                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-398-CV


TERA D. DURHAM, ANGELA R.                                       APPELLANTS
GLOVER, CORNELIUS STANLEY
AND CRAIG WILSON
                                      V.

PETER A. ZARCADES,                                                 APPELLEE
INDIVIDUALLY, AND AS TRUSTEE
OF THE PETER A. ZARCADES SEPARATE
PROPERTY TRUST AND AS
TRUSTEE OF THE TRUST INDENTURE
OF PETER A. ZARCADES AND SANDRA
RAE ZARCADES

                                  ------------

        FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

      This is a premises liability case. Appellants Tera D. Durham, Angela R.

Glover, Cornelius Stanley, and Craig Wilson are attempting to recover damages

from prior owners of an apartment complex in which appellants were victims

of a third-party crime on the theory that the prior owners’ acts and omissions
created conditions favorable to the third-party crime. In six issues, appellants

attack the trial court’s summary judgment in favor of the prior owners on

appellants’ claims for negligence, premises liability, negligence per se, and

negligent activity, as well as their right to recover exemplary damages. We

affirm.

                              Background Facts

      On October 22, 2007, appellants sued appellee Peter Zarcades—

Individually, as Trustee of the Peter Zarcades Separate Property Trust, and as

Trustee of the Trust Indenture of Peter Zarcades and Sandra Rae Zarcades

(collectively, the Trusts)—based on an incident in which appellants were held

hostage at gunpoint and sexually assaulted in unit 411 1 of the Skyline Place

Apartments, a property in which appellee, as Trustee of the Trusts, had

formerly owned percentage interests.2



      1
       … Glover leased unit 411; the other appellants were visiting her when
the crime occurred.
      2
       … Appellants also sued several other prior owners and the former
management company of the property; however, appellants conceded at oral
argument that these defendants are not parties to this appeal because
appellants’ notice of appeal purports to appeal only the summary judgment in
favor of appellee, individually and as Trustee of the Trusts, and was never
amended to include the summary judgments in favor of the other defendants.
Appellants have never moved this court to amend the notice of appeal.
Accordingly, we dismiss appellants’ second issue, which challenges the trial
court’s summary judgment as it relates to the former management company,

                                       2
      Appellants brought claims against appellee and the other prior owners for

negligence, premises liability, negligence per se, and negligent activity.

Appellants alleged as support for their negligence, premises liability, and

negligent activity claims that appellee and the other prior owners failed to

disclose to the current owner and appellants, or actively concealed, or both, (1)

the level of criminal activity regularly occurring at the property, (2) that the

Dallas S.A.F.E. unit 3 had the property under ongoing review, 4 and (3) that there

were not sufficient locks, security devices, or both on the units’ doors,

specifically unit 411. They also alleged that appellee and the other prior owners

were responsible for allowing crime on the property to escalate to such a level

that it posed an unreasonable risk to tenants and guests. In support of their

negligence per se claim, appellants contended that appellee violated Texas

Property Code section 92.153(a)(5), which requires all front doors of apartment



and we dismiss the remainder of appellants’ issues to the extent they challenge
the summary judgments in favor of any of the prior owners other than appellee.
See Tex. R. App. P. 25.1(b), 43.2(f).
      3
      … This unit of the Dallas Police Department works to reduce crime by
meeting with owners and giving them notice about crime occurring on their
properties.
      4
       … Appellants also alleged that appellee and the other prior owners failed
to forward to the property’s management company documents from the
S.A.F.E. unit that appellee and the prior owners received after they had already
transferred ownership of the property.

                                        3
units to be equipped with a keyless bolting device.       Tex. Prop. Code Ann.

§ 92.153(a)(5) (Vernon 2007).       They pled for actual damages as well as

exemplary damages.

      Appellee filed a traditional motion for summary judgment on the following

grounds: (a) he cannot be liable in his individual capacity because he held no

interest in the property in that capacity, only through the Trusts; (b) as Trustee

of the Peter A. Zarcades Separate Property Trust, he owned only an 11.56%

minority interest in the property; as Trustee of the Trust Indenture of Peter A.

