Opinion issued July 9, 2013




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas


                              NO. 01-12-00430-CV


                      STEVEN ALLENDER, Appellant

                                      V.

KATY CHAMBER OF COMMERCE D/B/A KATY AREA CHAMBER OF
 COMMERCE, AND KATY CHAMBER OF COMMERCE D/B/A KATY
            RICE HARVEST FESTIVAL, Appellees


                   On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2008-59572


                         MEMORANDUM OPINION
      This is a personal injury case arising out of an automobile-pedestrian

accident.   Plaintiff-appellant Steven Allender was struck by a car driven by
defendant Judith Cooper at the 2006 Katy Rice Harvest Festival, which was

organized by defendant-appellees Katy Chamber of Commerce d/b/a Katy Area

Chamber of Commerce, and Katy Chamber of Commerce d/b/a Katy Rice Harvest

Festival (“Katy defendants”). Allender sued both Cooper and the Katy defendants.

Allender settled with Cooper, and the trial court granted summary judgment in

favor of the Katy defendants. Allender timely appealed. We affirm in part and

reverse and remand in part.

                                BACKGROUND

      Allender’s wife had a vender booth at the 2006 Katy Rice Harvest Festival.

Vender booths were setup along each side of Third Street. During festival hours,

the area was closed off to vehicles. When the festival ended, however, booth

operators were allowed to drive to their booths to dismantle them.

      Allender drove his vehicle into the festival and assisted his wife in

dismantling her booth. Defendant Cooper also had a booth at the festival. After

Cooper packed up her booth and was driving down Third Street, she struck

Allender with her vehicle.

      The safety traffic plan for the festival was developed by the Katy defendants

and the Katy police department. There were off-duty police officers at the two

vehicle gates, and between twenty and twenty-four police officers or traffic

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volunteers on the festival site. Lizzy Davis, the volunteer at the intersection of

Third Street and Avenue C, was wearing a bright orange vest and had a flashlight.

She saw Cooper’s vehicle driving towards her “too fast” and put up her hands

instructing Cooper to slow down. Cooper ignored her, did not slow down, and

drove right past her. Davis then “began to scream and yell to alert the vendors who

were dismantling their booths.” Cooper then hit Allender with her car.

        Allender’s October 7, 2008 Original Petition alleged negligence against both

Cooper and the Katy defendants. On October 16, 2009, Allender and the Katy

defendants attended a mediation. According to Allender, the Katy defendants

offered $5,000 to settle the case at mediation, and reiterated that offer on January

27, 2010. The Katy defendants never indicated that this settlement offer was

withdrawn, and Allender attempted to accept that offer on April 15, 2010.

Allender learned on April 20, 2010 that the offer was “off the table.” He filed a

motion to enforce the alleged settlement, which the trial court denied on May 17,

2010.

        Allender settled with Cooper, and his claims against her were severed on

July 1, 2010. On September 10, 2010, Allender filed Plaintiff’s Second Amended

Original Petition.    This amended petition omitted the claims against Cooper,

reiterated the same negligence claims against the Katy Defendants, and added a

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claim against the Katy defendants claim for breach of a settlement agreement.

      The Katy defendants later filed a Traditional and No Evidence Motion for

Summary Judgment addressing only the merits of the negligence claim, which the

trial court granted on January 18, 2012. On February 17, 2012, Allender filed a

Motion for New Trial, seeking reconsideration of the trial court’s summary

judgment on his negligence claim. On February 27, 2012, the trial court signed a

final judgment that Allender take nothing on his claims against the Katy

Defendants. On March 23, 2012, Allender’s Motion for New Trial was denied.

Allender filed his notice of appeal on April 27, 2012.1

                                ISSUES ON APPEAL

      Allenger brings two issues on appeal:

      1. “The trial judge committed fundamental error in light of Rule 65 of the
         T.R.C.P, a mandatory rule. The trial court signed an order granting a
         summary judgment Appellees filed against Appellant’s First Amended
         Original Petition, an abandoned pleading under Rule 65.”
      2. “The trial judge committed error by granting a motion for summary
         judgment where the evidence failed to establish as a matter of law that
         here was no genuine issue of a material fact.”



