*1 particularly jury’s within the those other elements were submitted tive and Since case, clearly province in are to resolve. See Missouri this instructed we Pacific Roberson, enjoy- R. Co. v. place relating to loss of evidence (citing pet.) no category physical (TexApp.-Beaumont of life in the of ment (Tex. Sullins, 158,162 impairment. The that evidence reflects White denied)). well, In as- App.-Beaumont no writ because he cannot see as Jackson sessing jury injury damages, the enjoys shooting hunting, personal soft- longer pool, in ball, determining has wide latitude playing younger with his two ball sons, only Rayburn Lake amount of award. See States and has been to Gulf injury. Dryden, Co. v. Utilities once since the writ). 1987, no (TexApp.-Beaumont Physical Impairment Other Considering unique the evidence each than Loss Vision of category, we are unable to conclude damages above, jury’s larger failure award Supreme noted Court As against categories of the four is found headaches could be Texas Jackson’s weight of the great preponderance in placed category, this as well as through one Accordingly, issues evidence. pain an- category physical mental judgment are and the five overruled guish. Id. noted at 771. Also above trial court is AFFIRMED. found of loss that the Court belongs category in the enjoyment life Thus, physical impairment. Id. 772.
also that category in this is the evidence longer enjoys shooting pool, no
Jackson softball,
hunting, playing his ball with sons, younger has
two been injury. Rayburn
Lake once since the These, however, placed must be within also STATES, ENTERGY GULF category impairment of loss physical INC., Appellant, vision, does Jackson testified he since his he enjoy former activities because ISOM, Isom, Ken Suzanne Individu Accordingly, there cannot see as well. ally Representatives of the and as Es category. to this unique evidence that is Son, tate their Deceased Shane Isom, Appellees.
Disfigurement No. 09-03-572 CV. is the category disfigurement In the under baggy there area Texas, Appeals Court that, occasion, right eye has Jackson’s Beaumont. it, leads others to believe redness much, when, drinking he been too Aug.
fact, very little. drinks
ANALYSIS past,
As noted in the this court has
physical damage physical awards such as
pain, anguish, physical mental impairment, necessarily disfigurement specula- are *3 Kibbe, Scheurich, A.
Paul Christine S. Services, Inc., Louis Leonard Entergy Gal- Inc., Orleans, vis, Services, Entergy New Stroh, La, Jacqueline Crofts & Calla- M. Antonio, appellant. way, San Jones, Zona Christo- Umphrey, Walter Coco, Cowan, John A. Provost pher T. LLP, Beaumont, Firm, Umphrey Law appellees. McKEITHEN, C.J., BURGESS
Before GAULTNEY, JJ. accident, however, OPINION the broken wire been looped around the anchored wire. McKEITHEN, STEVE Chief Justice. passed The tracks ATV indicated Ken Isom and Suzanne sued looped guy under wire. Isom Shane States, (“Entergy”) Inc. Gulf after Shane was knocked off the ATV. He was found Isom, son, thirteen-year-old their fa- lying a feet from the wire neck few with tally injured in occurring an accident injuries subsequently died. from Entergy’s right way. Entergy filed summary judgment three motions for *4 Standard Review
the Subsequent- trial denied them. of ly, trial the court certified order for its sought summary a traditional Entergy interlocutory appeal pursuant immediate judgment on the Isoms’ attractive nuisance 51.014(d-f) to Section of the Texas Civil cause of action. See Tex.R. Civ. P. 166a. Practice and Remedies Code. See Tex. Civ. cause, On the gross negligence 51.014(d-f) Prac. § & Rem.Code Ann. filed for a sum- motions both traditional (Vernon Supp.2004). granted This Court mary judgment and a sum- no-evidence Entergy’s request permission pur- id.; mary judgment. See see Civ. Tex.R. sue its interlocutory appeal in which En- 166a(i). P. tergy brings three issues. one con- Issue tends the attractive nuisance doctrine does summary judgments review We not in apply this case. Issue two asserts City de novo. Chavez v. San Antonio of Entergy did not with gross negligence act Antonio, City ex rel. Pub. Bd. Serv. San of and issue three maintains the Isoms can- 435, 21 (Tex.App.-San S.W.3d 438 Antonio punitive recover damages because denied). 2000, pet. Entergy, as the mov- their claim for compensatory damages ant, has burden showing genuine fails. willWe reverse and render. issue of material fact exists and that judgment entitled to as a matter law.