Zarcades and Sandra Rae Zarcades, he owned only a 13.44% interest; each of

the Trusts was in the chain of title of the property for only fifteen days; and

both Trusts sold their interests in the property over six months before the crime

occurred; (c) appellants cannot prove proximate cause because the Trusts’

ownership of the property is too remotely connected with appellants’ alleged

injuries when the evidence shows that a prior manager of the property remained

as manager after the property transfer; (d) no act or omission of appellee

contemporaneously caused appellants’ injuries; (e) according to courts of

appeals who have considered section 353 of the Restatement (Second) of

Torts, relied on by appellants, it does not apply when the purchaser of land

discovers or should have discovered the dangerous condition; thus, appellee did

not have any duty to disclose any alleged dangerous condition; (f) appellee did

                                        4
not have any duty to disclose any alleged dangerous condition because neither

he nor the Trusts exercised possession or control of the property; (g) appellee

was not a landlord in any of the pled capacities; and (h) appellants are not

entitled to exemplary damages because appellee owed no duty to appellants,

committed no act or omission that proximately caused appellants’ alleged

injuries, section 41.005 of the civil practice and remedies code prohibits

exemplary damages based on a third party’s crime, and no exception applies.

Tex. Civ. Prac. and Rem. Code Ann. § 41.005 (Vernon 2008).

      The trial court granted summary judgment in appellee’s favor. Appellee

then moved to sever the summary judgment from the remainder of the suit; the

trial court granted the motion, thus making the summary judgment against

appellee final and appealable.   Appellants timely filed a notice of appeal

challenging the judgment in appellee’s favor.

                             Standard of Review

      A defendant who conclusively negates at least one essential element of

a cause of action is entitled to summary judgment on that claim. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004); see Tex. R. Civ. P. 166a(b), (c). When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every




                                      5
reasonable inference and resolve any doubts in the nonmovant’s favor. IHS

Cedars Treatment Ctr., 143 S.W.3d at 798.

  Appellants’ Negligence, Premises Liability, and Negligent Activity Claims

      In his motion for summary judgment, appellee contended that appellants’

negligence, premises liability, and negligent activity claims all fail because

appellants cannot prove that as a prior owner of the property, appellee owed

any duty to appellants. Appellants challenge summary judgment on this ground

in their first and fourth issues.

      Applicable Law

      Tort liability depends on both the existence and violation of a duty.

Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); Centeq Realty,

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Whether a duty exists is

a question of law for the court to decide under the facts surrounding the

occurrence in question. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, No. 07-

0091, 2008 WL 3991185, at *2 (Tex. Aug. 29, 2008); Lefmark, 946 S.W.2d

at 53.

      Generally, a landowner has no duty to protect another from the criminal

acts of third parties who are not subject to the premises occupier’s control.

Trammell Crow, 2008 WL 3991185, at *2; Lefmark, 946 S.W.2d at 53; Allen

v. Rogers, 977 S.W.2d 733, 735 (Tex. App.—Fort Worth 1998, pet. denied).

                                      6
But this rule is not absolute; a person who occupies or controls premises has

a duty to use ordinary care to protect invitees, including tenants, from criminal

acts of third parties if he or she knows or has reason to know of an

unreasonable and foreseeable risk of harm to the invitee. Trammell Crow, 2008

W.L. 3991185, at *2; Lefmark, 946 S.W.2d at 53; Allen, 977 S.W.2d at

735–36.     This duty is commensurate with the right of control over the

property. Lefmark, 946 S.W.2d at 53–54. Thus, a landlord owes such a duty

to a tenant when the landlord has retained the right to control part of the leased

premises. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993); Allen, 977

S.W.2d at 736. Prior owners of property normally owe no duty to keep a

property safe after transfer because they no longer exercise such control. Kelly

v. LIN Television of Tex., L.P., 27 S.W.3d 564, 571 (Tex. App.—Eastland

2000, pet. denied); see Lefmark, 946 S.W.2d at 54. Thus, for a prior property

owner to owe a duty to a tenant, that duty must arise under an exception to

the general rule. Lefmark, 946 S.W.2d at 54; Kelly, 27 S.W.3d at 571.

