Millwee v. Capstar Commercial Real Estate Services, Ltd.
2011 Tex. App. LEXIS 2909
| Tex. App. | 2011Background
- Millwee suffered a scooter‑related injury on October 14, 2006, when the front wheel wedged in an excavation in a driveway, causing her to be injured as she rode from church to home.
- Millwee sued Capstar Commercial Real Estate Services, Ltd. alleging Capstar was a possessor of the premises with control, and negligent for creating/allowing a hazardous condition and for failing to warn.
- The case was set for a jury trial, but Capstar waived the jury on the day of trial; the case was tried to the court with Millwee proceeding pro se.
- The trial court found for Capstar and rendered a take-nothing judgment; the court also filed findings of fact and conclusions of law indicating Millwee failed to prove Capstar owned or controlled the premises by a preponderance of the evidence.
- On appeal, Millwee raised issues about the legal standard for ownership/control, sufficiency of the evidence, trespass status, medical damages, continuance, and denial of a jury trial; the court affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal standard for ownership versus control of premises | Millwee argues Capstar need not prove ownership if Capstar controlled the premises. | Capstar contends the standard requires ownership or control; the court must find one or both. | Overruled; trial court did not require both ownership and control; proper standard applied. |
| Sufficiency of the evidence on Capstar's ownership/control | Millwee presented deposition testimony suggesting Capstar admitted ownership/control. | Record shows Millwee failed to prove ownership/control by preponderance. | Evidence supported the trial court's finding; Millwee failed to prove ownership/control by a preponderance. |
| Trespasser status of Millwee on the property | Millwee asserted Capstar retained control over the premises. | Capstar denied exculpating evidence and maintained lack of proof of ownership/control. | Not reached or dispositive; issue overruled/considered unnecessary to resolve. |
| Admission of medical damages evidence | Millwee alleged Capstar's control evidence would show medical damages. | Not directly addressed in dispositive manner so far as the trial record shows. | Not reached; evidence issue not necessary to affirm. |
| Denial of continuance to obtain medical information | Millwee sought a continuance to obtain medical information. | Court denied continuance; argued no error in judgment. | Not reached; citation to record indicates issue not essential to ruling. |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993) (premises liability standards, control status considerations)
- Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) (standard for reviewing evidence; credibility of fact-finders)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standards for legal/factual sufficiency review)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for appellate review of evidence sufficiency)
- Audia v. Hannold, 328 S.W.3d 661 (Tex.App.-Dallas 2010) (pro se status and waiver of rights; preservation of error)