                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00242-CV


              ANDREW BROWN AND SARA BROWN, INDIVIDUALLY
                AND AS REPRESENTATIVES OF THE ESTATE OF
                  KEARA BROWN, DECEASED, APPELLANTS

                                            V.

              TRADITIONS OIL & GAS, LLC; TRADITIONS OIL & GAS
            SERVICES, LLC; AND CHISUM RANCHES, LTD., APPELLEES

                           On Appeal from the 84th District Court
                                 Hutchinson County, Texas
                Trial Court No. 42,089, Honorable Curt Brancheau, Presiding

                                  September 13, 2019

                            MEMORANDUM OPINION
                    Before CAMPBELL and PIRTLE and PARKER, JJ.


      Appellants, Andrew and Sara Brown, appeal the granting of summary judgment in

favor of appellees, Traditions Oil & Gas, LLC, Traditions Oil & Gas Services, LLC, and

Chisum Ranches, Ltd. (collectively, “Traditions”), as to the Browns’ premises liability

claim. We affirm the trial court’s grant of summary judgment.
       In March of 2015, eleven-year-old Keara Brown spent the weekend at the home of

her friends, Shelby and Adeline McLemore.                      Keara’s mother, Sara Brown, was

comfortable with the three girls walking around the neighborhood unsupervised because

they were old enough to appreciate dangers and avoid doing things that would get

themselves hurt. While walking around, the girls saw a pump jack approximately 200

yards behind the McLemore residence that was not visible from the residence. Keara ran

to the pump jack despite the McLemore girls’ protests. There were no barriers, fences,

or warning signs around or near the pump jack. Keara promptly climbed up the pump

jack to “ride” it. Shelby yelled to Keara to get off the pump jack before she hurts herself.

Despite these warnings, when Keara climbed to the top, she got caught between moving

parts of the pump jack which inflicted fatal injuries.


       Employees for Traditions had never seen children playing near the pump jack or

at the houses near the pump. Further, they had never heard of children playing near the

pump either. In fact, the only evidence of children playing on the pump jack is the present

incident.


       The Browns filed suit against Traditions alleging claims for negligence, attractive

nuisance, premises liability, and gross negligence.1                      Traditions answered and,

subsequently, filed traditional and no-evidence summary judgment motions.                               After

considering the motions, summary judgment evidence, and arguments of counsel, the

trial court granted Traditions’ motions for summary judgment. The Browns filed a motion




       1   The only claims addressed in the Browns’ appeal relate to their attractive nuisance claim.

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for new trial, which was overruled by operation of law. The Browns then timely filed notice

of appeal.


        By their appeal, the Browns generally contend that the trial court erred in granting

Traditions’ summary judgment motions. Specifically, they contend that the evidence

raises a material issue of fact regarding whether (1) Traditions knew or should have

known that children were likely to trespass in the area of the pump jack, and (2) Keara,

because of her youth, did not realize the risk involved in meddling with the pump jack.


                                         Standard of Review


        An appellate court reviews a summary judgment ruling de novo. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant for summary

judgment has the burden to show there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548 (Tex. 1985). Reviewing courts must take as true all evidence

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts in favor of the nonmovant. Provident Life & Accident Ins. Co., 128 S.W.3d at 215.

When a trial court’s order does not specify the grounds relied on to grant summary

judgment,2 we will affirm if any of the summary judgment grounds are meritorious. Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).




          2 In the present case, the trial court issued a letter discussing its reasons for granting summary

judgment. Appellate courts do not generally consider these types of explanatory letters in performing our
review. See Mattox v. Cty. Comm’rs’ Court, 389 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.] 2012,
pet. denied); see also Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 464 (Tex. App.—Amarillo 2006,
pet. denied) (“[L]etters are not the proper method for apprising the parties of the grounds for the granting
of relief or order.”).

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       “A movant for traditional summary judgment is entitled to summary judgment only

if it conclusively negates at least one element of each of the plaintiff’s causes of action,

or conclusively establishes each element of an affirmative defense.” Yowell v. Granite

Operating Co., 557 S.W.3d 794, 799 (Tex. App.—Amarillo 2018, pet. granted). A no-

evidence summary judgment is reviewed using the legal sufficiency standard employed

in a directed verdict case. Id. at 799-800. In reviewing a no-evidence summary judgment,

our job is to determine whether the nonmovant has produced any evidence of probative

force to raise a genuine issue of fact regarding a material question in the case. Id. at 800.


                                      Applicable Law


       A trespasser is a person who enters the property of another without any legal right

or invitation, express or implied. State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006). A

premises owner owes a duty not to injure a trespasser willfully, wantonly, or through gross

negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). But the

duty owed to an invitee requires the premises owner to use ordinary care to reduce or

eliminate unreasonable risks of harm caused by a condition of the premises of which the

owner is or reasonably should be aware. Id. A bare trespasser is impliedly invited onto

the premises if the trespasser is a child of tender years that came upon the premises due

to its “unusual attractiveness.” Id. This is the doctrine of attractive nuisance. Id.


       The attractive nuisance doctrine has been described as follows:

       A possessor of land is subject to liability for physical harm to children
       trespassing thereon caused by an artificial condition upon the land if

       (a) the place where the condition exists is one upon which the possessor
           knows or has reason to know that children are likely to trespass, and


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      (b) the condition is one of which the possessor knows or has reason to know
          and which he realizes or should realize will involve an unreasonable risk
          of death or serious bodily harm to such children, and

      (c) the children because of their youth do not discover the condition or
          realize the risk involved in intermeddling with it or in coming within the
          area made dangerous by it, and

      (d) the utility to the possessor of maintaining the condition and the burden
          of eliminating the danger are slight as compared with the risk to children
          involved, and

      (e) the possessor fails to exercise reasonable care to eliminate the danger
          or otherwise to protect the children.


