Damon Chappell and Kimberly Chappell v. William Allen D/B/A Double A. Setters and Williams Scotsman, Inc.Damon Chappell and Kimberly Chappell v. William Allen D/B/A Double A. Setters and Williams Scotsman, Inc.
OPINION
Aрpellants Damon and Kimberly Chap-pell (the Chappells) sued Appellees, William Allen, doing business as Double A Setters (Double A), and Williams Scotsman, Inc. (Scotsman) after an air-conditioning unit fell on Damon Chappell from Scotsman’s mobile office unit (MOU), which Double A had recently refurbished while the MOU was on the Chappells’ property. The Chappells appeal the trial court’s partial grant of Scotsman’s and Double A’s motions for summary judgment, its entry of a directed verdict on the surviving negligent activity cause of action, and other matters. We affirm.
BACKGROUND
Factual Summary
Scotsman purchases used MOUs, has them refurbished, and then sells or leases them. Scotsman owned the MOU at issue аnd engaged Damon Chappell’s business, Chappell’s Mobile Home Service (CMHS), to make the MOU road-ready and safe for transport, to transport the MOU from Houston to El Paso, and to ensure that nothing fell off of the MOU during its transport to El Paso. Chappell’s driver was required to make pre-trip and en route inspections and, upon arrival at Chappell’s lot in El Paso, was to park the MOU and put stands under it. Scotsman also contracted with Damon Chappell to use his property in El Paso as a staging area where the MOU could be renovated. Scotsman was not involved in CMHS’s transportation of the MOU, and Damon Chappell never informed Scotsman of any problems with the MOU.
Scotsman hired Double A to refurbish the MOU into a classroom while it was parked at Damon Chappell’s lot in El Paso. Double A’s scope of work included modification of the MOU into two classroom units through the removal of closets, bathrooms, and other structures and the placement of a dividing wall. However, Double A’s scope of work did not include inspection, removal, replacement of, or work on the air conditioning unit. Scotsman had no supervisory control over Double A, did not perform any of the renovation work involved, nor was involved with Double A’s refurbishing of the MOU. Scotsman’s only control in the refurbishment process involvеd directing Double A regarding what needed to be accomplished and inspecting the MOU on completion to determine if Double A’s work had been accomplished in an adequate manner. Double A was tasked with timely completion of the work, set its own hours, provided its own tools, and provided its own workers. Double A’s on-site supervisor, Mike Munselle, directed and supervised Double A’s workers. Scotsman agreed to pay Double A a flat fee after completion of its work and issued a Form 1099 to Double A for the amount it paid for the work.
Double A completed its refurbishment of the MOU and vacated Chappell’s property on or about October 12, 2004. Aрproximately one week later, as Damon Chappell attempted to retrieve one of his dogs from under the MOU, an air-conditioning unit mounted on the side of the MOU fell and seriously injured Damon Chappell.
The Chappells sued Appellees claiming negligence, gross negligence, premises liability, negligent activity, negligent hiring and supervision, and breach of contract. The trial court granted Appellees’ summary judgment motions on all of the Chap-
DISCUSSION
The Chappells present seven issues for our consideration. We address each issue as follows.
Summary Judgment
Scotsman and Double A each filed hybrid motions for summary judgment on both no-evidence and traditional grounds as to all of the Chappells’ causes of action and claims for punitive damages. The trial court denied the motions on the negligent activity cause of action and granted the motions on the remaining causes of action and claims. In Issue Six, the Chap-pells appeal only the trial court’s grant of summary judgment on their premises liability cause of action.
We initially consider the adequacy of the Chappells’ briefing of Issue Six. Scotsman contends the Chappells have waived this issue by failing to properly cite to the record in compliance with Rule 38.1(i) (requiring clear and concise argument and appropriate citation to authorities and the record). Tex.R.App. P. 38.1(i). Scotsman also argues that we have no duty or right “to search the voluminous 700-page summary judgment record to evaluate [the] Chappells’ argument!,]” and that our independent review of the record would improperly transform this Court from neutral adjudicators tо advocates.
