                         NUMBER 13-15-00072-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JIMMIE DONNAN,                                                         Appellant,

                                          v.

KIMCO REALTY CORPORATION
AND MAURICE REYNOLDS,                                                  Appellees.


              On appeal from the County Court at Law No. 2
                       of Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Jimmie Donnan appeals from a summary judgment granted in favor of

appellees Kimco Realty Corporation (Kimco) and Maurice Reynolds on her premises

liability and negligence claims. On appeal, Donnan raises two issues challenging the

trial court’s grant of summary judgment. We affirm.
                                        I.         BACKGROUND

      On November 5, 2012, Donnan tripped and fell while walking on a sidewalk outside

of the Bed, Bath & Beyond store in the Island Gate Shopping Center in Corpus Christi,

Texas. Donnan alleges that she tripped on a plumbing drain cap in the sidewalk that

was raised approximately one-fourth to one-half an inch above the sidewalk.                         It is

undisputed that Kimco controlled the premises as the management company for the

shopping center and Maurice Reynolds was Kimco’s property manager. Additionally,

appellees did not dispute that the drain cap was slightly raised from the surrounding

sidewalk. Donnan claims she sustained injuries as a result of the fall.

      Donnan filed suit against Kimco, Reynolds, Bed, Bath & Beyond, Inc., and Elite

Commercial Services, Inc. 1 Kimco and Reynolds jointly filed a traditional motion for

summary judgment on Donnan’s negligence claim, and later filed a no-evidence motion

for summary judgment on her premises liability claim. In the no-evidence motion for

summary judgment, Kimco and Reynolds asserted that Donnan failed to put forth any

evidence that they had actual or constructive knowledge of the alleged defect. Donnan

responded to both motions, and on November 17, 2014, the trial court signed an order

granting appellees’ motions for summary judgment. The trial court’s order disposed of

all parties and all claims and created a final and appealable judgment.

      This appeal followed.

                                             II.     WAIVER

      As a preliminary issue, appellees assert that Donnan waived her second issue—

challenging the trial court’s grant of summary judgment on her negligence cause of


      1   Bed, Bath & Beyond, Inc. and Elite Commercial Services, Inc. are not parties to this appeal.
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action—as a result of inadequate briefing. Donnan included the issue in the “Issues

Presented” section, but wholly failed to brief the issue.

       Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief contain

“a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” TEX. R. APP. P. 38.1(i). To adequately brief an argument,

an appellant must cite to the record when making assertions of fact and must cite to legal

authority when making assertions of law. See id.; Ratsavong v. Menevilay, 176 S.W.3d

661, 666 (Tex. App.—El Paso 2005, pet. denied). An appellant that fails to cite to the

record or authority waives its arguments.        Ratsavong, 176 S.W.3d at 666; see also

Sengal v. Hardeman, No. 13-11-00659-CV, 2012 WL 5377901, at *1 (Tex. App.—Corpus

Christi Nov. 1, 2012, no pet.) (mem. op.).

       In her second issue, Donnan contends the trial court erred in ruling that appellees

were “not negligent in their failure to provide a safe ingress and egress to Bed Bath &

Beyond.” However Donnan’s briefing contains no argument or authority in support of her

second issue that appellees were liable for an ongoing negligent activity, negligent hiring,

supervision, or maintenance. The whole of Donnan’s brief focuses on her first issue and

whether or not she raised a fact question on whether appellees had actual or constructive

knowledge of the alleged defect prior to the incident in question, an element of her

premises liability claim. Because Donnan failed to cite to the record or to legal authority

to support her issue challenging the trial court’s grant of appellees’ traditional motion for

summary judgment on her negligence claim, she waived her second issue. See TEX. R.

APP. P. 38.1(i); Ratsavong, 176 S.W.3d at 666; see also Sengal, 2012 WL 5377901, at

*1.

