Affirmed in Part, Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed August 8, 2013.




                               In The

                Fourteenth Court of Appeals

                        NO. 14-12-00066-CV


                  IGNAZIO LA CHINA, Appellant

                                 V.

    THE WOODLANDS OPERATING COMPANY, L.P. D/B/A THE
      WOODLANDS RESORT & CONFERENCE CENTER, MS TWC,
       INC., WECCR, INC. D/B/A THE WOODLANDS RESORT &
      CONFERENCE CENTER, THE WOODLANDS COMMERCIAL
          PROPERTIES COMPANY, L.P., WECCR GENERAL
          PARTNERSHIP, MS HOSPITALITY, LP, AND MND
                  HOSPITALITY, INC., Appellees

                On Appeal from the 9th District Court
                      Montgomery County, Texas
                Trial Court Cause No. 11-06-06810-CV
                             MAJORITY OPINION


       In this case, we consider whether the trial court properly granted summary
judgment in favor of the defendants in a negligence suit brought by a waterpark
patron who allegedly suffered injuries resulting from a collision on a waterslide.
Concluding that the trial court properly granted summary judgment in favor of
some of the defendants, but the claims against newly-added parties were not the
subject of a summary-judgment motion, we affirm in part and reverse and remand
in part.1

                                       BACKGROUND

       Appellant Ignazio La China spent a weekend in June 2009 at The
Woodlands Resort and Conference Center.                  While patronizing the facility‘s
waterpark, he allegedly collided with another patron on a waterslide and sustained
injuries to his nose and back. Exactly two years later, La China filed suit against
The Woodlands Operating Company, L.P., d/b/a The Woodlands Resort &
Conference Center; MS TWC, Inc.; and WECCR, Inc. d/b/a The Woodlands
Resort & Conference Center (collectively, the ―Original Defendants‖), asserting
claims for negligence and gross negligence.               La China alleged the Original
Defendants did not have an employee at the top of the waterslide to regulate traffic
and failed to reasonably and prudently protect the safety of waterpark patrons.

       In answering the suit, the Original Defendants claimed a defect in parties as
none is an owner, lessor, lessee or manager of the waterpark.                    The Original
Defendants also asserted a general denial and several affirmative defenses. After


       1
        This appeal was transferred by order of the Supreme Court of Texas to this court from the
Beaumont Court of Appeals.
                                               2
the parties engaged in discovery but still early in the case, the Original Defendants
filed a traditional motion for summary judgment, asserting that La China filed suit
against the wrong entities and that the Original Defendants owed him no legal
duty.2       The Original Defendants attached as summary-judgment evidence an
affidavit of A. Karen West, Vice President and General Counsel for The
Woodlands Operating Company, L.P., stating that The Woodlands Operating
Company, L.P. and WECCR, Inc. do not do business as ―The Woodlands Resort &
Conference Center‖; and the Original Defendants are not the owners, lessors,
lessees, or managers of, or the employers of people working at the waterpark. In
their summary-judgment motion, the Original Defendants identified other entities
as ―the owner of,‖ ―the lessee of,‖ ―the Manager of,‖ and ―the employer at‖ that
location.

         Before the trial court ruled on the summary-judgment motion, La China filed
a motion for continuance, stating that he needed more time to secure discovery.3
La China also amended his pleadings to add as additional defendants the other
entities identified in the West affidavit: The Woodlands Commercial Properties
Company, L.P.; WECCR General Partnership; MS Hospitality, LP; and MND
Hospitality, Inc. (hereinafter collectively, the ―New Defendants‖). La China filed
objections to West‘s affidavit, asserting that it was not proper summary-judgment
evidence because it contained conclusory statements and hearsay and West did not
establish her personal knowledge as to WECCR, Inc., MS TWC, Inc. and the New
Defendants. Though La China also moved to strike the West affidavit, the record
         2
         La China sued the Original Defendants in negligence and gross negligence. Both causes
of action require the element of a legal duty owed. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d
52, 53 (Tex. 1997); see also Holman v. KRJ Mgmt., Inc., 14-03-00017-CV, 2004 WL 502934, at
*2 (Tex. App.—Houston [14th Dist.] Mar. 16, 2004, no pet.) (mem. op.).
         3
         The record on appeal does not include a notice of hearing or a signed order regarding
the continuance.
                                              3
does not reflect that the trial court ruled on either the motion to strike or La
China‘s objections to the summary judgment evidence. La China also filed a
response to the summary-judgment motion and attached three supporting exhibits.
The trial court granted summary judgment, expressly stating in the judgment that it
was final and appealable and finally disposed of all claims and all parties.