      Here, appellants contend that appellee created a dangerous condition on

the property, an exception to the general rule that a prior owner owes no duty

to keep property safe. See Lefmark, 946 S.W.2d at 54; City of Denton v.

Page, 701 S.W.2d 831, 835 (Tex. 1986). They also contend that an exception




                                        7
applies under section 353 of the Restatement (Second) of Torts 5 because

appellee concealed or failed to disclose matters involving an unreasonable risk

to persons on the property. See Kelly, 27 S.W.3d at 571.


      5
          … Section 353 provides as follows:

             (1) A vendor of land who conceals or fails to disclose to his
      vendee any condition, whether natural or artificial, which involves
      unreasonable risk to persons on the land, is subject to liability to
      the vendee and others upon the land with the consent of the
      vendee or his subvendee for physical harm caused by the condition
      after the vendee has taken possession, if

              (a) the vendee does not know or have reason to know of the
              condition or the risk involved, and

              (b) the vendor knows or has reason to know of the condition,
              and realizes or should realize the risk involved, and has
              reason to believe that the vendee will not discover the
              condition or realize the risk.

            (2) If the vendor actively conceals the condition, the liability
      stated in Subsection (1) continues until the vendee discovers it and
      has reasonable opportunity to take effective precautions against it.
      Otherwise the liability continues only until the vendee has had
      reasonable opportunity to discover the condition and to take such
      precautions.

Restatement (Second) of Torts § 353 (1965).

      The Texas Supreme Court has expressly stated that it has not adopted
Section 353 as the law of Texas even though several courts of appeals have
cited and relied upon it. Kelly, 27 S.W.3d at 571; see Lefmark, 946 S.W.2d
at 54. Thus, although we will analyze whether appellants’ reliance on section
353 would defeat summary judgment in this case, we express no opinion as to
whether it has been adopted as the law of Texas.

                                        8
      Appellee’s Summary Judgment Evidence

      As summary judgment evidence, appellee attached his affidavit, to which

he attached special warranty deeds conveying an 11.56% ownership interest

in the property to Peter A. Zarcades, Trustee under the Peter A. Zarcades

Separate Property Trust and a 13.44% ownership interest in the property to

Peter A. Zarcades, Trustee under the Trust Indenture of Peter A. Zarcades and

Sandra Rae Zarcades. Both deeds were filed in the Dallas County property

records on June 17, 2004.      Appellee also averred that in his capacity as

Trustee for the Trusts, he transferred both property interests on July 2, 2004,

fifteen days later.

      Appellee further averred that

      [a]t no time did [he] or anyone associated with the Trusts ever
      participate in any manner whatsoever in the management,
      maintenance, supervision, control, operation, or decision making
      with respect to the Property in any way. The interests were
      purchased by the respective Trusts as an investment without an
      intention to occupy, possess, manage or control the Property in any
      way.

      I was never advised nor saw any documentation of any conditions
      (dangerous or otherwise) with respect to the Property. I did not
      inspect the Property. I did not know of any crime levels or
      statistics and was never advised of any criminal activities on the
      Property whatsoever. I did not know and did not investigate the
      existence of any security devices on the Property such as locks,
      fences, gates or the condition of doors present on the Property or
      leading to any apartment unit. I had no authority, was not


                                      9
      involved, and did not receive any information regarding security of
      the Property or safety decisions with respect to the Property.

      Appellee also presented as summary judgment evidence the deposition

testimony of Phyllis Brown, the on-site property manager for appellee and the

other prior owners, who continued on with the new management company after

title was transferred to the current owner. When asked to describe the security

measures in place at unit 411, Brown answered, “Deadbolt lock, adequate

lighting in the breezeways, Charley Bar 6 with a pin screw, keyless entry and

alarm.”     She explained that a “keyless entry” is a lock that locks from the

inside. She confirmed that the unit had a peephole. She also testified that

before January 26, 2005 (the date of the crime), an audit check of security

measures at the complex was done every other month.

