                                  NO. 07-02-0208-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   MAY 2, 2003
                         ______________________________

                                   DAVID S. FOGEL,

                                                       Appellant

                                            v.

        DEMENT, LALONDE & ROBBINS, INC. D/B/A CONFERENCE CAFE,

                                               Appellee
                       _________________________________

            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 98-500,840; HON. SAM MEDINA, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        ________________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

      David S. Fogel (Fogel) appeals from a final summary judgment granted in favor of

Dement, LaLonde & Robbins d/b/a Conference Cafe (Cafe). In one issue, he argues that

the trial court erred in granting the judgment because 1) genuine issues of material fact

existed with regard to whether Cafe was negligent per se, 2) Cafe was negligent per se by

violating a city ordinance, 3) Fogel was not a mere trespasser, and 4) Cafe had a duty to

protect him from foreseeable criminal activity. We affirm the judgment of the trial court.
                                    Background

       Fogel sued Cafe and others to recompense injuries he suffered after being thrown

through a window. According to the record, Fogel had previously been at the Cafe, drank

several beers and left. Sometime thereafter he was driving down a street adjacent to the

Cafe at 2:00 a.m. and noticed a fight in the parking lot. So too did he notice that one of the

combatants was a friend of his. Wishing to assist his friend, Fogel intervened in the fracas.

This resulted in him being thrown by another individual (which individual was not employed

by Cafe) through the aforementioned window. Fogel admitted that he knew, prior to

intervening, that his intervention was dangerous and that he could be hurt. He also

admitted that he could have avoided the situation by simply driving home as he originally

intended.

       In suing Cafe, Fogel averred claims sounding in negligence per se and premises

liability. The former concerned Cafe’s purported failure to have safety glass in or a safety

bar adjacent to its windows as required by local ordinance. The latter involved its failure

to protect Fogel from criminal activity occurring on its premises and the danger posed by

the allegedly defective glass within its windows. Cafe moved for summary judgment,

asserting various grounds in support of same. Fogel filed his response. Thereafter, the

trial court granted the motion and entered summary judgment denying him recovery. In

granting the motion, however, the trial court did not specify in its judgment or anywhere

else the particular ground upon which it relied.




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                                         Authority

       The standard governing our review of summary judgments is well settled and need

not be reiterated. Instead, we refer the litigants to Nixon v. Mr. Property Management Co.,

690 S.W.2d 546, 548 (Tex. 1985) and Kimber v. Sideris, 8 S.W.3d 672, 675 (Tex. App.--

Amarillo 1999, no pet.) for an explanation of same. We also note that because the trial

court did not specify the ground upon which it relied when granting the motion, Fogel is

obligated to illustrate that none of the grounds alleged in the motion supports the judgment.

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 473 (Tex. 1995) (holding that the appellant is obligated to attack each ground

upon which the summary judgment could have been based); Malooly Bros., Inc. v. Napier,

461 S.W.2d 119, 121 (Tex. 1970) (holding the same); Granada BioSciences, Inc. v.

Barrett, 958 S.W.2d 215, 224 (Tex. App.--Amarillo 1997, pet. denied) (stating that a

summary judgment will be affirmed if it rests upon an independent ground to which no point

of error has been assigned).

       As previously mentioned, Cafe asserted various grounds in support of its motion for

summary judgment. One involved the contention that it was somehow immunized or

excused from any recovery for negligence per se since it had received a certificate of

occupancy from the City of Lubbock. Another involved the contention that Fogel’s conduct

was the sole proximate cause of his injuries. Whether these were grounds upon which the

trial court relied in granting summary judgment is unknown. Yet, because the trial court did

not specify the grounds upon which it relied, Fogel was obligated to illustrate why the two

we have named did not support the judgment. Star-Telegram, Inc. v. Doe, supra; Carr v.



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Brasher, supra; Malooly Bros., Inc. v. Napier, supra; Granada BioSciences, Inc. v. Barrett,

supra. This he did not do. He addressed neither ground in his appellate brief. Nor did he

assign a point of error directly attacking either. See Boss v. Prince’s Drive-Ins, 401 S.W.2d

140, 142-143 (Tex. Civ. App.--Waco 1966, writ ref’d n.r.e) (holding that the plaintiff’s

injuries were directly caused by his assumption of the role of mediator which he knew was

likely to provoke the combatants to injure him and which he admits would not have

occurred but for his intercession). Consequently, he did not satisfy his burden on appeal,

and we may affirm the judgment on that basis.

       Accordingly, we affirm the summary judgment.



                                                  Brian Quinn
                                                    Justice




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