Opinion
04-22-00151-CV
05-29-2024
Rudolfo PADILLA, Jr., Appellant v. Ronald HODGE, Apache Creek Holdings, Inc., and James Lucas Emmot, Appellees
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-09857 Honorable Aaron Haas, Judge Presiding
Sitting: Irene Rios, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Rudolfo Padilla, Jr. appeals the trial court's order granting take-nothing summary judgments in favor of appellees James Lucas Emmot, Ronald Hodge, and Apache Creek Holdings, Inc ("Apache"). Emmot was interested in buying a business owned by Hodge on property owned by Apache. Hodge met Emmot at the property so he could observe the business operations. While Hodge was showing Emmot the business, an altercation between Emmot and Padilla-who was trespassing on the property-escalated to the point that Emmot shot Padilla in the leg. Padilla sued Emmot for negligence and sued Hodge and Apache for premises defect and sought to hold them vicariously liable for Emmot's actions.
Emmot moved for summary judgment asserting Padilla failed to name him in the suit before limitations expired. In his first issue, Padilla argues the trial court erred when it granted Emmot's motion for summary judgment because: (A) the Texas Supreme Court emergency orders during the COVID-19 pandemic tolled the statute of limitations; (B) Padilla exercised due diligence to identify and name Emmot in the suit before limitations expired; and (C) Emmot and Hodge conspired to conceal Emmot's identity so that Padilla could not timely name or serve Emmot.
Hodge and Apache filed a traditional motion for summary judgment asserting Padilla's injuries resulted from Emmot's actions rather than a premises defect. Hodge and Apache argued Padilla did not have a premises defect cause of action against Hodge and Apache. In a second motion for summary judgment, Hodge and Apache asserted Padilla's vicarious liability action failed as a matter of law because it is derivative of Padilla's time-barred suit against Emmot and there is no evidence that Emmot was ever employed by Hodge or Apache.
This motion is Hodge and Apache's second traditional motion for summary judgment and a first no-evidence motion for summary judgment.
In his second issue on appeal, Padilla argues the trial court erred when it granted Hodge and Apache's motion for summary judgment because he asserted a viable premises defect cause of action against Hodge and Apache. In his third issue, Padilla argues the trial court erred when it dismissed his vicarious liability claims under the doctrine of respondeat superior against Hodge and Apache because Emmot acted as their employee or agent. We affirm.
Padilla also asserts he raised a fact issue that "Emmot had apparent and/or actual authority which is a material fact needed to be decide[d] by the [factfinder]." However, Padilla fails to explain why an agency relationship is material or even relevant to his premises defect cause of action. "[I]t is the appellant's burden to discuss his assertions of error, and we have no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error." Neira v. Scully, No. 04-14-00687-CV, 2015 WL 4478009, at *1 (Tex. App.-San Antonio July 22, 2015, no pet.) (mem. op.) (alterations omitted). "[W]e cannot speculate as to the substance of the specific issues appellant claims we must address." Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.-Dallas 2004, pet. denied). "An issue on appeal unsupported by argument or citation to any legal authority presents nothing for the court to review." Id. To the extent Padilla fails to address how an agency relationship has any bearing on the alleged premises defect, Padilla has waived this issue due to inadequate briefing. See Jacaman v. Nationstar Mortgage, LLC, No. 04-17-00048-CV, 2018 WL 842975, at *1 n.1 (Tex. App.-San Antonio Feb. 14, 2018, no pet.) (mem. op.); Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 839 (Tex. App.-Dallas 2014, no pet.) ("Issues raised on appeal, but not briefed, are waived."). Padilla asserts the same employee/agency theory in his third issue and explains in that issue how the relationship applies to his claims of vicarious liability.
Background
Hodge operated a business in a warehouse in San Antonio, Texas that is owned by Apache. Hodge is the president and owner of Apache. Emmot was interested in purchasing the business. On August 25, 2018, Hodge met Emmot at the warehouse to show Emmot how the business operated. Padilla, who was homeless, was trespassing on the property when Hodge and Emmot arrived. Hodge asked Padilla to leave the premises. Padilla asserts he was preparing to leave the property when he heard Hodge tell Emmot to shoot and kill Padilla. According to Padilla, Emmot yelled "an obscene remark," Padilla "responded," and then Emmot shot Padilla in the leg.
The San Antonio Police Department investigated the incident and, after reviewing footage from a surveillance video, released Emmot without charges. The record indicates criminal charges were never brought against Emmot.