      When asked how things at the property changed after it was sold in July

2004, she said, “The make-ready process, the needs for the property. . . . We

were able to get things that we needed for the property.”         She elaborated

further, stating that after the sale, the access gates were upgraded so that an

access card, rather than just a code, was needed to open them, and that the

outside lighting and the units were upgraded. Before January 26, 2005, she

sent a flyer to the tenants advising them that the apartments had a new alarm


      6
          … A Charley Bar is a metal bar that goes across a sliding glass door.

                                        10
company. After January 26, 2005, the new owner replaced the door jamb on

unit 411.

      Brown also testified that she routinely received the statistics of criminal

activity occurring on the property from the Dallas Police Department and daily

reports from Olde Forge, the security company for the apartments. She did not

specifically request the reports from the Dallas Police Department; the

Department offered them to her. She also said that from July 2004 until the

date of the deposition, the new owners did not require a criminal activity status

and crime summary for the property. Before January 26, 2005, Olde Forge’s

reports did not include specific crimes, only “disturbances . . . [n]oise violations,

outside drinking, children out past curfew.”

      When asked to tell every action she or her employer or the owners 7 took

to prevent a crime such as the one that occurred involving appellants, Brown

answered, “I notify my residents of anything that I’ve heard that’s taking place

in the area. I make additional locks, the screw-type locks available if that’s

what they need.”      When asked what security measures were in place for

trespasser control on or about January 26, 2005, Brown answered, “[S]ignage

that says, no trespassing.     Olde Forge would stop anybody that’s walking


      7
      … The question does not specify whether it refers to the prior owners
and management company or the current owner and management company.

                                         11
through to try to identify. If he noticed something suspicious, then he would

approach them, and this is an assessment that I’m making based on my

reports.” Olde Forge’s security consisted of a roving patrol in a vehicle.

      Brown knew of three or four apartment burglaries at the complex in the

year prior to the crime in which “possibly an apartment was broken into or

something was stolen,” and six or seven vehicle break-ins.            When asked

whether, based upon her past experience at the property, Brown thought there

was a likelihood that criminal conduct of a similar nature might occur sometime

in the future, she said no. When asked why, she stated that “[i]t’s a different

place since the property was sold. . . . More care has gone into the property.

A lot of the issues I had when I initially got there, it doesn’t have . . . .”

      Brown explained that “[i]nitially, when [she] went to work there, [she]

had young people hanging out, maybe hanging out in the breezeway,

inadequate lighting, walking through at will, things like that.” But after July,

“[w]e check you out thoroughly. There’s a screening process that . . . not only

brings up your credit history but also your criminal background as well.” Before

July, a similar but not as thorough procedure was in place to do such checks,

but it only gave “basic information as far as credit history.”




                                        12
      Appellants’ Summary Judgment Evidence

      In response to the summary judgment motions of all the prior owners,

appellants presented deposition testimony from Emory Nash, a Dallas police

officer who at one time worked with the S.A.F.E. unit; deposition testimony

and an affidavit from appellant Glover; deposition testimony from Anthony

Wonderly, an area supervisor with the new apartment management company;

copies of correspondence issued to the prior owners from the City of Dallas;

and excerpts from the Purchase and Sale Agreement between the prior owners

and the new owners.

      Nash testified that when he worked with S.A.F.E., he was assigned to

the Southeast Bureau, which includes the Skyline Place Apartments. S.A.F.E.

initiates an investigation into crime statistics for a property after receiving

citizen complaints about the property; if there have been enough “abatable

incidents” within the past twelve months, the unit “assemble[s] a team to go

out [to the property] and . . . inspect the units and . . . look for also code and

fire violations to make sure the property is up to city code.”

