Affirmed and Memorandum Opinion filed July 26, 2012.




                                         In The

                         Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-11-00816-CV
                                 ___________________

                         NATASHA WILLIAMS, Appellant

                                            V.

  CANPRO INVESTMENTS, LTD. AS SUCCESSOR IN INTEREST TO CANIT
  REHENCY UNLIMITED PARTNERSHIP, UNILEV MANAGEMENT CORP.,
  AND GTE MOBILNET OF SOUTH TEXAS LIMITED PARTNERSHIP D/B/A
    VERIZON WIRELESS, A LIMITED PARTNERSHIP INCLUDING SAN
                   ANTONIO MTA, LP, Appellee


                       On Appeal from the 281st District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-66778


                        MEMORANDUM OPINION

      In this premises-liability case, Natasha Williams argues that the trial court erred in
granting a no-evidence summary judgment for Unilev Management Corp.                 Unilev
managed the office building where Williams worked and was injured. Because Williams
failed to present more than a scintilla of evidence that Unilev knew or should have known
of the dangerous condition that injured her, we affirm the trial court’s rendition of
no-evidence summary judgment for Unilev.
                           I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2006, when the events giving rise to this suit took place, Unilev managed a
Houston office building then owned by Canit Regency Unlimited Partnership. At that
time, Williams’s employer, Arbitron, Inc. was subleasing the third floor of the building
from Verizon Wireless, L.P. On November 18, 2006, Williams was working in an
Arbitron training room on the third floor when the wheel of her chair slid into a hole in the
concrete that was concealed by a carpet. Williams fell forward, injuring her back and
wrist. Williams sued Canpro Investments, Ltd.,1 Unilev, and Verizon, alleging that the
defendants had collectively “owned, leased and/or controlled” the premises; maintained a
known or discoverable dangerous condition on the premises about which they knew or
should have known; and failed to exercise reasonable care to reduce or eliminate the risk.
Williams requested damages for physical pain and impairments, mental anguish, medical
expenses, and lost wages.

         Canpro and Unilev jointly moved for traditional summary judgment on the bases
that (1) Canpro had not been the owner of the building at the time of Williams’s injury, and
(2) Unilev lacked notice of the existence of the hole. The trial court granted summary
judgment for Canpro while denying it for Unilev. Unilev then moved for no-evidence
summary judgment, contending that Williams had failed to present any evidence that
Unilev (a) owned, occupied, or maintained any control over Arbitron’s office space; or (b)
had notice of any alleged defect in the premises. In response, Williams argued that
Unilev, as property manager, should be presumed to have had sufficient control over the
premises to give rise to a duty of care. She presented no evidence on this point. Williams
also argued that the correct standard for premises liability is whether the defendant “knew
or should have known” of the dangerous condition. Williams presented the following
evidence that Unilev was liable under this standard:

         1
              Canpro bought the building from Canit between the time Williams was injured and the time she
filed suit.
                                                      2
       Deposition transcripts in which Janet Sanford, Unilev’s “Asset Manager,” testified
       that Unilev had hired the security company for the building and that it was standard
       practice for the building security to write daily reports, which a Unilev
       administrative assistant would then review;

       An affidavit in which Lynae Parker, a co-worker of Williams with Arbitron, stated
       that she had reported the hole in the floor to a building security guard in February or
       March of 2005—about a year and a half before Williams’s injury—and that the
       security guard had responded that he would report the matter to building
       management; and

       A deposition transcript in which Gloria Cabrera, a Real Estate Operations Specialist
       with Verizon, stated, “I don’t know specifically why this hole is there; but I’m going
       to say that if somebody had previously core drilled or had drilled into the floor [to
       run cabling or wiring through the floor], that that’s probably why that hole was
       there.” Cabrera added that core drilling had been done when Verizon moved into
       the building.

