                                                                                    ACCEPTED
                                                                                03-15-00295-CV
                                                                                        7296020
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           10/8/2015 3:32:12 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                           No. 03-15-00295-CV

                                                                FILED IN
                                                         3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                                 IN THE                  10/8/2015 3:32:12 PM
                      THIRD COURT OF APPEALS               JEFFREY D. KYLE
                                                                 Clerk

                                 at Austin



                         GERALD KOSTECKA,
                                Appellant,
                                    V.
     SMOKEY MO’S FRANCHISE, LLC d/b/a SMOKEY MO’S BBQ,
                                 Appellee.


On Appeal from the 26th Judicial District Court of Williamson County, Texas
                       Trial Cause No. 12-1117-C26


                   APPELLEE’S RESPONSIVE BRIEF



       ORAL ARGUMENT REQUESTED ONLY FOR REBUTTAL
                                  Robert A. House
                                  Texas Bar No. 24071591
                                  CLARK TREVINO & ASSOCIATES
                                  1701 Director Blvd., Suite 920
                                  Austin, Texas 78744
                                  Telephone: 512-445-1580
                                  Facsimile 512-383-0503
                                  robert.house@farmersinsurance.com
                                  ATTORNEYS FOR APPELLEE
                                        TABLE OF CONTENTS


I.     IDENTITY OF PARTIES AND COUNSEL .................................................. iii
II.    STATEMENT OF ORAL ARGUMENT ........................................................ iii
III.   INDEX OF AUTHORITIES .......................................................................... iv
IV.    STATEMENT OF THE CASE ........................................................................1
V.     ISSUES PRESENTED .....................................................................................3
VI.    STANDARD OF REVIEW..............................................................................4
VII. STATEMENT OF FACTS ...............................................................................6
VIII. SUMMARY OF THE ARGUMENT ...............................................................8
IX.    ARGUMENT....................................................................................................9
X.     PRAYER .........................................................................................................16
XI.    CERTIFICATE OF SERVICE .......................................................................17
XII. CERTIFICATE OF COMPLIANCE .............................................................18




                                                           ii
               I.         IDENTITY OF PARTIES AND COUNSEL


Appellant Gerald Kostecka                       Appellee Smokey Mo’s BBQ

Stuart Whitlow                                  Robert A. House
LAW OFFICES OF                                  CLARK, TREVINO &
STUART WHITLOW                                  ASSOCIATES
1104 S. Mays Street, Suite 116                  1701 Directors Boulevard, Suite 920
Round Rock, Texas 78664                         Austin, Texas 78744
(737) 346-1839 Phone                            (512) 445-1580 Phone
(512) 255-5938 Fax                              (512) 383-0503 Fax




                    II.    STATEMENT OF ORAL ARGUMENT
      Appellee, Smokey Mo’s BBQ does not believe oral argument will assist the

Court in its analysis of the law and facts in this case, and therefore Appellee only

retains the right to present argument on rebuttal should the Court choose to have this

case placed on the oral submission docket.




                                          iii
                                    III.      INDEX OF AUTHORITIES
Cases
Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999) .....................4
Barnes v. Sulak, No. 03-01-00159-CV, 2002 Tex. App. LEXIS 5727, at *25, n.4,
  2002 WL 1804912 (Tex.App. – Austin, Aug. 8, 2002, no pet.).........................v, 9
Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex.
  App.—Houston [1st Dist.] 2010, pet. denied) ..................................................v, 10
Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989) ...................................................4
Carter v. Converse, 550 S.W.2d 322, 329 (Tex. Civ. App. -- Tyler, 1977, writ ref.
  n.r.e.) .....................................................................................................................14
Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex.1996) ...............................4
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005) ...................................4, 5
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001)....................................4
Farlow v Harris Methodist Fort Worth Hospital, 284 SW3d 903, 911 (Tex App—
  Fort Worth 2008, pet denied)................................................................................14
Garner v. Long, 106 S.W.3d 260, 267 (Tex. App.—Fort Worth 2003, no pet.) .....14
Geiselman v. Cramer Fin. Grp., Inc., 965 S.W.2d 532, 537 (Tex. App.—Houston
  [14th Dist.] 1997, no writ) ....................................................................................14
Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no
  pet.) .......................................................................................................................10
Hovorka v. Cmty. Health Sys., Inc., 262 S.W.3d 503, 511 (Tex. App.—El Paso
  2008, no pet.) ....................................................................................................v, 10
Humpreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam) .................11
Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.---Austin 1998, no
  pet.) .....................................................................................................................v, 9
Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.—Dallas 2003, no pet.). ..............4
Kantor v. Herald Pub. Co., 645 S.W.2d 625, 629 (Tex. App. Tyler 1983) .............14
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) ..................................................13
La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 563 (Tex. 1984) .............14
Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) ........5
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013) ...........................5
Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex.2013) ...................................................4
Progressive Cty. Mut. Ins. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005) .....................5
Risner v. McDonalds Corp., 18 S.W.3d 903 at 906 (Tex. App. 2000). ..................12
Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex. App.—Houston [1st Dist.]
  1997, no writ) ....................................................................................................v, 10

