### MEM ORANDUM OPINION

No. 04-08-00270-CV

Frances POOSER , Appellant

v. COX RADIO, INC . d/b/a 99.5 KISS Radio Station, Appellee From the 57th Judicial Distri ct Court, Bexar County, Texas Trial Court No. 2006-CI-01929 Honorable Karen H. Pozza, Judge Presiding Opinion by: Rebecca Simmons, Justice Sitting: Karen Angelini, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice Delivered and Filed: January 28, 2009 AFFIRMED This is a personal injury case arising out of injuries Appellant Francis Pooser sustained while attending a rock concert. The trial co urt granted traditional and no-evidence summary judgment motions filed by Appell ee Cox Radio, Inc. d/b/a 99.5 KI SS Radio Station (Cox Radio). We affirm the judgment of the trial court.04-08-00270-CV

B ACKGROUND In April 2004, Pooser attended a concert at the Verizon Wireless Amphitheater in Selma, Texas. Pooser’s ticket stated that the concer t was “present[ed]” by Cox Radio and was called the “Big F Show.” Pooser alleges that the ticket re ferenced a specific seat by section, row, and seat number, 1 but unknown to her until she arrived at the concert, she actually did not have an assigned seat but instead was direct ed to a standing room only section just in front of the stage — the “mosh pit.” 2 While in the mosh pit, Pooser sustained a head injury. Pooser sued Cox Radio and others alleging breach of contract and negligence. Cox Radio filed traditional and no-ev idence summary judgment motions asserting that it had no duty to Pooser because it did not own, occupy, or ha ve control over the Amphitheater. Cox Radio supported its traditional motion with affidavits from its general manager and its marketing/promotions director, as well as excerpts of Pooser’s deposition. Pooser’s response to these motions asserted that a fact issue existed as to whether Cox Radio owed a duty to Pooser to provide a safe environment for c oncertgoers and to warn her that she did not have an assigned

seat. Based on scheduling conflicts, Pooser filed a motion for continuance explaining that her attorney had previously schedul ed conflicts on the date of th e hearing. Although the motion was filed, Pooser never requested the matter be set for a hearing. To the contrary, seven days prior to the hearing, Pooser filed an amended response to her previously filed response to Cox Radio’s motions for summary judgment. Neither Poos er, nor her attorney, attended the summary

1 The ticket identified the section as “ORCHGA,” the row as “GA1,” and the seat as “21.”

2 A “mosh pit” is a standing room only area where concertgoers engage in aggressive dancing and jumping, including purposefully colliding with one another and leaping from the stage. M ERRIAM -W EBSTER D ICTIONARY 809 (11th ed. 2003).

-2 -04-08-00270-CV judgment hearing. The trial court granted summary judgment on both motions and Pooser’s subsequently filed motion for new trial was denied. This appeal followed. S UMMARY J UDGMENT A. Standard of Review To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of mate rial fact exists and that the party is entitled to judgment as a matter of law. T EX
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. P. 166a(c) ; Randall’s Food Mkts., Inc. v. Johnson , 891 S.W.2d 640, 644 (Tex. 1995) ; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985) . In reviewing the grant of a summ ary judgment, we indulge ev ery reasonable inferenc e and resolve any doubts in favor of the respondent. Johnson , 891 S.W.2d at 644; Nixon , 690 S.W.2d at 549 . In addition,

we assum e all evidence favorable to the respondent is true. Johnson , 891 S.W.2d at 644; Nixon , 690 S.W .2d at 548-49 . A defendant is entitled to summar y judgm ent if the evidence disproves, as a matter of law, at least one elemen t of the plaintiff’s cause of action. Lear Siegler, Inc. v. Perez , 819 S.W.2d 470, 471 (Tex. 1991) . Once the movant has established a right to summary judgm ent, the burden shifts to the respondent to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979)

. In reviewing a no-evidence summary judgment, the court examines the record in the light most favorable to the non-movant. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750 (Tex. 2003) . The movant must state the elements on wh ich there is no eviden ce and the “court must grant the motion unless the [non-movant] produ ces summary judgment evidence raising a genuine issue of material fact.” T EX
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. P. 166a(i) . “Less than a scintilla of evidence exists when the ev idence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a