See Valadez v. Avitia,
We agree that the Chappells often cite exclusively to testimony and evidence presented during the trial of the negligent activity claim rather than to evidence in the summary judgment record. The Chappells have also failed to provide authority in support of their recitation of the elements of invitee and licensee premises liability claims. They have failed to identify the pages in the trial record which they incorporate by reference and by which they purport to present a response to Ap-pellees’ traditional summary judgment motions. Tex.R.App. P. 38.1(g), (i).
The scope of our review is limited to the summary judgment record upon which the trial court’s ruling was based.
Garcia v. BNSF Ry. Co.,
Our review of a summary judgment is
de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
When a party files a hybrid summary judgment motion on both no-evidence and traditionаl grounds, we first review the trial court’s judgment under the no-evidence standard of review.
Ford Motor Co. v. Ridgway,
A no-evidence motion for summary judgment under Rule 166a(i) is essentially a motion for a pretrial directed verdict. Tex.R. Civ. P. 166a(i);
Timpte Industries, Inc. v. Gish,
In conducting our no-evidence summary judgment review, we review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, credit evidence favorable to that party if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.
Timpte Industries, Inc.,
The party moving for traditionаl summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). To determine if the non-movant raises a
Premises Liability
The threshold question in a premises liability case, as with any cause of action based on negligence, is the existence of and violation of a duty.
Strunk v. Belt Line Road Realty Co.,
An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for their mutual benefit.
Forester,
In the absence of a relationship that inures to the mutual benefit of the entrant and the owner, an entrant is considered a licensee.
Forester,
Analysis
First, while no party presents authority regarding the definition of “premises,” we observe that courts have defined “premises” as a building or a part of a building with its grounds or other appurtenances.
See Billstrom v. Memorial Medical Center,
The Chappells’ Contentions on Appeal
In conducting our review of the summary judgment, we are required to review the evidence as presented by the motions and the response filed.
See Timpte Industries, Inc.,
First, the Chappells argue that “[i]t is clear that because Damon Chappell, at the time of the incident, was patrolling the entire property to secure it for the night, which included the Premises solеly occupied by the defendants’ MOU,” and in support direct us to Damon Chappell’s deposition testimony that he walked his dogs, that he inspected his yard daily for dangerous conditions but had never inspected “that unit,” and that, while attempting to retrieve one of his dogs from under the MOU, “something” hit him in the head. Additionally, the Chappells direct us to: (1) one page of the District Clerk’s docket sheet without explanation of its significance; (2) the recitation of legal arguments contained in motions and responses but not to evidence that may be a part of such filings; (3) a description of the manner in which the “cage” is secured to the MOU by means of screws plaсed into the frame around the cage; (4) testimony that the driver or transporter of the MOU is responsible if something falls off of it; (5) testimony that Double A has had difficulty finding work after it was sued; and (6) a portion of the trial record. 1
The Chappells next contend that it was Scotsman’s failure “to determine what had to be done to the MOU to make it ready
Finally, the Chappells assert that the air conditioner would have fallen “even without the movement of the support cabinet” because, as the Chappells’ expert Jahan Rasty, Ph.D had explained, “the tabs in the support cabinet were bent ... as a result of improper placement of the air conditioner within its support cabinet.” According to the Chappells’ expert, the condition of the wall did not cause the air-conditioning unit to fall; rather, it fell because of the tabs, a condition which did not arise until after the MOU had been delivered to El Paso. However, rather than citing us to the page where the “improper placement of the air conditioner” evidence may be located, the Chappells cite to the entirety of Dr. Rasty’s twenty-seven page affidavit, and direct us to the trial record and trial exhibits rather than to the summary judgment record. The remaining citations to the summary judgment record direct us to Appellees’ motions for summary judgment, but not to any evidence in their summary judgment response which would support the Chappells’ arguments.