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    III.        GRANT OF NO-EVIDENCE SUMMARY JUDGMENT ON PREMISES LIABILITY CLAIM

           By her first issue, Donnan challenges the trial court’s grant of Kimco and

Reynolds’s no-evidence summary judgment on her premises liability claim. Specifically,

Donnan asserts that she put forth more than a scintilla of evidence that Kimco had actual

or constructive knowledge of the defect and was therefore entitled to a trial on the merits. 2

           A.     Standard of Review

           We review a summary judgment de novo.              Knapp Med. Cntr. V. Grass, 443

S.W.3d 182, 192 (Tex. App.—Corpus Christi 2013, pet. denied).                       We review the

evidence in the light most favorable to the nonmovant, disregarding all contrary evidence

and inferences. Rodriguez v. Sciano, 16 S.W.3d 725, 726 (Tex. App.—San Antonio

2000, no pet.). When a party moves for summary judgment alleging the nonmovant

lacks evidence to carry its burden of proof, the nonmovant must produce some evidence

raising a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Rodriguez, 16 S.W.3d at

727. The nonmovant need not “marshal its proof”, rather it need only point out evidence

that raises a fact issue on the challenged elements.                See TEX. R. CIV. P. 166a(i);

Rodriguez, 725 S.W.3d at 727.

           B.     Applicable Law

           An owner or occupier of land has a duty to use reasonable care to keep the

premises in a safe condition. Exxon Corp. v. Garza, 981 S.W.2d 415, 420 (Tex. App.—

San Antonio 1998, pet. denied) (citing Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.



        2 Kimco and Reynolds’s no-evidence motion for summary judgment challenged one element of

Donnan’s premises liability cause of action. Appellees asserted below that Donnan put forth no evidence
that they knew or should have known of the alleged defect. Therefore, our review is limited to a
determination of whether there was more than a scintilla of evidence that appellees knew or should have
known about the alleged defect.
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1985)).

       To prevail on a premises liability claim against a property owner, an injured
       invitee must establish four elements: (1) the property owner had actual or
       constructive knowledge of the condition causing the injury; (2) the condition
       posed an unreasonable risk of harm; (3) the property owner failed to take
       reasonable care to reduce or eliminate the risk; and (4) the property owner's
       failure to use reasonable care to reduce or eliminate the risk was the
       proximate cause of injuries to the invitee.

Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014); see also Alarcon v. Bed, Bath

& Beyond, Inc., No. 04-03-00551-CV, 2004 WL 1453465, at *1 (Tex. App.—San Antonio

June 30, 2004, no pet.) (mem. op.) (“[A]s a rule, to prevail on a premises liability claim a

plaintiff must prove that the defendant possessed—that is, owned, occupied, or

controlled—the premise where the injury occurred.”).

       The existence of actual or constructive knowledge of a premises defect is a

threshold requirement for a premises liability claim. Motel 6 G.P., Inc. v. Lopez, 929

S.W.2d 1, 3 (Tex. 1996). An invitee must show that a landowner either knew, or after

reasonable inspection, should have known of an unreasonably dangerous condition

before arguing that the landowner breached a duty by failing to take precautions. Id. at

3–4.   The plaintiff's failure to meet the threshold burden of showing that the owner

actually knew or through the exercise of reasonable care should have known of an

unreasonably dangerous condition ends the inquiry. See id. at 4. A landowner “cannot

breach a duty that it does not owe, and it does not owe a duty to correct a defect of which

it is not, and should not be, aware.” See id.

       Actual or constructive knowledge of a premises defect may be established in one

of three ways.    The invitee may prove that (1) the owner created the dangerous

condition; (2) the owner knew about the dangerous condition and negligently failed to

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correct it; or (3) the dangerous condition had been present for so long that, in the exercise

of ordinary care it should have been discovered and corrected. See Richardson v. Wal-

Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.—Texarkana 1998, no pet.). “Thus,

when an occupier has actual or constructive knowledge of any condition on the premises

that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action

is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable

risk from that condition.” Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.

