Opinion
NO. 01-17-00573-CV
06-26-2018
SHERRY RAINER, Appellant v. FOOT LOCKER, INC. D/B/A CHAMPS SPORTS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 14-DCV-215261
MEMORANDUM OPINION
Sherry Rainer suffered injuries to her foot when a mannequin fell on it in a Champ Sports store in Sugar Land, Texas. She filed suit against Foot Locker, Inc. for the injuries, alleging a premises defect. Foot Locker filed a no-evidence motion for summary judgment, which the associate judge and then the trial court granted. In three issues on appeal, Rainer argues (1) the associate judge improperly asked about the results of mediation; (2) she was not allowed to complete the discovery process before the entry of the judgment; and (3) the associate judge and trial court refused to consider evidence properly before them.
We affirm.
Background
Rainer entered a Champ Sports store in Sugar Land, Texas, on April 27, 2013. Rainer asserts that a child playing in the store knocked over a mannequin, which subsequently fell on her foot. Rainer suffered an injury to her foot from the mannequin landing on it.
Rainer filed suit on June 7, 2014, against Foot Locker, the company operating the store. Rainer asserted a premises liability claim against Foot Locker. Foot Locker answered the suit on August 27, 2014, and submitted discovery requests on Rainer. Near the end of 2014, Foot Locker sent Rainer video-surveillance footage depicting the incident.
Nearly a year later, the parties submitted to the trial court a "Joint Motion for Entry of Agreed Docket Control Order." In it, they asked the trial court to set the case for trial no earlier than May 16, 2016. They further asked the trial court to end the discovery period 30 days before trial. And they asked the trial court to set the deadline to file dispositive motions on April 18, 2016. The trial court granted the motion, setting trial for June 21, 2016.
On April 1, 2016, Foot Locker filed a no-evidence motion for summary judgment, asserting Rainer lacked sufficient evidence for each element of her premises-liability claim. Foot Locker sent Rainer notice of a submission date of April 25, 2016, on the motion. Rainer's deadline to respond to the motion was April 18, 2016.
On April 22, 2016, Rainer submitted her first discovery requests on Foot Locker. Three days later—the date Foot Locker's motion had been set for submission—Rainer filed a motion for leave to file a late response to Foot Locker's no-evidence motion for summary judgment. Rainer explained that she was late in responding to Foot Locker's motion because her attorney moved offices in March 2016 and the motion was misplaced. She attached her deposition to the motion for leave. She highlighted two portions of her deposition testimony. In one portion, she testified that there had been some kids playing in the store around the time of the incident and that one of those kids knocked the mannequin over. In another portion, Rainer testified that, when the mannequin fell, a manager of the store told her that the kids had been "coming back and forth" and playing in the store all morning. Rainer argued that this testimony was sufficient to create a fact issue to survive summary judgment.
On June 6, 2016, the parties met with the trial court for a pretrial hearing. Foot Locker asked the trial court to rule on its no-evidence motion for summary judgment. The trial court reset the hearing date on the motion for July 18, 2016. Foot Locker sent a notice to Rainer of the new date. In the notice, Foot Locker asserted, "As instructed by the Court, no further evidence in support or opposition of the No-Evidence Motion for Summary Judgment will be considered at the hearing."
Rainer filed a motion to continue the July 18 hearing on July 8. The sole ground for the continuance was that Rainer's attorney had scheduling conflicts with that date. On July 14, Rainer withdrew the motion for continuance on the basis that the scheduling conflicts had been resolved.
Also on July 14, Rainer filed a "supplemental response" to Foot Locker's motion. She attached to it four stills of the surveillance video Foot Locker had sent to her. The stills depicted the incident before and after the mannequin fell. She also attached the deposition testimony of her treating physician.
The parties met before the associate judge on July 18. The associate judge granted the motion. Rainer appealed to the trial court. The trial court held a hearing on April 10, 2017. The trial court also granted the motion.
Discovery Process
In her second issue, Rainer argues the associate judge and trial court erred by not allowing her to complete the discovery process. We hold this issue has been waived.
Rainer filed suit on June 7, 2014. Foot Locker answered on August 27, 2014. Rainer submitted her first discovery request to Foot Locker on April 22, 2016. This was 685 days after she filed suit, 604 days after Foot Locker answered suit, 155 days after the parties filed an agreed docket control order, 4 days after Rainer's original deadline to responds to the motion, and 3 days before the original submission date. Rainer argues that, because the discovery deadline was May 22, 2016, setting the motion for submission on April 25, 2016—27 days before the discovery deadline—precluded her being "afforded an adequate opportunity to conduct full and fair discovery."
Rainer asked the trial court to set the deadline to file dispositive motions before the end of the discovery period. Rainer and Foot Locker filed a "Joint Motion for Entry of Agreed Docket Control Order" on November 9, 2015. In it, they asked the trial court to set the case for trial no earlier than May 16, 2016. They asked the trial court to end the discovery period 30 days before trial. And they asked the trial court to set the deadline to file dispositive motions on April 18, 2016. The trial court granted the motion, setting trial for June 21, 2016.
"[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as 'the invited error' doctrine." Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005). "The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal." In re Dep't of Family & Protective Services, 273 S.W.3d 637, 646 (Tex. 2009). Rainer asked the trial court to set the trial date after May 16, to end the discovery period 30 days before trial, and to end the time to file dispositive motions on April 18. The trial court granted all of these requests. She cannot now complain that the trial court gave her what she asked for. See id.
