1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-03-0065 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E JUNE 16, 2003

______________________________ RICHARD WOO DSON,

Appellant
v. HOUSTON GO LF ASSOC IATION, Appellee

_________________________________ FROM THE 221 ST DISTRICT COURT OF MONTGOMERY COUNT Y; NO. 01-06-3595 -CV; HON. SUZANNE STOVALL, PRE SIDING

_______________________________ Memor andum Opi

nion

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 Richard W oodson (Woodson) appeals from a fi nal s um m ary j udg m ent

entere d in favor of the Houston Golf Association (HGA). Through t wo issues, h e com plains that 1) there was som e evidence of negligence byHGA, and 2) an adequate tim e for discovery2 W oodson had a disabilit y tag on his v ehicle due to f oot problem s. He had no physical restricti ons

placed on him due

to a pr evious he art atta ck. 2 ha d not lapsed before the trial court granted HGA’s no-evidence m otion for sum mar

y judgm ent. We affirm the judgm ent of the trial court. Backgr ound W oodson, who is disabled, sued HGA contending that it had failed to provide adequate han dica ppe d pa rkin g. H e ha d vo lunteer ed to work

for HG A d urin g th e S hell Houston Open golf tournam entbut was unable to park in the designated handicapped area adjacent to the course. A

t the tim e, it wasreserved for wheel chairs. Instead, an officer directed him to drive to a lo cal mall. The of ficer al so told himtha t a b us w ould ret urn him to the entrance of the golf course. Woodson drove to the ma ll, and a b us re tr i ev ed hi m. Yet, instead of leaving him at the entrance of t he course, the bus stopped about a half a
m ile away. From t hat point, he walked to the course. HGA also had a van operating that
w ould have taken him directly to the entrance fromthe m all; yet, W oodson asserted that this was unk nown to him

. After per for m ing h is tasks as a volunteer and returning home thatnight, W oodson alleg edly suffered a heart attac k. The attack w as purportedly caused by the lack of adequate handicapped parking at the golf course. 2 Consequently, Woodson sued HGA via causes of action sounding in negligence and premises liability. That is, he alleged that HGA 1) breached its duty to pr o vide adequate handicapped parking, and 2) failed to protect him from an unreasonabl y dangerous condi tion on the pr emises ( i.e. , the lack of handicapp ed parking ).3 Since nothing is said about the trial court’s action viz the clai m so un din g in pre m ise s li abi li ty , we conclude that W oodson does not contest that aspect of the decision.

3 About 14 months after suit was filed , HG A m oved fo r a no-evidence m otion for
sum m aryjudgm ent. Several grounds purportedly entitling it to same were alleged. The trial court

granted the m otion and signed a final judgm ent without spec ifying the particular ground on which it relied. Thereafter, Woodson appealed.

Issue One – E

ntry of S umma ry Judgm ent As previously mentioned, Woodson con ten ds, thr oug h hisfirst issue, that the trial court erred in granting the no-evidence m otion for sum mary judgm ent “because there w as som e evidence of negligence by the HGA .” 3 W e overrule the point. Standard of Revi

ew The standard governing our review of sum m aryjudgm ents is well settled and need notbe reiterated. Instead, w e refer the litigants to Ni xon v. Mr. Property

Management Co., 690 S.W.2d 546, 548 (Tex. 1985) and Kimber v . Si deris, 8 S.W.3d 672, 67 5 (Tex . App.
-- Am arillo1999, no pet.) for an ex planation of same. W e also note that because t he trial court did not specify the ground upon which it relied when granting themo tion, W oodson
wasobligate d to i llustrate that none of the grounds alleged in the m otion supported the judgm ent. Carr v. Brasher, 776 S. W .2d 567, 569 (Tex . 1989); see Star-Telegra m, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995) ( holdi ng that the appel lant i s oblig ated to attack each ground upon whic h the s um m aryjudgm ent could have been based); Malooly Bros. , Inc. v. Napi

er, 461 S.W.2d 119, 121 (Tex. 1970) (holding the sam e); Granada BioSciences, Inc. v. Barrett , 958 S.W.2d 215, 224 (Tex. App.--Am arillo 1997, pet. denied) (stating that4

a su m m ary

j udg m ent

w ill be affirmed if it rests upon an independent ground to w hich no point of e rror has been as signed).
Appli cati on of Standard In its mot ion, HGA

generally entitled that portion wherein it alleged its grounds for
sum m aryjud gm ent as “n o evi dence of essential elemen ts of negligence claim.” Thereafter, it specified the elements of negligence, e.g. , duty, breach, prox imate cause, and dam ages, and argued that W oodson was