1
       Allender’s appeal is timely because his motion for new trial, filed after the trial
court’s interlocutory summary judgment but before the court’s final judgment,
nonetheless extended the time period for appealing the final judgment because the motion
“complains of error brought forward in the subsequent judgment.” Bradley v. Peters, No.
01-07-00081-CV, 2007 WL 4284659, at *2 (Tex. App.—Houston [1st Dist.] Dec. 6,
2007, no pet.).
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                           RELEVANT PLEADINGS

      In his first issue, Allender argues that, according to Rule 65 of the Texas

Rules of Civil Procedure, his amended petition took the place of his original

petition. He complains that the Katy defendants filed their motion for summary

judgment with reference to his original petition, not his amended petition that was

already on file when the motion for summary judgment was filed. Because the

Katy defendant’s motion “attacked an abandoned pleading” rather than his most

recent live pleading, Allender contends that the trial court erred in granting

summary judgment.

      In response, the Katy defendants contend Allender waived this issue by

failing to raise it in his response to their motion for summary judgment.

Alternatively, the Katy defendants argue that Allender “failed to show harm from

the reference to the prior pleading,” as even Allender admitted that he sued for “the

same cause of action” in his amended petition. The Katy defendants quote the

negligence allegations in the original and amended petition, pointing out that the

amended petition “restated almost verbatim” the negligence allegations from

Allender’s original petition. Because a motion for summary judgment directed at

an earlier petition has been held to encompass a challenge to later-filed claims

when those claims are identical to the earlier claims, the Katy defendants argue

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that the trial court did not err in granting its summary judgment. E.g., Ehler v.

LVDCD, L.C., 319 S.W.3d 817, 820 (Tex. App.—El Paso 2010, no pet.).

      The Katy defendants acknowledge that Allender’s amended petition added a

second cause of action for breach of an alleged settlement agreement.          But,

according to the Katy defendants, the trial court had already disposed of the merits

of that claim before it was added to the petition by denying Allender’s earlier

Motion to Enforce Settlement Agreement.

      Allender correctly argues that a plaintiff’s timely filed amended pleading

supersedes all previous pleadings and becomes the controlling petition in the case

regarding theories of recovery. TEX. R. CIV. P. 65; J.M. Huber Corp. v. Santa Fe

Energy Res., Inc., 871 S.W.2d 842, 844 (Tex. App.—Houston [14th Dist.] 1994,

writ denied). And, contrary to the Katy defendants’ argument, the non-movant

does not waive error by not complaining in a response to a motion for summary

judgment that the movant’s motion addresses only some of the non-movant’s live

claims, or addresses claims that have been abandoned or superseded. Chessher v.

Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).

      The Katy defendants are correct, however, that if “a motion for summary

judgment [directed at an earlier-filed petition] is sufficiently broad to encompass

later-filed claims, the movant need not amend his motion” for it to effectively

                                         6
challenge the claims in a later-filed petition.   Espeche v. Ritzell, 123 S.W.3d 657,

664 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The question here, then,

is whether the Katy defendants’ motion for summary judgment encompassed the

claims in Allender’s amended petition.

      With regard to his negligence allegations against the Katy defendants, in

Allender’s original petition, he stated that “the Katy Defendants controlled the

premises on which the incident occurred.” He articulates the proximate cause of

his damage as “[f]ailing to keep the premises in a safe manner.”

      Allender’s amended petition omits his earlier negligence allegations about

Cooper, but repeats the same negligence allegations against the Katy defendants,

stating again that “the Katy Defendants controlled the premises on which the

incident occurred,” and alleging that they were negligent by “[f]ailing to keep the

premises in a safe manner.” Because the Katy defendants’ motion for summary

judgment addressing the negligence allegations in Allender’s original petition

necessarily addresses the allegations repeated in his amended petition, we hold that

the trial court did not err in ruling on the merits of the Katy defendants’ motion

with regard to Allender’s negligence claim against the Katy defendants.

      The trial court did, however, err in granting a take-nothing judgment against

Allender, given that his live petition contained a second, unadjudicated claim for

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breach of the parties’ alleged settlement agreement. “It is axiomatic that one may

not be granted judgment as a matter of law on a cause of action not addressed in a

summary judgment proceeding.” Chessher, 658 S.W.2d at 564. “The movant . . .

must establish his entitlement to a summary judgment on the issues expressly

presented to the trial court by conclusively proving all essential elements of his

cause of action or defense as a matter of law.” Id. (citing City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).

      The Katy defendants never requested summary judgment on Allender’s

breach of settlement agreement claim, but assert here that the trial court’s denial of

Allender’s Motion to Enforce Settlement Agreement was an adjudication on the

merits of that claim. But that denial does not entitle the Katy defendants to

judgment as a matter of law. In other words, the trial court’s denial of Allender’s

motion reflects only its determination that Allender had not conclusively

established his right to relief on that claim. Cf. Vills. of Greenbriar v. Torres, 874

S.W.2d 259, 262 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“[A] denial

of summary judgment is not a final adjudication of any matter.”).