On May 29, 2020, Padilla filed suit against Hodge, Apache, and an "Unknown Shooter." Emmot was not named in the suit until March 17, 2021. Emmot moved for summary judgment asserting he was not named in the suit or served with process until after the statute of limitations had expired. Hodge and Apache filed a motion for summary judgment asserting Padilla cannot recover as a matter of law on his premises defect claim because Padilla's injuries resulted from Emmot's actions and not a defect of the premises. Hodge and Apache filed a second motion for summary judgment asserting there is no evidence Emmot is an employee or agent of Hodge or Apache and, therefore, they cannot be vicariously liable for Emmot's actions. Hodge and Apache also asserted Padilla's vicarious liability claim fails as a matter of law because it is derivative of his time-barred claim against Emmot. The trial court granted all three summary judgment motions and signed a final order dismissing all of Padilla's claims. Padilla appeals.
Standard of Review
We review a trial court's ruling on a summary judgment motion de novo. Tarr v. Timberwood Park Owners Assoc., Inc., 556 S.W.3d 274, 278 (Tex. 2018). "Where, as here, a trial court does not specify the grounds on which it granted the motion for summary judgment, we must affirm if any of the grounds asserted in the motion are meritorious." Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017).
"Further, when the motion asserts both no-evidence and traditional grounds, we first review the no-evidence grounds." Id. "If the nonmovant fails to produce more than a scintilla of evidence on the essential elements of a cause of action challenged by a no-evidence motion, there is no need to analyze the movant's traditional grounds for summary judgment." Id. at 680-81.
To prevail on a traditional summary judgment motion, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). In reviewing a trial court's summary judgment ruling, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Knott, 128 S.W.3d at 215. "If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment." Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
Emmot's Summary Judgment: Statute of Limitations
In his first issue, Padilla argues the trial court erred when it granted Emmot's summary judgment based on limitations.
"A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense." Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). The supreme court has clarified what a defendant moving for traditional summary judgment must prove to conclusively establish that the applicable statute of limitations has expired. Id. "First, the defendant has the burden regarding any issues raised that affect which days count toward the running of limitations-such as accrual, the discovery rule, and tolling." Id. "Second, if the defendant carries that burden and conclusively establishes its defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run-such as fraudulent concealment, estoppel, or diligent service." Id. at 88-89.
"Thus, to obtain traditional summary judgment on a limitations defense, the defendant must conclusively prove (1) when the cause of action accrued, and (2) that the plaintiff brought its suit later than the applicable number of years thereafter-i.e, that the statute of limitations has run." Id. at 89 (internal quotation marks omitted). Here, it is undisputed that the cause of action arose on the day of the shooting: August 25, 2018. Emmot attached as summary judgment evidence Padilla's original petition and Emmot's affidavit stating the shooting occurred on that day. The statute of limitations for a personal injury cause of action is two years from the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a); Wantanabe v. Summit Path Partners, LLC, 650 S.W.3d 112, 132 (Tex. App.-Houston [1st Dist.] 2021, no pet.) ("The statute of limitations for negligence and for premises liability is two years."). Therefore, Padilla was required to file suit against Emmot on or before August 25, 2020. The original petition and first amended petition attached as evidence to Emmot's summary judgment shows that while Padilla filed his original petition on May 29, 2020-before limitations expired-he did not name Emmot in the suit until the first amended petition was filed on March 17, 2021-nearly seven months after limitations expired. Instead, Padilla named an "Unknown Shooter" in the original petition.
As mentioned above, the defendant bears the burden to conclusively establish when the cause of action accrued; however, the plaintiff "may raise an issue regarding which days after this accrual date should count toward showing that the number of years in the limitations period expired before suit was filed." Draughon, 631 S.W.3d at 89. Here, Padilla argues he overcame Emmot's limitations defense because: (A) the Texas Supreme Court emergency orders during the COVID-19 pandemic tolled the statute of limitations; (B) Padilla named an unknown shooter in his suit before limitations expired and exercised due diligence to identify and name Emmot in the suit before limitations expired; and (C) Emmot and Hodge conspired to fraudulently conceal Emmot's identity so that Padilla could not timely serve Emmot.
Padilla asserted a fraudulent concealment argument in his response to Emmot's motion for summary judgment. In his brief on appeal, Padilla conflates his fraudulent concealment argument with his due diligence argument and his argument regarding judicial admissions. Although the issue is multifarious, we nevertheless address fraudulent concealment in this opinion. We also address Padilla's arguments regarding judicial admissions when we address Padilla's third issue.
(A) COVID-19 Emergency Orders
Padilla asserts the Texas Supreme Court's COVID-19 emergency orders automatically tolled the statute of limitations applicable to his claims against Emmot until he was named in the suit on March 17, 2021.
