                                                                                      ACCEPTED
                                                                                  03-15-00243-CV
                                                                                          6170382
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            7/22/2015 10:17:26 AM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                        No. 03-15-00243-CV

                 IN THE COURT OF APPEALS
            THIRD APPELLATE DISTRICT OF TEXAS        FILED IN
                                              3rd COURT OF APPEALS
                         AT AUSTIN                 AUSTIN, TEXAS
                                                        7/22/2015 10:17:26 AM
                         KRISTIN LEE,                      JEFFREY D. KYLE
                           Appellant                             Clerk

                                v.

K&N MANAGMENT, INC. dlb\a RUDY'S COUNTRY STORE and BAR-B-Q
                          Appellees


                     ON APPEAL FROM
                   1h
             THE 98 JUDICIAL DISTRICT COURT
                  TRAVIS COUNTY, TEXAS
                  (Honorable Rhonda Hurley)


                    APPELLANT'S BRIEF


                                Law Offices of Price Ainsworth, P.C.
                                Price Ainsworth
                                State Bar No. 00950300
                                3821 Juniper Trace, #210
                                Austin, Texas 78738
                                512-233-1111
                                512-472-9157 fax

                                ATTORNEY FOR APPELLANT
                                KRISTIN LEE
                         IDENTITY OF PARTIES AND COUNSEL

       The following is a complete list of all parties, as well as the names and address of all trial
and appellate counsel.

PlaintiffslAppellants:                             Counsel for the Freiheit:

Kristin Lee                                        Price Ainsworth
                                                   Law Offices Ainsworth, P.C.
                                                   3 821 Juniper Trace, #21 0
                                                   Austin, Texas 78738

Defendants/Appellees:                              Counsel for K&N Management d\b\a Rudy's
                                                   Country Store and Bar-B-Q:
K&N Management d\b\a Rudy's
Country Store and Bar-B-Q                         Ethan Goodwin
                                                  Clark, Trevino & Associates
                                                  1701 Directors Boulevard, #920
                                                  A us tin, Texas 7 87 44




                                             II
                                                    TABLE OF CONTENTS

 IDENTITIES OF PARTIES AND COUNSEL.....................................................................                                      u

 TABLE OF CONTENTS......................................................................................................                 m

INDEX OF AUTHORITIES ·································································································                   IV

APPELLANTS' BRIEF.........................................................................................................               1

STATEMENT OF THE CASE.............................................................................................                       2

ISSUES PRESENTED IN THIS BRIEF...............................................................................                            2

STATEMENT OF THE FACTS...........................................................................................                        2

SUMMARY OF THE ARGUMENT....................................................................................                              3

STANDARD OF REVIEW...................................................................................................                    3

ARUGMEMENT AND AUTHORITIES..............................................................................                                 4

           A.        Evidence presented to the Trial Com1 on both motions for summary
                     judgment raised genuine issues of material fact............................................                         4

           B.         Evidence Inferences Establish Constructive Knowledge ofDefects.............                                        6

PRAYER................................................................................................................................   7

CERTIFICATE OF SERVICE..............................................................................................                     8




                                                                Ill
                                           INDEX OF AUTHORITIES

CASES                                                                                                                    PAGE
Huckebee v. Time Warner Entm't Co. 19 S.W. 3d 413,422 (Tex. 2000)
      19 S.W. 3d 413,422 (Tex. 2000) ..............................................................................      3

Park Place Hasp. v. Estate of Milo
       909 S.W. 2d 508, 510 (Tex. 1995) ............................................................................     3

Timpte Indus. v. Gish
       286 S.W. 3d 306, 310 (Tex. 2009) ............................................................................     3,4

Ford Motor Co. v. Ridge·way
      82 S.W. 3d 26,29 (Tex. App. --San Antonio 2002), rev'd on other grounds, 135 4
      S.W. 3d 598 (Tex. 2004) .......................................................................................... .

Wyatt v. Furr 's Supermarket, Inc.
        908 S.W.2d 266,268 (Tex. App.- El Paso 1995, no writ) (emphasis added)..............                             4

Wal-Mart Stores, Inc. v. Gonzalez
      (968 S.W.2d 934- Tex. 1998) ....................................................................................   5




                                                        iv
                                No. 03-15-00243-CV

                     IN THE COURT OF APPEALS
                THIRD APPELLATE DISTRICT OF TEXAS
                             AT AUSTIN


                                 KRISTIN LEE,
                                   Appellant

                                        v.

