Jimmie Donnan v. Kimco Realty Corporation and Maurice Reynolds
13-15-00072-CV
| Tex. App. | Jun 16, 2015Background
- Donnan sued Kimco Realty Corporation and Maurice Reynolds for injuries from a fall on a sidewalk in front of Bed Bath & Beyond at Island Gate Shopping Center on November 5, 2012.
- Donnan later joined Bed Bath & Beyond, Inc. and Elite Commercial Services, Inc. and asserted negligence and premises liability claims.
- Defendants filed traditional and no-evidence motions for summary judgment addressing negligence and premises-liability theories in 2014.
- The trial court granted all motions for summary judgment on October 17, 2014, disposing of the premises-liability claim against Kimco and Reynolds.
- Donnan appeals limited to premises liability claims against Kimco and Reynolds, contending factual knowledge of the defect existed or could have been inferred.
- Appellant concedes no actual knowledge and lacks temporal evidence for constructive knowledge; Cohen v. Landry’s Inc. distinguished; issue 2 waived for failure to brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Knowledge of the defect (actual or constructive) | Donnan asserts evidence or temporal facts show knowledge | Kimco/Reynolds show no knowledge and no temporal evidence | No evidence of knowledge; judgment proper |
| Waiver of issue 2 for lack of briefing | Waiver should not bar consideration | Rule 166a(c) requires express presentation; issue failed | Waiver in effect; issue 2 not preserved |
Key Cases Cited
- City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979) (issues not raised in trial court cannot be considered on appeal)
- Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002) (temporal evidence required for constructive knowledge)
- CMHHomes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (time-notice rule; temporal evidence needed)
- Cohen v. Landry's Inc., 442 S.W.3d 818 (Tex. App.-Houston [14th Dist.] 2014) (distinguishable, tree-root gradual elevation with temporal evidence)
- Del Largo Partners v. Smith, 307 S.W.3d 762 (Tex. 2010) (premises liability elements and knowledge standard)