For civil cases where the statute of limitations would have expired between March 13, 2020 and September 1, 2020, the Texas Supreme Court's Twenty-First Emergency Order Regarding the COVID-19 State of Disaster automatically extended the limitations deadline until September 15, 2020. Twenty-First Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 128, 129 (Tex. 2020). Because the statute of limitations to file suit against Emmot expired on August 25, 2020, the supreme court's emergency order extended the deadline to file suit until September 15, 2020. Id. Notably, this was the last automatic, self-executing emergency order issued by the supreme court. See Carrigan v. Edwards, No.13-20-00093-CV, 2020 WL 6504418, at *2 (Tex. App.-Corpus Christi-Edinburg Nov. 5, 2020, pet. denied) (mem. op.) ("[T]he Texas Supreme Court's Emergency Orders are not self-executing; they permit courts to extend deadlines, and they require extensions in certain instances, but they do not extend deadlines themselves."). The subsequent emergency orders relevant to this appeal all stated:
Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal-and must to avoid risk to court staff, parties, attorneys, jurors, and the public-without a participant's consent . . . modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than [differing dates depending on the order].
See Twenty-Second Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 129, 129 (Tex. 2020) (permitting a trial court to extend deadlines until September 30, 2020); Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 135, 135 (Tex. 2020) (permitting a trial court to extend deadlines until December 1, 2020); Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 863, 863 (Tex. 2020) (permitting a trial court to extend deadlines until February 1, 2021); Thirty-Third Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 179, 179-80 (Tex. 2021) (permitting a trial court to extend deadlines until April 1, 2021); Thirty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 897, 897 (Tex. 2021) (permitting a trial court to extend deadlines until June 1, 2021); Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 900, 900 (Tex. 2021) (permitting a trial court to extend deadlines until August 1, 2021).
While trial courts have exercised their discretion to modify or suspend deadlines and procedures under similar emergency orders, they have not been required to do so. See Kim v. Ramos, 632 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2021, no pet) (citing cases holding courts had broad discretion to extend deadlines under the emergency orders, but were not required to do so).
Here, Padilla did not name Emmot in the suit until March 17, 2021. Therefore-at most- the trial court had discretion under the emergency orders to extend the statute of limitations if an extension were requested by Padilla. The record however does not reflect that Padilla requested the trial court exercise its discretion under the emergency orders to extend the statute of limitations in this case.
We question whether the trial court had authority to retroactively extend limitations. See Broadway v. Lean on 8, Inc., No 03-21-00663-CV, 2022 WL 3691678, at *4 (Tex. App.-Austin Aug. 26, 2022, no pet.) (mem. op.) ("[W]e have found no authority deciding whether the emergency orders would permit the retroactive extension of the statute of limitations."). It is not necessary to address this issue because, assuming without deciding the trial court did have the authority to retroactively extend limitations, we conclude the trial court did not abuse its discretion in declining to extend limitations in this case. See Prescod v. Tkach, No. 02-21-00162-CV, 2022 WL 246858, at *5 (Tex. App.- Fort Worth Jan. 27, 2022, no pet.) (mem. op.) (declining to address whether emergency orders permit retroactive extension of the statute of limitations).
(B) Unknown Shooter and Due Diligence
Padilla named an "Unknown Shooter" in his original petition and did not name Emmot until he filed his first amended petition after limitations expired. Padilla argues his first amended petition naming Emmot should relate back to his original petition wherein he named "Unknown Shooter" as a placeholder until he could identify Emmot. Essentially, Padilla assumes he has properly named Emmot in the original petition under the relation-back doctrine because he purportedly acted diligently to identify and serve Emmot even though limitations expired. We disagree.
Our sister court in Houston has addressed a case with similar facts wherein the plaintiff did not know the identities of the defendants, filed suit against several "John Doe" defendants before limitations expired, and substituted the name of at least one defendant after limitations expired. See Riston v. Doe, 161 S.W.3d 525, 526-27 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). Just as Padilla argues here, the plaintiff in Riston argued she timely filed suit against the defendants when she sued them under fictitious names before limitations expired but failed to discover the defendants' true identities and actually name them in the suit until after limitations expired. Id. The Riston court rejected the plaintiff's argument for three reasons.