obligated to e sta blish the m . Th en, it s aid thatthe “threshold inquiry . . . is whether t he defendant owed a legal duty to the plaintiff,” that the “det ermination of w hether a legal duty exists is a quest ion of law,” and that the “burden rests on the plaintiffs to present evidence of probative force with respect to each of these elem ents.” These assertions w ere then followed by the s tatem ent that: First, there is no evidencein the case that Defendant HGA

breached any l egal duty owed to Plainti ff. There i s no evidencethat HGA ‘ failed to provide handicapp ed parking ’ for P laintiff. Un controverted s um m ary judgm ent evidence establishe s that . . . H GA pro vi ded handicapped parking spaces that w

ere available for us e by P laint iff a t Woodla ndsMa ll and that a van w

as provided to transport Woodson directly to where he wished to go . . . W oodson’s own self-admitted fai lure to uti lize th ese ameniti es thro ugh hi s own mistake i s not ne gli gence o n the pa rt of HGA. (Em pha sis in original ). To the exten t HGA 1) labeled thesec tion of t he m otio n w her ein it recited its grounds for sum mary judgm entas “no evidence of essential elementsof negli gence claim,” 2) asserted that the ex istence of a duty w as an essential element of negligence, 3) asserted that the threshold inquiry involved w hether “defendant owed a legal duty to the plaintiff,” and 4) alleged that there was no evidence that HGA breached4 That the existen ce o

f a du ty w

as a g rou nd for s ummar

y jud gmen t isfurther ex empli fi ed by v arious state mentsin HGA’s ap pe lla tebr ie f. There, it a ss erts that “co nsp icuous ly abs ent [from Woodson ’s a ppellate bri ef] is any reference t o a specifi c comm on law duty or statutory duty” and “[t ]here is no menti on [in the appellant’s brief ] of any aut hority whether by statute or case law that def ines how this duty can be breached or what fats [sic] would constit ute a breach of that duty.” Indeed, bef ore it can be deter mi ned whether evi dence of a brea ched d utyexists, the court fi rst must be inf ormed of the du ty alleged ly breac hed a nd its par am ete rs.

5 The purported “witnesses” go unnamed. 5 “any legal duty

owe d Plaintiff, ” weconst rue the g rounds f or sum m aryjudgm entto include both the existence of a legal duty and the lack of evidence of its breac h. 4 ( Emphasi s add ed) . Th is is of import since Woodson did not expressly address , on appeal, wheth er HGA ow ed it any duty. He s imply contended t hat there was evidence of a breach. W ithout briefing the topic of duty and ex plaining what it wasand w hy H GA owed it to W oodson, we have no basis up on whic h to determ ine whether the record contains evidence of its breach. And, since the trial court did not specifythe grounds upon which it relied i n granting sum mary judgm ent, we cannot say that Woodson fulfill ed his burden on appeal of illustrating why none of the grounds s upported the decision. Issue Two – P

rem ature Mo tion In his second and final point, W oodson argues that the trial court erred in entering
sum m aryjud gme nt “b ec au se an ad eq ua te ti me for discovery had not passed.” This was alleg edly so because HGA

“refused to produce . . . witnesses un d er [its] control.” 5 We overrule the issue. Rule166a(i) of the Texas R ules of Civil Procedure states that a party ma y file a noevidence mo tion for sum mary judgm ent “[a]fter adequate tim e for discovery.” Furtherm ore, a litigant attempting to defeat s uch a m otion due to the lack of discovery m ust file an6

aff idav itexplaining the need for the discovery or a ver ified motion for continuance. Tenneco Inc. v. En terprise P rod ucts Co., 925 S.W.2d 640, 647 (Tex. 1996). Woodson does not contend on appeal that he did either. Nor does the record disclose that he did. F orin stance, the affidavit accom panying W oodson’s response to the m otion for
sum m aryjudgm ent did not explain the need for further discovery. Through it, counsel for W oodson simply state d thatHGA had agreed to produce a nam ed witness for de position and that the w itness “failed to appear . . . w ithout prior notice and in violati on of theRul e 11 Ag ree m ent .” What

this w it ne ss wo uld have said, why it w as pertinent to the cause, whether the substance of

the testim ony wasavailable elsewhere, and how Woodson was harmed (a ss uming he w as) by not deposing the w itness went un ment ioned. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.--Hous ton [14 th Dist.] 2002, pet. denied) (holding that the litigant must describe, in the affidavit, theevidence soug ht, its material ity, and the diligence used to obtain it). Nor did W oodson fill the void on appeal. Again, he merely alleged that he lacked adequate opportunity to conduc t discovery because H GA “refuse d” to pro duce un specified “witne sses. ” As to m oving for a continu ance, n o such m otion appe ars in the record befor e us. Nor does Woodson assert that he filed such a m otion, as w e previou sly noted. Th us, neither aspect of the test ment ioned in Tenneco was f ulfill ed. Accordingly, we af

firm the j udgme nt of the trial court.

Brian Quinn Justice