                              Fourth Court of Appeals
                                      San Antonio, Texas
                                              OPINION
                                         No. 04-12-00346-CV

                                            Sylvia WEECH,
                                               Appellant

                                                    v.

                                   BAPTIST HEALTH SYSTEM
                                   a/k/a Baptist Health System, Inc.,
                                                Appellee

                    From the 224th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2009-CI-20331
                       Honorable Victor Hugo Negron Jr., Judge Presiding 1

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: December 31, 2012

AFFIRMED

           Sylvia Weech appeals a take-nothing summary judgment rendered against her and in

favor of Baptist Health System (“BHS”). BHS filed its no-evidence summary judgment motion

and a hearing was set for April 10, 2012. Weech failed to file a response to BHS’s motion and

did not appear at the hearing. The trial court granted BHS’s motion and rendered judgment


1
  Judge Negron granted Baptist Health System’s no evidence motion for summary judgment and entered judgment
against Weech on April 10, 2012. Judge Negron also heard Weech’s motion for new trial and denied her motion
after taking the matter under advisement on May 9, 2012. However, a formal order denying Weech’s motion for
new trial was signed on May 16, 2012 by Judge David Berchelmann.
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against Weech. After receiving a copy of the judgment, Weech timely filed a motion for new

trial along with a response to BHS’s motion. A hearing on the motion for new trial was held on

May 9, 2012, following which the trial court denied the motion. In two issues on appeal, Weech

argues (1) the trial court erred in granting BHS’s no-evidence summary judgment motion, and

(2) the trial court erred in denying Weech’s motion for new trial. We affirm.

                           NO-EVIDENCE SUMMARY JUDGMENT

       Weech filed suit against BHS on December 23, 2009, asserting premises liability and

negligence claims after she was allegedly injured in a parking garage when a gate fell on her.

BHS filed a no-evidence summary judgment motion on March 12, 2012, asserting Weech had no

evidence (1) the parking gate was defective, not working, or in any other way unreasonably

dangerous; (2) BHS knew or should have known of a defective parking gate; (3) that any act or

omission by BHS was negligent; and, (4) proving any injury as a result of the allegedly defective

parking gate. The trial court granted BHS’s motion without stating its grounds.

       A no-evidence motion for summary judgment is essentially a motion for pretrial directed

verdict. See TEX. R. CIV. P. 166a(i); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex.

App.—San Antonio 2008, pet. denied). After a reasonable time for discovery, a party without

the burden of proof may seek summary judgment on the ground that there is no evidence to

support one or more essential elements of the nonmovant’s claim. TEX. R. CIV. P. 166a(i); All

Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet.

denied). The trial court “must grant” the motion unless the non-movant produces summary

judgment evidence to raise a genuine issue of material fact on the issues the movant has raised.

TEX. R. CIV. P. 166a(i).




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       On appeal, Weech asserts her response, filed with her new trial motion, raises genuine

issues of material fact. Therefore, Weech contends the trial court erred in granting BHS’s

motion for summary judgment. The record is clear and it is undisputed that Weech did not file a

response to BHS’s motion before the hearing on April 10, 2012, and Weech did not appear at the

hearing. Because the rules provide that the trial court “must grant” BHS’s motion unless Weech

presented evidence to raise a genuine issue of material fact on the issues BHS presented and

Weech did not respond with any evidence, we conclude the trial court did not err in granting

BHS’s motion and entering a judgment against Weech.

                                 MOTION FOR NEW TRIAL

       Weech filed a motion for new trial and attached affidavits and a response to BHS’s

motion for summary judgment, which included her deposition. A hearing on the motion for new

trial was held on May 9, 2012. In her second issue on appeal, Weech argues the trial court erred

in denying her motion for new trial.

       The denial of a motion for new trial is generally reviewed under an abuse of discretion

standard. Washington v. McMillan, 898 S.W.2d 392, 394 (Tex. App.—San Antonio 1995, no

writ). A trial court abuses its discretion when its action is arbitrary, unreasonable, or “without

reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985).

       In her motion for new trial, Weech sought relief under the test set out in Craddock v.

Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). If Craddock applies,

the “guiding rules and principles” are: a trial court abuses its discretion by denying a motion for

new trial following a default judgment if the motion (1) shows the failure of the defendant to

answer before judgment was not intentional, or the result of conscious indifference on his part,



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but was due to mistake or an accident; (2) sets up a meritorious defense; and (3) is filed at a time

when the granting thereof will occasion no delay or otherwise work an injustice to the plaintiff.

Id.; see also Washington, 898 S.W.2d at 395.

       The Craddock test was created to provide parties with a remedy when a judgment was

entered against them in a no-answer default judgment situation. The Texas Supreme Court has

not specifically held whether Craddock applies when a judgment is entered in a “default” no-

evidence summary judgment context, rather than a no-answer default context. See Carpenter v.

Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (holding Craddock does not

apply to a motion for new trial filed after summary judgment is granted on a motion to which the

nonmovant failed to timely respond when the respondent knew of the hearing and did nothing,

but also stating “[w]e do not decide today whether Craddock should apply when a nonmovant

discovers its mistake after the summary-judgment hearing or rendition of judgment.”).

       This court, however, has held Craddock applies in a traditional summary judgment

context reasoning, “the failure to answer [in a summary judgment situation] may lead to an

adverse judgment, just as it did in Craddock.” Washington, 898 S.W.2d at 395; see also Huffine

v. Tomball Hosp. Auth., 979 S.W.2d 795, 798–99 (Tex. App.—Houston [14th Dist.] 1998, no

pet.). Following this reasoning, there is an even stronger argument for applying Craddock in a

no-evidence summary judgment context because after a party files the no-evidence motion, a

response is required to prevent the entry of an adverse judgment—making it analogous to a no-

answer default situation. Additionally, fairness and equity support the application of Craddock

in a default no-evidence summary judgment context. See Washington, 898 S.W.2d at 396 (“We

further agree . . . that ‘basic fairness’ also militates in favor of applying the Craddock standard in




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the summary judgment context.” (quoting Krchnak v. Fulton, 759 S.W.2d 524, 528–29 (Tex.

App.—Amarillo 1988, writ denied)).

         This court, however, has modified the application of the Craddock test when it is used in

the summary judgment context. Traditionally, because Craddock applied in a no-answer default

situation, the second element required the movant to “set up a meritorious defense” in their

motion for new trial, which meant to allege facts that, if true, would constitute a defense. See

Washington, 898 S.W.2d at 396 (citing Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)).

However, the Washington court held when applying Craddock in the traditional summary

judgment context, “to set up a meritorious defense” requires the movant to allege facts and bring

forth summary judgment proof sufficient to raise a material issue of fact in their motion for new

trial.   Washington, 898 S.W.2d at 396.       Therefore, when applying the second element of

Craddock in the no-evidence summary judgment context, it follows that “to set up a meritorious

defense,” the party requesting a motion for new trial must present evidence sufficient to raise a

genuine issue of material fact on the issues the opponent has raised in their no-evidence

summary judgment motion. We conclude the modified Craddock test should apply here in a no-

evidence summary judgment when the “nonmovant discovers its mistake after the summary-

judgment hearing or rendition of judgment.” See Carpenter, 98 S.W.3d at 686. Accordingly, the

issue before us is whether Weech’s motion for new trial (1) shows the failure to respond before

judgment was entered was not intentional, or the result of conscious indifference, but was due to

mistake or an accident; (2) presents evidence sufficient to raise a genuine issue of material fact

on the issues BHS raised in their no-evidence summary judgment motion; and (3) demonstrates

that the granting thereof will occasion no delay or otherwise work an injustice to BHS. Because

the second prong of Craddock is dispositive, we do not address the first or third prongs.



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         To establish the second prong of Craddock, Weech must “set up a meritorious defense”

in her motion for new trial, which in the no-evidence summary judgment context means she must

present evidence sufficient to raise a genuine issue of material fact on the issues BHS raised in

its motion.      See Washington, 898 S.W.2d at 396.                    Weech alleged premises liability and

negligence in her original petition. In their motion, BHS asserted Weech had no evidence (1) the

parking gate was defective, not working, or in any other way unreasonably dangerous; (2) BHS

knew or should have known of a defective parking gate; (3) that any act or omission by BHS was

negligent; and finally, (4) proving any injury as a result of the allegedly defective parking gate.

A. Premises Liability

         To recover for premises liability, a plaintiff must establish: (1) the defendant knew or

should have known of some condition on the premises; (2) the condition posed an unreasonable

risk of harm, was defective or not working properly; (3) the defendant did not exercise

reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure to use such care

proximately caused the plaintiff’s injuries. 2 Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296

(Tex. 1983). BHS’s assertion that Weech had no evidence the parking gate was defective, not

working, or in any other way unreasonably dangerous attacked the second element of her

premises liability cause of action.

         “A conclusory statement is one that does not provide the underlying facts to support the

conclusion.” Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997,

no pet.). “Conclusory statements in affidavits are not proper as summary judgment proof if there


2
  Corbin provides the elements for a premises liability claim when the plaintiff has invitee status. Weech alleged
premises liability claims with both invitee status and licensee status. The only difference in the claims is in regard to
knowledge. See Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 164 (Tex. App.—Dallas 2011, no
pet.) (“In order to establish liability, a licensee must prove (1) a condition of the premises created an unreasonable
risk of harm to the licensee; (2) the licensor actually knew of the condition; (3) the licensee did not actually know of
the condition; (4) the licensor failed to exercise ordinary care to protect the licensee from danger; and (5) the
licensor’s failure was a proximate cause of injury to the licensee.”).