Likewise, Rainer filed a motion to continue the submission date for the motion, but did not raise any objections to the submission date being before the discovery deadline. Rainer later withdrew her motion for continuance in its entirety. Rainer did complain about the original submission date being before the discovery deadline when appealing the associate judge's ruling to the trial court. By that time, however, Rainer had requested the date for the dispositive motions deadline, withdrawn her objections to the hearing, and participated in the hearing when it finally occurred without any objection. Any complaints about the dispositive motions deadline have not been preserved for appeal. See TEX. R. APP. P. 33.1 (requiring, as prerequisite for raising complaint on appeal, complaint to be made to trial court and ruling from trial court or objection to failure to rule); Tittizer, 171 S.W.3d at 862 (precluding party from complaining on appeal about action requested before trial court).
We overrule Rainer's second issue.
Summary Judgment Evidence
In her third issue, Rainer argues the associate judge and trial court refused to consider evidence properly before them. When it filed its no-evidence motion for summary judgment, Foot Locker sent notice of a submission date for the motion of April 25, 2016. On the submission date, Rainer filed a motion for leave to file a late response to the motion for summary judgment. Rainer attached a portion of her deposition to that motion. The hearing on the motion was later set for July 18, 2016. On July 11, 2016, Rainer filed a supplemental response to the motion for summary judgment. She attached the deposition of her treating physician and four stills from the video surveillance footage of the incident. Rainer argues on appeal that the evidence was properly before the associate judge and the trial court and that both improperly refused to consider the evidence. Foot Locker argues, instead, that the evidence was not properly before the associate judge and trial court but that both considered the evidence anyway.
We do not need to resolve these disputes, however, because we hold Rainer has failed to establish harm. In order to obtain reversal on appeal, the appellant must show that it suffered harm as a result of an alleged error. See TEX. R. APP. P. 44 .1 (requiring determination of harm for reversal); In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex. App.—Amarillo 2003, no pet.) (holding appellant bears burden of establishing harm). To be harmful, the appellant must show that the alleged error "probably caused the rendition of an improper judgment" or that it "probably prevented the appellant from properly presenting the case to the court of appeals." TEX. R. APP. P. 44.1(a).
The error that Rainer alleges in this issue is the refusal to consider her summary judgment evidence. The harm that Rainer alleges is the evidence, if considered, would have entitled her to a denial of Foot Locker's no-evidence motion for summary judgment. We disagree.
In a no-evidence motion for summary judgment, the party defending against a claim identifies the elements for which it believes the opposing party lacks sufficient evidence. TEX. R. CIV. P. 166a(i). The burden then shifts to the opposing party to present more than a scintilla of evidence on each of the identified elements. Id. A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
To determine whether there is a fact issue in a motion for summary judgment, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller, 168 S.W.3d at 827). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
Rainer asserted a premises liability claim against Foot Locker. The elements for a premises liability claim are
(1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner's failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014). Foot Locker challenged all four elements in its motion.
Rainer argued two things posed an unreasonable risk of harm: the kids who were playing in the store—one of whom knocked over the mannequin that fell on her foot—and the mannequin being improperly secured.
For the kids, Rainer provided her deposition wherein she testified that, when the mannequin fell, a manager of the store told her that the kids had been "coming back and forth" and playing in the store all morning. Rainer argued that this was sufficient to raise a fact issue on a dangerous condition.
Foot Locker argued to the trial court that the person identified in Rainer's affidavit was not a manager, but an employee. Foot Locker did not present any evidence to establish this, however.
A condition poses an unreasonable risk of harm for premises-defect purposes when there is a "sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). Proof of children playing in a store, by itself, does not create a fact issue for an unreasonable risk of harm. See id.
For the mannequin, Rainer argues in her brief that there is a fact issue on whether the "mannequin display was secured in such a way as to create a reasonably safe condition in and of itself." For proof of a fact issue, Rainer relies on four stills from surveillance video of the incident. These stills, however, only show the end of the mannequin that landed on her foot. The remainder of the mannequin does not appear in the images, nor does the area in which the mannequin originally stood. There is no evidence, then, of the mannequin's original location and position, of how the mannequin was secured, or of what, specifically, caused the mannequin to fall. Accordingly, there is no evidence that the mannequin posed an unreasonable risk of harm. See id.
We hold Rainer failed to present sufficient evidence to raise a fact issue on whether an unreasonable risk of harm was present on the premises. Accordingly, Rainer could not have been harmed by any alleged failure of the associate judge and the trial court to consider her evidence, even if it were properly submitted.
We overrule Rainer's third issue.
Mediation
In her first issue, Rainer argues the associate judge and trial court erred by considering evidence of the mediation process between her and Foot Locker. Foot Locker argues this issue has not been preserved for review. We hold that, even if the issue were properly preserved, Rainer cannot establish harm.
We have held in response to Rainer's third issue, that there was not sufficient evidence to create a fact issue on at least one element of her claim. The no-evidence motion for summary judgment, then, had to be granted. See King Ranch, 118 S.W.3d at 751. Accordingly, Rainer cannot establish that any error in considering evidence of the mediation process probably caused the rendition of an improper judgment or probably prevented her from properly raising an issue on appeal. See TEX. R. APP. P. 44.1(a).
We overrule Rainer's first issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Brown, and Caughey.