*1 669; judg- trial § Sim- issues and affirm the court’s Tex. Ann. See Prob.Code Nelkin, 377-78; ment.7 mons, at
S.W.2d 268-69.
III. Conclusion guard- not
The trial court did create under sec-
ianship management or a trust
tion there was no ward’s estate and trial could order
from which the court NORMAN, Christopher Appellant Applications, In the Fee payment of fees. pay- trial to order Margo asked the court attorney’s ment of from Kenneth’s fees Christopher HENKEL and Lisa and Kenneth is not a “ward” estate. But Henkel, Appellees. as those his is not “estate” terms in section The trial are used 665B. No. 14-12-00995-CV. Appli- denying court did not err in the Fee Court of Margo sought cations the extent relief Dist.). (14th Houston 665B, under the relief section because Margo is not under requested available July 2013. Likewise, attor- this statute. because the ney representing Margo appointed was not under XIII of Chapter trial court Code, Margo’s attorney’s fees Probate expenses may taxed as costs be And,
under section 665A. because no stat- the fees provides expenses
ute that costs,
Margo’s attorney may be as taxed
these of the expenses part fees and are not may
“cost of the that be taxed proceeding” Accordingly, costs section
as under 669. arguments Margo’s opening
because the
brief do court erred not show trial rulings Margo chal- rendering the
lenges Margo’s on two appeal, overrule 16, 2011, (mem. op.); pet.) lenge alleged this of the June no conduct trial court [1st Dist.] Baker, Overman v. 512-13 appeal, sponte she asks that this court sua pet.). (Tex.App.-Tyler But, address this this cannot issue. court non-jurisdictional ruling address brief, part opening Margo of her asserts Margo appealed, which has not nor can this sponte” this court should "act sua ap- unassigned address error in a civil address an order of the trial court Karnes, peal. See Texas Nat’l Bank Margo improperly her to contends forced (Tex.1986) (holding that "the $9,000 Margo gave concede appeals may court of not reverse a trial attorney security could ad litem as for costs properly in the absence of court's paid attorney Although litem. to the ad Therefore, error”). assigned we do not ad- Margo appeal part states that she did not dress this issue. of the court's order and does not chal-
OPINION McCALLY, SHARON Justice. The granted summary trial court judg- ment in of appellees Christopher favor and Lisa Henkel on appellant Christopher against Norman’s claims premis- them for negligence, es liability, gross negli- and gence injuries arising Norman alleg- es he slipped sustained when he on ice the walkway accumulated on of Henkel’s home. We and reverse remand. January unusually was an cold Houston; day temperatures were below freezing, there and was a hard-freeze following in effect until day. mail Norman is a carrier walking whose neighborhood, route included Henkels’ where the homes have mail slots front got doors. When to Henkels’ he morning, gave house Lisa, mail directly standing to who was the front door. Lisa she contends cau- specifical- tioned Norman be careful and ly the icy mentioned conditions. Norman Lisa anything contends that never said anywhere him about ice on her and he saw no ice on as he approached deliver the mail. Norman said, agrees slip,” after “[DJon’t he gave her the mail. As Norman walked away, slipped patch he and fell on of ice walkway. the Henkels’ for premises Norman sued the Henkels liability, negligence, gross negligence, and for seeking damages injuries he sus- tained in the fall. The Henkels moved for summary judgment, arguing traditional Johnson, Houston, Bruce Appellant. for that they were entitled to pre- matter of law because “all evidence Ave, Bradley, David Hill R. Gregory sented side Defendant either shows Wren, Houston, L. Appellees. Jason explicitly Lisa Henkel warned Plaintiff re- BROWN, garding icy just Panel consists of Justices sec- potentially conditions CHRISTOPHER, he fell.” and McCALLY. onds before favor, taking all evidence fa- take- as true rendered granted the Rd. This him. Util. vorable to Malcomson against Norman. nothing judgment Newsom, 257, 263 Dist. followed. appeal 2005, pet. [1st II *3 summary de novo. judgments review We special liability Premises is a Dorsett, 164 Co. v. Operating Valence duty owed negligence where the to form of (Tex.2005). 