      In sum, the trial court did not err by ruling on the Katy defendant’s motion

for summary judgment with regards to the negligence claim that was presented in

both Allender’s original and amended petition. The trial court did, however, err by

                                          8
granting final judgment in the Katy defendants’ favor on the unadjudicated claim

for breach of an alleged settlement agreement. We thus sustain Allender’s first

issue in part, and remand his breach-of-settlement-agreement claim to the trial

court for further proceedings consistent with this opinion.2

                             SUMMARY JUDGMENT

      In his second issue, Allender contends that the trial court erred by granting

summary judgment on his negligence claim because he raised a genuine issue of

material fact. Specifically, Allender argues that the evidence creates a fact issue

about whether Katy defendants created a dangerous condition. He asserts that

(1) the Katy defendants “had the exclusive right to control the roadway,”

(2) “established its standard of care over the festival streets by its documentation to

the City of Katy, vendors and exhibitors,” and (3) “breached its own standard of

care by creating a hazard and a hazardous activity.”

      Allender’s theory is that the Katy defendants controlled the decision to close

off the street for a certain period of time. His argument in the trial court focused



2
       We are not required to remand the entire case, but instead we consider the merits
of the negligence claim that was properly considered on the Katy defendants’ motion for
summary judgment. Cf. Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.
App.—Houston [1st Dist] 1999, no pet.) (“When, as here, a trial court grants more relief
by summary judgment than requested, by disposing of issues never presented to it, the
interests of judicial economy demand that we reverse and remand as to those issues, but
address the merits of the properly presented claims.”).
                                           9
primarily on the timing of the accident. On the Sunday of the accident, the festival

closed at 6:00 p.m. The vendor contracts contained clauses stating “no vehicles are

allowed in the Katy Rice Harvest Festival after 8:30 AM Saturday and before 6:30

PM Sunday,” and “[b]ooths may not be dismantled until 6:30 p.m. on Sunday.”

The contracts also require vendors to agree they “will wait until all booths are

dismantled and a Katy Rice Harvest Festival Official approves re-entry after 6:30

p.m. Sunday evening. At this time, vehicles may enter the Katy Rice Harvest

Festival Area.”

      Allender cited Cooper’s estimate in her deposition testimony that she was

actually permitted to enter the festival with her car between 6:15 and 6:20. He

acknowledges that the Incident Report filled out by an employee of the Chamber of

Commerce states that the accident occurred between 6:30 and 7:00, and that the

police report listed the time the incident was reported as 7:02 p.m., but he contends

that at least a fact issue exists about the time.     The time of the accident is

significant to his argument because he contends it was the act “closing the festival

at 6:00 p.m., and then began to allow vehicles to drive into the festival grounds

prematurely, causing endangerment to all people at the festival.”

      In response, the Katy defendants argue that Allender has not raised a fact

issue on either a premises liability or ordinary negligence claim. To the extent

                                         10
Allender argues that there was a dangerous condition created by what Allender

characterized as the “lack of safety measures,” i.e., “no speed limit signs, no traffic

guards, no safety cones,” the Katy defendants insist that assertion is simply

contrary to the undisputed and conclusive evidence that there was a traffic safety

plan and numerous volunteers and police officers directing vehicles. The Katy

defendants point out that Allender failed to argue, much less raise a fact issue,

about “the reasonableness of the traffic and safety plan in effect at the time of the

incident” or the Katy defendants “failure to exercise reasonable care to reduce or

eliminate any potential risk.”

      As for the timing of the accident, the Katy defendants assert that Allender

has failed to demonstrate how the Katy defendants allowing vehicles into the area a

few minutes early (even if true) could have proximately caused his accident. They

point out that he cannot argue that “he was unaware that vehicles were allowed

into” the area, as the evidence shows that Allender had “just waited in line for the

entrances to reopen, driven his own vehicle up next to his wife’s booth, and was in

the process of carrying ‘a large metal panel’ to his own vehicle when he was

struck.”

      The Katy defendants also argue that if Allender’s petition is interpreted to

assert a general negligence claim, there is “no evidence that the Katy Chamber

                                          11
breached a duty to appellant,” or that “such a breach proximately caused Mr.