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are no facts to support the conclusions.” Id.; see also Brownlee v. Brownlee, 665 S.W.2d 111,

112 (Tex. 1984). Factual conclusions, opinions, and subjective beliefs unsupported by evidence

are defects in substance and may be raised for the first time on appeal. Rizkallah, 952 S.W.2d at

587.

       The only evidence Weech presented to raise a genuine issue of material fact on the

second element of her premises liability claim was her affidavit and her deposition, which were

attached to her motion for new trial in response to BHS’s motion. Nowhere in her affidavit does

Weech state the parking gate was defective. Weech only states the following regarding the

parking gate in her affidavit: “When the crossing arm from the Baptist Parking garage fell on me,

the lady in the booth came to my aid. She stated ‘this has happened three times before.’”

However, Weech provides no other facts to explain what “this” means. Also, there are no other

facts present in her affidavit to demonstrate there was anything defective about the parking gate.

We do not believe the statement “this has happened three times before,” alone, raises a fact issue

that the gate was defective.

       In her deposition, BHS’s counsel asked Weech what led to her conclusion that the

parking gate was defective:

       Q: And I asked you if you believe there’s something wrong with the gate or it’s
       faulty, and your testimony a moment ago was yes, you believe there’s something
       wrong with the gate, correct?

       A: Well, as far as I can tell. It hit my head, so something must be wrong with it.

       A statement such as, “[i]t hit my head, so something must be wrong with it,” without any

underlying facts, is the type of conclusory statement that is not “competent summary judgment

proof.” Id. at 587; see Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d

742, 746 (Tex. App.—San Antonio 2005, no pet.) (holding statements in affidavit stating “an



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electrical failure occurred at the socket base/switch assembly” and “the fire resulted from a

resistive heating failure at the lamp socket/switch assembly terminal screws to which the lamp

cord is attached” were conclusory when no other facts were presented to support expert witness’s

conclusions the lamp was defective and were, therefore, not competent summary judgment

evidence). Parking gates are just that—gates that are designed to go up and come down to let

cars in or out of the garage. Just because the gate came down on her does not mean it was

defective, per se. Without additional facts to support the conclusion that the gate was defective,

we cannot infer it was so. Accordingly, we conclude Weech did not raise a genuine issue of

material fact on the element of her premises liability claims that the parking gate was defective.

B. Negligence

       We next decide whether Weech raised a material issue of fact regarding her negligence

claim. To have a claim for negligence, a plaintiff must prove: (1) a duty owed to the plaintiff, (2)

a breach of that duty by the defendant, and (3) damages proximately caused by the breach. First

Assembly of God, Inc. v. Tex. Utilities Elec. Co., 52 S.W.3d 482, 491 (Tex. App.—Dallas 2001,

no pet.). BHS attacked the breach of duty element in its motion by alleging Weech had no

evidence of any act or omission by BHS that was negligent.

       In her affidavit, the only paragraph in which Weech seems to indicate a negligent act or

omission on the part of BHS was as follows:

              When the crossing arm from the Baptist Parking garage fell on me, the
       lady in the booth came to my aid. She stated “this has happened three times
       before.” When I asked what the Baptist did about it she responded “they probably
       did nothing.” I asked her how long it had been doing this. She told me that it had
       happened about a year earlier.

       Weech’s statements leave us to assume that because a lady in the booth at the parking

garage said, “they probably did nothing,” there was some negligent omission by BHS regarding



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the parking gate. However, the use of the word “probably” again requires us to assume there

was a negligent omission, but without more information it is not even clear whether “they” were

informed there may be a problem. Without additional facts, we cannot infer that because “they”

“probably” did nothing, there was some negligent omission by BHS. Accordingly, we conclude

Weech’s conclusory statements regarding a negligent act or omission by BHS were not sufficient

to raise a genuine issue of material fact on the breach of duty element BHS raised in its motion.

C. Conclusion

       We conclude the evidence Weech presented was conclusory; therefore, Weech did not

raise a genuine issue of material fact on the issues BHS raised on both her premises liability

claims and on her negligence claim. Accordingly, Weech has not established the second prong

of the modified Craddock test and the trial court, therefore, did not abuse its discretion in

denying her motion for new trial.

                                        CONCLUSION

       We conclude the trial court did not err in granting BHS’s no-evidence summary judgment

motion and entering a judgment against Weech when the record is clear Weech filed no response

and did not attend the hearing; therefore, providing no evidence to raise a genuine issue of

material fact on the issues BHS raised. After determining Craddock, as modified to fit the no-

evidence summary judgment context, applies in this situation, we also conclude the trial court

did not abuse its discretion in denying Weech’s motion for new trial because her motion did not

meet the second element of Craddock. Therefore, we affirm.



                                                     Sandee Bryan Marion, Justice




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