      Attached to Nash’s deposition excerpt is a copy of a June 15, 2005 letter

from the S.A.F.E. unit addressed to Skyline Place Apartments, at the address

for the former management company, BNC Real Estate Accounting, 13151

Emily Road Suite 250, Dallas, Texas 75240-8941.           The letter states that

                                       13
“[p]ublic records indicate that [the addressee] is the (property owner, landlord,

or person in control) of the property” and indicates that it is for the purpose of

informing BNC of the criminal activity occurring on the property. The letter

goes on to state that the S.A.F.E. unit had received a complaint alleging that

the property is a criminal nuisance site and that since a May 25, 2004

meeting,8 there had been one reported kidnapping, one drug arrest as a result

of a traffic stop, one “strong arm” robbery, three aggravated robberies, five

aggravated assaults, and two aggravated sexual assaults at the property. The

letter also warned of the penalties for failing to abate such a criminal nuisance.

      Also attached to the deposition excerpt was a Location Review by the

S.A.F.E. unit, listing all of the criminal activity on the property from June 10,

2003 to June 9, 2005 and detailing the S.A.F.E. unit’s involvement with the

property from May 10, 2004 until June 15, 2005, the date of the report. The

report shows that on June 24, 2004 and July 28, 2004, Officer Nash inspected

the property and found no abatable criminal activity; however, between July

28, 2004 and June 15, 2005, after the property had been sold and the new

management had taken over, there were at least five aggravated assaults, one




      8
      … This meeting was between Officer Nash and the property’s
maintenance man, who was authorized by the management company to attend.


                                       14
family violence assault, one sexual assault, two aggravated sexual assaults (the

crime at issue here), one kidnapping, two drug arrests, four aggravated

robberies (two of which involved the crime at issue here), one report of

indecency with a child, and a report of random gunfire in the area.

      In her affidavit, Glover averred that her lease, attached to the affidavit,

states that the apartments were required by law 9 to have a peephole on each

exterior door and a keyless bolting device on each door and that there was no

keyless deadbolt lock on her front door the entire time she was a tenant,

including when the crime occurred. She stated that the intruder who sexually

assaulted her kicked in the front door.       Also attached to her affidavit are

photocopies of photographs of the apartment door, which are of poor quality

in the clerk’s record. In her deposition excerpt, Glover testified that there was

only one lock on her unit’s door, and it was a “keyhole lock,” not a “big bolt

lock.” She said she complained to someone named Aeysha 10 “months before

the accident” about the lack of a keyless deadbolt, but not in writing.

      In Wonderly’s deposition excerpt, he testifies that on November 5, 2004,

the current owners and manager felt that they had complied with the lease



      9
      … The actual language of the lease states that such devices are required
by Texas law, “with some exceptions.”
      10
           … Aeysha is not identified in the record.

                                         15
terms and that unit 411 did have a keyless bolting device on the exterior door.

He said that it “would seem to be the only unit in the entire [318 unit] complex

that did not.” Before the current owners purchased the property, he personally

walked through all the vacant units, about one hundred, and randomly selected

about one hundred occupied units to walk through as well.          According to

Wonderly, he did not discover any units missing the proper locks.

      Wonderly further testified that he had “confirmed” only recently (as of the

date of the deposition) that unit 411 did not have a keyless deadbolt or

peephole on January 26, 2005, the date of the crime. He checked all 317

other units after that and there were no other locks missing.          Wonderly

explained that Brown, the property manager, told him the day of the crime that

the door might possibly have been missing the required lock and peephole;

however, before he could confirm the truth of this statement, the maintenance

crew had already repaired the door with the correct locks. Neither Wonderly

nor Brown ever saw the door without the required locks. He did not get to see

the interior of the door until “months later after the residents no longer

occupied the unit.” 11


      11
        … Wonderly’s testimony is somewhat ambiguous as to whether, after
he was able to see inside the unit, he confirmed that it did not have the
required lock or whether it already had the required lock when he was able to
view the inside door. However, because we must construe the summary

                                       16
      Wonderly additionally testified that he was not aware that the apartments

were being reviewed by the S.A.F.E. unit until April or May 2005 because the

City “had been sending all their documents to the previous owners who never

gave us any information . . . or told us that we were even involved in that.”