Allender’s damages.”     Specifically, the Katy defendants argue that Allender has

not shown that, by their entering into a vender agreement with Allender’s wife

stating time for vehicle traffic for the festival, they created a duty owed to Allender

to not deviate from those times. And, according to the Katy defendants, there is no

evidence of a breach of whatever duty Allender relies upon or causation.

      Finally, the Katy defendants assert that, to the extent Allender claims that

the Katy Chamber “created a hazardous condition by allowing vehicles into the

area prior to the booths being dismantled,” Allender has “no evidence as to how

this created a hazardous condition.”       Instead, “the evidence shows that Mr

Allender’s injuries were caused by a woman driving unsafely who had ignored

warnings from a volunteer that was directing traffic, combined with Mr. Allender’s

own failure to keep a proper lookout for vehicles traveling through the festival, just

as his vehicle was traveling mere minutes before the accident.” Thus, the Katy

defendants argue that we should affirm the trial court’s summary judgment.

          A. Standard of Review

      The Katy defendants raised both traditional and no-evidence grounds in their

motion for summary judgment, and the trial court did not specify on which

grounds it based its judgment. See TEX. R. CIV. P. 166a(c), (i). In reviewing a

                                          12
grant of summary judgment, we consider the evidence in the light most favorable

to the nonmovant. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009) (citing

City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). We credit evidence

favorable to the nonmovant if reasonable jurors could, and we disregard evidence

contrary to the nonmovant unless reasonable jurors could not. See Timpte Indus.,

Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When, as here, the trial court does

not specify the grounds for its grant of summary judgment, we must affirm the

summary judgment if any of the theories presented to the court and preserved for

appeal are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003).

      A no-evidence summary judgment must be granted unless the non-movant

produces competent summary-judgment evidence raising a genuine issue of

material fact on the challenged elements. TEX. R. CIV. P. 166a(i); Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008). We apply the same legal-sufficiency

standard of review that we apply when reviewing a directed verdict. City of Keller

v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Applying that standard, a no-

evidence point will be sustained when (1) there is a complete absence of evidence

of a vital fact, (2) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

                                         13
prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively

establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla

of evidence exists when the evidence is “so weak as to do no more than create a

mere surmise or suspicion” of a fact, and the legal effect is that there is no

evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

      To prevail on a traditional Rule 166a(c) summary-judgment motion, a

movant must prove that there is no genuine issue regarding any material fact and

that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little

v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant

moving for summary judgment must either (1) disprove at least one element of the

plaintiff's cause of action or (2) plead and conclusively establish each essential

element of an affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth,

900 S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish its

right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60

(Tex. 1986).    If the movant meets its burden, the burden then shifts to the

nonmovant to raise a genuine issue of material fact precluding summary judgment.

See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).




                                          14
         B. Analysis

      We conclude that the trial court’s summary judgment was correct—

regardless of whether Allender’s claim is interpreted as premises liability or

general negligence—because Allender presented no evidence of a common

element, i.e., causation. In LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.

2006), the supreme court addressed whether a no-evidence summary judgment was

proper on a premises-liability claim involving a pedestrian struck by a car in a

parking lot.   The court explained that the “proximate cause element has two

components: cause-in-fact and foreseeability.”      Id. (citing Marathon Corp. v.

Pitzner, 106 S.W.3d 724, 727 (Tex. 2003)); see also Doe v. Boys Clubs of Greater

Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (articulating same proximate cause

elements of ordinary negligence claim). “The test for cause-in-fact, or “but-for”

causation, is whether (1) the act or omission was a substantial factor in causing the

injury and (2) without the act or omission the harm would not have occurred.”

LMB, 201 S.W.3d at 688.

      In response to the parking-lot owner’s no-evidence motion for summary

judgment in LMB, the plaintiff produced a treating physician’s affidavit stating, “In

reasonable medical probability, the death of Ernestina Moreno resulted from her

weakened condition caused by the accident in question. Therefore, in my opinion,

                                         15
the conduct of [premises owner] substantially caused Ernestina Moreno’s injuries

and death.” Id. At 687–88. The supreme court articulated the plaintiff’s burden to

raise a fact issue in response to the no-evidence summary judgment motion, and

explained why this affidavit fell short:

             [T]he Morenos had the burden to produce summary judgment
      evidence that an accident such as that involving Ernestina Moreno, or
      some similar occurrence, was a foreseeable result of a failure by LMB
      to use reasonable care to reduce or eliminate an unreasonably
      dangerous premises condition, and that LMB’s failure was a
      substantial factor in causing Ernestina Moreno’s injuries and death.
      Mere proof that Ernestina Moreno was injured in LMB’s parking lot
      is not proof of such proximate cause. See Western Invs., Inc. v. Urena,
      162 S.W.3d 547, 551–52 (Tex. 2005) (holding that summary
      judgment was proper when there was no evidence that any of the
      premises owner's “acts or omissions were a substantial factor in
      causing” the plaintiff's injuries); Southwest Key Program, Inc. v. Gil–
      Perez, 81 S.W.3d 269, 274 (Tex. 2002).

