                         In The
                   Court of Appeals
     Sixth Appellate District of Texas at Texarkana
             ______________________________

                   No. 06-10-00101-CV
             ______________________________


  JULIE HYDE AND CHRIS ROSS, INDIVIDUALLY AND AS
         REPRESENTATIVES OF THE ESTATE OF
          BRANDI CHRISTINA ROSS, Appellants

                               V.

RYAN C. HOERAUF, INDIVIDUALLY, RYAN C. HOERAUF, INC.,
 AND THE O‘RYAN FAMILY LIMITED PARTNERSHIP, RYAN
  PROPERTIES, INC., AS GENERAL PARTNER, BY RYAN C.
      HOERAUF, PRESIDENT, O‘RYAN OIL AND GAS,
         AND RYAN PROPERTIES, INC., Appellees




        On Appeal from the 173rd Judicial District Court
                  Henderson County, Texas
                 Trial Court No. 2008-A-875




          Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
                                                 OPINION

        Driving home from a ―pasture party‖ at which she had consumed alcohol,

seventeen-year-old Brandi Christina Ross was tragically killed in an automobile accident. The

party had been held, without permission, in Henderson County,1 on a fifty-six-acre tract of land

owned by Ryan C. Hoerauf.

        Following Brandi‘s death, Julie Hyde and Chris Ross, individually and as representatives

of the estate of Brandi, collectively referred to herein as Hyde, filed a wrongful death and survival

action asserting negligence and gross negligence against multiple parties,2 including Hoerauf and

various entities to which Hoerauf had connections, collectively referred to herein as Hoerauf.

Hoerauf filed a motion for summary judgment, to which Hyde replied. From a summary

judgment granted in favor of Hoerauf, Hyde appeals.

        We must determine whether an absent landowner owes a duty to a trespasser who is injured

or killed after leaving the landowner‘s land. Because Hoerauf owed no legal duty with respect to

the off-premises accident, we affirm the summary judgment of the trial court.

        While Hoerauf owned the property where the pasture party had taken place, no one at the

party was associated with Hoerauf or any related entity. It is undisputed that the attendees of the

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 The original petition named Ryan C. Hoerauf, individually, Ryan C. Hoerauf, Inc., the O‘Ryan family limited
partnership, Ryan Properties, Inc., as a general partner, by Ryan C. Hoerauf, president, O‘Ryan Oil and Gas, Ryan
Properties, Inc., and Geico General Insurance Company as defendants. The claims against Geico were nonsuited.

                                                        3
party—students and former students of Kemp High School—were drinking alcohol. The only

―adults‖ at the party were in their early twenties, all former Kemp High School students. Previous

pasture parties had taken place at different locations on Hoerauf‘s property during the summer

months. None of the partygoers had permission to be on the property, described as being ―out in

the middle of nowhere.‖3 Party attendees cut the fence to the Hoerauf property on at least two

different occasions in order to gain access to the property.

            Hoerauf was aware, before the party that immediately preceded Brandi‘s death, that his

fence had been cut on two occasions and that there were tire tracks, empty beer containers, and

remnants of bonfires on his property. Hoerauf was not aware that the trespassers were teenagers.

After having twice repaired the cut fence, Hoerauf began construction of heavy duty fencing for

the entire fifty-five acres.4 In the midst of this re-fencing process,5 the fateful party took place.

At the time, Hoerauf, who lives in Odessa, was not aware that his land was being used for an

unauthorized gathering. Neither Hoerauf nor his property manager, Wes Hart, contacted the

Henderson County Sheriff‘s Office to advise of a trespassing problem. No signs were posted to

advise trespassers to keep off of the property.


3
    One of the underage revelers testified that party attendees knew they did not have permission to be on the property.
4
 The new fence, constructed largely of steel pipe, was installed for the purpose of keeping the property secure from
trespassers. Construction of the new fence was the third attempt by Hoerauf to address the problem. While Hoerauf
lives in Odessa, he visited his Henderson County property in the summer of 2006 after construction of the new fence
was underway.
5
    The re-fencing process commenced approximately thirty days before Brandi‘s death.


                                                             4
Summary Judgment Standard of Review

       We review de novo the grant of a traditional motion for summary judgment. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary

judgment, the movant must conclusively establish the absence of any genuine question of material

fact and that judgment is available as a matter of law. TEX. R. CIV. P. 166a(c); Browning v.

Prostok, 165 S.W.3d 336, 344 (Tex. 2005). A movant must either prove all essential elements of

his or her claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential

element of the nonmovant‘s cause of action. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In

reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulge

every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant‘s

favor. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).

       When, as here, a summary judgment does not specify the grounds on which it was granted,

the appealing party must demonstrate that none of the movant‘s proposed grounds for summary

judgment is sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,

473 (Tex. 1995); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 422 (Tex. App.—Texarkana

2002, no pet.). Conversely, we will affirm the judgment if any one of the theories advanced in the

motion for summary judgment and preserved for appellate review is meritorious. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).