                                        DISCUSSION

      La China asserts that the trial court erred in granting summary judgment in
favor of the Original Defendants because (1) the affidavit supporting the motion
for summary judgment was insufficient; (2) La China‘s evidence created a genuine
issue of material fact that the Original Defendants are properly named parties who
owed La China a legal duty; and (3) the trial court abused its discretion in denying
La China‘s motion for a continuance of the summary judgment hearing. La China
further complains that the summary judgment disposed of the claims against the
New Defendants without any summary-judgment motion seeking dismissal of
these claims.

      In a traditional motion for summary judgment, the movant has the burden of
establishing that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. See M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Likewise, with a traditional
summary-judgment motion, the nonmovant has no burden to respond unless the
movant conclusively establishes a claim or defense. See id. If the movant‘s
motion and summary-judgment evidence facially establish its right to judgment as
a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact
issue sufficient to defeat summary judgment. See id. A fact is material if it affects
the ultimate outcome of the lawsuit under the governing law. Henning v. OneWest

                                          4
Bank FSB, 05-12-00078-CV, 2013 WL 3340485, at *4 (Tex. App.—Dallas July 2,
2013, no. pet. h.); see also Pierce v. Washington Mut. Bank, 226 S.W.3d 711, 714
(Tex. App.—Tyler 2007, pet. denied). We consider all the evidence in the light
most favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When,
as in this case, the order granting summary judgment does not specify the grounds
upon which the trial court relied, we must affirm the summary judgment if any of
the independent summary-judgment grounds is meritorious. FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

       I.      The Affidavit Supporting the Summary Judgment Motion is
               Sufficient.
       In his first issue, La China argues the evidence in support of the motion for
summary judgment is incompetent because the single affidavit supporting the
motion is conclusory and based on hearsay and the affiant, Karen West, did not
establish her personal knowledge with regard to WECCR, Inc., MS TWC, Inc., and
the New Defendants. West‘s statements in her affidavit are not conclusory. A
―conclusory‖ statement is defined as ―[e]xpressing a factual inference without
stating the underlying facts on which the inference is based.‖4 See Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex.
2008) (citing Black‘s Law Dictionary 308 (8th ed. 2004)); see also LeBlanc v.
       4
         An objection is not required to preserve error on a challenge to conclusory statements because
they constitute no evidence. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,
233 (Tex. 2004).
                                                  5
Lamar State Coll., 232 S.W.3d 294, 301 (Tex. App.—Beaumont 2007, no pet.)
(―Statements are conclusory if they fail to provide underlying facts to support their
conclusions.‖). Conclusory affidavits are not sufficient to raise fact issues because
they are not credible or susceptible to being readily controverted. Ryland Group v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). West attested that the
Original Defendants are not owners, lessors, lessees, or managers of the waterpark
or employers of anyone working there.                  We find these statements are not
conclusory: they furnish some factual information that could have been rebutted
and, therefore, contain enough underlying facts to support a summary judgment
award. See Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—Texarkana 2007,
no pet.).

       The dissent argues that the affidavit is conclusory because it recites a legal
standard. The statement that the Original Defendants are not ―the owners, lessors,
lessees, or managers [of the waterpark or] the employer of persons working there‖
recites facts, not legal conclusions, because, if incorrect, these facts could be
readily controverted.5 The dissent cites Geiselman v. Cramer Financial Group,
Inc. for the proposition that ―conclusions of ownership or lack of ownership must
be supported by underlying facts.‖ 965 S.W.2d 532, 537 (Tex. App.—Houston
[14th Dist.] 1997, no writ). In that case, Cramer Financial Group sued Geiselman
and others to collect on unsecured promissory notes payable to a failed bank. Id. at
534. Cramer was required to prove ownership of the notes by showing, among
other things, possession of the original notes or ―what . . . happened to the original
notes.‖ Id. at 539. Cramer claimed, but did not present competent evidence that,
the notes had been ―lost, stolen or inadvertently destroyed.‖ Id. at 536-37. We

       5
         The legal standard at issue here is the existence of a duty. These facts establish that the
Original Defendants did not owe La China a duty, as discussed below.
                                                 6
held the statement that Cramer was the owner of the notes, without proof of
possession or what happened to the notes, was a legal conclusion. Id. at 537. The
case does not stand for the broader proposition posited by the dissent that a
statement of ownership (or lack of ownership), standing alone, cannot be a fact.
See, e.g., Nguyen v. Citibank N.A., 14-12-00153-CV, 2013 WL 3192884, at *3
(Tex. App.—Houston [14th Dist.] June 25, 2013, no. pet. h.) (holding affiant‘s
assertion of ownership of credit card account on behalf of bank was sufficient to
establish such ownership and not conclusory); Cannon v. Tex. Indep. Bank, 1
S.W.3d 218, 225 (Tex. App.—Texarkana 1999, pet. denied) (finding affiant‘s
statements ―concerning execution and delivery of . . . note . . . and concerning
[bank] being the holder and owner of the [note were] statements of fact and not
mere expressions of opinion‖).