First, the court noted the legislature "has not generally authorized a plaintiff to initiate suit and toll limitations by suing an unknown defendant as 'John Doe' or any other fictitious name." Id. at 528. While the legislature has authorized the use of a "John Doe" petition to toll limitations as to unknown defendants in certain circumstances such as personal injury suits based on sexual assault, there is no such authorization in the two-year statute of limitations for personal injury suits that are not based on sexual assault. Id. at 528-29. Compare Tex. Civ. Prac. & Rem. Code Ann. § 16.0045(d) (authorizing a plaintiff to toll the statute of limitations for a personal injury suit based on listed sexual crimes by "alleging that the identity of the defendant in the suit is unknown and designating the unknown defendant as 'John or Jane Doe'"), with Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (providing a person must bring suit for personal injury not later than two years after the day the cause of action accrues and omitting any provision authorizing tolling of limitations when the identity of the defendant is unknown). The Riston court reasoned the legislature would have included a similar tolling provision if it "intended for the two-year statute of limitations to be tolled as to unknown defendants by the filing of a 'John Doe' petition[.]" Riston, 161 S.W.3d at 529.
Second, the Riston court concluded that "although a 'John Doe' petition involves an unknown defendant, for limitations purposes, it should be treated the same as a petition involving misidentification." Id. "Texas courts consistently have held that a personal-injury suit is properly barred as a matter of law based on limitations under similar circumstances-where the plaintiff . . . mistakenly identifies and names someone other than the intended defendant as the defendant in the original petition and the plaintiff does not amend the petition to name the proper defendant until after the expiration of limitations." Chavez v. Andersen, 525 S.W.3d 382, 386 (Tex. App.-Houston [14th Dist.] 2017, no pet.). "It would be difficult to justify a set of rules that extended limitations when a plaintiff intentionally named a fictitious defendant, but barred an action when a plaintiff misidentified the defendant." Riston, 161 S.W.3d at 529.
"Finally, statutes of limitations would have little, if any, import if they could easily be circumvented by filing a 'John Doe' petition." Id. at 530. "[A]llowing a 'John Doe' petition to toll limitations would expand the period for filing claims indefinitely, discourage prompt investigation and resolution of claims, and potentially deny defendants otherwise available defenses." Id.
We agree with and adopt the Riston court's reasoning. Here, we treat Padilla's suit naming an "Unknown Shooter" in the same way we would treat a misidentification suit. Therefore, Padilla's suit against "Unknown Shooter" did not toll the statute of limitations as to Emmot until Padilla discovered Emmot's true identity. See Chavez, 525 S.W.3d at 386. Consequently, Padilla failed to sue Emmot before limitations expired. See id. at 387 ("Suing the wrong party through misidentification usually has harsh consequences."). "Further, in misidentification cases, the plaintiff's diligence in effecting service is not relevant 'because the plaintiff has brought suit within the limitations period, but has named the wrong party.'" Lozano v. Broussard Intern., No. 04-09-00047-CV, 2009 WL 3222820, at *2 (Tex. App.-San Antonio Oct. 7, 2009, pet. denied) (mem. op.) (quoting Brinker Tex., L.P. v. Looney, 135 S.W.3d 280, 285 (Tex. App.-Fort Worth 2004, no pet.)). "[T]he due diligence and relation back doctrines apply only if a plaintiff files suit against the defendant before limitations expires." Riston, 161 S.W.3d at 530. Because we have already concluded Padilla failed to sue Emmot within the statute of limitations, we need not address Padilla's arguments under the due diligence and relation back doctrines. See id.
(C) Fraudulent Concealment
Finally, Padilla argues Hodge conspired with Emmot to conceal Emmot's identity until after the statute of limitations expired. Padilla claims Hodge concealed Emmot's identity in response to Padilla's discovery requests that were served with his original petition. Padilla therefore claims the statute of limitations was tolled under the doctrine of fraudulent concealment. We disagree.
"Fraudulent concealment is based upon the doctrine of equitable estoppel and estops a defendant from relying on the statute of limitations as an affirmative defense to plaintiff's claim." Bank of Am., N.A. v. Prize Energy Res., L.P., 510 S.W.3d 497, 513 (Tex. App.-San Antonio 2014, pet. denied) (alterations omitted) (quoting Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983)). "A party asserting fraudulent concealment must establish an underlying wrong, and that the defendant actually knew the plaintiff was in fact wronged[] and concealed that fact to deceive the plaintiff." BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011) (internal quotation marks omitted). "Fraudulent concealment only tolls the running of limitations until the fraud is discovered or could have been discovered with reasonable diligence." Id.
Padilla does not contend the alleged wrongdoing was concealed. His causes of action clearly arise from the shooting incident, a matter of which Padilla was undoubtedly aware. Instead, Padilla argues Hodge and Emmot conspired to conceal Emmot's identity as the shooter.
