Reversed and Remanded and Memorandum Opinion filed August 26, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-01017-CV

           GIAO Q. NGUYEN AND HIEU T. NGUYEN, Appellants
                                        V.

                           SEPHORA USA, Appellee

             On Appeal from the County Civil Court at Law No. 2
                           Harris County, Texas
                      Trial Court Cause No. 1021997

                 MEMORANDUM                      OPINION


      Two shoppers sued a store for negligence after an unknown person collided
with them and caused them to fall. The store moved for traditional summary
judgment on the ground that it does not owe a duty to protect invitees from the
criminal acts of third parties, and for no-evidence summary judgment on the
grounds that there is no evidence that it owed or breached a duty to the plaintiffs.
Because summary judgment cannot be sustained on any of these grounds, we
reverse the judgment and remand the case for further proceedings.

                                       I. BACKGROUND

       Giao Q. Nguyen and her mother Hieu T. Nguyen were shopping at a
Sephora cosmetics store when a suspected shoplifter who had been apprehended
outside the store was escorted back into it. The suspect was walking behind a store
security guard and in front of a mall security guard when he pushed the mall
security guard to the floor and fled. Both security personnel pursued him. At some
point during this escape, someone collided with the Nguyens. The Nguyens fell
and allegedly were injured.1

       The Nguyens sued the store for negligence, and Sephora filed a combined
motion for traditional and no-evidence summary judgment. The trial court granted
Sephora’s motion without stating the grounds.2

                                         II. ANALYSIS

       In reviewing this case, we have not made the same assumptions that the
parties most often have made. They frequently assume that (a) a shoplifting
suspect collided with the Nguyens, (b) doing so was a crime, and (c) the resolution
of this appeal turns on whether that crime was foreseeable. We cannot make the
same assumptions. First, the Nguyens admit in their brief that the person who
collided with them could have been the shoplifting suspect, the mall security
guard, or Sephora’s security guard. This admission is supported by the evidence in


       1
        The two guards recaptured the suspect in the parking lot and led him back to the store in
handcuffs.
       2
         The Nguyens also filed a cross-motion for partial traditional summary judgment in
which they asked the trial court to find, as a matter of law, that Sephora owed them a duty and
breached that duty. They argue on appeal that the trial court erred in denying their motion;
however, the record does not show that the trial court ruled on it, and in any event, the denial of
the motion for partial summary judgment would not be appealable.

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the summary-judgment record. Although the complete deposition testimony of
Sephora’s security guard Durell Gordon and plaintiff Giao Nguyen are in the
record, neither of them saw what happened. There are only excerpts from Hieu T.
Nguyen’s deposition in the record, and she testified that “they were running and
push[ed] me,” but neither the identities nor the number of people who did so is
stated in the excerpts. Second, even if the identity of the person who ran into the
Nguyens were known, no one has specified what criminal offense was committed
against them.    In their pleadings, the Nguyens merely alleged that a person
“bumped the Plaintiffs hard enough to knock them over.” And third, the Nguyens
pleaded only a negligent-activity cause of action, not a premises-liability claim. In
particular, they did not allege that they were the victims of a crime.            We
accordingly analyze the case just as we would any other such negligence case,
rather than under the line of cases addressing a business owner’s premises liability
for crimes against its invitees. See generally McClure v. Allied Stores of Tex., Inc.,
608 S.W.2d 901 (Tex. 1980) (applying general negligence principles when
reviewing store’s liability for a shopper’s injuries sustained when a shoplifter who
was being chased by security guards knocked her down).

A.    Summary judgment cannot be affirmed on the grounds that there is no
      evidence that Sephora owed or breached a duty to the Nguyens.
      When a party challenges a summary judgment that may have been granted
on no-evidence or traditional grounds, we first consider whether the judgment can
be affirmed on no-evidence grounds. See Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). In a no-evidence motion for summary judgment, the movant
represents that there is no evidence of one or more essential elements of the claims
for which the nonmovant bears the burden of proof at trial. TEX. R. CIV. P.
166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden
then shifts to the nonmovant to present evidence raising a genuine issue of material

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fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). We review the trial court’s grant of summary
judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642,
644 (Tex. 2009) (per curiam) (citing Tex. Mun. Power Agency v. Pub. Util.
Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). We sustain a no-evidence
summary judgment when (1) there is a complete absence of evidence of a vital
fact, (2) the court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital
fact is no more than a mere scintilla, or (4) the evidence conclusively establishes
the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005).

