                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00434-CV


PATRICIA PALMER                                                     APPELLANT

                                        V.

PERFORMING ARTS FORT                                                 APPELLEE
WORTH, INC.

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          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   Introduction

      Appellant Patricia Palmer appeals the trial court’s order granting summary

judgment in favor of appellee Performing Arts Fort Worth, Inc. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                   Background Facts

      Performing Arts, which owns and operates Bass Hall, has a license from

the Board of Directors of Tax Increment Reinvestment Zone Number Three, City

of Fort Worth, Texas (TIRZ) allowing its patrons to use a parking garage across

the street from the hall during performances.2 The license agreement allows

Performing Arts to grant patrons of Bass Hall “access to the Garage during the

‘Permitted Hours’” to park their cars during the performances. The lease limits

the number of parking spaces patrons may use to 700, states that Performing

Arts “shall be responsible, at [its] sole expense, for facilitating the orderly entry

and exit of Patrons to the Garage,” and that Performing Arts “shall bear the cost

of and be solely responsible, and shall contract with third parties reasonably

acceptable to [Crescent], for any additional staffing, attendants, or security

required or reasonably requested by [Crescent] in connection with parking

coordination for Patrons’ use of the Garage.”

      Palmer attended a performance at Bass Hall on November 4, 2007. She

parked her car in the parking garage and attended the performance across the

street. While returning to her car after the performance, Palmer stepped off a

curb in the parking garage and fell, injuring her ankle and shoulder.



      2
       Crescent Real Estate Funding, L.P. is the owner of the garage. Crescent
leased the garage to TIRZ, which in turn granted Performing Arts a license to the
garage pursuant to a license agreement dated April 22, 1999. Neither Crescent
nor TIRZ was a party to this lawsuit.


                                         2
      Palmer sued Performing Arts for negligence for the allegedly hazardous

and dangerous condition on the property. Performing Arts filed a traditional and

no evidence motion for summary judgment. Performing Arts argued under the

traditional summary judgment standard that Palmer’s negligence claim fails as a

matter of law because she should have asserted a premises liability claim, but

did not. In its no-evidence argument, Performing Arts argued that Palmer has

produced no evidence to support any of the elements of a negligence claim.

      Palmer responded and objected to Performing Arts’s motion as untimely

under the trial court’s scheduling order.     The scheduling order required that

dispositive motions be filed by September 15, 2010, and Performing Arts did not

file its motion until June 17, 2011. Palmer’s response addressed Performing

Arts’s no-evidence arguments, but it did not address the argument that Palmer

filed a negligence claim but should have filed a premises liability claim. It did,

however, refer to the case as a “premises case[].”

      After a hearing in July, 2011, the trial court granted Performing Arts’s

traditional and no-evidence summary judgment motions.           On September 19,

2011, Palmer filed an objection to the trial court’s failure to rule on her objection

to the timeliness of Performing Arts’s summary judgment motion. That same

day, the trial court overruled Palmer’s objection. Palmer then filed this appeal.




                                         3
                                       Discussion

  I.   Scheduling Order

       In her first issue, Palmer argues that summary judgment is improper

because the motion was filed (1) during her attorney’s vacation; (2) after the

court’s established deadline for dispositive motions; and (3) without permission or

leave from the court.

            A. Attorney’s vacation

       Palmer complains that Performing Arts filed the motion for summary

judgment during her attorney’s vacation, and the court scheduled the hearing for

the day before he was to return. Palmer’s attorney submitted a letter to the court

indicating that he would be on vacation from June 20, 2011 to July 15, 2011.

Palmer argues that the trial court should “accommodate attorney vacations” and

it erred when it “impliedly modified its scheduling order without notice to the

parties.”

       Local rules stipulate that resetting a trial date because of an attorney’s

vacation is at the court’s discretion and that the attorney is to notify the court of

his unavailability as soon as the trial setting is received. Tarrant (Tex.) Civ. Dist.

Ct. Loc. R. 1.11. Performing Arts filed its motion for summary judgment on June

17, 2011, three days before Palmer’s attorney’s vacation.          Palmer filed her

response on July 8, 2011, and her counsel attended the hearing. Palmer raised

no objection nor provided any notice of unavailability to the trial court. See In re

Estate of Henry, 250 S.W.3d 518, 527 (Tex. App.—Dallas 2008, no pet.) (holding


                                          4
that trial court did not abuse its discretion by implicitly modifying its scheduling

order by allowing a late-filed amended pleading because “[a]lthough appellee

asserted ‘surprise,’ he [did] not claim he did not receive adequate notice and

opportunity to respond”). Because Palmer did not complain to the trial court that

the hearing interfered with her attorney’s vacation, we cannot say that the trial

court abused its discretion by holding the hearing.

