                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00161-CV


MICHAEL REYNOLDS                                                 APPELLANT

                                     V.

SW MCCART, L.L.C.                                                 APPELLEE


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         FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 342-271846-14

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                       MEMORANDUM OPINION1

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     In two issues, Appellant Michael Reynolds appeals the trial court’s order

granting the traditional and no-evidence motion for summary judgment filed by

Appellee SW McCart, L.L.C. We affirm.




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      See Tex. R. App. P. 47.4.
                                  Background

      SW McCart owns the Sycamore Square shopping center in Fort Worth,

Texas. Reynolds was working as a contractor building out the Dollar Tree store

space in Sycamore Square when he fell off a ladder and was injured. Reynolds

sued SW McCart; Dollar Tree, Inc.; Dollar Tree Stores, Inc.; and John Doe,

alleging that the defendants owned, managed, or controlled the premises and

were negligent in (1) creating an unreasonably dangerous hazard on the

premises; (2) allowing an unreasonably dangerous hazard to exist on the

premises; (3) failing to warn of the unreasonably dangerous hazard they had

created or allowed to exist on the premises; (4) failing to correct the

unreasonably dangerous hazard they had created or allowed to exist on the

premises; (5) failing to properly inspect the premises for hazards; (6) failing to

train their employees to inspect the premises and recognize unreasonably

dangerous hazards; (7) failing to promulgate adequate safety regulations that

would apply to the premises; (8) failing to implement or enforce appropriate

guidelines, rules, policies, or procedures to ensure that the premises was in a

safe condition; and (9) failing to use ordinary care to reduce or eliminate an

unreasonable risk of harm created by a premises condition of which they knew or

in the exercise of ordinary care should have known.

      SW McCart filed a traditional and no-evidence motion for summary

judgment. See Tex. R. Civ. P. 166a(b), (c), (i). In the traditional portion of its

motion, SW McCart argued that chapter 95 of the Texas Civil Practice and

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Remedies Code precluded Reynolds’s recovery. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 95.001–.004 (West 2011). Specifically, SW McCart argued that it

was not liable to Reynolds because it did not exercise any control over

Reynolds’s work. See id. § 95.003 (precluding property owner’s liability for injury

to contractor unless owner exercises control over performance of the work and

had actual knowledge of the danger or condition that resulted in the injury and

failed to adequately warn). SW McCart asserted in the no-evidence portion of its

motion that there was no evidence to support each element of Reynolds’s

negligence and premises liability claims, nor was there any evidence to support

any of Reynolds’s nine specific negligence allegations enumerated above.

      In his summary-judgment response, Reynolds argued that SW McCart was

not entitled to summary judgment based upon chapter 95 because it had not

established as a matter of law that chapter 95 applied to it.      Reynolds also

objected to “the no-evidence portion of SW McCart’s motion for summary

judgment on the ground that an adequate time for discovery has not passed

since SW McCart raised its new [chapter 95] affirmative defense. Additional time

is required to conduct discovery on the elements of this defense.” Reynolds did

not argue that he needed additional time to conduct discovery in order to respond

to SW McCart’s no-evidence motion on Reynolds’s negligence and premises

liability claims, and he did not attach any evidence to his summary-judgment

response.



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      The trial court granted SW McCart’s motion without specifying the grounds

upon which it relied and overruled Reynolds’s objections. The trial court severed

Reynolds’s claim against SW McCart, thus making the trial court’s order on SW

McCart’s motion for summary judgment final and appealable.           This appeal

followed.

                                    Analysis

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      Reynolds filed a response to SW McCart’s motion, but he did not attach

any summary-judgment evidence. Thus, he did not meet his burden to produce

evidence raising a genuine issue of material fact as to any of the elements of his

claims challenged by SW McCart. See Tex. R. Civ. P. 166a(i) (requiring “the

nonmoving party to present evidence raising a genuine issue of material fact

supporting each element contested in the motion.”). Because Reynolds failed to

satisfy his burden, the trial court was required to grant SW McCart’s motion. See

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id.; Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex. App.—Waco

1999, no pet.) (holding that failure to produce summary-judgment evidence on

challenged elements in response to no-evidence motion for summary judgment

requires trial court to grant no-evidence motion); see also Wass v. Farmers Tex.

Cnty. Mut. Ins. Co., Nos. 2-05-036-CV, 2-05-124-CV, 2006 WL 1281037, at *2

(Tex. App.—Fort Worth May 11, 2006, no pet.) (mem. op.) (overruling party’s

issues challenging no-evidence summary judgment because party failed to

produce any summary-judgment evidence in his response); Sias v. Zenith Ins.

Co., No. 08-02-00371-CV, 2003 WL 21197046, at *5 (Tex. App.—El Paso May

22, 2003, pet. denied) (mem. op.) (holding that trial court properly granted no-

evidence motion for summary judgment because nonmovant failed to attach any

summary judgment evidence to his response), cert. denied, 540 U.S. 1124

(2004).

      In his second issue, Reynolds argues that the trial court abused its

discretion by overruling his objection to the hearing on SW McCart’s no-evidence

motion based upon his need for additional discovery on the affirmative defense

raised in SW McCart’s traditional motion for summary judgment. See Tex. R.

Civ. P. 166a(g), (i). Reynolds argues that he needed additional discovery to

respond to SW McCart’s no-evidence motion because SW McCart pled civil

practice and remedies code chapter 95 as an affirmative defense for the first time

in its amended answer, which it filed concurrently with its motion for summary

judgment asking for summary judgment on those grounds. Reynolds claims he

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needed to conduct discovery regarding whether SW McCart exercised any

control over Reynolds’s work and had actual knowledge of the danger or

condition that resulted in his injuries. See Tex. Civ. Prac. & Rem. Code Ann.

§ 95.003.

       Reynolds solely argued in his objection that he needed additional time to

conduct discovery in order to respond to SW McCart’s affirmative defense, which

SW McCart raised in its traditional motion and not in its no-evidence motion

challenging each and every element of Reynolds’s negligence and premises

liability claims.   Because the trial court properly granted SW McCart’s no-

evidence motion for the reason that Reynolds failed to produce any evidence in

response to SW McCart’s no-evidence motion, we need not address whether the

trial court erred in overruling Reynolds’s objection based on chapter 95. See

Tex. R. App. P. 47.1. And having determined that the trial court properly granted

SW McCart summary judgment on no-evidence grounds, we need not address

Reynolds’s first issue arguing that the trial court erred by granting SW McCart’s

traditional motion for summary judgment based on civil practice and remedies

code chapter 95. See id.; Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004).




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                                  Conclusion

      Having concluded that the trial court properly granted SW McCart’s no-

evidence motion for summary judgment, we affirm the trial court’s judgment.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: June 25, 2015




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