                                                               iv
Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) ..................... v, 10, 13
Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543–44 (Tex. App.—
  Houston [14th Dist.] 2007, pet. denied) ...............................................................10
State of Texas v. Terry Williams, 940 S.W.2d 583 at 584 (Tex. 1997) ............ 12, 13
Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.App.—San
  Antonio 2000, pet. denied) .....................................................................................5
Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) ..........................................4
Woodside v. Woodside, 154 S.W.3d 688, 692 (Tex.App.—El Paso 2004, no pet.) ..4
Rules
Tex. R. Civ. P. 166a(f) .............................................................................................13
TEX. R. CIV. P. 166A(I) ...............................................................................................9
Tex. R. Evid. 602 .....................................................................................................13
TEX. R. EVID. 801(E) (2) (D) .....................................................................................13
TEX.R. CIV. P. 166a(c) ...........................................................................................10




                                                           v
                       IV.   STATEMENT OF THE CASE
        Nature of the case. On October 11, 2012, Gerald Kostecka, Plaintiff in the

underlying action and Appellant herein, alleged bodily injury and sued Smokey

Mo’s Franchise, LLC D/B/A Smokey Mo’s BBQ (Appellee) for premises liability

and general negligence; Kostecka’s bodily injury claims stem from an October 12,

2010 incident in which Kostecka claims a chair shot out from under him causing

him to fall and injure himself.1 On October 22, 2012, Smokey Mo’s BBQ answered

with a general denial and affirmative defense, Kostecka’s negligence was the

proximate cause of the accident and resulting injuries, if any.2

        Course of proceedings. On February 26, 2014, Smokey Mo’s BBQ filed a

motion to compel discovery responses and production of documents.3 On

November 7, 2014, Smokey Mo’s BBQ filed a no-evidence motion for summary

judgment.4 Smokey Mo’s BBQ’s motion argued that Appellant lacked evidence of

each element of his cause of action, damages, and causation concerning

Appellant‘s premises liability claims.5 On December 9, 2014, Appellant filed a

Response to Smokey Mo’s BBQ’s no-evidence motion for summary judgment.6

Support only by a self-serving affidavit, without any expert testimony, Appellant


1
  C.R. at 7.
2
  C.R. at 14.
3
  C.R. at 17.
4
  C.R. at 33.
5
  C.R. at 33.
6
  S C.R. at 3.
                                          1
argued that he sustained substantial injuries, pain and suffering, physical

impairment and mental anguish damages as a result of the shooting chair.7 In his

Response, Appellant did not provide any evidence supporting his claim for

premises liability, nor was there any evidence to support damages of any kind, only

conclusory statements.8

        Trial court disposition. The trial court granted Smokey Mo’s BBQ’s motion

for summary judgment on February 13, 2015.9




7
  S C.R. at 4, 5, and 7.
8
  C.R. at 7.
9
  C.R. at 37.
                                          2
                           V.    ISSUES PRESENTED
      Plaintiff failed to present the Trial Court with more than a scintilla of

evidence on multiple elements of their cause of action for premises liability,

including damages, and therefore the Trial Court was not in error in granting No-

Evidence Summary Judgment.