         B. Deadline for motions

      Palmer also complains that the motion was filed after the deadline set forth

in the trial court’s scheduling order. The court has the “inherent right to change

or modify any interlocutory order or judgment down to the time when the

judgment on the merits of the case becomes final.” Hill v. W. E. Brittain, Inc., 405

S.W.2d 803, 808 (Tex. Civ. App.—Fort Worth 1966, no. writ.) (citing Bachman

Ctr. Corp. v. State, 359 S.W.2d 290, 292 (Tex. Civ. App.—Dallas 1962, writ ref’d

n.r.e.)). Rule 166 of the Texas Rules of Civil Procedure states that the court shall

issue an order at the pretrial conference, and “such order . . . shall control the

subsequent course of the action.” Tex. R. Civ. P. 166. The rule also directs

courts to dispose of cases without “undue expense or burden,” id., and courts

may modify an order to prevent manifest injustice, see Trevino v. Trevino, 64

S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no pet.). The court may modify

by affirmative direction, a written order, an oral direction in the record, Susanoil,

Inc. v. Cont’l Oil Co., 516 S.W.2d 260, 264 (Tex. Civ. App.—San Antonio 1973,

no writ.), or by implicit modification, such as setting a hearing, Trevino, 64


                                         5
S.W.3d at 170; Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 262 (Tex.

App.—Corpus Christi 1994, writ denied). Therefore, the trial court was within its

discretion to implicitly modify the scheduling order by setting Performing Arts’s

motion for a hearing.

          C. Permission from the court

      Finally, Palmer argues that Performing Arts filed its late motion without

permission or leave from the court. Often, courts will allow a late filed motion in

order to prevent an unnecessary trial. Trevino, 64 S.W.3d at 170. Given the

wide discretion of the trial court in managing its docket, absent a showing of clear

abuse, we will not interfere with the exercise of that discretion. Id. (citing Clanton

v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)). Because Palmer received adequate

notice and an opportunity to respond, the trial court did not abuse its discretion

by allowing the late submission of the motion.3 We overrule her first issue.




      3
        At oral argument, Palmer argued that it was also an abuse of discretion
for the trial court to hear Performing Arts’s motion because it had denied her
motion for an expert witness as untimely. Palmer makes no argument or citation
in support of this claim in her response to the motion for summary judgment or in
her brief on appeal. An appellate court cannot reverse based on “unassigned
error,” i.e., a ground not presented in the appellate briefs. Pat Baker Co. v.
Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see Tex. R. App. P. 53.2(f); Sonat
Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex.
2008). We therefore do not address this argument.


                                          6
 II.   No-evidence Summary Judgment

       In her third issue, Palmer argues that the trial court erred by granting

Performing Arts’s no-evidence summary judgment because she submitted

sufficient evidence to substantiate a premises liability cause of action.

       We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

       When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the

appellant failed to produce more than a scintilla of evidence under that burden,

then there is no need to analyze whether the appellee’s summary judgment proof

satisfied the less stringent rule 166a(c) burden. Id.




                                          7
      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 822 (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. Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (quoting Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward

more than a scintilla of probative evidence that raises a genuine issue of material

fact, then a no-evidence summary judgment is not proper. Smith v. O’Donnell,

288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).

      To prevail under a premises liability claim,4 Palmer must prove that (1)

Performing Arts owed a duty to Palmer; (2) Performing Arts was a possessor of

the premises; (3) the curb constituted an unreasonable risk of harm; (4)

      4
         Performing Arts challenged Palmer’s negligence cause of action and
argued that Palmer’s stated claim was more properly construed as a premises
liability claim. On appeal Palmer addressed only premises liability, and
Performing Arts responded that even if construed as a premises liability claim,
Palmer failed to meet the elements. Therefore, we consider the issue as argued
and do not discuss Palmer’s negligence claim.


                                        8
Performing Arts knew or reasonably should have known of the condition of the

curb; (5) Performing Arts failed to exercise reasonable care to protect Palmer

from danger; and (6) Performing Arts’s failure was the proximate cause of the

injury to Palmer. See Del Lago Partners v. Smith, 307 S.W.3d 762, 788 (Tex.

2010); Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 883

(Tex. 2009).

