evidence

showing that he had the McMillans’ implied consent to enter their property. As

supporting evidence, he attached his affidavit in which he stated the following:

      On March 8, 2009, I was a guest at Amy Easterling’s house. Amy
      Easterling had permission to enter the Defendant’s property. Amy
      Easterling was aware that her boyfriend, myself, and a group of
      people were going to jump on the McMillan’s trampoline. Amy
      Easterling never objected to us going through the adjoining gate onto
      the Defendants’ property to jump on the trampoline.

He did not present any other arguments or evidence regarding the trampoline

accident or the other elements of his premises liability claim.

      The trial court granted the McMillans’ no-evidence motion for summary

judgment and dismissed Trosclair’s cause of action.

                                   Standard of Review

      We review de novo the trial court’s grant of summary judgment. Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must

make inferences, resolve doubts, and view the evidence in the light most favorable

to the non-movant. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999). A no-evidence summary judgment motion asserts that no evidence exists as

to at least one essential element of the non-movant’s claims on which the non-
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movant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Bendigo v.

City of Houston, 178 S.W.3d 112, 114 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (citing Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex. App.—

Austin 1998, no pet.)). The trial court must grant the motion unless the non-

movant produces summary judgment evidence that raises a genuine issue of

material fact. TEX. R. CIV. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex. 2002).

        The McMillans’ No-Evidence Motion for Summary Judgment

      In his fourth issue, Trosclair argues that the trial court erred in granting no-

evidence summary judgment in favor of the McMillans because he presented

evidence raising a fact issue as to his status at the time he entered the McMillans’

property. He again points to his affidavit filed in response to the McMillans’

summary judgment motion, in which he averred that Amy Easterling had

permission to enter the McMillans’ property, that she knew he and a group of other

guests entered the McMillans’ property, and that she never objected onto his entry

to that property. He argues that “[t]his affidavit alone, when reviewed in a light

most favorable to [him], should have raised enough of a fact question as to his

status or permission to enter [the McMillans’] property to warrant the denial of a

summary judgment.” We disagree.




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      Trosclair asserted a premises liability cause of action against the McMillans,

alleging that the trampoline constituted an unreasonable and dangerous condition.

To prevail on this claim, Trosclair had to establish the existence of a legal duty

owed by the McMillans to him, a breach of that duty, and damages proximately

resulting from the breach. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.

2005); West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—Houston [1st Dist.] 2010,

no pet.).   Specifically, he also had to establish (1) “actual or constructive

knowledge of some condition on the premises” by the McMillans that (2) “posed

an unreasonable risk of harm”; (3) the McMillans failed to “exercise reasonable

care to reduce or eliminate the risk”; and (4) this failure proximately caused his

injuries. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

      Furthermore, the duty owed by the defendant to the plaintiff in a premises

liability case depends upon the status of the plaintiff at the time the injury

occurred, e.g., whether the plaintiff was a trespasser, licensee, or invitee. See

Urena, 162 S.W.3d at 550; Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d

901, 909–10 (Tex. App.—Houston [14th Dist.] 2009, no pet.). An invitee is one

who enters land with the owner’s knowledge and for the mutual benefit of both.

Mayer, 278 S.W.3d at 909. “A licensee enters and remains on land with the

owner’s consent and for the licensee’s own convenience, or on business with

someone other than the owner.” Id. at 910. Absent a relationship that inures to the

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mutual benefit of the owner and the plaintiff, the plaintiff is a licensee. Id.; see

also Gatten v. McCarley, 391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.)

(“A social guest is generally classified as a licensee, not an invitee.”).       “A

trespasser enters another’s property without lawful authority, permission, or

invitation.” Mayer, 278 S.W.3d at 910.

      A property owner’s duty to invitees extends only to the duty to reduce or

eliminate an unreasonable risk of harm created by his activity on the premises. See

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). “An owner or

occupier of land must use reasonable care to protect an invitee from known

conditions that create an unreasonable risk of harm and conditions that should be

discovered by the exercise of reasonable care.” Mayer, 278 S.W.3d at 910; see

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The owner or

occupier “must refrain from injuring a licensee willfully, wantonly, or through

gross negligence; the owner or occupier who has actual knowledge of a dangerous

condition unknown to the licensee must warn of or make safe the dangerous

condition.” Mayer, 278 S.W.3d at 910. But the only duty owed to a trespasser is

the duty not to cause injury “willfully, wantonly, or through gross negligence.” Id.

