NUMBER 13-22-00279-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

KIMBERLY PICKENS, AS ADMINISTRATOR

FOR AND ON BEHALF OF THE 

ESTATE OF RAJOLEI DEJAHL PICKENS, 

INDIVIDUALLY, AND AS NEXT FRIEND 

OF WILLIAM PICKENS, DIEGO AJANI PICKENS, 

JUDAH NIRVAN PICKENS, AND 

ARUN GIL PICKENS, Appellant, 

v.

ROBERT J. HEWITT, Appellee.

 

ON APPEAL FROM THE 267TH DISTRICT COURT 

OF VICTORIA COUNTY, TEXAS

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Longoria and Peña

Memorandum Opinion by Justice Longoria
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Appellant Kimberly Pickens, as administrator for and on behalf of the Estate of 

Rajolei Dejahl Pickens, individually, and as next friend of William Pickens, Diego Ajani 

Pickens, Elijah Sol Pickens, Judah Nirvan Pickens, and Arun Gil Pickens, minors, appeal 

from the trial court’s granting of summary judgment in favor of appellee Robert J. Hewitt. 

In three issues, appellant challenges the trial court’s holdings that: (1) appellant did not 

have standing to sue Hewitt as she was not in privity of contract, (2) a premises liability 

case “must be based on a condition ‘of’ the premises,” and (3) the estate of Rajolei was 

not a legal entity that could sue or be sued. We affirm in part and reverse and remand in 

part.

I. BACKGROUND

On March 21, 2019, Rajolei was found dead on the outdoor patio of The Downtown 

Grill in Victoria, Texas. The Downtown Grill is owned and operated by Jamie Bowman. 

Bowman leased the premises from Hewitt. According to appellant’s original petition 

brought against Bowman, The Downtown Grill “served Rajolei with an exorbitant amount 

of alcohol.” The petition further alleged that even after Rajolei “presented a clear danger 

to himself and others,” The Downtown Grill continued to serve him alcohol. The petition 

states:

Later that night, R[a]jolei was on the bar patio. He told employees and 

owners of The Downtown Grill he was not feeling well, and he wanted to go 

home. Seeing that he was intoxicated, employees and agents of The 

Downtown Grill took R[a]jolei’s medical wellbeing and care upon

themselves and decided to not let him leave. Instead, The Downtown Grill 

kept R[a]jolei on the patio and laid him on a bench. EMS was not called and 

R[a]jolei was not monitored. Employees and agents of The Downtown Grill 

left R[a]jolei on the patio unattended. They closed and locked the bar for the 

night. R[a]jolei was left alone, passed out, and dangerously intoxicated from 

over service.
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Rajolei’s body was “found lifeless” on the patio the next afternoon by the 

employees of The Downtown Grill. Rajolei’s cause of death was determined to be 

“complications from acute alcohol intoxication.” Bowman answered with a general denial. 

Appellant subsequently filed an amended petition, adding Hewitt as a defendant and 

adding claims for negligence and premises liability based on Hewitt’s failure to evict 

Bowman despite knowing that Bowman violated the lease terms. Hewitt answered with a 

general denial which he later amended to include a statement that appellant does not 

“have the legal capacity to sue [Hewitt] as alleged in [the] petition and further that 

Defendant Hewitt is not liable in the capacity in which he has been sued as he is not an 

owner or proprietor of the ‘Downtown Bar & Grill.’”

Hewitt then filed special exceptions and appellant amended her petition for a 

second time, alleging causes of action against Hewitt for “negligence in failing to evict.” 

Appellant alleged that Hewitt retained the right to evict Bowman for violations of various 

state laws, including the overservice of alcohol. Hewitt filed a traditional and no evidence 

motion for summary judgment, asserting that appellant lacked standing to make a claim 

under the lease agreement between Hewitt and Bowman. Hewitt stated that he owed no 

duty to appellant and additionally asserted that the estate of Rajolei “is not a legal entity 

and does not have capacity to sue or be sued.” To his motion, Hewitt attached appellant’s 

second amended petition, the lease agreement between Hewitt and Bowman, and 

excerpts of Bowman’s deposition.