Background Management v. Mr. Property Nixon This case a tragic involves accident that Co., 546, (Tex.1985). 690 S.W.2d 548 in a family’s resulted loss of a beloved son. reviewing summary When a traditional occurred, When the accident Shane Isom judgment, we take trae all as evidence fourteen; was birthday almost his was two favorable to the nonmovant. See Rhone- away. friends, weeks He two Mitchell Poulenc, Steel, 217, 223, v. Inc. 997 S.W.2d Little, Duchamp Aaron were (Tex.1999); see Civ. Tex.R. P. 166a. We (“ATV”) the Isoms’ new all terrain vehicle indulge every and re reasonable inference on right way. At the time of solve in doubts the nonmovant’s favor. accident, driving Mitchell was disproves Id. A defendant who an essential ATV, middle, sitting was in Shane plaintiffs element of the cause of action as sitting Aaron was at the back. Mitchell a matter summary of law is entitled to in tried to avoid ruts center judgment. Doe v. Boys Clubs Greater way. so, right doing In a he took route Dallas, Inc., (Tex. 472, 476-77 guy under an Looped anchored wire. 1995). produces “After the defendant evi guy around the anchored wire a was bro- entitling it summary judgment, ken dence looped wire. The wire been plaintiff approximately year broken for burden shifts before creating accident and for while a fact issue.” v. hanging Walker (Tex.1996). freely. Harris, 375, six For to seven months before the 377 490 Attractive Nuisance summary-
Under no-evidence rule, may move for judgment movant premises trespassers, As to summary no evidence judgment if there is duty occupier owes owner of a or more essential elements one trespasser willfully, wantonly, injure through the nonmovant Texas Utili gross negligence. claim or defense 191, ties Elec. Co. v. proof at trial. have the burden would (Tex.1997) & (citing Burton Constr. Sons, Inc., 28 Allen W.A. Vimau Broussard, 154 Tex. Co. Shipbuilding (Tex.App.-Beaumont (1954) and Re 166a(i). denied); P. pet. see Tex.R. Civ. (1965)). (Second) Torts statement The motion must state elements However, trespasser exception evidence, the review which there is no 333 of the Restate rule forth set grant court must the motion unless the ing nuisance doctrine is the attractive ment judgment produces nonmovant See Restatement explained section 339. raising genuine issue of materi (1965).1 (Second) §§ Torts *5 al See id. fact. fifty ago, Supreme years the Texas Over adopted section 339’s statement Court a motion for As no-evidence doctrine. See the attractive nuisance essentially pretrial a judgment is 434, McLaughlin, 146 208 v. Tex. Banker verdict, appellate for instructed motion (1948).2 Timmons, 843, And in 847 S.W.2d the same standard of review. applies 193-94, reiterated the Court 947 S.W.2d Allen, 28 at 231. We first consider S.W.3d 339 states: approval. its continued Section light in the most favorable all the evidence subject liability to possessor A of land is all con disregard to the non-movant and trespass harm children physical and Id. The trary evidence inferences. by an artificial condi ing thereon caused mo defeats the no-evidence non-movant upon the land if tion than a scintilla of by producing tions more (a) the condition ex- place where raising genuine a issue probative evidence possessor upon ists one a on each element of claim of material fact or to know chil- knows has reason challenged by the Id. or defense movant. likely trespass, are and dren the evi More than a scintilla exists when (b) one which the the condition is and fair- that reasonable dence such knows or has reason know possessor may in their conclu realize persons minded differ he realizes or should and which risk unreasonable Id. will involve sions. Statute, exceptions volving Use the Aus- the Recreational also sets out other 1. Section 333 rule; trespasser they recently sec- sec- general Appeals include considered tin Court of Shumake, is entitled 335 and 337. Section 335 tions S.W.3d at 335 337. 131 tions and Highly Dangerous to "Artificial Conditions 70, Noting the second 77. its reliance on Area,” and Trespassers on Limited Constant Supreme Torts the Texas and Restatement Conditions is entitled "Artificial Section 337 gross negligence in Loui- Court’s definition Trespassers.” Dangerous Highly to Known Andrade, 245, Corp. v. 19 siana Pacific (Second) §§ of Torts See Restatement (Tex.1999), Court im- the Shumake 246-47 (1965). higher duty of "a care posed on landowners injured con- trespassers artificial to known case which the Texas Su- 2. We find no in bodily harm pose a risk of serious ditions that exceptions adopted preme other Court or should knows which the landowner general trespasser rule. Shumake, S.W.3d at know.” Shumake, However, State v. h.), pet. case (Tex.App.-Austin in- occupier ordinary bodily death or serious harm to such owner must “use care children, to reduce or eliminate unreasonable by premises risk of harm created condi-