"Fraudulent concealment does not apply to concealment of the wrongdoer's identity but applies only when 'the wrongdoer fraudulently conceals the plaintiff's cause of action.'" Est. of Tobolowsky, No. 05-19-00073-CV, 2020 WL 6143676, at *3 (Tex. App.-Dallas Oct. 20, 2020, no pet.) (mem. op.) (emphasis in original) (quoting Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460, 464 (Tex. App.-Dallas 2006, pet. denied)). "[C]oncealment of one's identity does not toll the statute of limitations when, regardless of the defendant's identity, the plaintiff knows, or reasonably should know, he has a cause of action." Baxter, 182 S.W.3d at 464; see also Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011) (internal quotation marks omitted) ("Once a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know the specific cause of the injury; the party responsible for it; the full extent of it; or the chances of avoiding it."). "In other words[,] the doctrine of fraudulent concealment will not toll limitations unless the wrongdoer fraudulently conceals the plaintiff's cause of action." Baxter, 182 S.W.3d at 464 (emphasis in original). Here, Padilla was aware of his causes of action when they accrued on the day of the shooting, but he was unaware of Emmot's identity. "Under these circumstances, the doctrine of fraudulent concealment will not toll the running of the statute of limitations." Id.
Relying on In re Dawson, 550 S.W.3d 625 (Tex. 2018) (orig. proceeding), Padilla argues Emmot should be estopped from claiming limitations because Hodge and Apache did not identify Emmot in their responses to Padilla's discovery requests. However, Dawson is distinguishable from the case at bar on several fronts.
In Dawson, the plaintiff sued a restaurant owner when the plaintiff was struck by a television that fell from a wall in the restaurant. Dawson, 550 S.W.3d at 627. The plaintiff sued the restaurant owner and propounded discovery requesting the name of any potential parties and any person who may be designated as a responsible third party. Id. Before limitations expired, the restaurant owner answered the discovery stating there were no potential parties and the restaurant owner "will supplement" regarding the request for the names of responsible third parties. Id. Two weeks after limitations expired, the restaurant owner moved for leave to designate the person who installed the television as a responsible third party and supplemented its discovery responses to name the person who installed the television as a potential party and a person who may be designated as a responsible third party. Id. at 627-28.
The supreme court held the restaurant owner was precluded from designating the television installer as a responsible third party under subsection 33.004(d) of the Texas Civil Practice and Remedies Code because the restaurant owner failed to comply with its obligations to timely disclose that the television installer may be designated as a responsible third party. Id. at 629-30. The court reasoned the restaurant owner's time to disclose the television installer as a responsible third party was at the time its discovery responses were due, before limitations expired. Id. The supreme court acknowledged the Texas Civil Practice and Remedies Code guards against this situation where the restaurant owner sought to offset liability to a third-party who the owner did not timely designate and who could not be sued within limitations. Id. at 629. We note the supreme court relied on subsection 33.004(d) of the Texas Civil Practice and Remedies Code, which specifically addresses the very situation in Dawson regarding responsible third parties.
Subsection 33.004(d) of the Texas Civil Practice and Remedies Code states:
A defendant may not designate a person as a responsible third party with respect to a claimant's cause of action after the applicable limitations period on the cause of action has expired with respect to the responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.Tex. Civ. Prac. & Rem. Code Ann. § 33.004(d).
Here, the record does not reflect that either Hodge or Apache designated Emmot as a responsible third party. Instead, Padilla sued Emmot directly albeit as the misidentified "Unknown Shooter." Therefore, section 33.004 of the Texas Civil Practice and Remedies Code, the statute relied on by the supreme court in Dawson, is inapplicable here. Moreover, in his summary judgment response, Padilla states Hodge's and Apache's responses to Padilla's discovery were not due until October 12, 2020. As mentioned above, under the Supreme Court's Twenty-First Emergency Order Regarding the Covid-19 Pandemic, limitations expired in this case on
September 15, 2020. Unlike the circumstances in Dawson, Hodge's and Apache's discovery responses were not due until after limitations expired. Dawson is inapposite to the appeal at bar. Accordingly, Padilla's first issue is overruled.
We also note in response to Padilla's interrogatories, Hodge identified the shooter as "James Emmot" and stated he did not know Emmot's current address and phone number. Padilla appears to complain that Hodge did not provide Emmot's middle name or his contact information. Unlike Dawson, there is no indication Hodge or Apache were attempting to abuse their positions by "lying behind the log" until limitations expired to provide Emmot's name in its discovery response. See In re Dawson, 550 S.W.3d 625, 629 (Tex. 2018) ("[Plaintiff] argues that lying behind the log in this fashion is exactly the sort of abuse section 33.004(d) is meant to prevent.").