However, he had never requested a security survey or assessment of the

property; he had only visually surveyed the property. Wonderly stated that

Brown told him she had been told by “her previous owners not to talk negative

about the property.” When he talked to her before she went to work for the

new management company, she told him, “every property has some problems;

we have ours.” Once she was hired by the new company, Brown asked them

for help with “car beak-ins and all and additional,” which is why they

“additionally got Olde Forge Security right away.”    However, Brown never

informed Wonderly about the level of crime occurring at the property in 2003

and 2004.

      The three letters attached as summary judgment evidence are dated May

25, 2004 and April 26 and 28, 2005 and are addressed to entities other than




judgment evidence in appellants’ favor, we will construe Wonderly’s testimony
to mean that after he was able to see the inside of the door, he was able to
confirm that it did not have the required lock. See IHS Cedars Treatment Ctr.,
143 S.W.3d at 798.

                                      17
appellee.12 The April 26 letter details the S.A.F.E. unit’s activity regarding the

property since May 19, 2004 and notes that no one contacted the S.A.F.E. unit

as was requested on May 25, 2004. The letter also notes that criminal activity

at the property had continued since May 25, 2004 and warns that the City

could take legal action against the owners for failing to abate the criminal

activity on the property.   The second, April 28, 2005 letter appears to be

identical to the April 26, 2005 letter. The May 25, 2004 letter is similar to the

June 15, 2005 letter attached to appellee’s summary judgment motion.

      Also attached is a copy of excerpts from the Purchase and Sale

Agreement for the property, which contain the various representations and

warranties from the prior owners to the purchaser, 13 including a representation

and warranty that

      [e]xcept as disclosed on the Rent Roll, with respect to each Tenant:
      (i) . . . no uncured breach or default of a material nature exists on
      the part of the Landlord or Tenant thereunder [with respect to any




      12
        … The April 2005 letters are addressed to Skyline Apartments/BNC Real
Estate, BNC Skyline, L.P., and BNC Inwood, LLC, at the same address on Emily
Road to which the June 15, 2005 letter was sent. They are also addressed to
BNC Inwood, LLC, Attention: Barry S. Nussbaum, at an address in California.
The May 25, 2004 letter is addressed to Skyline Place Apartments at the Emily
Road address.
      13
      … The purchaser is listed as Chandler Wonderly and indicates that
Wonderly intended to assign his rights as purchaser to a third party.

                                       18
      lease and]; (ii) the Landlord has no obligation to construct, install,
      or repair any improvements or facilities for such Tenant.

In addition, the agreement contains a representation and warranty that “[t]here

are no actions, suits, claims, assessments, condemnation proceedings,

violations of any laws, rules, or regulations of any governmental authority or

property association, or proceedings pending or threatened, that could

materially adversely affect the ownership, operation or maintenance of the

Property or Seller’s ability to perform” under the agreement.

      Analysis

      Appellee specifically averred that he had no knowledge of the crime

activity occurring at the property and that he did not receive any information

regarding such activity. Appellants’ evidence does not contradict appellee’s

affidavit testimony, especially considering that none of the S.A.F.E. unit letters

in evidence were addressed to appellee in any capacity and that appellee, as

Trustee of the Trusts, owned interests in the property for a mere fifteen days.

Additionally, there is no evidence that any of the prior owners to whom the

letters were addressed shared this information with appellee.

      There is likewise no evidence that any criminal activity occurred during

or immediately before or after the short time the Trusts, through appellee,

owned their minority interests in the property. While it might be argued that


                                       19
appellee could have obtained information regarding the crime activity on the

property and performed a more thorough due diligence review of the property,

appellants have cited no authority requiring a prospective property owner to do

so. See Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 759

(Tex. 1998) (“Property owners bear no duty to regularly inspect criminal

records to determine the risk of crime in the area.”). And, considering that

appellee’s address is in San Diego, California and that he averred that he had

never inspected the property or intended to occupy or possess it, appellants did

not present any evidence that appellee should have known of the amount and

type of crime occurring at the apartments. The evidence does not show how

appellee could have created or contributed to a dangerous condition over a two-

week period when, as Trustee of the Trusts, the level of crime activity existed,

without his knowledge, at the time he bought his interests in the property and

continued at roughly the same rate after he sold his interests two weeks later.