In response, Unilev maintained that it had no control over Arbitron’s office space. Unilev
attached a copy of Arbitron’s 2003 subleasing agreement with Verizon in which, according
to Unilev, Arbitron took on the duty to maintain and repair the property. Unilev also
attached another portion of Sanford’s deposition transcript in which Sanford testified that
“most of the floors [of the building] were [occupied by] full-floor tenants, and we did not
have access cards to—to get in.        But [the security guard] could check stairwells.”
Finally, Unilev objected to Parker’s affidavit as hearsay. Williams responded with a
deposition transcript in which she, Williams, testified that after her injury, she was not
allowed to go back to Arbitron’s offices to take a picture of the hole without the escort of a
Unilev employee and that the Unilev employee later texted a picture of the hole to
Williams.


                                              3
       The trial court granted Unilev’s motion for no-evidence summary judgment by
written order on August 26, 2011. At the bottom of the order, the trial judge wrote,
“Defendant’s objection to the affidavit of Lynae Parker is sustained as hearsay.” In her
sole issue on appeal, Williams argues that the trial court erred in granting Unilev’s motion
for no-evidence summary judgment because (1) Unilev, as property manager, should be
assumed as a matter of law to have had sufficient control over the premises to give rise to a
duty of care; and (2) Unilev knew or should have known of the dangerous condition that
injured Williams.

                                       II. ANALYSIS

       In a no-evidence motion for summary judgment, the movant represents that there is
no evidence of one or more essential elements of the claims for which the nonmovant bears
the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The burden then shifts to the nonmovant to present
evidence raising a genuine issue of material fact as to the elements specified in the motion.
Mack Trucks, inc. v. Tamez, 206 S.W.3d 572, 582. We review the evidence presented by
the motion and response in the light most favorable to the nonmovant, crediting evidence
favorable to that party if a reasonable juror could, and disregarding contrary evidence
unless a reasonable juror could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2006) and Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.
2002)). We sustain a no-evidence summary judgment when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
The evidence is insufficient if “it is ‘so weak as to do no more than create a mere surmise or
suspicion’” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.
Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (quoting Kroger Tex., L.P.

                                              4
v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)). When, as here, the order granting summary
judgment does not identify the grounds upon which the motion was granted, the summary
judgment should be affirmed if any of the independent summary judgment grounds is
meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000);
Navarro v. Grant Thornton, LLP, 316 S.W.3d 715, 718–19 (Tex. App.—Houston [14th
Dist.] 2010, no pet.).

       The scope of the duty owed in a premises defect case varies according to the
claimant’s status as invitee, licensee, or trespasser. Mayer v. Willowbrook Plaza Ltd.
P’ship, 278 S.W.3d 901, 910 (Tex. App.—Houston [14th Dist.] 2009, no pet.). An invitee
is someone who enters land with the owner’s knowledge and for the mutual benefit of both.
Id. at 909 (citing Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied)). An owner or occupier of land must use
reasonable care to protect an invitee from known conditions that create an unreasonable
risk of harm, and conditions that should be discovered by the exercise of reasonable care.
Id. (citing CMH Homes v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000), and Ruvalacaba, 64
S.W.3d at 134). To establish liability, a plaintiff-invitee must prove that (1) a condition of
the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or
reasonably should have known of the condition; (3) the owner failed to exercise ordinary
care to protect the invitee from danger; and (4) the owner’s failure was a proximate cause
of injury to the invitee. Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 474–75 (Tex.
App.—Houston [14th Dist.] 1998, pet. denied) (citing State Dept. of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)); see Motel 6 G.P., Inc. v. Lopez, 929
S.W.2d 1, 3 (Tex. 1996) (phrasing knowledge element as “actual or constructive
knowledge of some condition on the premises”). Constructive knowledge is defined as
knowledge that a person, after reasonable inspection, ought to have or has reason to have.
See Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694, 700 (Tex. App.—Houston [1st Dist.]
2011, no pet.).          Constructive knowledge may be imputed when the premises

                                              5
owner-operator had a reasonable opportunity to discover and to remedy an allegedly
dangerous condition. See id.; CMH Homes, 15 S.W.3d at 102.