Hodge and Apache's Summary Judgments: Premises Liability & Vicarious Liability
"Liability for injury on business premises may be found under either a premises defect theory or a negligent activity theory." Wal-Mart Stores, Inc. v. Garza, 27 S.W.3d 64, 67 (Tex. App.-San Antonio 2000, pet. denied). Padilla asserted a premises defect claim against Hodge and Apache, and he asserted a negligent activity claim against Emmot. Padilla claimed Hodge and Apache employed Emmot-or Emmot otherwise acted as their agent-and are therefore vicariously liable for Emmot's negligent activity. We must first address whether Padilla's injury resulted from a condition of the property or an activity to determine whether Padilla has a valid premises defect claim against Hodge and Apache. Then, we must determine whether Hodge and Apache are vicariously liable for Emmot's alleged negligent activity. A. Premises Defect
In his second issue, Padilla argues the trial court erred when it granted summary judgment in favor of Hodge and Apache on Padilla's premises defect claim. Hodge and Apache respond that the allegedly tortious conduct arises from Emmot's alleged negligent activity, i.e., shooting Padilla, rather than a defect of the premises. Hodge and Apache's motion for summary judgment asserted Padilla did not allege his injury occurred as a result of the overall condition of the property.
"A premises liability claim must be either a premises defect case or a negligent activity case." Garza, 27 S.W.3d at 67. "Recovery for a negligent activity requires that the plaintiff was injured by or as a contemporaneous result of the activity itself." Id. "A claim the premises themselves are unsafe is a premises defect claim." Id.
In his pleadings, Padilla does not assert that Hodge or Apache failed to keep the premises safe. Rather, Padilla argues Hodge and Apache "willfully, wantonly[,] or through gross negligence" injured Padilla when Hodge allegedly instructed Emmot to shoot Padilla. See State v. Shumake, 199 S.W.3d 279, 285 (Tex. 2006) (internal quotation marks omitted) ("At common law, the landowner owed no duty but to refrain from injuring the trespasser willfully, wantonly, or through gross negligence."). Padilla's summary judgment evidence shows that his injury was caused by Emmot's actions rather than a condition of the premises. Because Padilla's injury was caused by the shooting itself-rather than a complaint that the premises themselves were unsafe- his complaint is one for negligent activity, not premises defect. See Garza, 27 S.W.3d at 67; see also Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) ("We have recognized that negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe."). Therefore, the trial court did not err when it granted Hodge and Apache's summary judgment on Padilla's premises defect claim.
Padilla argued in his summary judgment response, and argues on appeal, that his status may have been upgraded from a trespasser to a licensee because Hodge let another homeless man sleep on the property. However, there is no evidence that Hodge permitted Padilla to remain on the premises. In fact, all the summary judgment evidence shows that Hodge did not want Padilla on the premises. Accordingly, we conclude Padilla was a trespasser on the premises. See State v. Schumake, 199 S.W.3d 279, 285 (Tex. 2006) ("A trespasser at common law was one who entered upon property of another without any legal right or invitation, express or implied.").
Accordingly, Padilla's second issue is overruled.
B. Negligent Activity and Vicarious Liability
In his third issue, Padilla argues the trial court erred when it dismissed his vicarious liability claims under the doctrine of respondeat superior against Hodge and Apache. Specifically, Padilla contends the trial court erroneously determined as a matter of law that Hodge and Apache are not vicariously liable for Emmot's actions. Hodge and Apache respond that vicarious liability is derivative of the causes of action against Emmot and not an independent cause of action. They argue that because recovery against Emmot is barred as a matter of law due to limitations, any derivative vicarious liability claims against Hodge and Apache are likewise time-barred. Finally, Hodge and Apache asserted in their second motion for summary judgment, and on appeal, that there is no evidence Emmot was ever employed by or an agent of Hodge or Apache.
"Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong." Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). "The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee's work." Id. "[W]hether a wrongdoer stands in such a close relation to another that it is just to hold the other person liable under the common law for damages resulting from the wrongdoer's actions is a public policy question." St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex. 2002). This depends largely on whether the person sought to be held liable-though not at fault himself-"can be said to have such a degree of express or implied control over the actor to justify imposing on him the consequences of the actor's wrongful conduct." Id.
Here, Hodge attached his unsworn declaration as summary judgment evidence. In his declaration, Hodge states:
"[A]n unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law." Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a); see also Horie v. Law Offs. of Art Dula, 560 S.W.3d 425, 439 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (holding summary judgment evidence in the form of an unsworn declaration that substantially complies with section 132.001 of the Texas Civil Practice and Remedies Code "has the same effect as an affidavit"). The declaration was made in Hodge's individual capacity and on behalf of Apache as its corporate representative.