K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BAR-
                            B-Q
                          Appellee


                           ON APPEAL FROM
                           1
                   THE 98 JUDICIAL DISTRICT COURT
                            h

                        TRAVIS COUNTY, TEXAS
                        (Honorable Rhonda Hurley)


                            APPELLANT'S BRIEF




TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant Kristin Lee files this Brief of Appellant. The Clerk's Record will

be referenced to as "CR at [page#]."
                         STATEMENT OF THE CASE

      Appellant Kristin Lee was a business invitee on the premises owned and

operated by Appellee K & N Management, Inc. doing business as Rudy's Country

Store and Bar-B-Q (Rudy's).        She alleges that she fell over shrubbery that

extended over the entry way to the Rudy's restaurant. Appellant alleges that her

fall was a proximate result of a negligently dangerous condition on the property.

In the trial court, Appellee Rudy's filed an amended motion for summary judgment

- including a "traditional" motion and a "no-evidence" motion which was granted

on April 8, 2015. In essence, the motion asserted that the Appellee did not have

constructive notice of a dangerous condition on the premises.

                              ISSUE PRESENTED

      1. Were genuine issues of material fact present at the time of the summary

judgment hearing such that reasonable minds could differ regarding whether or not

Appellee Rudy's had constructive notice of a dangerous condition on the premises.

                        STATEMENT OF THE FACTS

      On August 21, 2009, Appellant Kristin Lee was a customer on the premises

owned and operated by Appellee K & N Management, Inc. d\b\a Rudy's Country

Store and Bar-B-Q located at 2400 North IH-35, Round Rock, Texas 78681.

Appellant Lee alleges that 1) she slipped on a landscaping bush which had fallen

out of the curb planter area and onto the walkway located at the entrance of the

restaurant; 2) the fall was a proximate result of the negligently dangerous condition
                                         2
of the landscaping at the property;          3) P. S. Landscapes, Inc. had recently

maintained the landscaping on the premises and negligently left the bush extending

onto the walkway; and 4) Appellee K & N Management, Inc. negligently failed to

maintain the parking lot, specifically the walkway, and its negligence was a

proximate cause of the Appellant's injuries and damages.

       Appellees filed their first amended no-evidence and traditional motion for

summary judgment on February 23, 2015. Lee filed a response, and a hearing was

held on April2, 2015. The trial comi granted the motion on April 8, 2015.

                        SUMMARY OF THE ARGUMENT

       Genuine issues of material fact were present at the time of the summary

judgment hearings before the Trial Court such that reasonable minds could differ

as to whether Appellee Rudy's had constructive notice of a dangerous condition on

the premises.

                             STANDARD OF REVIEW

       As to a traditional motion for summary judgment, it is axiomatic that the

trial court's duty at the summary judgment stage is not to weigh the evidence but to

determine if a material question of fact exists. 1 The trial court must accept as true

evidence favoring the plaintiff nonmovant, indulging every reasonable inference

and resolving all doubts in plaintiffs favor. 2

1
 Hucke bee v. Time Warner Entm 't Co., 19 S.W. 3d 413,422 (Tex. 2000)
2
 Park Place Hasp. v. Estate of Milo, 909 S.W. 2d 508,510 (Tex. 1995) Timpte Indus. v. Gish,
286 S.W. 3d 306,310 (Tex. 2009).
                                              3
       Tex. R. Civ. P. 166 a(i) states in the notes and comments thereto that, to

defeat a no-evidence motion for smnmary judgment, the nonmovant "is not

required to marshal its proof, its response need only point out evidence that raises a

fact issue on the challenged elements." If the nomnovant presents more than a

scintilla of evidence on the challenged elements, she is entitled to a trial on the

merits. 3   In reviewing a no-evidence summary judgment, the appellate court must

consider all of the evidence in the light most favorable to the party against whom

the summary judgment was rendered, crediting evidence favorable to the party if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not. 4

                         ARGUMENTS & AUTHORITIES

A.     Evidence presented to the Trial Court on both motions for summary
       judgment raised genuine issues of material fact.