                                          3
                          VI.    STANDARD OF REVIEW
       The appellate court may review and affirm on any ground the movant

presented to the court in its motion for summary judgment, regardless of whether

the trial court identified the ground relied on to grant the summary judgment.10

When the summary judgment does not state the grounds on which it was granted,

the nonmovant must show that each ground alleged in the motion is insufficient to

support the judgment.11 Otherwise, the summary judgment may be affirmed on any

one meritorious ground alleged.12 The appellate court may even review grounds in

earlier summary-judgment motions, even though they were denied.13

       In reviewing a no-evidence summary judgment, the appellate court must

consider all the evidence in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not.14 The appellate court will affirm a no-evidence summary

judgment if the record shows one of the following: (1) there is no evidence on the



10
   Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); see Nall v. Plunkett, 404
S.W.3d 552, 555 (Tex.2013) (appellate court cannot infer from pleadings other grounds for
granting SJ that were not expressly before trial court).
11
   Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.App.—Dallas 2003, no pet.).
12
   Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567,
569 (Tex.1989); Woodside v. Woodside, 154 S.W.3d 688, 692 (Tex.App.—El Paso 2004, no
pet.).
13
   Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999).
14
   Timpte Indus. v. Gish, 286 S.W.3d 306, 310 (Tex.2009); see City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex.2005).
                                             4
challenged element, (2) the evidence offered to prove the challenged element is no

more than a scintilla, (3) the evidence establishes the opposite of the challenged

element, or (4) the court is barred by law or the rules of evidence from considering

the only evidence offered to prove the challenged element.15

       When a trial court erroneously grants a summary judgment, the appellate

court should affirm the summary judgment if later events in the trial court made

the erroneous decision harmless.16




15
   Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013); City of Keller, 168 S.W.3d
at 810; Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.App.—San Antonio
2000, pet. denied).
16
   Progressive Cty. Mut. Ins. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005); see, e.g., Martin v.
Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) (harmless error to grant D’s
motion for SJ without notice to P because trial court considered P’s response after SJ and
reconfirmed its ruling).
                                              5
                        VII. STATEMENT OF FACTS
       On October 12, 2010, Gerald Kostecka claims to have injured himself while

visiting Appellee, Smokey Mo’s BBQ restaurant. Mr. Kostecka claims to have

been at the restaurant, eating his dinner, when he reached for a salt shaker and the

chair, inexplicably, “shot out from under [him] and [he] fell to the floor jamming

[his] left knee.”17 Gerald Kostecka alleges an employee of Smokey Mo’s BBQ told

him the paint on the floor of the restaurant and the “nature of the bottom of the

chair legs” created a “dangerous situation […] in terms of a chair moving out from

under customers.”18 That Smokey Mo’s BBQ “had to sand texture the floor.”19

Kostecka claims he was not warned, ordinary care was not exercised, the chairs

and floors in Smokey Mo’s BBQ were dangerous, and because of this he sustained

substantial injuries, felt severe pain and suffering, experienced impairment and

mental anguish, which continues to the date of the affidavit, December 8, 2014.20

No medical records were attached to Gerald Kostecka’s Response to the Motion

for Summary Judgment.21 The responses to discovery that were, eventually, served

in response to Smokey Mo’s BBQ requests include reference to chiropractic

treatment from Tyson Krugman, D.C. for a “condition” with Kostecka’s his right



17
   C.R. at 8.
18
   S C.R. at 7.
19
   S C.R. at 7.
20
   S C.R. at 7.
21
   S C.R. at 3.
                                          6
knee on May 18, 2010 – about five months before the October 12, 2010 visit to

Smokey Mo’s BBQ he claims to have be ousted by the shooting chair.22 The only

support offered as summary judgment evidence is the self-serving affidavit of

Gerald Kostecka, wherein Mr. Kostecka essentially restates the pleadings and other

conclusory statements, unsupported by facts, reality, or any other shred of

evidence, competent or otherwise.23




22
     C.R. at 23.
23
     S C.R. at 7.
                                         7
                   VIII. SUMMARY OF THE ARGUMENT
      Both before the Trial court and before this Court, Gerald Kostecka has failed

to establish damages or liability under the premises liability cause of action

brought against Smokey Mo’s BBQ. More important for the purpose of a summary

judgment, no liability or damage exists as a matter of law.