      In their no-evidence motion, the McMillans argued that Trosclair was a

trespasser and that he presented no evidence that the McMillans injured him

willfully, wantonly, or through gross negligence. Alternatively, they argued that

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even if Trosclair could be considered a licensee, he presented no evidence that the

McMillians knew that the trampoline was a dangerous condition.           Thus, the

McMillans argued that Trosclair presented no evidence that they breached any duty

that they owed to him.

      Trosclair argues that his affidavit established for summary judgment

purposes that he had Amy Easterling’s permission to enter the property, and, thus,

he was essentially a social guest on the McMillans’ property, making him an

licensee. See Gatten, 391 S.W.3d at 675 (holding that social guest is generally

classified as licensee); see also Mayer, 278 S.W.3d at 910 (holding that someone

who enters property on business with someone other than owner is licensee).

However, even assuming that Trosclair was a licensee, Trosclair failed to produce

any evidence that the McMillans breached the duty they owed to him as a result.

The McMillans had a duty not to injure a licensee by willful, wanton, or grossly

negligent conduct and, in cases in which they had actual knowledge of a dangerous

condition unknown to the licensee, they had a duty to either warn the licensee of

the condition or make the condition reasonably safe. See Mayer, 278 S.W.3d at

910. In his affidavit, Trosclair did not identify any willful, wanton, or grossly

negligent conduct by the McMillans, nor did he state that they had actual

knowledge of the dangerous condition. He did not provide any other evidence in

response to the McMillans’ assertion in their no-evidence motion for summary

                                        8
judgment that there was no evidence that they injured him willfully, wantonly, or

through gross negligence or that they knew that the trampoline was a dangerous

condition.

      Thus, Trosclair failed to meet his burden to produce summary judgment

evidence that raised a genuine issue of material fact on the issues specifically

raised in the McMillans’ no-evidence motion for summary judgment. See TEX. R.

CIV. P. 166a(i); Grant, 73 S.W.3d at 215. We conclude that the trial court did not

err in granting the McMillans’ motion and dismissing Trosclair’s claim. See TEX.

R. CIV. P. 166a(i) (providing that trial court must grant no-evidence motion unless

non-movant produces summary judgment evidence that raises genuine issue of

material fact).

      We overrule Trosclair’s fourth issue.

                         Summary Judgment Evidence

      In his first and second issues, Trosclair contends that the McMillans’

summary judgment evidence contained exhibits, such as Trosclair’s deposition

excerpts, that were not competent summary judgment evidence. However, as we

noted in the statement of the standard of review above, the burden to produce

evidence fell on Trosclair, not on the McMillans as the party moving for no-

evidence summary judgment. See TEX. R. CIV. P. 166a(i) (providing that party,

“without presenting summary judgment evidence,” may move for summary


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judgment on no-evidence grounds and must state elements as to which there is no

evidence; trial court must grant such motion unless respondent produces summary

judgment evidence raising genuine issue of material fact).

      In light of our holding that the trial court did not err in granting the no-

evidence motion based on Trosclair’s failure to produce more than a scintilla of

evidence, these arguments are moot.

      We overrule Trosclair’s first and second issues.

                               Affirmative Defense

      In his third issue, Troclair contends that the trial court erred in granting

summary judgment because the McMillans failed to specifically plead his status as

a trespasser as an affirmative defense pursuant to Rule of Civil Procedure 94. As

we discussed above, the plaintiff’s status as a trespasser, licensee, or invitee is

relevant to establishing the duty owed to him by the property owner. See Urena,

162 S.W.3d at 550. Thus, Trosclair’s status was not an affirmative defense, and he

presents no authority supporting his contention that it is. See Williams v. Bill’s

Custom Fit, Inc., 821 S.W.2d 432, 434 (Tex. App.—Waco 1991, no writ)

(addressing argument that defendant failed to plead trespass as affirmative defense;

stating, “However, trespass is not an affirmative defense, but instead establishes a

duty of care owed by the defendant”; and concluding that plaintiff’s complaint




                                        10
could not be considered as ground for reversal of summary judgment because he

failed to complain of any pleading defect).

      We overrule Trosclair’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.




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