     1. Constructive Knowledge Standard.

       For a premises owner to have sufficient knowledge of a condition to be held

liable for any injuries caused by the condition,

       The owner/operator must have put the foreign substance on the floor
       and knew that it was on the floor and negligently failed to remove it, or
       the substance must have been on the floor for so long it should have
       been discovered and removed in the exercise of ordinary care. 5

3 Ford Motor Co. v. Ridgeway, 82 S.W. 3d 26, 29 (Tex. App. --San Antonio 2002), rev'd on
other grounds, 135 S.W. 3d 598 (Tex. 2004).
4 Timpte Indus. v. Gish, 286 S.W. 3d 306,310 (Tex. 2009).
5 Wyatt v. Fun·'s Supermarket, Inc., 908 S.W.2d 266, 268 (Tex. App. - E1 Paso 1995, no writ)

(emphasis added).
                                             4
       To establish constructive knowledge on the part of the premises owner, Lee

must demonstrate that the hazard was (more likely than not) present for sufficient

time for the defendant to have discovered and rectified it. "This rule, while harsh and

demanding on plaintiffs, is nevertheless well established and plaintiffs must always

discharge the burden of proving that the dangerous conditions was either known to

the defendant or had existed for such a length of time that it should have known it." 6

Lee set fmih in the trial court evidence demonstrating that Rudy's had constructive

knowledge of a dangerous condition at the entryway to the restaurant.

    2. Lee's Testimony.

       Kristin Lee testified that after having one, small, strawberry margarita at

dinner several hours earlier, she rode with her mom and brother to Rudy's for

dessert. 7 Her mom pulled up to the walkway to the entrance at Rudy's, and Kristin

Lee got out of the backseat. 8 Kristin Lee got out of the car, took a couple of steps,

and fell. 9 She fell with her leg beneath her. 10 The fall resulted in her suffering a

fractured ankle that had to be surgically repaired. 11 Eventually, a second surgery to

remove implanted hardware was required. 12



6  Wal-Mart Stores, Inc. v. Gonzalez, (968 S.W.2d 934- Tex. 1998).
7  CR at p. 121 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit A- Kristin Lee depo. at pp. 26-29).
8
  !d. (Lee depo at p. 29).
9 !d.
10
   !d. (Lee depo at p. 31 ).
11
   !d. at pp 122 (Lee depo at pp. 41-44).
12
   !d. at p. 123 (Lee depo at p. 49).
                                                 5
       Appellant Kristin Lee testified that her mom (as evidenced by a letter written

by her mother Mary Lee) eventually detennined that Kristin Lee had tripped over a

landscape bush that extended over the walkway to the restaurant. 13

     3. Witness' Testimony.

       Mary Lee, Kristin Lee's mother, testified that Justin House (an eyewitness to

the accident, a friend of the Lee family, and also an employee at Rudy's) told the

family that Kristin Lee fell over a landscape bush that was laid over the side of the

planter. 14 Mrs. Lee did not actually see where Kristin Lee stepped when she fell

because Mrs. Lee was driving the stopped car. 15

     4. Rudy's employee's Testimony.

       Justin House was an employee of Rudy's at the time of the incident. 16 He

was about 25 feet from Kristin Lee when she fell. 17 He observed an obstacle, a

plant, on the sidewalk. 18 The plant had overgrown onto the sidewalk. 19 The plant

protruded out over the sidewalk. 20 When he went back to work in the next day or

two, the plant had been removed. 21



ll I d. at pp. 124 (Lee depo at p. 59).
14 C.R. at p. 131 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit B- Mary Lee depo. at pp. 33-34).
15 I d. at pp. 130 (Mary Lee depo at p. 24).
16
   C.R. at p. 138 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Summary Judgment Exhibit C- depo. of Justin House at p. 8).
17 Jd. at p. 139 (House depo at p. 12).
18 I d. at p. 140 (House depo at p. 17).
19
   Jd. at p. 141 (House depo at p. 18).
20 I d. at p. 142 (House depo at p. 21).
21 I d. at p. 144 (House depo at p. 28).