Scotsman’s Motion
In its no-evidence motion for summary judgment, Scotsman first asserted that it was not an occupier or possessor of the premises and that Damon Chappell was the occupier or possessor of the premises. If deemed to be an occupier of the premises, Scotsman contended that it was not liable for personal injury to Damon Chap-pell under Section 95.003 of the Texas Civil Practice and Remedies Code.
3
Tex. Civ.
Scotsman next asserted that the Chap-pells, as plaintiffs, were required, but failed, to affirmatively establish that Damon Chappell, as a licensee, lacked knowledge of the danger, either independently or through his employees. To establish “licensee” premises liability, a licensee must prove, among other things, that the licensee had no actual knowledge about the alleged dangerous condition.
Wal-Mart Stores, Inc. v. Miller,
Portions of Damon Chappell’s video-deposition transcript were provided as evidence in support of the motions for summary judgment and of Chappells’ response thereto. In his deposition, Damon Chap-pell testified that he had seen air-conditioning units fall out of MOUs before and explained that the bouncing 'of the unit during transport may cause the sleeve to come loose. 4 He acknowledged that Scotsman paid him $300 to make the MOU road worthy and that his driver, Jose Matamo-ros, performed an inspection of the MOU, including the air-conditioning unit. He also stated that he knew the MOU was damaged and was going to be repaired while stored on his lot, and acknowledged that his employee had looked at and observed the sleeve that held the air conditioner to the MOU and had strapped it. When asked what he meant, Damon Chap-pell clarified, “[I]f you think you’re going to have a problem ... you take a strap, and you go completely over the unit and you strap it together ...”
Damon Chappell denied knowing that anything was wrong with the air-conditioning sleeve at the time of or prior to the accident or why the air-conditioning unit fell. The Chappells’ expert, Dr. Rasty, also testified that he did not know what caused the air conditioning unit to slide out of its cabinet.
Double A’s Motion
In its no-evidence summary judgment motion, Double A argued that the Chap-pells owned the premises and are, at best, licensees in relation to the MOU. It argued that it was entitled to summary judgment beсause the Chappells had presented no evidence to show that Double A was a possessor of the premises, that a condition on the premises posed an unreasonable risk of harm, or that Double A had actual knowledge of the danger.
MSJ Conclusion
The Chappells present no evidence that Williams Scotsman had actual knowledge of an alleged unreasonably dangerous condition or that Damon Chappell did not have such knowledge as required for a licensee premises liability claim. The affidavit provided by CMHS’s office manager establishes that a CMHS employee
There is no evidence thаt Scotsman exercised control over the refurbishment work performed by Double A beyond identifying the work to be performed. The Chappells fail to present evidence that Scotsman or Double A actually or constructively knew of a condition that posed an unreasonable risk of harm. The summary judgment evidence unequivocally establishes that Double A had finished work on the MOU approximately one week before the accident and the Chappells cannot show that Double A, as independent contractor and non-owner controlled or occupied the MOU at the time of the injury. Moreover, the evidence before the trial court was that Double A did not and was not asked or required, by Scotsman or anyone else, to repair, remove, replace, or otherwise work on the air-conditioning unit.
Whether Damon Chappell was an invitee or a licensee, the summary judgment record contains no evidence which satisfies the requirements of knowledge by Scotsman and Double A or the lack of knowledge by Chappell for a premises liability cause of action. The Chappells’ premises liability claim fails as a matter of law. Because the Chappells failed to present more than a scintilla of probative evidence in response to the summary judgment motions that raised a genuine issue of material fact on the aforementioned premises liability elements, the trial court properly granted summary judgment on the premises liability claim.
See Smith,
Directed Verdict
In Issue Seven, the Chappells complain that the trial court improperly directed verdict for Appellees on the Chappells’ claims of negligence and negligent hiring and supervision. Yet, the main focus of the Chappells’ directed verdict complaint is on their premises liability claim. We note that at the summary judgment hearing, the trial court expressly denied each Appellee’s motion for summary judgment as to the Chappells’ negligent activity claim and granted Appellees’ summary judgment motions “as to all other claims and causes of action” and specified that Appellants’ suit would proceed only on the negligent activity theory. Because Appellants’ negligent activity claim was the only remaining cause of action at trial, the trial court could not have erred in directing verdict on the Chappells’ negligent hiring and supervision or premises liability claims as the Chappells assert. The directed verdict was granted on the only cause of action tried, the negligent activity claim. We restrict our analysis accordingly.