In my personal capacity, for at least the last 15 years, I have not employed any person. Apache Creek Holdings has had several employees over the years. However, Defendant, James Emmot, was never an employee of Apache Creek. Mr. Emmot was introduced to me through several high-profile people as a person with the ability to purchase my shop. On the date that Mr. Padilla was shot, Emmot was at my shop solely to perform due diligence in connection with the proposed purchase of the property. The sole connection between Emmot and Apache Creek or Hodge was his intimation that he wanted to purchase the real property and business operation there.
Emmot has never been an employee or agent on behalf of any Defendant in this case or in any of the businesses that I own. I have never paid one dollar to Emmot for any service. I have never reported Emmot as an employee to any government agency. I have never had any kind of independent contractor or other service agreement with Emmot. On the date that Mr. Padilla was shot, Emmot was not engaged in any business, work, or task on my behalf.
In his summary judgment response, Padilla asserted that Emmot was an employee or agent with apparent authority to act on behalf of Hodge and Apache. To support his contention, Padilla attached as summary judgment evidence: (1) a police report from the shooting incident; (2) Emmot's recorded statement to an insurance carrier; and (3) Emmot's motion for summary judgment. For the reasons explained below, Padilla did not raise a scintilla of evidence establishing Emmot was employed by or an agent of Hodge or Apache; thus, Padilla did not meet his burden to overcome summary judgment.
The trial court's summary judgment order sustains Hodge and Apache's objections to Padilla's summary judgment evidence. As the appellant, it is Padilla's burden to bring forth a record showing reversible error. Cantu v. Guerra & Moore, Ltd. LLP, 328 S.W.3d 1, 9 (Tex. App.-San Antonio 2009, no pet.). Because Padilla does not address whether the trial court excluded summary judgment evidence and does not contend on appeal that the trial court erred in sustaining objections to his summary judgment evidence, we may presume that all of Padilla's summary judgment evidence was excluded. Alanis v. Wells Fargo Bank Nat'l Assoc., No. 04-17-00069-CV, 2018 WL 1610939, at *4 (Tex. App.-San Antonio Apr. 4, 2018, pet. denied) (mem. op.) ("We will not consider summary judgment evidence that was excluded by the trial court unless the appellant timely and successfully challenges the evidentiary ruling." (quoting Kuzmin v. Schiller, No. 05-13-01394-CV, 2015 WL 150206, at *5 (Tex. App.-Dallas Jan. 8, 2015, no pet.) (mem. op.))); Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 838 (Tex. App.-Dallas 2000, no pet.) ("The trial court sustained appellees' objection to this evidence. Appellant does not challenge that ruling on appeal. Therefore, no evidence supports appellant's argument."). However, the record does not reflect Hodge or Apache made written objections, there is not a transcript of the proceedings, and Hodge and Apache do not address in their brief whether any summary judgment was excluded. Because the outcome of this appeal would be the same even if no evidence was excluded, we nevertheless review Padilla's summary judgment evidence.
The police report provides: "[Hodge] stated that [Emmot] was a potential person who was going to buy his business, so he was giving him training on how to operate [the business]." Although it is not clear from his summary judgment response, it appears Padilla points to the statement that Hodge was going to give Emmot training on how to operate the business for the proposition that Emmot was under Hodge or Apache's control. However, the police report also states Hodge arrived at the location at 5:15 the morning of the shooting to open the business and show Emmot around. These statements do not show an employment or agency relationship between the defendants; instead, they corroborate Hodge's statements in his affidavit that Emmot was a prospective buyer of Hodge's business and Emmot's sole purpose for being at the property was to conduct due diligence on the purchase.
Next, Padilla points to the following sentence in Emmot's recorded statement to support his theory that Emmot was an employee or agent of Hodge or Apache: "[W]e were meeting up early to open up the shop for a crew that was [going to] start I guess around 6:30." Again, this statement is taken out of context. Emmot reiterated in his recorded statement that he was meeting with Hodge to conduct due diligence to purchase Hodge's business. Just like the statement in the police report, Emmot's recorded statement does not show an employment or agency relationship with Hodge or Apache. It simply supports Hodge's affidavit that Emmot was at the location to see how the business worked as part of his due diligence to purchase the business.
Finally, Padilla points to statements in Emmot's motion for summary judgment to support his employment/agency theory. In the introduction section, Emmot's motion for summary judgment stated:
This case stems from an incident on August 25, 2018, when plaintiff, [Padilla], a homeless person, approached Defendant, [Emmot], in the parking lot of Defendant [Emmot's] employer at approximately 5:30 AM. [Padilla] was agitated, screaming at [Emmot's] employer, Co-Defendant [Hodge], refusing to leave the premises and making violent threats that he was going to kill Co-Defendant [Hodge].