      Kostecka failed to show that a condition on the property was unreasonably

dangerous. Kostecka failed to show Smokey Mo’s BBQ was aware of an

unreasonable risk. Kostecka failed to show how Smokey Mo’s BBQ failed to use

reasonable care in failing to adequately warn the Kostecka and to make the

premises safe. Kostecka failed to show any damages that were causally related to

the claimed unreasonably dangerous condition.




                                          8
                                     IX.     ARGUMENT
       Gerald Kostecka needed to provide more that a scintilla of evidence to

support each point raised in Smokey Mo’s BBQ’s No-Evidence Motion for

Summary Judgment.24 Both under the Rules and by substance, Kostecka failed to

do so. In its No Evidence Motion for Summary Judgment, Smokey Mo’s BBQ

contended that as to each element required for proof of liability, including

damages, Kostecka could not prove each by more than a scintilla of evidence.25

Smokey Mo’s BBQ’s No-Evidence Motion for Summary Judgment attacked each

element of Kostecka’s cause of action for premises liability.26 “A no-evidence

summary judgment is properly granted if the nonmovant fails to bring forth more

than a scintilla of probative evidence to raise a genuine issue of material fact as to

an essential element of the nonmovant's claim on which the nonmovant would

have the burden of proof at trial.”27 Kostecka failed to put forth any evidence

regarding several elements of his claim. Kostecka provides no proof of the injuries,

or other damages, he claims to have sustained.28 The only summary judgment

evidence that was offered in Kostecka’s response to the summary judgment motion


24
   TEX. R. CIV. P. 166A(I).
25
   C.R. at 33.
26
   If Plaintiff desired to object to any perceived lack of specificity in the No-Evidence Motion for
Summary Judgment, this Court has previously ruled any such objection is waived. Barnes v.
Sulak, No. 03-01-00159-CV, 2002 Tex. App. LEXIS 5727, at *25, n.4, 2002 WL 1804912
(Tex.App. – Austin, Aug. 8, 2002, no pet.).
27
   Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70-71 (Tex.App.---Austin 1998, no pet.).
28
   S C.R. at 3.
                                                 9
was his own self-serving affidavit.29 The affidavit is little different from a

verification, in that it only restates the response to the summary judgment motion

in an affidavit form. “An affidavit that is nothing more than a sworn repetition of

the allegations in the pleadings is conclusory and has no probative force.”30

“Conclusory statements in an affidavit are not proper summary judgment proof.”31

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

support the conclusion.”32 “Conclusory statements without factual support are not

credible and are not susceptible to being readily controverted.”33 “To avoid being

conclusory, statements need factual specificity such as time, place, and the exact

nature of the alleged facts.”34 “Merely reciting that an affidavit is made on personal

knowledge is insufficient. Instead, the affidavit must go further and disclose the

basis on which the affiant has personal knowledge of the facts asserted.”35 “An



29
   S C.R. at 7.
30
   Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied).
31
   See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (affidavits); Hovorka v.
Cmty. Health Sys., Inc., 262 S.W.3d 503, 511 (Tex. App.—El Paso 2008, no pet.) (deposition
testimony); see, e.g., Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana
2000, no pet.) (affidavit that Plaintiff was fired because of unacceptable behavior was factual
conclusion and incompetent as summary-judgment evidence); Rizkallah v. Conner, 952 S.W.2d
580, 587-88 (Tex. App.—Houston [1st Dist.] 1997, no writ) (affidavit that Defendant caused
problem with Plaintiff’s car by steam cleaning engine was factual conclusion and incompetent as
summary-judgment evidence).
32
   Id.
33
   Id.; See TEX.R. CIV. P. 166a(c).
34
   Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 543–44 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied).
35
   Id.
                                              10
affidavit must ‘positively and unqualifiedly’ show that the facts asserted are true

and within the affiant’s personal knowledge.”36 Kostecka attempted to survive

summary judgment by offering conclusory statements which purport provide

scintillas of evidence on the challenged elements. To support that he has produced

more than a scintilla of evidence, he simply says so.37 The first conclusory

statement in the affidavit, with respect to the material facts in the matter, occurs in