      The dissent also cites Doherty v. Old Place, Inc. in support of the argument
that statements of ownership always must be supported by underlying facts. 316
S.W.3d 840, 844-45 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Ownership
of real property was the ultimate issue in that case. The affiant summarily stated
that he held ―fee simple title‖ to property based on three theories of adverse
possession. Id. at 845. These statements constituted legal conclusions because
they did not include the underlying facts that supported the conclusion that the
affiant owned the property through adverse possession. Id.

      Here, ownership of the waterpark is not the ultimate issue. The Original
Defendants sought to prove they did not owe a duty to La China. They did so by
showing they did not own, lease, manage, or employ anyone working at the
waterpark. That the Original Defendants do not own the waterpark is not a legal
conclusion regarding a contested issue in this case—it is a fact which, if
established, negates the existence of a duty.
                                          7
       La China did not secure a ruling on his other objections to West‘s affidavit
regarding personal knowledge and hearsay.6                   Thus, La China waived these
objections. See Washington DC Party Shuttle, LLC v. iGuide Tours, LLC, No. 14-
12-00303-CV, 2013 WL 3226768, at *10 (Tex. App.—Houston [14th Dist.]
June 27, 2013, no pet. h.) (en banc) (holding objection to lack of affiant‘s personal
knowledge is waived by failure to obtain ruling); Rizkallah v. Conner, 952 S.W.2d
580, 585 (Tex. App.—Houston [1st Dist.] 1997, no writ) (same);7 Graves v.
Alders, 132 S.W.3d 12, 17 (Tex. App.—Beaumont 2004, pet. denied) (holding
objections to affidavits based on hearsay were waived due to failure to obtain
written ruling). West‘s affidavit is sufficient to conclusively establish the Old
Defendants‘ defense as to legal duty.

       In addition to concluding that West‘s affidavit is conclusory, the dissent also
would hold that the Original Defendants‘ evidence failed to establish they did not
―control‖ or ―occupy‖ the subject premises and thus owed no duty to La China. La
China did not raise this issue in his appellate brief. We may not address an issue
not asserted or briefed by La China. Robinson v. Alief Indep. Sch. Dist., 298
S.W.3d 321, 326 n.2 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).


       6
          The dissent‘s other argument that the affidavit is conclusory is based on the fact that the
affidavit does not establish West‘s personal knowledge with regard to her connections to MS
TWC, Inc. or WECCR, Inc. or with regard to the facts that the Original Defendants are not
owners, lessors, lessees, or managers of the waterpark or employers of anyone working there.
       7
          Our sister court in Beaumont has not decided whether an objection to an affiant‘s lack
of personal knowledge is waived by the failure to obtain a ruling. However, we and the majority
of our sister courts have answered this question in the affirmative. See iGuide Tours, 2013 WL
3226768, at *9 (noting the Second, Fourth, Fifth, Sixth, Seventh, Tenth, and Eleventh Courts of
Appeals have held an affiant‘s lack of personal knowledge is a defect of form that is waived by
the failure to obtain a ruling, but the Third and Eighth Courts of Appeal have held an affiant‘s
lack of personal knowledge is a defect of substance that may be raised for the first time on
appeal).
                                                 8
Regardless, the summary-judgment evidence was sufficient to disprove La China‘s
allegation that the Original Defendants owed him a duty.