       Sephora moved for no-evidence summary judgment on the grounds that
there was no evidence that it owed or breached a duty. The most basic common-
law duty is “the general duty to exercise reasonable care to avoid foreseeable
injury to others.” El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987),
superseded by statute on other grounds, F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 684–85 (Tex. 2007).3

       The summary-judgment record contains evidence that Sephora both owed
and breached this general duty. In their summary-judgment response, the Nguyens
cited and produced the deposition transcript of Sephora security guard Durell
Gordon, who testified that running in the store was against Sephora’s company


       3
         In their brief, the Nguyens focused their arguments on foreseeability without expressly
linking foreseeability to duty; however, the inference was not lost on Sephora, and it responded
as though the Nguyens had made the connection between foreseeability and duty as explicitly in
the appellate court as they did in the trial court. See generally Dorsett v. Hispanic Housing &
Educ. Corp., 389 S.W.3d 609, 613 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (explaining,
in the context of a no-evidence motion for summary judgment, that the opposing party’s
response indicated that it understood which element of the claim was at issue).

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policy because the store is small, with closely spaced aisles, and running in the
store “creates a hazardous environment” for shoppers. This is more than a scintilla
of evidence that Sephora employees had a duty to avoid running in the store. As
for evidence of a breach of that duty, Sephora itself quoted and attached Giao’s
testimony that after she was knocked down, she looked up and saw “two people
running really fast out” and that “they pushed me out of their way so they could
run.” Hieu’s testimony that “they were running and push[ed] me” suggests that
these people were running before knocking the Nguyens down. The Nguyens also
cited Giao’s testimony that another Sephora staff member told her that one of the
two people she saw running was a Sephora employee. Sephora did not object to
this evidence, which is sufficient to raise a genuine issue of material fact as to
whether a Sephora employee breached the duty to refrain from running in the
store.4

          Because there is legally sufficient evidence that Sephora employees owed its
customers a duty not to run in the store and that an employee breached that duty,
the summary judgment cannot be affirmed on no-evidence grounds.

B.        Sephora failed to establish its entitlement to traditional summary
          judgment.
          A movant for traditional summary judgment has the burden of showing that
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); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).              If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any

          4
          We cannot consider whether there is any evidence that the breach of this duty
proximately caused the Nguyens’ injuries because Sephora did not move for summary judgment
on that ground. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).

                                            5
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). We consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc.,
206 S.W.3d at 582. The movant is entitled to summary judgment only if it
conclusively establishes every essential element of its claim or defense as a matter
of law. Clear Creek Basin Auth., 589 S.W.2d at 678. On appeal, the summary-
judgment movant still bears the burden of showing that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law. Rhône-
Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

      Sephora moved for traditional summary judgment on the ground that it
“does not owe a duty to protect invitees from criminal acts of third parties.” But
although Sephora seems to have assumed that the Nguyens were injured by a third
party’s criminal act, they neither argued nor proved that point. Sephora also
asserted in its motion that “[a] landowner usually has no duty to protect invitees
from the criminal or tortious acts of a third party who is not under the landowner’s
supervision or control.” See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.
1993). But Sephora did not contend or prove that the person who collided with the
Nguyens was not under its supervision or control.          Finally, Sephora further
asserted that the Nguyens did not know “if one of the men allegedly running inside
the store was an employee of Sephora.” As previously discussed, however, the
Nguyens produced evidence that one of the men running was a Sephora employee,
and a reasonable factfinder could credit this evidence. We therefore conclude that
we cannot affirm the traditional summary judgment on the grounds asserted.



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                                III. CONCLUSION

      Because there are genuine issues of material fact and Sephora has not
established that it is entitled to judgment as a matter of law, we reverse the trial
court’s judgment and remand the case for further proceedings.




                                      /s/       Tracy Christopher
                                                Justice

Panel consists of Justices Christopher, Jamison, and McCally.




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