Kostecka’s description of the incident. He swears that the chair shot out from

under him when he reached for a salt shaker on the table.38 This is his only

description of how, and the extent, the exact nature of the alleged facts occurred,

everything between the moment he began to reach and the moment the chair shoots

out from under him. This may be to avoid a discussion on what Kostecka did to

cause the chair to shoot, but it avoids a positive and unqualified showing of the

truth of the asserted facts. In the very next sentence of the affidavit he claims an

employee of Smokey Mo’s, named Aaron, told him that the “nature of the bottom

of the chair legs and the paint used on the floor I created a dangerous situation for

its customers in terms of a chair moving out from under customers.”39 Kostecka

fails to provide evidence that the “situation with respect to the chairs and floor in




36
   Humpreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curiam).
37
   See Apellant’s Brief p. 8.
38
   S C.R. at 7.
39
   S C.R. at 7.
                                             11
its restaurant” was an unreasonable risk.40 Kostecka does not even explain what the

“situation with respect to the chairs and floor in its restaurant” is, and what about it

creates any risk. There is no evidence with a description of the legs of the chairs,

whether or not have wheels, plastic feet, metal feet, are missing legs, wobble, or

are poorly made or maintained. As for the floors, Kostecka does reference a

conversation he had with “Matthew” at Smokey Mo’s BBQ where it was said the

floors had been sand textured.41 The sanded floors are also without support or

description as to what about the condition of the floor would create an

unreasonable risk. Is not established whether the floor is slippery after the sanding,

if it sticky. Do the chairs now hover over the floor and move about the restaurant

on their own? Kostecka did not even put forth evidence to prove that Smokey Mo’s

BBQ was an owner or occupier of the property.42 In order for the Smokey Mo’s

BBQ be liable for a premises defect, the Smokey Mo’s BBQ not only has to be an

owner or occupier of the property, but must control the activity about which

Kosteckas complained.43 In this case, per the Kostecka’s allegations, that would be

the “situation with respect to the chairs and floor in its restaurant.”44 Kostecka

provided neither the Trial Court nor this Court with any evidence that Smokey



40
   S C.R. at 7.
41
   S C.R. at 7.
42
   State of Texas v. Terry Williams, 940 S.W.2d 583 at 584 (Tex. 1997).
43
   Risner v. McDonalds Corp., 18 S.W.3d 903 at 906 (Tex. App. 2000).
44
   C.R. at. 8—11 and S C.R. at 7.
                                               12
Mo’s BBQ had control of the “situation with respect to the chairs and floor in its

restaurant.” As Kostecka failed to meet the first element of their premises liability

claim, his lawsuit fails as a matter of law. Kostecka further failed to provide

evidence that the “situation with respect to the chairs and floor in its restaurant”

was an unreasonable risk. Kosteckas further failed to show any evidence that

Smokey Mo’s BBQ was aware of the risk by which Kostecka claims he was

injured. As noted by the nature of the claim, Kostecka would have to prove by

more than a scintilla of evidence not only that an unreasonable risk existed, but that

Smokey Mo’s BBQ had actual knowledge of that unreasonable risk.45 Kostecka

relies on the heresy statements of an “Aaron” and “Matthew” who are alleged to be

employees of Smokey Mo’s BBQ; however the hearsay references concerns the

“nature of the bottom of the chair legs and the pain used on the floor creating a

dangerous situation in terms of a chair moving out from under customers.”46

Kostecka argues these statements are not hearsay because they are admissions by a

party opponent. A statement made by the opposing party's agent or employee on a

matter within the scope of that relationship and while it existed is not hearsay.47

Hearsay is not competent summary-judgment evidence.48 However, for a hearsay



45
   State, 940 S.W.2d at 584.
46
   S C.R. at 7.
47
   TEX. R. EVID. 801(E) (2) (D)
48
   See Tex. R. Civ. P. 166a(f); Tex. R. Evid. 602; Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex.
2008); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Garner v. Long, 106
                                               13
statement to be admissible as admission by a party-opponent made by an agent or

servant, the proponent of its admission must show that the statement was made by

an employee or agent acting within the scope of authority.49 Absent the unreliable

nature of these statements, they do not explain the unreasonable risk, nor do they

explain what Smokey Mo’s knew about the alleged condition.50 Even if Kostecka

established that an employee of the Smokey Mo’s BBQ knew there was a risk;