656, In a tradition- 661 S.W.3d depends plaintiffs on the sta plaintiff the motion, the movant summary-judgment al Invs., time of incident. W. tus at the the there is showing of that the burden bears (Tex. Urena, 547, 550 v. 162 Inc. S.W.3d that fact and issue of material genuine 2005). undisputed In this it is that matter of to as a it entitled is Thus, the Henk- was an invitee. Norman 166a(c); Two P. v. Joe law. Tex.R. Civ. him a “to exercise reason els owed Venture, 150, 157 Nine 145 S.W.3d Thirty danger from a protect against care to able (Tex.2004). material genuine issue of that creates an unreasonable risk condition of evi- if more than a scintilla fact exists harm of the owner of establishing of dence the existence by the of reasonable care knew or exercise Ford produced. element is challenged and White Mem’l would discover.” Scott 598, 600 Ridgway, 135 S.W.3d Motor Co. v. (Tex. Fair, 411, 412 310 Hosp. v. (Tex.2004). traditional To be entitled to 2010) Homes, (quoting CMH Inc. Dae must con- summary judgment, defendant (Tex.2000)). nen, 97, 15 S.W.3d 101 This ele- one essential clusively negate least discharged property if owner duty is causes of plaintiffs each of ment of warned the invitee of condition either ele- conclusively each action or establish reasonably safe. or made Am. To- affirmative ment of an defense. Smith, Partners, Inc. v. 307 Lago Del 420, Grinnell, Co., Inc. v. 951 S.W.2d bacco 762, (Tex.2010); Bill’s Dollar (Tex.1997). Once estab- the defendant Bean, Inc. summary judgment right lishes its pet. [14th law, shifts to matter of burden words, In other if the evidence gen- plaintiff present raising evidence conclusively property establishes of material fact that defeats uine issue invitee adequately warned the owner Ins. Co. v. summary judgment. Transcon. condition, the owner cannot Trust, 685, 691
Briggs Equip. liable as matter of law. be found 2010, no (Tex.App.-Houston [14th Dist.] pet.). Ill review, issue, argues the In his first Norman part of our standard of
As record, by granting court erred the Henkels’ summary judgment examine the summary judgment in fa- because inference indulging reasonable material non-movant, resolving any genuine there was a issue of fact vor of warning.1 from in his as to the arising the evidence doubts brief, purpose satisfy for re- Norman down his first was sufficient 1. In his breaks (1) adequate warning premises-lia- argues by: quiring an the trial court erred issue and claims; (4) bility determining whether a improperly applying standard for sum- (2) question determining not a material mary judgment; Lisa's warn- is fact; (5) eliminating requirement adequate to of ice on ing was warn Norman (3) adequate. be But because the walkway; determining that a Lisa's her Resolving any occupier’s doubts the evidence warning must directed to the favor, in Norman’s we assume that Lisa See condition. TXI said, (Tex. slip.” We also credit Nor- L.P. v. Perry, 278 S.W.3d 2009). testimony say Lisa did not any- man’s that walkway, that
thing about ice on her he agree Norman with walkway, did not see ice on the had warning provided Lisa is akin to the warn during his walking encountered ice ing rejected by the Waco Court of route. The only reasonable inference that in State v. is, arises from pos- this evidence n.r.e.) (Tex.App.-Waco writ refd sessed information about a condition on (holding the State had possess. did not cones, placed barricade, sign, “SLOW’ *4 parties issue over join whether and a “35 MPH” a slippery around statement, slip,” road, Lisa’s “Don’t was too area of the State “the furnished no general adequate warning warning to constitute whatever dangerous of the condi contends, of law. tion to which subjected, [McBride] wit, provide muddy because the statement did not the slick and condition where occurred”). “sufficient information to determine what the accident A general in is, is, danger danger trip where what struction not to or fall slip or is not steps might danger, be taken to avoid the conclusive a warning, evidence of let alone danger See, or even an adequate whether the is such that warning. e.g., Perry, 278 recipient choose Perry, should not to enter S.W.3d at 765. In the Texas Su premises.” stated, argue preme The Henkels Court sufficiently the statement specific is be warning might “be careful” be some slipping cause is “the hazard to premises evidence that owner was succumbed.” [Norman] not negligent, but it is not conclusive in a situation posted such as this where the agree with the Henkels that speed-limit sign only general a in- Lisa did not instruct need to Norman re struction; it neither informed the driver garding dangerous how to avoid condi generally, road hazards nor did it tion on property. We observed in identify particular [potholes] hazard 2002 that have found no case that “[w]e that TXI says now it was meant to warn requires or occupier the owner to also against. explain how an can avoid the invitee condi Id. tion of which she has been warned.” Bill’s Store, However,