1983).

         In the absence of evidence of actual knowledge, the plaintiff must produce

evidence that the defect existed for a period of time sufficient to establish that appellees

should have known of the defect. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,

815 (Tex. 2002); Richardson, 963 S.W.2d at 165; F.W. Woolworth Co. v. Goldston, 155

S.W.2d 830, 832 (Tex. Civ. App.—Amarillo 1941, writ ref’d w.r.m.). This rule is based

on the premise that temporal evidence best indicates whether the owner had a

reasonable opportunity to discover and remedy the dangerous condition. CMH Homes,

Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000) (disapproving of “the court of appeals’

refusal to apply the ‘time-notice rule’ simply because it might be impossible for the plaintiff

to show actual or constructive knowledge”).

         C.    Discussion

         To defeat appellees’ no-evidence motion for summary judgment on her premise

defect claim, Donnan was required to present more than a scintilla of evidence before the

trial court that appellees had actual or constructive knowledge of the alleged premises

defect. Donnan’s response to appellees’ motion for summary judgment before the trial

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court admitted that she had no evidence that appellees had actual knowledge of the

alleged defect. See Webb v. Lawson-Avila Const., Inc., 911 S.W.2d 457, 459 (Tex.

App.—San Antonio 1995, writ dism’d) (“A court is limited to those grounds expressly set

forth before the trial court . . . to determine whether or not the summary judgment was

properly granted.”). Therefore, we must determine whether Donnan produced more than

a scintilla of evidence that appellees had constructive knowledge of the alleged defect.

      To establish constructive knowledge, Donnan was required to produce some

evidence that the raised drain cap existed long enough to establish that appellees should

have known of the defect. See Reece, 81 S.W.3d at 815; Richardson, 963 S.W.2d at

165; Goldston, 155 S.W.2d at 832. However, Donnan’s live pleading before the trial

court stated the following: “From [Donnan’s] perspective, it was unclear whether the

unsafe condition was a condition that existed on the premises or had recently arisen from

some sort of activity by the Defendants’ on the premises.” (emphasis added). Donnan’s

own pleading states that she herself cannot say how long the alleged defect existed on

the premises.

      Further, none of Donnan’s summary judgment evidence pertains to the length of

time the drain cap was allegedly raised. Donnan argues that the nature of the defect

itself provides some evidence that it existed for a period of time; however, Donnan

produced no evidence in support of that argument.         Instead, Donnan argued that

circumstantial evidence supported the inference that “the drain cap slowly worked its way

free from its mooring over time” because appellees could not show the last time the drain

pipe was accessed. We disagree with Donnan that the fact that the drain cap was raised

one-half to one-fourth an inch creates an inference that it slowly worked itself free.

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Donnan relies on Cohen v. Landry’s Inc., for the proposition that the nature of the defect

is itself temporal evidence sufficient to establish that appellees should have known of the

defect. See 442 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

However, in Cohen, the plaintiff “presented evidence that she tripped and fell over an

uneven surface of the sidewalk that was caused over time by tree roots.”           See id.

(emphasis added). The plaintiff in Cohen established that the defect occurred slowly

over time because of the nature of the defect, i.e., the tree roots growing under the

sidewalk. See id. Donnan has not put forth any evidence to show why or how the drain

cap could have slowly raised itself over time. Cohen is inapplicable to this case. See

id.

       Because Donnan did not put forth any evidence to show that the raised drain cap

had been present for so long that it should have been discovered and corrected in the

exercise of ordinary care, she has not produced any evidence to support an essential

element of her cause of action. See Reece, 81 S.W.3d at 815; Richardson, 963 S.W.2d

at 165. The trial court did not err in granting appellees’ no-evidence motion for summary

judgment on Donnan’s premises liability claim. We overrule Donnan’s first issue on

appeal.

                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the 24th
day of September, 2015.


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