      Tort liability requires ―both the existence of and the violation of a duty.‖
Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997); see also Holman v.
KRJ Mgmt., Inc., 14-03-00017-CV, 2004 WL 502934, at *2 (Tex. App.—Houston
[14th Dist.] Mar. 16, 2004, no pet.) (mem. op.). Duty in the context of premises
liability is ―commensurate with the right of control.‖ Lefmark Mgmt. Co., 946
S.W.2d at 53-54; Nichols v. Tanglewood Manor Apartments, 14-04-00864-CV,
2006 WL 278282, at *5 (Tex. App.—Houston [14th Dist.] Feb. 7, 2006, no pet.)
(mem. op.). A party in control of a premises ―is under the same duty as the owner
to keep the premises . . . in safe condition.‖ City of Denton v. Page, 701 S.W.2d
831, 834 (Tex. 1986); see also Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex.
App.—Houston [14th Dist.] 1995, writ dism‘d). Control can be demonstrated by
ownership, occupation, management, or possession of property. Lefmark Mgmt.
Co., 946 S.W.2d at 54; see also Holman, 2004 WL 502934, at *2; De Leon v.
Creely, 972 S.W.2d 808, 812 (Tex. App.—Corpus Christi 1998, no pet.) (citing
Restatement (Second) of Torts § 328 to say that control requires ―physical control
of the property or the intention to occupy or possess the property‖). The elements
of control can be proven by a contractual agreement assigning a right to control or
evidence of actual control. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002); see also Olivares v. Brown & Gay Eng’g, Inc., 14-12-00198-CV, 2013 WL
1775998, at *2 (Tex. App.—Houston [14th Dist.] Apr. 25, 2013, no. pet.).

      Admittedly, the West affidavit fails to specifically deny that the Original
Defendants ―controlled‖ or ―occupied‖ the premises where La China allegedly was
injured. However, West attested the Original Defendants did not own, lease or
manage the subject property, and from the terminology used in the affidavit, one
                                        9
should easily infer a lack of control or occupation. See Gunn v. Harris Methodist
Affiliate Hosps., 887 S.W.2d 248, 251 (Tex. App.—Fort Worth 1994, writ denied).
The Gunn case presented a summary judgment affidavit similar to the West
affidavit. The defendant hospital attested it did not own, maintain or operate the
premises in which Gunn was injured. Id. at 251. The trial court granted summary
judgment, and Gunn appealed, arguing the hospital failed to negate its duty to
Gunn because it did not deny that it occupied the premises. Id. at 249. The court
held that ―the [h]ospital‘s failure to use the specific term ‗occupy‘ in its motion for
summary judgment and supporting affidavit was not a fatal flaw.‖ Id. at 251.

      The Original Defendants‘ failure to use the specific terms ―occupy‖ or
―control‖ did not preclude the trial court from entering summary judgment in the
Original Defendants‘ favor. The meanings of the words ―occupy‖ and ―own‖ are
generally understood to indicate an ability to manage and control. See Am. Fid. &
Cas. Co. v. Traders & Gen. Ins. Co., 334 S.W.2d 772, 775 (Tex. 1959); State v.
Garcia, 823 S.W.2d 793, 798 (Tex. App.—San Antonio 1992, pet. ref‘d). Given
that the terms ―operate,‖ as used in the Gunn case, and ―own,‖ as used here, are
synonymous with ―manage‖ and ―control,‖ and given that the Original Defendants
presented evidence that they did not ―own, lease, or manage‖ the subject premises,
the Original Defendants‘ summary judgment evidence was sufficient to disprove
La China‘s allegation that the Original Defendants owed him a duty.

      We overrule La China‘s first issue.

      II.    La China Did Not Raise a Genuine Issue of Material Fact as to a
             Legal Duty Owed by the Original Defendants.
      In his second issue, La China argues he raised a genuine issue of material
fact as to whether the Original Defendants are properly named parties who owed

                                          10
La China a legal duty because (1) WECCR, Inc. and The Woodlands Operating
Company, L.P. filed an assumed name certificate identifying The Woodlands
Resort and Conference Center, which is the subject premises, as their assumed
name; (2) MS TWC, Inc. filed documentation with the Texas Secretary of State
showing it is a general partner of The Woodlands Operating Company, L.P.; and
(3) a third-party administrator for The Woodlands Operating Company, L.P.
acknowledged it received notice of La China‘s injuries and identified a claim
number for La China. La China tries to prove too much. At most, this evidence
supports a reasonable inference that WECCR, Inc. and The Woodlands Operating
Company, L.P. have a right to conduct business as The Woodlands Resort and
Conference Center; MS TWC, Inc. was a general partner of The Woodlands
Operating Company, L.P.; and a third-party claims adjuster for The Woodlands
Operating Company, L.P. opened a claim for La China‘s alleged injuries. Even if
true, these facts are not material to the issue of whether the Original Defendants
owed La China a legal duty. Considering the evidence in the light most favorable
to La China, reasonable and fair-minded jurors could not differ in their conclusions
in light of the summary-judgment evidence that the Original Defendants did not
owe a legal duty to La China for his injuries at the waterpark. See Mack Trucks,
Inc., 206 S.W.3d at 582.