Standard of Review
The trial court may direct a verdict when thе plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery or when the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action.
Prudential Ins. Co.
Analysis
To establish their negligent activity claim, the Chappells were required to establish that Damon Chappell was injured as a result of some activity being performed by Scotsman or Double A contemporaneous with the injury.
See State v. Shumake,
The evidence at trial established that Double A had completed its refurbishing responsibilities and vacated the premises one week before Damon Chappell was injured. The evidence established that Double A’s duties were limited to refurbishing the MOU though the removal of structures and insertion or construction of a dividing wall within the MOU and did not involve or implicate the MOU’s air-conditioning unit. The Chappells’ expert testified at trial that he believed the air-conditioning unit was improperly placed within its supporting enclosure and that the walls and paneling of the MOU did not contribute to the falling of the air-conditioning unit. Because there is no probative evidence that Damon Chappell was injured as a result of some contemporaneous activity
We address Issues Two, Three, Four, and Five together. In Issue Two, the Chappells assert that the trial court improperly “sanitized” the record when it refused to allow evidence of a letter regarding Damon Chappell’s disability which was previously admitted into evidence at an earlier default hearing which took place before Double A had filed its answer. In Issue Three, they argue that the trial court erred by ruling that Damon Chappell’s disability finding by the Social Security Administration was not relevant and contend that the court’s instruction to the jury to disregard Damon Chappell’s testimony that he was disabled constituted another “sanitizing” of the record. In Issue Four, the Chappells complain that the trial court erred by directing their trial counsel to refrain from discussing the facts of the case in voir dire or asking questions which included the facts of the case. In Issue Five, the Chappells contend the trial court violated the Code of Judicial Conduct and displayed bias and prejudice toward them. 5
Because the case was removed from the jury’s consideration and correctly decided by the trial court, as a matter of law, we need not address the evidentiary complaints because any error was harmless.
See
Tex.R.App. P. 44.1(a)(1) (no judgment may be reversed on appеal unless the trial court made an error of law and that error “probably caused the rendition of an improper judgment”), 47.1 (when resolution of an issue disposes of the appeal, an appellate court need not address any other issues raised);
see also In re Columbia Med. Ctr.,
New Trial
In Issue One, the Chappells posit that the trial court erred in denying their mo
CONCLUSION
The trial court’s judgment is affirmed.
Notes
. The next four pages of the Chappells’ brief contain citation to the trial record alone.
. The affidavit refers to portions of the witness's deposition testimony; however, the Chappells have not directed us to the deposition testimony whereby we may fully consider the questions posed and answers given.
. Under Section 95.003, a property owner is not liable for personal injury to a contractor or an employee of a contractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury arising from the failure to provide a safe workspace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect or receive report; and (2)
. Damon Chappell does not specify whether the term ‘'unit” is a reference to the air-conditioning unit or the mobile office unit.
. We note that the Texas Supreme Court has recognized that "the discretion vested in the trial court over the conduct of a trial is great” and that a trial court has the authority to express itself in exercising this broad discretion. Dow
Chemical v. Francis,
"[Jjudicial rulings alone almost never constitute a valid basis for a bias or partiality mоtion,” and opinions the judge forms during a trial do not necessitate recusal “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Further, "[n]ot establishing bias or partiality ... are expressions of impatience, dissatisfaction, annoyance, and even anger.... A judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.” Id. at 240, citing Liteky v. United States,510 U.S. 540 , 555-56,114 S.Ct. 1147 ,127 L.Ed.2d 474 (1994) (internal citations omitted).
In short, a trial court has the inherent power to control the disposition of cases "with economy of time and effort for itself, for counsel, and for litigants.”
Metzger v. Sebek,