(c) youth the children of their because reasonably tion of which the owner is or do not discover the condition or realize Dep’t High- State should be aware.” intermeddling the risk involved with Transp. Payne, ways Public coming inor within the made dan- area (Tex.1992). 235, 237 it, gerous by (d) utility possessor to the one, Entergy In issue first contends the maintaining the condition and the bur- ap- attractive nuisance doctrine does not of eliminating danger slight den are that, ply. Entergy asserts because compared as with the risk children achievement, maturity, Shane’s scholastic involved, (almost fourteen), age appreciated
(e) possessor fails to exercise rea- passen- the risks of an ATV with care to danger sonable eliminate the poles Rely- gers, close to wires. protect otherwise to the children. Timmons, extensively ing ar- gues knowledge (Second) danger Shane’s Restatement of Torts from precludes appellees meeting section (1965). Timmons, 339(c)’s requirements.3 Whether an attractive nuisance at 191. Massie question exists law. Copeland, 149 Tex. fourteen-year-old boy In *6 Garland, Kopplin v. City (1950); 454 electricity was electrocuted an arc of 433, 869 441 (Tex.App.-Dallas S.W.2d climbing while was electric transmis- denied). injured writ And whether the sion tower. Id. at 192-93. After spending is young child so and immature that the evening drinking the and malt liquor beer protects doctrine against the child a condi house, boy at a friend’s climbed the tion or danger is a question also of law. tower, using the diagonal braces each Kopplin, 869 S.W.2d 441. at The doctrine ladder, side. The had no tower and the applies only danger hidden, if the is con boy’s family friends had warned him cealed, or latent and not patent when it is dangers about the climbing tower. or obvious in order that “care for children utility company The had erected barri- are recognize who unable to patent dan prevent cade the tower to unautho- around gers parents is not shifted from their to persons scaling from rized the tower and strangers. The imposing limitation avoids coming power near lines and had also on property duty liability owners posted warning sign on one corner of the where otherwise none would exist.” Id. however, sign, specifi- tower. The did not Co., (citing Stimpson v. Pipe Bartex Line at Id. cally danger arcing. warn of the (1931)). 120 Tex. 192. Timmons Court concluded that
“When the nuisance The attractive applies, doctrine occupier owner or express warnings, “[e]ven without such premises a trespassing anyone child the as Billy charged owes as old ‘with the Timmons, duty same as invitee.” knowledge that electric wires are ordinari- invitees, at premises ly dangerous; they S.W.2d 193. And to that should be avoided youth “[T]he 3. ing dangerous by children because of their do area it[.]" within the made , 339(c) (Second) § not discover condition or realize the risk Restatement of Torts (1965). intermeddling involved in or in with it com- Timmons, if must determine it is we ... and that dan- Under possible wherever young appreciate to to proximity in close Shane was too gerous come ” (quoting Cloud v. an ATV on danger Id. at 194 them.’ Co., utility Lighting & Power right way, Houston close to wires (Tex.Civ.App.-Galveston Timmons, at 195- poles. S.W.2d See S.W.2d n.r.e)). “[I]gnorance of writ refd A factor this determination 96. satisfy the third arcing enough is not danger open latent or whether the doctrine, of the attractive nuisance element at 441. Kopplin, 869 S.W.2d We obvious. 339(c) Restatement, if the if he of the dan- recognize that was aware electricity dangers child aware nuisance doc- ger generally, the attractive generally. requires The doctrine Timmons, 947 apply. does not trine coming risk ‘in the child realize the within at consider both the 195-96. We dangerous’ by area made condi- as danger appreciated to be nature 195 (quot- 947 S.W.2d at tion.” Massie, age maturity. well as Shane’s (Second) of Torts Restatement ing true the at 453. We take as (1965)). 339(c) puts him- child who “[A] in- favorable to Isoms and evidence to a known proximity in such close self every inference and re- dulge reasonable ... electric line danger high-voltage like a their doubts in favor. See solve harm cannot be heard so as to risk severe Rhone-Poulenc, Inc., danger realize the say that he did not presented enti- If harm occur expect because he did not summary judgment, the burden tling it exactly as it did.” Id. to the Isoms shifts boy, determining In who been Walker, 924 creating a fact issue. See young not too repeatedly, was warned at 377. danger of appreciate immature to to the Isoms The evidence favorable high-voltage climbing containing a tower the loose wire was danger shows lines, power the Timmons Court noted *7 boys not the loose The could see latent. ordinarily doctrine attractive nuisance they left the center of the guy wire when to fourteen-year- not normal apply does area. The way rough to avoid the right Id. at 196. And further acknowl- olds. in the accident was guy wire involved majority” apply- cases edged great “the guy around an anchored wire. looped the child the did so when ing doctrine to adequate room maneuver an There was years not than more twelve involved was straight and guy the wire between ATV (Second) of (citing Id. Restatement old. driver, Mitchell, the ATV’s pole. the (1965)). However, c the § cmt.