                                                5
The Summary Judgment

         The motion for summary judgment attacked Hyde‘s cause of action for negligence and

gross negligence for (1) condoning or allowing alcohol to be provided to, and consumed by,

minors on the property, (2) ―liability of a ‗pasture party,‘‖ (3) ―allowing or contributing to minors

driving from the party after consuming alcohol,‖ (4) ―providing alcohol to minors,‖ (5) ―providing

control and oversight of an unrestricted access to the property,‖ and (6) ‖creating an unsafe or

attractive nuisance.‖ 6 The allegations of negligence and gross negligence were grounded in

premises liability.7 Hoerauf maintained that Brandi and others attending the pasture party on his

property were trespassers; he contended that Hyde‘s premises liability claims were conclusively

negated by demonstrating that he did not violate the duty owed a trespasser—not to cause injury to

such a person through willful, wanton, or grossly negligent conduct.

         In response to Hoerauf‘s motion, Hyde claimed that material fact questions existed because

Hoerauf was on notice of the activities on his property, as evidenced by cut fences, tire tracks,

remnants of bonfires, and beer cans and bottles strewn about. In essence, Hyde claimed Hoerauf

6
 On appeal, neither party briefed the issue of attractive nuisance; we, therefore, do not address it. TEX. R. APP. P.
38.1.
7
 Certain aspects of the original petition could be construed to attempt to state a cause of action for ―social host‖
liability. This issue was not addressed in the motion for summary judgment or response, and was not preserved for
review. To the extent any such issues were before the trial court, summary judgment would be wholly proper with
respect to any claimed social host liability. Texas law does not recognize a civil cause of action for the provision of
alcohol to minors. Reeder v. Daniel, 61 S.W.3d 359, 364 (Tex. 2001) (social host has no duty not to make alcohol
available to minors); Smith v. Merritt, 940 S.W.2d 602, 605 (Tex. 1997) (social host has no duty to passenger to
prevent nineteen-year-old guest from drinking and driving); Dorris v. Price, 22 S.W.3d 42, 45 (Tex. App.—Eastland
2000, pet. denied) (no common-law duty to monitor alcohol consumption of minor guest who hosts know will be
driving). Further, the evidence in this case conclusively establishes that Hoerauf was not a social host.

                                                          6
was on sufficient notice that pasture parties were taking place on his property such that Hoerauf

should have foreseen the risk of harm or injury based on alcohol consumption by minors at such

parties.8 Hyde claims that the evidence presented material fact issues with respect to whether

Hoerauf was willful, grossly negligent, or negligent in failing to take effective measures to ensure

that such illicit gatherings were stopped. It is apparent that this was the only issue before the trial

court on motion for summary judgment.9

No Duty Was Owed in Off -Premises Accident

            It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort

liability. Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). As in any other tort action, ―a

defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.‖ Gen.

Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008). The existence of duty is a question of law

for the court to decide from the facts surrounding the occurrence in question. Greater Houston

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Moritz, 257 S.W.3d at 217. If no duty

exists, then no legal liability for a premises liability claim can arise.                             Dukes v. Philip

8
    Hyde contends that the involvement of minors is readily inferred from the nature of the events.
9
 On appeal, Hyde contends that Brandi was a licensee, rather than a trespasser, based on Hoerauf‘s summer-long
failure to prevent such parties. Hoerauf contends that, because the issue of whether Brandi was a licensee was not
properly before the trial court, it should not be considered as a ground for reversal on appeal. We agree. Hyde‘s
response to the motion for summary judgment did not assert licensee status as a basis for avoiding the motion. Any
issues a nonmovant contends avoid the movant‘s entitlement to summary judgment must be expressly presented by
written answer to the motion or by other written response to the motion. Such issues are not expressly presented by
mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341
(Tex. 1993); Shumate v. Shumate, 310 S.W.3d 149, 152 (Tex. App.—Amarillo 2010, no pet.). Issues not expressly
presented to the trial court in writing shall not be considered on appeal as grounds for reversal. TEX. R. APP. P.
166a(c).

                                                             7
Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex. App.—Fort Worth 2008, pet.

denied); Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 99 (Tex. App.—El Paso 2005, no pet.).

         Brandi and the other partygoers were trespassers10 on Hoerauf‘s property. The only duty

a premises owner or occupier owes to a trespasser is not to cause injury willfully, wantonly, or

through gross negligence.11 Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997).

The issue of whether Hoerauf was grossly negligent presumes the injury in question occurred on

Hoerauf‘s property. Because Brandi was not injured by an unreasonably dangerous condition on

Hoerauf‘s property, there is no evidence of actionable gross negligence.