Padilla points to the assertion that Emmot was in the parking lot with his "employer" Hodge and claims this is a judicial admission that Emmot was employed by Hodge. According to Padilla, this purported judicial admission raised a genuine issue of material fact on whether Hodge is Emmot's employer.
A statement in a motion for summary judgment may serve as a judicial admission. See Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.-Dallas 2003, pet. denied). A judicial admission must be clear, deliberate, and unequivocal. Regency Advantage Ltd. P'ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996). "If the admission is not retracted, it will have conclusive effect and bar the admitting party from later disputing the admitted fact." Lentz Eng'g, L.C. v. Brown, 2011 WL 4449655, at *1 (Tex. App.-Houston [14th Dist.] Sept. 27, 2011, no pet.) (mem. op.) (citing Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001), and Griffin v. Superior Ins. Co., 338 S.W.2d 415, 418 (Tex. 1960)); see also Nguyen v. Davis, No. 14-97-00562-CV, 1998 WL 767697, at *3 (Tex. App.-Houston [14th Dist.] Nov. 5, 1998, no pet.) (mem. op., not designated for publication) ("[A] testimonial declaration of a party will not be treated as a judicial admission if it is retracted or contradicted by other evidence."). "But we consider the entire motion and other documents in the record to determine whether a statement is clear, deliberate, and unequivocal." Brown, 2011 WL 4449655, at *1; see also In re Spooner, 333 S.W.3d 759, 764-65 (Tex. App.-Houston [1st Dist.] 2010, orig. proceeding) (mem. op.) (finding no judicial admission when the alleged admission was read in the context of the summary judgment proceeding and the mandamus record as a whole).
"Elements required for a judicial admission are: (1) a statement made during the course of a judicial proceeding; (2) that is contrary to an essential fact or defense asserted by the person making the admission; (3) that is deliberate, clear, and unequivocal; (4) that, if given conclusive effect, would be consistent with public policy; and (5) that is not destructive of the opposing party's theory of recovery." Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.-Dallas 2003, pet. denied).
First, the statement Padilla relies on was made by Emmot, not Hodge or Apache; therefore, the statement does not have a conclusive effect on either Hodge or Apache. See Brown, 2011 WL 4449655, at *1. Next, Emmot retracted the statement in his reply to Padilla's summary judgment response. The retraction states:
Defendant Emmot erroneously stated that the incident made the basis of this lawsuit occurred "in the parking lot of Defendant [Emmot's] employer at approximately 5:30 AM." Defendant Emmot was not employed by Defendant Hodge, Defendant Apache, or the owner of the location where the incident took place at any time, including before the incident, on the day of the incident, and up through present. The incorrect statement was made inadvertently.
Padilla argues on appeal that Emmot's original statement in his motion for summary judgment was verified and he should not be allowed to retract the statement with his unverified reply. However, the record does not reflect Emmot's motion for summary judgment is verified. Emmot attached an affidavit to his summary judgment motion stating he is filing the affidavit in support of the motion, but Emmot's affidavit does not verify or aver to the statements within the motion. Moreover, Padilla does not point us to any authority supporting his argument. Accordingly, Padilla's argument on this point is without merit.
Finally, Emmot's and Hodge's summary judgment filings and all the summary judgment evidence contradict the retracted statement regarding employment. As mentioned above, Emmot clearly retracts the employment statements and states he was not Hodge's or Apache's employee at any time. Hodge's affidavit likewise states Emmot was never Hodge's or Apache's employee. The police report and Emmot's recorded statement proffered by Padilla in his summary judgment response also show that Emmot's sole purpose for being at the property was to conduct due diligence to purchase Hodge's business. Considering Emmot retracted his statement-and viewing the statement in the context of the summary judgment record as a whole-we conclude Emmot's statement that Hodge was his employer was not deliberate or unequivocal; rather, it was a mistake. See Spooner, 333 S.W.3d at 764-65. Therefore, Emmot's statement in his motion for summary judgment that Hodge was his employer is not a judicial admission and does not raise a scintilla of evidence on an agency relationship. Because we determine Padilla did not meet his summary judgment burden on whether Emmot had an employment or agency relationship with Hodge or Apache, we need not address whether Emmot's successful limitations defense bars Padilla's derivative claims against Hodge and Apache as a matter of law. Accordingly, Padilla's third issue is overruled.
CONCLUSION
We affirm the trial court's judgments.