Torts did not guy main wire but see avoided the on put age to an limit bene- Court declined his when he selected route the loose wire doctrine. of the attractive nuisance ficiaries “ neck came the ruts. Shane’s to avoid recognized The ‘that in our Id. Court and he the loose wire was contact with types some civilization hazardous on Placing covers knocked off of ATV. common, which an dangers have become engineering prac- is a common guy wires reasonably not may immature adolescent visibility wires provides that tice although may adult be ex- an appreciate, by being struck them from protects and ‘the pected to so.’ The test is whether do wire had cover guy The loose vehicles. to young appreciate too child still ” In- (Sec- difficult to see. therefore was and Restatement danger.’ (quoting Id. (1965) (citations difficulty the ATV’s creasing were ond) that c of Torts cmt. uncovered omitted)). proximity motion and wire, guy loose wire to the main warnings operated which was did not follow the broken, covered improperly, injury with white cover. A ATV serious injury vehicle attention be death knew driver’s would focused could occur. Aaron also following on could the covered wire that marked result from not the warn- was as an ings; passengers than that not to ride on obstacle rather the unmarked obsta- were cle, ATV; an can Entergy’s passengers’ that the loose wire. cause mainte- weight controlling shifts and make an guy nance ATV manager admitted the wire was difficult; that persons under sixteen Thus, not secured or marked properly. should operate an ATV. the evidence favorable to the Isoms shows danger was open loose wire Entergy’s evidence shows Shane was old and obvious. enough danger to appreciate riding an way, right ATV close to
However, Entergy presented substantial guy utility poles. wires and supporting argument its that appellees S.W.2d at 195-96. Unless maturity, achievement, Shane’s scholastic presented court the trial show- (almost fourteen) and age appel- preclude ing too young appreciate Shane was this 339(c)’s meeting lees from require- danger, Entergy disproved essential el- parents ments. Shane’s testified he awas ement of Isoms’ case and was entitled good student, making the A-B honor roll to summary judgment as a matter of law. and receiving certificates his reading Walker, 377; Boys at Doe v. and math achievement. good Shane was a Clubs, 907 pitcher baseball was active other sports. obeyed He parents his and never argue The that a thir- generally Isoms had been in trouble for violations teen-year-old expected should not be law. Shane’s father him operate watched danger realize the of an unmarked and the ATV for over two weeks and deter- improperly configured guy that could wire mined was competent Shane easily drive it. be riding overlooked someone Shane’s However, father also that testified they Shane ATV. cite pre- no evidence enough mature experienced sented to trial showing Shane enough ATV, drive young was too to realize dangers Shane understood operating the risks of way, the vehi- the ATV on the right cle. dangers Certain involving location being poles were evidenced in close Instead, warning itself; appellees labels on wires. the ATV focus on the *8 these lack warnings specific age of a limit against persons applying cautioned the under attractive operating sixteen nuisance doctrine on the the vehicle and also hidden against nature of the loose cautioned wire. riding passen- as ger. agree summary judg We the
Entergy also showed that before the ment the evidence favorable to Isoms Aaron, accident occurred Mitchell and the shows it would have been difficult for boys Shane, two with appreciated the dan- danger Shane to appreciate the of the gers Mitchell, of an riding But, ATV. the thir- Timmons, loose explained wire. as in teen-year-old who was driving ignorance the ATV at specific danger aof “is not accident, the time of the satisfy testified he enough under- the third element of the stood ATV; the risks of an operating doctrine, attractive nuisance section 339(c)” knew passengers’ weight shifts could cre- if general the child is the aware of ate problems; he speed knew excessive danger. at 195. control; could result in a Here, loss of he knew if specific danger the was loose in indifference danger ceeded conscious specific in Timmons the wire and Here, safety, rights, or welfare of others. See arcing electricity. was the of Moriel, Ins. danger riding