Accordingly, we conclude and hold that appellee, individually and as Trustee of

the Trusts, conclusively proved that he had no duty to appellants to protect

them from third-party criminal acts occurring at the property, especially as of

January 26, 2005. See Lefmark, 946 S.W.2d at 55. Thus, the trial court did

not err by granting appellee summary judgment on appellants’ negligence,

premises liability, and negligent activity claims.

                                       20
      We overrule appellants’ first and fourth issues.

                     Appellants’ Negligence Per Se Claim

      In their fifth issue, appellants claim that the trial court erred by granting

summary judgment for appellee on all of their negligence and premises liability

claims, including their negligence per se claim, because appellee failed to

conclusively prove the absence of proximate cause. Appellants’ negligence per

se claim is based on their contention that appellee and the other prior owners

violated Texas Property Code 92.153(a)(5) by failing to install a keyless

deadbolt on unit 411 at the owners’ expense.             Tex. Prop. Code Ann.

§ 92.153(a)(5).

      Applicable Law

      Negligence per se is a concept adopted by the civil courts in which a duty

is based on a standard of conduct created by a statute rather than on the

reasonably prudent person test used in pure negligence claims.           Smith v.

Merritt, 940 S.W.2d 602, 607 (Tex. 1997); Omega Contracting, Inc. v. Torres,

191 S.W.3d 828, 839 (Tex. App.—Fort Worth 2006, no pet.) (op. on reh’g.).

In such a case, the factfinder is not asked to decide whether the defendant

acted as a reasonably prudent person would have acted under the same or

similar circumstances; instead, the statute itself states what a reasonably

prudent person would have done. Omega Contracting, 191 S.W.3d at 839;

                                       21
Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 455 (Tex.

App.—Texarkana 2002, pet. denied).         If an excuse is not raised, the only

inquiry for the factfinder is whether the defendant violated the statute and, if

so, whether the violation was a proximate cause of the injury.          Omega

Contracting, 191 S.W.3d at 839; Supreme Beef Packers, 67 S.W.3d at 455.

      Proximate cause has two components: cause-in-fact and foreseeability.

LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006); Travis v. City of

Mesquite, 830 S.W.2d 94, 98 (Tex. 1992); Wrenn v. G.A.T.X. Logistics, Inc.,

73 S.W.3d 489, 496 (Tex. App.—Fort Worth 2002, no pet.). These elements

cannot be established by mere conjecture, guess, or speculation. W. Invs., Inc.

v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Doe v. Boys Clubs of Greater

Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The test for cause-in-fact is

whether the act or omission was a substantial factor in causing the injury

without which the harm would not have occurred. Urena, 162 S.W.3d at 551;

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); Brumfield v.

Ruyle, No. 02-06-00037-CV, 2007 WL 1018475, at *6 (Tex. App.—Fort

Worth Apr. 5, 2007, no pet.). If the defendant’s negligence merely furnished

a condition that made the injuries possible, there can be no cause-in-fact.

Urena, 162 S.W.3d at 551; IHS Cedars Treatment Ctr., 143 S.W.3d at 799.

In other words, the conduct of the defendant may be too attenuated from the

                                      22
resulting injuries to the plaintiff to be a substantial factor in bringing about the

harm. IHS Cedars Treatment Ctr., 143 S.W.3d at 799; Arguelles v. Kellogg

Brown & Root, 222 S.W.3d 714, 731 (Tex. App.—Houston [14th Dist.] 2007,

no pet.).

       In determining whether criminal conduct is foreseeable, we must consider

whether any criminal conduct previously occurred on or near the property, how

recently the criminal conduct occurred, how often it occurred, how similar it

was to the conduct at issue, and what publicity was given to the previous

conduct to indicate that the premises owner knew or should have known about

it.   Timberwalk, 972 S.W.2d at 757.         “These factors—proximity, recency,

frequency, similarity, and publicity—must be considered together in determining

whether criminal conduct was foreseeable. . . . The court must weigh the

evidence using all the factors.”      Id. at 759;     Trammell Crow, 2008 WL

3991185, at *4.