       In response to Unilev’s motion for no-evidence summary judgment, Williams failed
to present any evidence that Unilev knew or should have known of the dangerous condition
that injured her.2 Williams’s strongest evidence of actual knowledge was Lynae Parker’s
affidavit, in which Parker stated that she had reported the hole in the floor to a building
security guard in February or March of 2005—about a year and a half before Williams’s
injury—and that the security guard had responded that he would report the matter to
building management.           However, Unilev objected to the entire content of the
affidavit—both Parker’s alleged statement to the security guard and the security guard’s
response—and the trial court wrote on the summary judgment order, “Defendant’s
objection to the affidavit of Lynae Parker is sustained as hearsay.” Williams does not
contest this ruling on appeal.           This affidavit therefore cannot be considered as
summary-judgment evidence. See City of Keller, 168 S.W.3d at 810.                     Williams also
presented a deposition transcript in which Janet Sanford, Unilev’s “Asset Manager,”
testified that Unilev had hired the security company for the building and that it was
standard practice for the building security to write daily reports, which a Unilev
administrative assistant would then review. However, without Parker’s affidavit, there is
no evidence that any incident involving the hole was ever reported to building security.

       To show that Unilev should have known about the hole, Williams relies on
Cabrera’s deposition testimony as evidence that “[t]he hole in the floor beneath the carpet
had been there since at least some time before 2003.” But the length of time that the hole
was there only matters to the extent it helps show that Unilev had a reasonable opportunity


       2
           Unilev argues that because Williams was a business invitee, she had to show “actual or
constructive knowledge” and not merely that Unilev “knew or should have known” of the dangerous
condition. As the cases cited above show, however, there is no difference between these standards. See,
e.g., Farrar v. Sabine Mgmt. Corp., 362 S.W.3d at 700 (constructive knowledge is defined as knowledge
that a person, after reasonable inspection, ought to have or has reason to have).
                                                  6
to discover and to remedy it. See CMH Homes, 15 S.W.3d at 102. There are other
factors in determining whether such an opportunity existed, including whether Unilev had
regular access to Arbitron’s office space. Williams failed to present any evidence that
Unilev had regular access to Arbitron’s office space.3 Neither party offered Unilev’s
service contract into evidence. The only evidence that either side presented on this point
was another part of Sanford’s deposition testimony, in which Sanford testified that Unilev
had no access card to the business spaces in the office building and the security guards
could check stairwells. Williams did testify in a deposition that some time after her
injury, she tried to go back into Arbitron’s offices to take a picture of the hole. According
to Williams, she was stopped by someone named Renee4 until she returned with the escort
of a Unilev employee, who later texted a picture of the hole to Williams. But even
accepting Williams’s testimony as true, it demonstrates nothing about Unilev’s access to
Arbitron’s office space on a regular basis; it shows only that Arbitron decided not to allow
Williams on the premises unescorted after she was injured there. Further, even if Unilev
had the ability to inspect the area on a daily basis, Williams presented no evidence that a
reasonable inspection would have yielded knowledge of the hole, which was covered by a
carpet and had apparently caused no problems since Verizon had originally moved into the
suites in the 1990’s. See Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007)
(noting that over a ten-year period no customer visiting the car dealership had been injured
by the allegedly dangerous ramp, nor had the dealership received any complaints about the
ramp’s safety).

        In the absence of a record of the grounds for the trial court’s order, we must affirm if
any of the stated grounds is meritorious. Because Williams failed to present any evidence

        3
           Williams cites Lefmark Management v. Old, 946 S.W.2d 52 (Tex. 1997), to support the
proposition that “a defendant property manager for a premises could be assumed to have sufficient control
over the premises for a duty of care to arise.” But the fact that Unilev had control does not mean it had
sufficient access to Arbitron’s office space to give it a reasonable opportunity to inspect for defects. On
this point, Williams had to present evidence, and she failed to do so.
        4
            There is no indication in the record of this person’s identity.
                                                        7
that Unilev knew or should have known about the condition that injured her, we hold that
the trial court correctly granted Unilev’s motion for no-evidence summary judgment. We
overrule Williams’s sole issue on appeal and affirm the trial court’s judgment.

                                   IV. CONCLUSION

      We affirm the trial court’s judgment.




                                          /s/       Tracy Christopher
                                                    Justice



Panel consists of Justices Boyce, Jamison, and Christopher.




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