Transportation Co. general ATV (Tex.1994). poles way vicinity in of right general and in Timmons guy wires Entergy’s in motion for sum- Included electricity. “The doctrine re- danger was mary contention there judgment was the the risk quires only that the child realize actual, had sub- Entergy was no evidence danger- made coming ‘in within the area involved, and jective of the risk awareness (quoting ous’ the condition.” Id. at proceeded con- Entergy with evidence 339(c) (Second) of Torts Restatement rights, safety, scious indifference (1965)). raise a welfare of others. In order to fact, not evidence present As the Isoms did the Isoms genuine issue of material issue, creating Entergy a fact established summary judg- required were that Shane was aware as matter law Entergy that knew about ment evidence dangers the ATV the vicin- danger, its or omissions dem- but acts Thus, Entergy poles ity wires. onstrated did care. See Mobil Oil Ellender, disproved essential element Corp. v. action, (Tex.1998); Allen, attractive nuisance cause of
Isoms’ see 339(c) namely of the Restatement Entergy’s response Neither their (Second) Torts, and was entitled to sum- summary nor in their judgment motion for nui- mary that attractive judgment contend there appellate brief do Isoms need apply. sance doctrine does We “actual, Entergy is sub- sec- Entergy’s argument not consider loose Is- jective wire. awareness” (Second) 339(d) Restatement tion sue is sustained. two doc- precludes application Torts also one trine. Issue is sustained. Damages Punitive issue, Entergy In its third cor Negligence Gross recover rectly the Isoms cannot contends gross negligence On Isoms’ compensato damages where their punitive cause, Entergy filed motions both precluded claim is as a matter ry damage no- and a summary judgment traditional Co., Wright of law. Gifford-Hill sec judgment. In its summary (Tex.1987). Inc., 713-14 issue, contends the trial ond three sustained. Issue granted have these motions. We should denying Enter- court’s order The trial relating Entergy’s argument first consider judgment on the gy’s motions for summary judgment mo to its no-evidence gross nuisance issues of attractive tion. judgment negligence reversed negligence, gross To establish nothing. Isoms take *9 rendered that the (1) must elements: prove the Isoms two AND RENDERED. REVERSED Entergy’s from stand- objectively viewed act'or omission must involve point, the Justice, BURGESS, dissenting. DON risk, considering the degree extreme Entergy only dissent. respectfully I potential magnitude probability whether the (2) court to this consider others; Entergy must asks harm to to applies nuisance” doctrine subjective “attractive actual, awareness have had be- certainly an issue This is involved, pro- this case. but the risk nevertheless cause the way dangerous status Shane Isom determines condition ex- where this to I isted. duty owed him.1 believe there is some controverted evidence about Shane’s response In their motion maturity; level of thus whether the doc- partial summary judgment, the Isoms applies requires trine a factual resolution argued “Entergy’s improperly marked by jury. configured guy wires created unusual deceptive hazard” and “it well was However, there is an additional reason right-of-way known that the interurban the denial of the judgment popular place was a for children to ride naming should be affirmed. it as Without Again, speaks ATVs.” this in terms such, “gratuitous the Isoms “gratuitous licensee” doctrine. original licensee” doctrine. In their peti- This court in v. Lower Murphy Neches tion, the Isoms state: Authority, Valley At all times material to ... the incident 1975), (Tex.Civ.App.-Beaumont on rev’d the Interurban right-of-way heavily was (Tex.1976) grounds, other by people traveled of all ages operating recognized “gratuitous licensee” doc- various motorized ... vehicles While stating: trine Defendant herein maintains the Interur- “gratuitous While term of licensee” right-of-way private ban is property, De- usage common in Texas in cases fendant place failed refused to and/or nature, of this it has been defined as signs, warning gates barriers and/or presence upon “one whose premises on property their people to deter from solely for the purpose visitor’s own entering. Further Defendant failed which the possessor property refused to trespassing” erect “no and/or interest, social, or either business off “keep property” “pri- and/or and/or privilege entering whom the vate property” signs. Through their ac- by express extended as a mere favor tions/inactions, Defendant allowed the general or by consent custom.” Gonza- general public to property use this with- Broussard, lez v. out restriction. (Tex.Civ.App.