Dollar authority The Henkels this with counter unequivocally we have an attempt also held that the to characterize the condition as slipping owner or must warn the a The Henkels cite invitee hazard. “of unreasonable of harm either case a supporting general risks such definition premises liability known to the or which of “the a owner would be condition” in by inspection Supreme authority known to him reasonable or case. Texas Court has by making premises reasonably supported general safe.” never such definition See, Pipkin v. L.P. Kroger e.g., “the condition.” Brookshire Grocery Taylor, [14th Co. denied) (Tex.2006) pet. (citing “slipping” (holding Bill’s Dollar in case 369). dangerous 77 S.W.3d at The owner that the unreasonably generally laps, together. arguments substance of over- these address them floor); too-general warnings Perry Corbin v. Unlike the was the ice on Safe- Stores, Inc., warning specifically Lisa’s 297-98 way haz- (Tex.1983) particular informed Norman of the (holding con- “slipping” that the bin); ground. slippery ard —the this grape dition was the self-serve Coffee Co., necessarily a slip” “don’t is v. F.W. Woolworth (Tex.1976) slippery conditions. And (noting “slipping” not area of side- specify did exact injuries is usual- grocery condition in store floor). potentially dangerous, her walk that was proprietor’s on the ly the food item warning conveyed condi- slippery “the The condi- Slipping is not condition.” ground. walkway. tions were on the Norman em- case ice on the tion fact phasizes that her did Moreover, no effort the Henkels make specify poten- that ice was the cause of the explain holding how this court tially But disagree condition. warning of “Don’t is an slip” slippery that a of the conditions that could be slippery condition inadequate spe- without details of the holding found on a or how such a cific cause of those conditions. personal could be limited residence. Moreover, reasonably prudent person If this court determines position in Norman’s would have under- only warning slip” warning provides not *5 warning the stood Lisa’s to relate ice as walkway, but about the condition of slippery of The sum- cause the conditions. adequate warning also an of ice on conclusively es- mary-judgment evidence walkway a matter of own- —as law— temperatures were below may post of a tablishes that er or land freezing day the Norman In the at the of fell. slip” premis- entrance response to his Henkels’ discharge appendix of slipping es and its all summary judgment, Norman for conditions on or within the as article law. himself included news about matter of law. This is Texas National Weather hard-freeze Service’s issue, we sustain Norman’s first warning day. area Houston need not address his alternate issues. issue, The Having majority states that “Texas Su Norman’s we sustained first preme authority sup Court has never re- reverse the trial court’s general ‘the ported such definition of pro- mand the case to the trial court for ” condition,’ citing Grocery Brookshire Co. ceedings opinion. consistent with (Tex.2006), Taylor, 222 v. S.W.3d 406 Cor BROWN, J., Dissenting. Stores, Inc., v. 292 Safeway bin (Tex.1983), and v. F.W. Woolworth Coffee BROWN, Justice, JEFFREY V. (Tex.1976). Co., 536 539 in S.W.2d Yet dissenting. none of those cases does the court discuss gave Christopher Because Henkel of because in none adequate warning matter any warning those was at of cases there law, of I respectfully dissent. Instead, all. in each consid case court unreasonably I do cites not believe the cases Norman ers whether there was an so, and, support dangerous his in this if whether the argument control See, e.g., case. v. TXI L.P. had notice of it. And defendant 763, (Tex.2009); Perry, specific 765 the court identifies the item 552, slippery State floor to in each v. caused the n.r.e.). case, (Tex.Civ.App.-Waco writ does not indicate that “the ref d at item on condition” issue was the GENERAL CAPITAL rather than the floor GROUP slippery floor
generally. Because those cases neither BETELIGUNGSBERATUNG GMBH, Appellant support show for a narrow definition nor one, they a broader reject do not believe support majority’s conclusion. See T, Appellee. AT & 407-09; Corbin, Taylor, S.W.3d at No. 05-12-00446-CV. 294; Coffee, at S.W.2d 541. Court analogy closer to this case Bill’s Dallas. Bean, Inc. Dollar held that cashier’s to customer July 2013. spot “to watch wet as walked out she Rehearing Sept. Overruled 2013. was door” law. Rehearing En Banc Overruled 371 (Tex.App.-Houston Sept. 2002, pet. [14th Dist.] floor dangerous was because it wet; it mattered not whether wet- ness caused spilled a customer’s drink, by
soft water mopping, left from
by rain customers’ shoes carried
outside. same is true here —the walk-
way slip- because it was
pery, and Lisa’s was not inade-
quate simply to identify because she failed *6 substance the slip- that caused
periness.
Finally, I disagree majority’s with the
assertion that if we warn- conclude Lisa’s
ing adequate, “every occupi- owner or may
er post slip’ of land ‘Don’t premises discharge
the entrance of the
its of all slipping conditions
within the law.” question turns on what reasonably prudent circum- under the
. stances. See TXI
at 764-65. And under cir- particular
cumstances as a matter of law.