                                                6
        Mr. House testified that a landscaping company came out to the scene

regularly (he said once a week). 22       He told the Lee family (he is a friend of

Kristin's brother) that Kristin Lee fell over a plant. 23 He also gave a statement to

the general manager at Rudy's that Kristin Lee fell over some bushes hanging over

the sidewalk. 24 In Mr. House's opinion, the area looked safer after the plants were

eliminated from hanging over the walkway, a main entrance to the restaurant. 25 He

noticed that the plants had been cut back about one week or so later. 26

       Mr. House saw Kristin Lee step on a bush protruding over the sidewalk. 27

When asked whether the bush protruding over the sidewalk was a hazardous

condition, Mr. House testified that "as a business owner, yes, I would take more

precautions doing that." 28

     5. Written Discovery

       In its responses to Inten·ogatories, Rudy's testified that the grounds were

maintained on a weekly basis. 29 Rudy's is not sure how long the bush was on the

ground before the accident. 30

22
   I d. at p. 143 (House depo at p. 26).
23
   Jd. at p. 145 (House depo at p. 39).
24
   Id. at pp. 146-150 (House depo at pp. 46-50).
25
   I d. at pp. 151-152 (House depo at pp. 51-52).
26
   Id. at p. !53 (House depo at p. 55).
27
    Jd. at pp. 154-155 (House depo at pp. 59-60).
28
   Id. at p. !56 (House depo at p. 61 ).
29
   C.R. at p. 162 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and
No-Evidence Motions for Sununary Judgment Exhibit D- Rudy's Interrogatory answers at #4).
30 Jd.



                                             7
B.    Evidentiary Inferences Establish Constructive Knowledge of Defects

      The testimony       delineated above suggests that the Appellent tripped over

foliage that had been pennitted to extend over a walkway that patrons would

foreseeably be required to use to enter the restaurant. There is no suggestion that

the bush "suddenly" grew over the walkway. Indeed, the reasonable inference is

that the plants grew slowly over the entrance. Unlike the event where a fellow

shopper spills soap on a grocery store floor immediately before the next customer

slips in it, the hazard at issue must logically have existed for a considerable time

before Ms. Lee fell. The bush was observed by a Rudy's employee as an obstacle

as the event took place, the employee thought that the walkway looked safer when

the bush was removed after the event, and the company had a procedure in place

for periodically maintaining the landscaping. Genuine issues of material fact exist

as to how long Rudy's knew or should of known of the hazardous condition on its

premises.

                                      PRAYER

      Wherefore, Appellant prays that this Court reverse the judgment of the Trial

Court, and grant each and every request for relief set forth by Appellant, and for

such other relief, at law and in equity, to which Appellant is entitled.




                                           8
                              Respectfully submitted,

                              LAW OFFICES OF PRICE AINSWORTH, P.C.
                              3821 Juniper Trace, #21 0
                              Austin, Texas 78738
                              512-233-1111
                              512-4 72-9157 fax




                              By: ______________________
                                   Price Ainsworth
                                    State Bar No. 00950300

                              ATTORNEY FOR APPELLANT KRISTIN LEE


                    CERTIFICATE OF COMPLIANCE

        I certifY that this document was produced on a computer using Microsoft
Word and contains 1644 words, as determined by the computer software's word-
count function, excluding the sections of the document listed in Tex. R. App. P.
9 .4(i)(1 ).




                                           Price Ainswmih




                                       9
                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing document
has been served to the following counsel of record as indicated below on the 21st
day ofJuly 2015.

VIA FACSIMILIE- 512-383-0503
Ethan Goodwin
Clark, Trevino & Associates
1701 Directors Boulevard, #920
Austin, Texas 78744




                                            Price Ainsworth




                                       10
                   IN THE COURT OF APPEALS
              THIRD APPELLATE DISTRICT OF TEXAS
                           AT AUSTIN


                             KRISTIN LEE,
                               Appellant

                                    v.