-San Antonio writ incident, At this time there was n.r.e.) (citing refd s 331 of the Restate- a dangerous condition on the Interurban Torts). ment of That particular section right-of-way of which Defendant knew of the Restatement was omitted in the or should have known.... Defendant second but was edition carried over in or knew had reason to know that indi- substantially the same terms into s 330 ages, children, (comment viduals of all including h(l)). Gonzalez, In the suit frequent would the area of right-of- brought on behalf of a minor who 1. The extent liability gers duty landowner’s known to landowner and a injuries existing caused a condition intentionally, wilfully, gross through depends land injured on the status of the negligence injury. trespassers, cause And to Thus, person. scope of a landowner’s duty landowner owes not to inten- whether, duty depends on at the time of the tionally, wilfully, through gross negligence invitee, injury, person on the land was an injury. cause licensee, trespasser. or a system While this traditional classification invitees, duty To the landowner owes a debate, subject has been law remains the exercise keep premises reasonable care in Texas. *10 a reasonably safe by condition for use Holder, Mortg. Mellon Co. v. 5 S.W.3d licensees, invitee. To the landowner owes a J., (Tex.1999)(Enoch, concurring). 660 duty to warn or to make safe dan- hidden
496 (Tex.App.-San 141 Hospital, had S.W.2d tripped [811
had over some rocks 1991) the court held: a Antonio when playground ] placed on been The owner drive-in theater others. summary judg- a motion for When play on allowed other children B, A it can- grounds ment asserts presence premises; he knew the D, upheld grounds C and not be brought, children of the rocks which the asserted, if the not even which were for a practice such had continued proof supports summary judgment The child was held long period of time. party responding did them and the a licensee.” “gratuitous be except to the motion. not examples “gratuitous licen- Other Why a non- 811 at 146. should trespass where a sees” include situations to mo- except required movant be for such a sufficient been tolerated has presenting certain expressly tion public believes period of time that the The ef- grounds and not others? “permission” possessor has a rule would be alert fect such e.g., the use of property, such as use grounds additional unasserted movant to through company’s a coal pathway summary judgment. for & property v. Coal [Markovich Jefferson 108, 22 Pa.Super. 146 Corporation, Coke context, not majority should In this (1941)]; have people where A.2d They are in effect a rendition. have issued right-of-way peri- for a used railroad’s summary judgment rendering a final objection od without manifested of time re relief than was which includes more have people those company, from the judg The proper in the motion. quested gratuitous licensees classified as been rendition on “attrac ment should be a trespassers [Louisville than rather issue, all but as to tive nuisance” doctrine Blevins, Ry. Nashville v. expressly of action and issues causes Gulf, accord: C. & S.F. (Ky.App.1956); judg urged in the motion Matthews, 160, 88 99 Tex. Ry. Co. v. ment, i.e., licensee doc “gratuitous (1905); Thompson, Jara v. S.W. issue; should be remand. trine” there Antonio (Tex.Civ.App.-San S.W.2d 941 IBP, 468- Inc. Klumpe, d) gratuitous A licensee ]. writ ref 2001) (citing Band (Tex.App.-Amarillo succinctly as a also defined been Gilchrist, 946 Coop., Elec. Inc. v. era visitor.” is “not a business licensee who (Tex.1997)). 336, 337 Stevenson, 469, 78 137 Conn. Laube I of the sum- affirm denial would (1951). 25 A.L.R.2d A.2d mary judgments. by the was raised Clearly this doctrine by Entergy in its and not addressed Isoms As summary judgment. for partial
motion in McConnell by our Supreme
stated District, School Independent
v. Southside (Tex.1993): 337, 342 summary judg- the motion
When grounds clearly certain presents
ment others, is not re- a non-movant
but This distinction
quired except. correctly resolved
recognized and Texas Methodist v. Southwest
Roberts