       Analysis

       Appellee contends that his failure to ensure that the door had a keyless

bolting device and peephole during the fifteen days he owned interests in the

property as Trustee of the Trusts is too remotely attenuated from appellants’

injuries six months later. The record shows that there were several assaults,

sexual assaults, and robberies at the apartments around the time appellee

                                        23
acquired his interests in the property as Trustee of the Trusts. There is no

evidence as to whether any of these crimes were similar to the one here, i.e.,

that anyone kicked in a door to get into one of the units or that any of the

assaults, sexual assaults, or robberies were facilitated by the lack of a locking

device on any of the doors. See Trammell Crow, 2008 WL 3991185, at *6–7.

Moreover, it is undisputed that appellee did not have personal knowledge about

the frequency and type of crime occurring at the property or the types of

security devices that were or were not on Glover’s door. Appellants do not

dispute the evidence that Glover’s door was apparently the only one in the

complex lacking a keyless deadbolt.         And, as we have already discussed

previously, there is no evidence that appellee ever received notice of the letters

written by the S.A.F.E. unit regarding the criminal activity on the property.14

See Timberwalk, 972 S.W.2d at 759 (“Previous similar incidents cannot make

future crime foreseeable if nobody knows or should have known that those

incidents occurred.”).    Accordingly, we conclude and hold that appellee

conclusively proved that his alleged negligence (whether based on appellants’

pled negligence, negligence per se, or premises liability claims) could not have


      14
       … Likewise, there is no evidence as to the identity of Aeysha, the
person to whom Glover said she complained about the lack of a deadbolt, and
no evidence that Aeysha ever conveyed or had a duty to convey this
information to appellee.

                                       24
been a proximate cause of appellants’ injuries and therefore that he was entitled

to summary judgment on appellants’ negligence per se cause of action as well.

We overrule appellants’ fifth issue.15

                             Exemplary Damages

      Appellants contend in their sixth issue that the trial court erred by

granting summary judgment as to their claim for exemplary damages. However,

because we have determined that the trial court did not err by granting

summary judgment as to all of appellants’ independent tort claims, we also hold

that it likewise did not err by granting summary judgment as to damages

flowing from those claims.     See Fed. Express Corp. v. Dutschmann, 846

S.W.2d 282, 284 (Tex. 1993) (holding that recovery of exemplary damages

requires finding of independent tort and accompanying damages); Everett v. TK-

Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.—Fort Worth 2005, no pet.).

We overrule appellants’ sixth issue.

                                   Sanctions




      15
        … Because appellants’ negligence per se claim fails as to the proximate
cause element, we need not address appellants’ third issue contending that
appellants are within the class of persons whom section 92.153(a)(5) was
designed to protect. See Tex. R. App. P. 47.1; Holt v. Reproductive Servs.,
Inc., 946 S.W.2d 602, 607 (Tex. App.—Corpus Christi 1997, writ denied).

                                         25
      Appellee has asked this court to impose sanctions on appellants,

contending that this appeal is frivolous. See Tex. R. App. P. 45. Under rule

45, this court may award just damages to a prevailing party if it determines that

an appeal is frivolous.    Id.; Clopton v. Pak, 66 S.W.3d 513, 517 (Tex.

App.—Fort Worth 2001, pet. denied). Whether to award damages is within this

court’s discretion. Clopton, 66 S.W.3d at 517. Sanctions should be imposed

only in egregious circumstances. Id.; Angelou v. African Overseas Union, 33

S.W.3d 269, 282 (Tex. App.—Houston [14th Dist.] 2000, no pet.). We do not

believe that this case warrants sanctions; therefore, we decline to impose

monetary sanctions under rule 45.

                                  Conclusion

      Having overruled in part and dismissed in part appellants’ dispositive

issues, we affirm the trial court’s judgment.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: October 30, 2008




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