K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BAR-
                            B-Q
                         Appellees


                          ON APPEAL FROM
                THE 98th JUDICIAL DISTRICT COURT
                     TRAVIS COUNTY, TEXAS
                     (Honorable Rhonda Hurley)


               APPENDIX TO BRIEF OF APPELLANTS


A.   Final Summary Judgment signed on AprillO, 2015




                                   II
                                                                                  Filed in The District Court
                                                                                   ofTravis County, Texas

                                                                                       AP: I 0 2015 M0~
                                   Cause No. D-1-GN-11-001839
                                                                                  At   l1lJ A
                                                            IN THE DISTRICT co~lva L Price, District Clerk
                                                                                                          M.
KRISTIN LEE                     §
                                §
vs.                             §                           TRAVIS COUNTY, TEXAS
                                §
K & N MANAGEMENT, INC. D/B/A    §
RUDY'S COUNTRY STORE AND BAR-B- §
Q; AND P. S. LANDSCAPES, INC.   §                           98TH JUDICIAL DISTRJCT

                                FINAL SUMMARY JUDGMENT

        On the 2nd day of April, 2015, the Court considered Defendant K & N Management, Inc.

d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion

for Summary Judgment ("the Motion''). After considering the Motion, the summary judgment

evidence, the Response filed by Plaintiff, and K & N Management, Inc. d!h/a Rudy's Country

Store and Bar-B-Q's Objections and Reply, it is the opinion of the Court that Defendant K & N

Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q is entitled to judgment as a matter of

law. It is, therefore,

        ORDERED, ADJUDGED AND DECREED that Defendant K & N Management, Inc.

d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion

for Summary Judgment before the Co uti is hereby GRANTED and that the Plaintiff take nothing

against Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q. Costs of

court are taxed against the Plaintiff for which execution shall be levied.

        It is further ORDERED, ADJUDGED AND DECREED that Defendant K & N

Management, Inc., d!h/a Rudy's County Store and Bar-B-Q's Objections to Plaintiff's summary

judgment evidence are OVERRULED.

        All such other relief sought by way of this action not specifically provided by this

judgment is hereby denied.
SIGNED this~ day       of-'~"+'-'\'"_,_J   _c_\- - - - . - ' '   2015.



                                                   nm4:::f]n
APROVED AS TO FORM:

CLARK, TREVINO & ASSOCIATES



BY•~~ TBN: 24064492
      Mailing Address:
      P.O. Box 258829
      Oklahoma City, OK 73125-8829
      Physical Address:
      1701 Directors Boulevard, Suite 920
      Austin, Texas 78744
      Telephone: (512) 445-1580
      Facsimile: (512) 383-0503
      ethan. goodwin@farmersinsurance.com
      ATTORNEYS FOR DEFENDANT K & N MANAGEMENT,
      INC. D/B/A RUDY'S COUNTRY STORE AND BAR-B-Q


LAW OFFICES OF PRICE AINSWORTH, P.C.



BY:
      PRICE AINSWORTH
      TBN: 00950300
      3821 Juniper Trace, #210
      Telephone: (512) 233-1111
      Facsimile: (512) 479-9157
      price@ainsworth-law.com

      ATTORNEY FOR PLAINTIFF KRISTIN LEE
SIGNED this _ _ day of _ _ _ _ _ _ _---". 2015.



                                             ruDGE PRESIDING



APROVED AS TO FORM:

CLARK, TREVINO & ASSOCIATES


EY:?~I/_~
 ~GOOD\IIJN
      TBN: 24064492
      Mailing Address:
      P.O. Box 258829
      Oklahoma City, OK 73125-8829
      Physical Address:
      1701 Di:reators Boulevard, Suite 920
      Austin, Texas 7&744
      Telephone: (512) 445-1580
      Facsimile: (512) 383-0503
      ethan.good\Vln@fimnersinsurance.com

      ATTORNEYS fOR DEFENDANT K & N MANAGEMENT,
      INc. D/B/A RUDYS CoUNTRY STORE AND BAR-B-Q


LAW OFFICES OF 1'RIC1i: AXNSWORTH, l'.C.



         ~
BY:
      PlUCB AINSWORTH
      TBN: 00950300
                     ·-----
      3821 Juniper Trace, #21 0
      Telephone: (512) 233-1111
                                        --



      Facsimile: (512) 479-9157
      price@ainsworth-law.com

      ATTORNEY FOR PLAINTIFF KRISTIN LEE




                                             P<j ~o+3