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fact.” King Ranch , 118 S.W.3d at 751 (quoting Kindred v. Con/Chem., Inc. , 650 S.W.2d 61, 63 (Tex. 1983) ). “More than a scintilla of evidence exists [if it would allow] ‘reasonable and fairminded people to differ in their conclusions.’” Id . (quoting Merrill Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). B. Traditional Summary Judgment Cox Radio asserts that summar y judgment was properly gran ted because it had no duty to Pooser because it did not own, leas e, occupy, or have any right of control over the Amphitheater. 1. Duty Owed to Pooser “The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed.” Van Horn v. Chambers , 970 S.W.2d 542, 544 (T ex. 1998). Cox Radio alleges mere promotion of an event does not equate to a right to control the security at that event. See Triplex Commc’ns, Inc. v. Riley , 900 S.W.2d 716, 720 (Tex. 1995). Furthe rmore, a person or entity is under no legal duty to contro l the conduct of others, Tex. Home Mgmt. Inc. v. Peavy , 89 S.W.3d 30, 34 (Tex. 2002), and there is no general dut y to act reasonably toward others, s ee Rocha v. Faltys , 69 S.W.3d 315, 320-21 (Tex. A pp.—Austin 2002, no pet.) (observi ng that the question of how a reasonably prudent person would act under the same or similar circumstances “is the test for determining when a duty has been breached, not the test for whether a duty exist”). In the absence of evidence of a special relationship between Cox Radio and the Amphitheater, Cox Radio had no obligation to contro l security at the concert. See Riley , 900 S.W.2d at 720. 2. Evidence Proffered in Support of Summary Judgment Pooser contends that the ev idence Cox Radio proffered in support of its traditional summary judgment motion is conclusory, ambiguous , and the product of inte rested witnesses. Accordingly, Pooser argues it cannot support a summary judgment for C ox Radio. “It is the

-4 -04-08-00270-CV general rule that the te stimony of an interested witness, such as a part y to the suit, though not contradicted, does no more than raise a fact issue . . . .” Ragsdale v. Progressive Voters League , 801 S.W.2d 880, 882 (Tex. 1990) (per curiam). The exception, however, arises when the testimony of an interested witness is not contradicted by any other witness. Id . When the evidence is “clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.” Id. ; see also Trico Tech Corp. v. Montiel , 949 S.W.2d 308, 310 (Tex. 1997) (per curiam) (“Summary judgment based on the uncontroverted affidavit of an interested w itness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controve rted.”). This exception is part icularly applicable “where the opposing party has the means and oppor tunity of disproving the tes timony, if it is not true, and fails to do so.” Ragsdale , 801 S.W.2d at 882 (quoting Anchor Cas. Co. v. Bowers , 393 S.W.2d 168, 169-70 (Tex. 1965)). “‘Could have been readily controvert ed’ does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that th e testimony could have been effectiv ely countered by opposing evidence.” Trico , 949 S.W.2d at 310. In Trico , the Texas Supreme Court specifically concluded that the testimony of a party’s employee co uld support a summary judgment. Id. Here, the affidavit of Cox Radio’s marke ting/promotions director provided that Cox Radio lacked control over the Amphitheater, which was owned by Selma Amphitheater, L.L.C. d/b/a Verizon Wireless Amphitheater. The affida vit provided clear, direct , and positive evidence regarding the ownership of the pr emises where Pooser sustained he r injury. Pooser could have attempted to controvert this ev idence, but chose not to do so. See Trico , 949 S.W.2d at 310.

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Cox Radio also tendered the affi davit of its vice president/s tation manager, with various documents attached that reflected the contr actual relationship between Cox Radio and the Amphitheater. The documents establish the da tes and times for on ai r broadcasting and a schedule of promotional activities related to the Big F show. The station manager verified, and the contract documents support, that Cox Radi o, although entitled to e ngage in promotional activity, had no control over the premises where the injury occurred. Pooser asserts that this evidence was ambiguous and that the unsigned documents do not establ ish the relationship between Cox Radio and the Amphitheater. The i ssue, however, is not whether the documents created an enforceable contractual relationshi p between Cox Radio and the Amphitheater, but whether they support the station manager’s clear testimony that Cox Radio’s sole involvement in the Big F concert was to provi de promotional advertising. Pooser presented evidence that she learned about the concert from Cox Radio, that her ticket said the concert was “present[ed] by” Cox Radio, and that her ticket clearly indicated she would have a seat for the concert. She also proffered an affida vit from a security expert who testified that standing ro om only seating at rock concerts is da ngerous and that se curity at the Big F Show was insufficient. This evidence, however, does not raise a fact issue as to whether Cox Radio had a duty to Pooser based on the in jury she sustained in the mosh pit. See Van Horn , 970 S.W.2d at 544 (holding that any breach of duty on the part of the doctor amounted to medical negligence toward his patient, not a duty to the injured third party). Because the summary judgment evidence negate s the existence of a duty on Cox Radio’s part, the trial court did not e rr in granting Cox Radio’s trad itional summary judgment motion.

