                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                 ___________________________
                      No. 02-19-00108-CV
                 ___________________________

 JULIE MCCURLEY AND RANDY MCCURLEY, INDIVIDUALLY AND AS
PARENTS, NEXT FRIENDS AND GUARDIANS OF STEPHEN MCCURLEY,
                        Appellants

                                V.

           TEXAS MOTOR SPEEDWAY, INC., Appellee



             On Appeal from the 393rd District Court
                     Denton County, Texas
                  Trial Court No. 17-3572-393


           Before Sudderth, C.J.; Birdwell and Bassel, JJ.
          Memorandum Opinion by Chief Justice Sudderth
                              MEMORANDUM OPINION

      Appellants Julie McCurley and Randy McCurley, individually and as parents,

next friends, and guardians of their son Stephen McCurley, sued Appellee Texas

Motor Speedway, Inc. for injuries Stephen sustained when, while attending a

NASCAR race, his wheelchair hit an uneven, elevated spot on a ramp in the

Speedway’s stands. The McCurleys alleged that because the ramp was “missing

necessary bolts or rivets to secure [it] to the base,” Stephen was flung from his

wheelchair and that the dangerous condition could have been prevented if the

Speedway had conducted a reasonable, proper, and complete inspection of the

premises prior to the race.

      The Speedway filed a combined traditional and no-evidence motion for

summary judgment in which it set forth the following grounds: (1) there is no

evidence that a condition on the premises posed an unreasonable risk of harm; (2)

there is no evidence that the Speedway knew or should have known of any danger

posed by missing rivets on the ramp in question; (3) there is no evidence that the

Speedway breached a duty of ordinary care by failing to adequately warn the

McCurleys of the condition or by failing to make it reasonably safe; (4) there is no

evidence that any act or omission on the Speedway’s part was a proximate cause of

Stephen’s fall; and (5) the competent, uncontroverted evidence presented by the

Speedway conclusively shows that it did not know and reasonably should not have

known of the alleged danger before Stephen’s fall and did not breach its duty of
                                         2
ordinary care by failing to adequately warn him of the condition or by failing to make

the condition reasonably safe. The trial court granted summary judgment for the

Speedway.

      On appeal, the McCurleys raise four issues: (1) whether issues of material fact

existed because of the Speedway’s creation of the dangerous condition and its

constructive knowledge of the condition; (2) whether Paragraphs 16 and 20 of the

affidavit of Kerry Lee, the McCurleys’ expert witness, were conclusory and were

properly stricken by the trial court; (3) whether the Speedway’s “lack of inspection of

the premises and lack of documentation creating the dangerous condition of the ramp

provide issues of fact on liability”; and (4) whether a question of fact exists on the

Speedway’s constructive knowledge of the unreasonable risk of harm. Within their

brief, they focus almost exclusively on the Speedway’s constructive knowledge,

arguing that the case was “decided summarily” on that issue and that the Speedway’s

motion “did not challenge the other elements of the cause of action.” However, as

set out above, the Speedway raised four no-evidence grounds and one traditional

ground, and the trial court’s judgment does not reflect the ground upon which it

granted the motion.

      “When an argument is not made challenging every ground on which the

summary judgment could be based, we are required to affirm the summary judgment,

regardless of the merits of the unchallenged ground.” Rollins v. Denton Cty., No. 02-14-

00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.)
                                           3
(mem. op.); see generally Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120–21 (Tex. 1970)

(affirming summary judgment based on unchallenged ground of affirmative defense

of limitations but expressing “no opinion as to whether a grant of summary judgment

would be proper or erroneous” on that ground); Ramirez v. First Liberty Ins. Corp., 458

S.W.3d 568, 572 (Tex. App.—El Paso 2014, no pet.) (affirming summary judgment

based on grounds not challenged in brief on appeal without referencing merits of

those grounds). “We can affirm the trial court’s judgment on the basis of even one

unchallenged ground.” Mann v. Denton Cty., No. 02-16-00030-CV, 2017 WL 526309,

at *6 (Tex. App.—Fort Worth Feb. 9, 2017, pet. denied) (mem. op.).

        The McCurleys challenge the constructive knowledge summary judgment

grounds in two of their issues, arguing that “an inference of constructive knowledge

inherently presents a fact question,” and they allude to the “creation of the dangerous

condition,” but they do not challenge the Speedway’s remaining summary judgment

grounds. Accordingly, we affirm the trial court’s judgment on the unchallenged

grounds without reaching the merits and overrule the McCurleys’ issues as moot.



                                                       /s/ Bonnie Sudderth
                                                       Bonnie Sudderth
                                                       Chief Justice


Delivered: December 5, 2019



                                            4