Id. at 193-94 (citing, with approval, RESTATEMENT (SECOND) OF TORTS § 339 (1965)).


      Whether an attractive nuisance exists is a question of law. Kopplin v. City of

Garland, 869 S.W.2d 433, 441 (Tex. App.—Dallas 1993, writ denied). The attractive

nuisance doctrine “should be applied with caution” and “only when the controlling facts

bring the case well within [the] rules and principles” of the doctrine. Vista Petro. Co. v.

Workman, 598 S.W.2d 721, 723 (Tex. Civ. App.—Eastland 1980, no writ) (quoting Banker

v. McLaughlin, 208 S.W.2d 843, 850 (Tex. 1948)).


                                         Analysis


      The Browns initially challenge the trial court’s summary judgment because they

contend that the evidence raises a genuine issue of material fact regarding whether

Traditions knew or should have known that children were likely to trespass in the area of

the pump jack.


      Much of the evidence that the Browns identify as raising a genuine issue of material

fact regarding whether Traditions knew or should have known that children were likely to


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trespass in the area of the pump jack comes from the affidavit of James McClellan, a

former employee of Traditions who was responsible for the pump jack that caused the

injuries to Keara. However, as acknowledged by the Browns, McClellan’s affidavit was

not presented to the trial court until the Browns filed their motion for new trial. When a

motion for new trial is filed after a summary judgment motion has been granted, the trial

court may ordinarily consider only the record as it existed at the time it decided the

summary judgment motion.3 Circle X Land & Cattle Co., 325 S.W.3d at 863. Likewise,

evidence attached to a motion for new trial that was not before the trial court at the time

it granted summary judgment cannot be considered by a reviewing court on appeal.

McMahan v. Greenwood, 108 S.W.3d 467, 482-83 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied) (op. on reh’g).


        When we review the evidence regarding whether Traditions knew or should have

known that children were likely to play on or near the pump jack but exclude consideration

of McClellan’s affidavit, we are essentially left with the facts that the pump jack is located

approximately 200 yards from residential homes in a location that is not visible from the

residences, and that a trampoline, bikes, and kids’ toys are located in the yards of those

houses. While we indulge every reasonable inference in favor of the Browns, we must

review all the evidence, including evidence that Traditions’ employees were unaware of

children ever playing near the pump jack or even that children lived in or visited the nearby

residences. Considering only that evidence which was before the trial court at the time



        3 An exception exists when the trial court affirmatively indicates in the record that it accepted or

considered evidence attached to the post-judgment motion. Circle X Land & Cattle Co. v. Mumford Indep.
Sch. Dist., 325 S.W.3d 859, 863 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). In the present case,
the Browns’ motion for new trial was overruled by operation of law, so there was no such affirmative
statement made by the trial court.

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that it ruled on Traditions’ motion for summary judgment, we conclude that the evidence

does not raise a genuine issue of material fact regarding whether Traditions knew or

should have known that children were likely to be in the area around the pump jack.


       We conclude that the facts of the present case are substantially similar to those in

Vista Petro. Co., 598 S.W.2d 721. In Vista, the appellate court reversed the trial court’s

ruling on venue after determining that the evidence supporting plaintiffs’ attractive

nuisance claim was legally insufficient. Id. at 724. In making this determination, the court

identified that the oil well pump that caused the twelve-year-old’s injuries was three-

quarters of a mile from the farm where his mother worked, which was about seven miles

from the nearest town. Id. at 722-23. Children came to the farm “from time to time” but

the court did not indicate that any children were seen in the area where the pump was

located. Id. at 722. The court concluded that there was no evidence that Vista knew or

should have known that children would likely be in the area where the pump was located.

Id. at 724. Consequently, the court concluded that the evidence was legally insufficient

to establish an attractive nuisance. Id.


       By contrast, the case of Burk Royalty Co. v. Pace, 620 S.W.2d 882 (Tex. App.—

Tyler 1981, no writ), shows what must be proven to establish that the premises owner

knew or should have known that children were likely to visit the area of the dangerous

condition. In that case, the trial court’s venue ruling was upheld because legally sufficient

evidence supported the trial court’s implied finding of an attractive nuisance. Id. at 886.

In making this determination, the court identified that there was a worn path to the well,

the well was within 100 yards of the nearest residence, and it was known that children

frequently played on well pumps in the area. Id. at 883-84. Based on this evidence, the

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court concluded that the oil company that owned the well knew or should have known

that children were likely to frequent the area where the pump was located. Id. at 885.

Consequently, the court concluded that the evidence was legally sufficient to establish an

attractive nuisance. Id.


       Because we conclude that the Browns failed to raise a genuine fact issue regarding

an essential element of the Browns’ attractive nuisance claim, we must affirm the trial

court’s grant of summary judgment. Yowell, 557 S.W.3d at 799.


       Due to our conclusion that the Browns presented no evidence in support of one of

the essential elements of their attractive nuisance claim, we need not address the issue

of whether the Browns raised a genuine issue of material fact regarding whether Keara

was of such tender years as to not recognize the danger posed by the pump jack. See

TEX. R. APP. P. 47.1.


                                       Conclusion


       Having concluded that Traditions was entitled to summary judgment, we affirm the

judgment of the trial court.




                                                       Judy C. Parker
                                                          Justice




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