      III.   The Trial Court’s Denial of La China’s Motion for Continuance
             Was Not a Clear Abuse of Discretion.
      La China further complains in his second issue that the trial court abused its
discretion in denying La China‘s motion for continuance requesting time to obtain
responses to discovery requests and to conduct depositions relevant to the
summary-judgment motion. When a party argues it has not had an adequate
opportunity for discovery before a hearing on a traditional summary-judgment
                                        11
motion, such as here, the trial court may order a continuance of the hearing if it
appears ―from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his opposition.‖ Tex. R.
Civ. P. 166a(g), 251, 252; Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,
161 (Tex. 2004). When reviewing a trial court‘s order denying a motion for
continuance, we consider whether the trial court committed a clear abuse of
discretion on a case-by-case basis. Joe, 145 S.W.3d at 161. A trial court abuses its
discretion when it reaches a decision so arbitrary and unreasonable as to amount to
a clear and prejudicial error of law.          Id.   We may consider the following
nonexclusive factors in determining whether the trial court abused its discretion:
(1) the length of time the case has been on file, (2) the materiality and purpose of
the discovery sought, and (3) whether the party seeking the continuance has
exercised due diligence to obtain the discovery sought. Joe, 145 S.W.3d at 161;
Life Forms, Inc. v. Woodlands Operating Co., 304 S.W.3d 591, 601 (Tex. App.—
Beaumont 2010, pet. denied).

      It is undisputed that La China filed suit against the Original Defendants on
the last day before the limitations period expired and sought discovery well over
two years after the alleged incident. Neither the request for continuance nor the
attached affidavit contain an assertion that La China exercised due diligence to
ascertain the proper defendants to the lawsuit prior to the filing of the summary-
judgment motion. See Tex. R. Civ. P. 252; see also Richards v. Am. Nat’l Prop. &
Cas. Co., 195 S.W.3d 758, 762 (Tex. App.—Beaumont 2006, no pet.) (holding
trial court did not abuse discretion in denying motion for continuance when party
seeking continuance did not show due diligence to procure the testimony). Given
these facts, we conclude that the trial court did not make a clear and prejudicial
error of law in denying the request for continuance.
                                          12
       We overrule La China‘s second issue.

       IV.   The Trial Court Erroneously Entered Summary Judgment in
             Favor of the New Defendants.
       In his third issue, La China complains that the trial court erroneously entered
summary judgment disposing of the claims against the New Defendants because no
summary-judgment motion sought dismissal of these claims. Before the trial court
granted summary judgment, La China amended his petition to add negligence and
gross-negligence claims against the New Defendants. The Original Defendants did
not amend their summary-judgment motion, and the New Defendants did not
appear or assert a summary-judgment motion. It is undisputed that when the trial
court granted summary judgment, the New Defendants had not been served with
citation.

       The Original Defendants effectively ask this court to disregard the claims
against the New Defendants because these defendants had not made an appearance
and had not been served with process when the trial court rendered judgment.
Thus, the Original Defendants argue the trial court had no jurisdiction over the
New Defendants and no ability to render judgment against the New Defendants
when it granted the Original Defendants‘ summary-judgment motion. Because the
Original Defendants were the only defendants served, they argue the trial court‘s
judgment was final and disposed of all parties. To the contrary, La China‘s claims
were pending against the New Defendants when the trial court rendered summary
judgment, despite the failure of La China to serve the New Defendants with
citation, the failure of the New Defendants to make an appearance, and the trial
court‘s inability to render judgment against the New Defendants.           See In re
Shepherd, 193 S.W.3d 181, 188–89 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding) (holding trial court had not lost plenary power over defendants not yet
                                          13
served in lawsuit after trial court dismissed plaintiff‘s claims against another
defendant). In its judgment, the trial court disposed of the claims against the New
Defendants when no summary-judgment motion sought such dismissal. In doing
so, the trial court erred. See Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984)
(holding trial court erred in entering summary judgment in favor of party that ―was
not a party to the summary-judgment proceedings‖); see also S. Mgmt. Servs., Inc.
v. SM Energy Co., 398 S.W.3d 350, 358 (Tex. App.—Houston [14th Dist.] 2013,
no pet.) (holding disposition of third-party claims not addressed in summary-
judgment motion was error).

      We sustain La China‘s third issue.

                                       CONCLUSION

      We affirm the trial court‘s entry of summary judgment as to the Original
Defendants.    However, the trial court erred in granting summary judgment
regarding La China‘s claims against the New Defendants because those defendants
did not seek summary judgment. The summary judgment in favor of the New
Defendants is reversed, and this case is remanded to the trial court for further
proceedings consistent with this opinion.



                                        /s/    Martha Hill Jamison
                                               Justice

Panel consists of Justices Frost, Christopher, and Jamison (Frost, J., dissenting).




                                          14