      In general, “a person who does not own or possess property assumes no

liability for injury under a premises liability theory, unless he assumes control

over, and responsibility for, the premises.” Villegas v. Tex. Dep’t of Transp., 120

S.W.3d 26, 38 (Tex. App.—San Antonio 2003, pet. denied) (quoting Rendleman

v. Clarke, 909 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d

as moot)). “The relevant inquiry is whether the defendant assumed sufficient

control over the part of the premises that presented the alleged danger so that

the defendant had the responsibility to remedy it.” Cnty. of Cameron v. Brown,

80 S.W.3d 549, 556 (Tex. 2002). Control is “the power or authority to manage,

direct, superintend, restrict, regulate, govern, administer, or oversee.” Gunn v.

Harris Methodist Affiliated Hosps., 887 S.W.2d 248, 252 (Tex. App.—Fort Worth

1994, writ denied). Occupation of a premises is not synonymous with control; a

party may occupy a premises “in whole or in part, without actually controlling it.”

Id. at 251 (refusing to “focus[] on the term ‘occupy’” but looking to control to

determine whether defendant was a possessor).




                                        9
      Palmer argues that Performing Arts was a possessor of the premises

because Performing Arts had a license to use the garage and, according to the

contract, assumed responsibility for the entry and exit of the patrons to the

garage. Palmer also claims that Performing Arts was responsible for the garage

security and staffed the garage for this purpose.

      The license agreement, which is the basis of Palmer’s argument that

Performing Arts was a possessor or occupier of the garage at the time of

Palmer’s accident, expressly limited Performing Arts’s right of use and access to

the garage.    It was allowed to “use the Garage only in accordance with

Landlord’s rules and regulations.” Performing Arts was given a license to use

700 parking spaces for patron parking and “for no other use.” These spaces

could only be used at certain times and on specific days, and even then

Performing Arts had to yield to the “Landlord’s major tenant.”       During the

“Permitted Hours” of Performing Arts’s use, other parties continued to use

portions of the garage. A schedule attached to the license agreement specifically

reserved ninety spaces for another tenant who was not Performing Arts or TIRZ.

      Crescent, as the owner of the garage, expressly reserved the right “[t]o

decorate and to make repairs, alterations, additions, changes or improvements,

whether structural or otherwise, in, about[,] or on Garage” and the right to

“prohibit all signs, posters, advertisements, or notices from being painted or

affixed or displayed on any portion of the Garage.” Performing Arts had “no

authority or power, express or implied, to create or cause any mechanic’s or


                                        10
materialmen’s lien, charge or encumbrance of any kind against the Garage or

any portion thereof.” Performing Arts was only required to pay the cost of repairs

for damage done by it or its patrons, agents, contractors, or employees.

Performing Arts could “review and comment upon any alterations to the Garage

proposed by [TIRZ] and permitted under the Lease, but [Performing Arts had] no

obligations with regard to the expense of such alterations.”

      Performing Arts was only allowed to use 700 spaces in the garage and

other tenants continued to use other portions during Performing Arts’s permitted

hours. Thus, by the plain language of the contract, Performing Arts did not have

exclusive control of the parking garage. Further, Performing Arts had no duty to

inspect, maintain, or repair the garage. In fact, Performing Arts could not make

any “repairs, alterations, additions, changes or improvements” to the garage and

could not put up any signs or notices in the garage. Cf. Levesque v. Wilkens, 57

S.W.3d 499, 505 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that

lessee maintained control over the premises when the lessor reserved no rights

in the contract to enter onto the property during the lease term).

      After reviewing the summary judgment evidence, we cannot say that

Performing Arts’s use of the garage was such that it had control over the curb

where Palmer fell and thereby owed Palmer a duty of reasonable care. See

Gunn, 887 S.W.2d at 251–52 (upholding summary judgment on a premises

liability claim because, despite admission that defendant occupied the premises,

the evidence “easily infer[red] a lack of control”).     Because Performing Arts


                                        11
conclusively negated at least one essential element of Palmer’s cause of action,

the trial court did not err by granting summary judgment on her claim against

Performing Arts. See Frost Nat’l Bank, 315 S.W.3d at 508. We overrule her third

issue. Because we uphold the trial court’s judgment on Performing Arts’s no-

evidence summary judgment, we do not need to reach Palmer’s second issue.

See Tex. R. App. P. 47.1.

                                 Conclusion

      Having overruled Palmer’s dispositive issues, we affirm the trial court’s

judgment.



                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: July 19, 2012




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