            Dr. Garza’s assertion in his affidavit that “in my opinion, the
      conduct of [premises owner, LMB] substantially caused Ernestina
      Moreno’s injuries and death” does not comprise evidence that some
      premises condition or an act or omission of LMB was causally related
      to the accident and Ernestina Moreno’s resulting injuries. His
      statement fails to address any particular condition of the premises,
      conduct of LMB, or underlying facts on which his conclusion is
      based. His affidavit does not set out specific facts from which a jury
      could reasonably infer that LMB knew or should have known of some
      unreasonably dangerous condition of the premises which was
      involved in the accident. Nor does his affidavit amount to more than a
      bare conclusion that some unknown conduct of LMB was a
      substantial cause of the occurrence, or that absent the conduct, the
      incident would not have occurred. In sum, the affidavit does not
      contain competent summary judgment evidence of either cause-in-fact
      or foreseeability. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.
                                           16
      1999); Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.
      1962); see also McIntyre v. Ramirez, 109 S.W.3d 741, 750 (Tex.
      2003).

Id. at 688–89.

      Here, Allender asserts in his brief that the evidence raises a fact issue on

negligence because,

      First, the [Katy defendants] had the exclusive right to control the
      roadway when [he] was injured. Second, the [Katy defendants]
      established its standard of care over the festival streets by its
      documentation to the City of Katy, vendors and exhibitors. Third, [the
      defendants] breached its own duty of care by creating a hazard and
      hazardous activity.

He complains that the Katy defendants “directed cars into a pedestrian

thoroughfare without taking any safety measures – that’s a created hazard.”     He

contends that, because the Katy defendants created the hazard, they necessarily

knew about the hazard and are thus liable for his injury.

      According to Allender, vehicles were allowed into the festival area around

6:15, despite the vendor agreements providing that vehicles would not be allowed

in until 6:30.   The specific alleged breach of the duty of care that Allender

articulates is thus the Katy defendants’ failure to (1) wait until 6:30 to allow

vehicle traffic to enter the festival grounds, and (2) wait until the booths were

dismantled before allowing vehicle traffic to enter. But, even assuming these facts



                                         17
to be true, it does not follow that allowing vehicles into the festival area ten or

fifteen minutes early was a proximate cause of his injury.

      Allender cannot argue that, as a pedestrian, he was caught unaware that

vehicles were allowed into the festival area early because he had himself already

driven into the area. Thus, he has not articulated—much less offered any evidence

about—how letting vehicles into the area before 6:30 (as opposed to after 6:30 as

provided by the contracts) caused his injury. The same holds true for his assertion

that the Katy defendants were negligent in allowing vehicles in before the booths

were completely dismantled. Allender alleges that he was struck by Cooper’s car

while he was carrying a large metal panel from the booth to his car. Whether the

booths were completely dismantled before vehicles were allowed in the area would

not change the fact that the vendor contracts contemplated that there would be

vehicular traffic in the festival area while vendors are loading their cars, as

Allender was doing. In other words, while Allender states the self-evident fact that

he would not have been struck by Cooper were their not vehicles allowed in the

area, he does not explain—or offer any evidence—that allowing vehicles in before

the booths were dismantled in alleged violation of the vendor contracts

proximately caused his injury. E.g., Boys Club of Greater Dallas, 907 S.W.2d at

477 (“Cause in fact is not shown if the defendant’s negligence did no more than

                                         18
furnish a condition which made the injury possible . . . . The evidence must go

further, and show that such negligence was the proximate, and not the remote,

cause of resulting injuries.”).

      Because Allender did not present evidence of proximate cause in response to

the Katy defendants’ motion for summary judgment, the trial court properly

granted summary judgment. We overrule Allender’s second issue.

                                  CONCLUSION

      We affirm the trial court’s summary judgment on Allender’s negligence

claim against the Katy defendants.    We reverse and remand the trial court’s

judgment on Allender’s breach-of-settlement agreement claim.




                                            Sherry Radack
                                            Chief Justice



Panel consists of Chief Justice Radack and Justices Higley and Brown.




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