Kostecka never shows how that risk translated into the higher level of proof needed

to establish that this employee, or any other representative of the Smokey Mo’s

BBQ perceived it as an unreasonable risk. More importantly, the fact “Aaron” or

“Matthew,” whom are claimed to be Smokey Mo’s BBQ’s employees, were aware

of the “situation with respect to the chairs and floor in its restaurant” provides no

evidence to support Kostecka’s duty to prove the Defendant was aware of any risk

– unreasonable or otherwise. “[A] corporation, is bound by the knowledge of one

of its agents if that knowledge came to him in the course of the agent's

employment.”51 Kostecka failed to provide any evidence that if there was an



S.W.3d 260, 267 (Tex. App.—Fort Worth 2003, no pet.); Geiselman v. Cramer Fin. Grp., Inc.,
965 S.W.2d 532, 537 (Tex. App.—Houston [14th Dist.] 1997, no writ).
49
   Farlow v Harris Methodist Fort Worth Hospital, 284 SW3d 903, 911 (Tex App—Fort Worth
2008, pet denied).
50
   S C.R. at 7.
51
   La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 563 (Tex. 1984). Defendant is not
oblivious to cases that indicate to the contra (see Kantor v. Herald Pub. Co., 645 S.W.2d 625,
629 (Tex. App. Tyler 1983); Carter v. Converse, 550 S.W.2d 322, 329 (Tex. Civ. App. -- Tyler,
1977, writ ref. n.r.e.)); however these cases deal with the liabilities imputed on a client by the
knowledge of their attorney.
                                                14
unreasonable risk, Smokey Mo’s BBQ failed to take steps to make the condition

reasonably safe. This element returns to the Court’s consideration of whether

Smokey Mo’s BBQ owned or occupied the premises. The very nature of the cause

of action for premises liability is that the owner created the risk so the owner can

remove the risk. In fact, Gerald Kostecka’s affidavit states that the floors were sand

textured and that it was destroying the mops.52 Kostecka could not even prove

Smokey Mo’s BBQ could remove the claimed risk, there was no duty on the part

of the Smokey Mo’s BBQ to remove the risk.

          The level of proof needed to establish each element of a cause of action for

premises liability in order to avoid a no-evidence summary judgment is minimal.

Kosteckas failed to meet that minimum standard as to multiple elements of their

claim. Therefore, the Trial Court correctly ruled in granting Smokey Mo’s BBQ’s

No-Evidence Motion for Summary Judgment and the same should be affirmed on

appeal.




52
     S C.R. at 7.
                                            15
                                 X.    PRAYER
      As outlined above, Appellant’s response to summary judgment did not raise

a genuine issue of material fact. Accordingly, Smokey Mo’s respectfully request

that this Court affirm the summary judgment entered by the trial court.




                                       Respectfully submitted,
                                       CLARK, TREVINO & ASSOCIATES
                                       Mailing Address:
                                       P.O. Box 258829
                                       Oklahoma City, OK 73125-8829
                                       Physical Address:
                                       1701 Directors Boulevard, Suite 920
                                       Austin, Texas 78744
                                       (512) 445-1580 - Metro
                                       (512) 383-0503 - Metro Fax
                                       robert.house@farmersinsurance.com



                                BY:
                                       Robert A. House
                                       State Bar No. 24071591
                                       ATTORNEYS FOR DEFENDANT




                                        16
                     XI.    CERTIFICATE OF SERVICE
      The undersigned hereby certifies that a true and correct copy of the

foregoing document has been forwarded to the following parties of record in a

manner consistent with the Texas Rules of Appellate Procedure on this 8th day of

October, 2015, via facsimile:

      Stuart Whitlow
      LAW OFFICES OF STUART WHITLOW
      1104 S. Mays Street, Suite 116
      Round Rock, Texas 78664
      (512) 255-5938 Fax
      COUNSEL FOR GERALD KOSTECKA




                                      _____________________________
                                      ROBERT A. HOUSE




                                        17
                  XII. CERTIFICATE OF COMPLIANCE
      The number of words in this document totals: 3,320 words (counting all

parts of the document). The body text is in 14 point font, and the footnote text

is in 12 point font. The undersigned relied on the word count of the computer

program used to prepare the document.




                                     ______________________________
                                     ROBERT A. HOUSE




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