-6 -04-08-00270-CV C. No-Evidence Summary Judgment Cox Radio’s no-evidence motion for summary judgment challenged both the negligence and the breach of contract claims asserted by Poos er. Pooser asserts that the trial court erred in granting this motion because she presented evidence ra ising fact issues as to each of these causes of action. Pooser’s brief, however, does not c ontain an argument in support of her breach of contract claim. Therefore, the no-evidence summa ry judgment as to that claim is affirmed. See T EX
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. P. 38.1(h). As to Pooser’s negligence claim, she ar gues that the no-evidence summary judgment was improper because it did not addr ess her claims for negligent fa ilure to perform a contract, negligent failure to warn, and negligent misrep resentation, about all of which she presented evidence raising a fact issue. However, becaus e Pooser did not plead any of these causes of action in her live pleading, we need not consider the merits of her arguments on these unasserted claims. See Moore v. Moore , No. 04-00-00831-CV, 2001 WL 1360014, *4 n.1 (Tex. App.—San Antonio Nov. 7, 2001, pet. denied) ( not designated for publication). Even assuming Pooser raised these claims, the trial court still properly granted Cox Radio’s no-evidence summary judgment motion. Poos er’s claim of negligen t failure to perform a contract depends on the existence of a contract between Pooser and Cox Radio. Pooser argues that the summary judgment evidence “suggests so me type of contractua l consumer relationship between [her] and [Cox Radio].” We disagree. Pooser’s purchase of a ticket to a concert promoted by Cox Radio does not, in itself, create a contractual relationship between Pooser and Cox Radio. See Day v. Harkins & Munoz , 961 S.W.2d 278, 281 (Tex. App.—Houston [1st Dist.] 1997, no writ) (plaintiff’s pur chase of concert ticket did no t give rise to contractual

-7 -04-08-00270-CV obligation on part of physician who had contract ed with venue to be th e on-call physician to provide treatment to plaintiff). Pooser also contends that Cox Radio had a duty to warn her that she did not have an assigned seat and that standing room only seati ng is dangerous. There is no evidence of any conduct by Cox Radio that would give rise to such a duty. See Riley , 900 S.W.2d at 720. While a property owner has a duty to warn under certain circumstances, there is no evidence that Cox Radio owned the Amphitheater or printed the show tickets. See Apolinar v. Thompson , 844 S.W.2d 262, 263-64 (Tex. App.—San Antonio 1992, wr it denied) (citing examples of duty to warn). Nor is there any evidence of prior conduct by Cox Radio that warrants imposition of a duty to warn. Finally, Pooser claims that she presented ev idence raising a fact issue regarding a claim for negligent misrepresentation. However, Poos er presented no evidence of any representation by Cox Radio. In the absence of evidence that Cox Radio had any control over seating arrangements for the event, the mere fact that C ox Radio is identified as a promoter of the event on Pooser’s ticket does not mean that Cox Radio represented to P ooser that she has an assigned

seat. See Riley , 900 S.W.2d at 720. We conclude that the trial court did not err in granting Cox Radio’s no-evidence summary judgment motion. M OTION FOR N EW T RIAL Pooser asserts that the trial court committe d reversible error in denying her motion for new trial. She argues that she was entitled to a new trial because her coun sel could not attend the summary judgment hearing due to multiple scheduling conflicts and the trial court should not have held the heari ng in her absence.

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The standard of review for the trial court’s ruling on a motion for new trial is abuse of discretion. Strackbein v. Prewitt , 671 S.W.2d 37, 38 (Tex. 1984). Under an abuse of discretion standard, the court of appeals cannot overrule the trial court’s decision unle ss the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Beaumont Bank, N.A. v. Buller , 806 S.W .2d 223, 226 (Tex. 1991) . Moreover, the ap pellate court cannot substitute its judgment for the trial cour t’s reasonable judgment, even if it would have reached a contrary conclusion. Walker v. Packer , 827 S.W.2d 833, 839-40 (Tex. 1992) ; Buller , 806 S.W .2d at 226

. Pooser describes the summ ary j udgment hearing as “ex parte,” but this characterization is misleading. Pooser, and her counsel, had notice of the hearing, filed a timely response, and moved for a continuance of the hearing, but failed to set the motion for a hearing. Under these circumstances, the trial court did not err in conducting the hearing on Cox Radio’s motions for summary judgment in Pooser’s absence and did not abuse its di scretion in denying Pooser’s motion for new trial. See In re Am. Media Consol. , 121 S.W.3d 70, 74 (Tex. App.—San Antonio 2003, orig. proceeding) (“Parties are not enti tled to a hearing on a motion for summary judgment.” (citations omitted)); Enslow v. Caballero , No. 04-06-00083-CV, 2006 WL 2871346, at *2 (Tex. App.—San Antonio Oct. 11, 2006, no pet. ) (mem. op.) (party timely filed defective summary judgment responses but claimed not to know of defects; trial court did not abuse discretion in denying motion for new trial). C ONCLUSION The summary judgment evidence fails to rais e a genuine issue of material fact with regard to the existence of a duty on Cox Radio’s part and t hus, the trial court did not err in granting Cox Radio’s traditiona l summary judgment motion. A dditionally, Pooser failed to

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-10- present more than a scintilla of evidence that would allow reasonable minds to differ with regard to the no-evidence summary judgment. Finally, because Pooser and her counsel had notice of the hearing and failed to set the motion for continua nce, the trial court did not abuse its discretion in denying Pooser’s motion for new trial. Accordi ngly, we affirm the judgment of the trial court.

Rebecca Simmons, Justice