         A legal duty owed a trespasser on another‘s property arises from the ownership or control

of property on which the trespasser is harmed. See City of Denton v. Page, 701 S.W.2d 831, 835

(Tex. 1986) (possession and control generally must be shown as prerequisite to liability);

Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704 (Tex. App.—Fort Worth 1998, pet.

denied); TEX. JUR. 3D Premises Liability § 12 (2008) (duty of premises owner arises from control

of the premises). If a trespasser comes to no harm on the property on which he or she is
10
  The duty owed to a plaintiff in a premises liability case depends on the status of the plaintiff at the time of the
occurrence giving rise to the lawsuit. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). This status can be one of invitee, licensee, or trespasser to the premises.
See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975); Almanza v. Navar, 225 S.W.3d 14, 20 (Tex.
App.—El Paso 2005, no pet.).
11
  The parties here disagree on whether the evidence raises a material fact issue of Hoerauf‘s gross negligence. Gross
negligence means an act or omission involving subjective awareness of an extreme degree of risk, indicating
conscious indifference to the rights, safety, or welfare of others. State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006);
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994). A property owner is grossly negligent only if he or she
knows about an unreasonably dangerous condition on his or her property and is consciously indifferent to the safety of
the persons affected by it. Simpson v. Harris County, 951 S.W.2d 251, 254 (Tex. App.—Houston [14th Dist.] 1997,
no pet.); Brazoria County v. Davenport, 780 S.W.2d 827, 829 (Tex. App.—Houston [1st Dist.] 1989, no writ).

                                                          8
trespassing, but is harmed off-premises, a duty does not exist under a premises liability theory of

recovery. Thus, a claim of premises liability presumes that injury occurred on property owned by

the defendant. ―[T]o prevail on a premises liability claim a plaintiff must prove that the defendant

possessed--that is, owned, occupied, or controlled--the premises where injury occurred.‖ Wilson

v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam) (emphasis added);

Strunk, 225 S.W.3d at 98 (before duty can be imposed, plaintiff must prove injury occurred on

premises owned or occupied by defendant). To recover on a premises defect theory, a person

must have been injured by a condition on the property.12 See Keetch v. Kroger Co., 845 S.W.2d

262, 264 (Tex. 1992); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex. App.—Houston

[14th Dist.] 2001, pet. denied). A plaintiff must establish that the defendant had control over and

responsibility for the premises before a duty can be imposed on the defendant. See County of

Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); Dukes, 252 S.W.3d at 592; Hirabayashi, 977

S.W.2d at 706 (no duty to provide patron with safe access to vacant parking lot across street

abutting defendant‘s premises). The control must relate to the condition or activity that caused

the injury. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); Mayer

v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009,

no pet.).




12
  There is no allegation of injury arising from defendant‘s activity or instrumentality, rather than by a condition
created thereby. Keetch, 845 S.W.2d at 264.

                                                        9
         In this case, no injury occurred on property owned, occupied, or controlled by Hoerauf.

Here, the injury occurred on a street or roadway—we are not given the precise location—while

Brandi was en route to her home. A property owner generally does not owe a duty to one who

leaves his or her premises and is injured on adjacent highways.13 See Dixon v. Houston Raceway

Park, Inc., 874 S.W.2d 760, 762–63 (Tex. App.—Houston [1st Dist.] 1994, no writ) (property

owner has no duty to ensure the safety of persons who leave owner‘s property and suffer injury on

adjacent highways); Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied). The right of control over the injury-causing condition or activity gives

rise to the duty of care. See Olivo, 952 S.W.2d at 528 (discussing general contractor‘s liability for

independent contractor‘s negligent activities on premises).

         Because Hoerauf had no right of control over the injury-causing activity—driving after

having ingested alcohol14 or even the party or drinking itself—Hoerauf owed no duty of care to

prevent the accident. Said another way, any duty Hoerauf may have owed to Brandi in his

capacity as a landowner pursuant to a premises liability theory ceased when Brandi exited the

Hoerauf property and was no longer considered a trespasser thereon.


13
  We acknowledge caselaw that provides that the owner of property abutting a highway has a duty to exercise
reasonable care to avoid endangering the safety of persons using the highway as a means of travel. See Alamo Nat’l
Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). Such a duty, the existence of which has not been alleged in this
case, has been limited to cases where an owner negligently releases upon the highway ―an agency that becomes
dangerous by its very nature once upon the highway.‖ Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 191
(Tex. App.—San Antonio 1988, writ denied).
14
  Hoerauf maintains that Brandi was intoxicated at the time of the fatal accident. The record contains no evidence of
blood-alcohol content. The record merely shows that Brandi ingested alcohol prior to the accident.

                                                         10
       After reviewing the evidence in the light most favorable to Hyde, we determine Hyde

failed to allege or raise a fact question that the injury occurred on premises owned or occupied by

Hoerauf. Hoerauf, therefore, at the time of the accident, owed no duty to Brandi under a premises

liability theory of recovery.

       We affirm the judgment of the trial court.




                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:        February 24, 2011
Date Decided:          March 2, 2011




                                                11