Appellant filed her third amended petition maintaining her claim for negligence 

against Hewitt and adding a premises liability cause of action against him, asserting that 
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the overservice of alcohol was a dangerous condition that Hewitt owed a duty to make 

safe through Bowman’s eviction. Appellant also filed a response to Hewitt’s traditional 

and no evidence summary judgment motion, attaching the lease agreement between 

Hewitt and Bowman as well as an “Alcohol Beverage Practices Report” by her expert, 

John A. Cocklin. The expert report detailed the incident with Rajolei, but it also presented 

a detailed accounting of incidents that occurred at the Downtown Grill beginning in 2010 

until Rajolei’s death in 2019. According to the expert report, from 2010 until Rajolei’s death 

in 2019, there were over fifty reports of criminal activity, including overly intoxicated 

individuals, at the Downtown Grill. The report explained that there were numerous bar 

fights, incidents of drug use, incidents in which several customers needed a taxi called 

due to their intoxication, and even an incident where a male was found sleeping in the 

outside dumpster by a waste removal company.

Hewitt filed a supplemental no evidence motion for summary judgment addressing 

the third amended petition and reiterating the grounds contained in his first motion, to 

which appellant replied. The trial court held a hearing on the pending motions and entered 

an order granting Hewitt’s traditional and no evidence motion for summary judgment. 

Hewitt moved to sever the claims against him and also requested an amended order to 

include a ruling on his supplemental summary judgment motion. The trial court signed an 

order severing the matter and stated a supplemental order “is to be entered,” but the 

record does not contain a supplemental order. Appellant filed a notice of appeal. This 

Court abated the appeal to determine finality. The trial court signed a clarifying order in 

which it confirmed that the supplemental summary judgment motion was also granted. 
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The appeal was then reinstated.

II. SUMMARY JUDGMENT

Appellant raises three issues on appeal challenging the trial court’s grant of 

summary judgment.

A. Standard of Review

We review a summary judgment de novo. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 

70, 79 (Tex. 2015). A party may move for both a traditional and a no-evidence summary 

judgment at the same time. Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 194 

(Tex. App.—El Paso 2016, no pet.); see also TEX. R. CIV. P. 166a(c), (i). If we determine 

the no-evidence summary judgment was properly granted, we need not reach arguments 

under the traditional motion for summary judgment. See Ford Motor Co. v. Ridgway, 135 

S.W.3d 598, 600 (Tex. 2004).; TEX. R. APP. P. 47.1.

In a no-evidence summary judgment motion, the defendant must show that 

adequate time for discovery has passed, and the plaintiff has failed to produce any 

evidence to support one or more essential elements of a claim for which the plaintiff would 

bear the burden of proof at trial. TEX. R. CIV. P. 166a(i); KCM Fin. LLC, 457 S.W.3d at 79. 

We review a no-evidence motion for summary judgment under the same legal sufficiency 

standard used to review a directed verdict. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 

306, 310 (Tex. 2009). Once a no-evidence motion is filed, the burden shifts to the 

nonmoving party to present evidence that raises a genuine issue of material fact as to 

each element specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 

(Tex. 2006). The trial court must grant a no-evidence motion for summary judgment 
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unless the respondent produces summary judgment evidence raising a genuine issue of 

material fact. TEX. R. CIV. P. 166a(i). When reviewing a no-evidence summary judgment, 

we “review the evidence presented by the motion and response in the light most favorable 

to the party against whom the summary judgment was rendered, crediting evidence 

favorable to that party if reasonable jurors could, and disregarding contrary evidence 

unless reasonable jurors could not.” Mack Trucks, 206 S.W.3d at 582.

A defendant moving for traditional summary judgment must state the specific 

grounds for the motion and further 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); KCM Fin. LLC, 

457 S.W.3d at 79. A defendant who conclusively negates at least one essential element 

of a cause of action or conclusively establishes all the elements of an affirmative defense 

is entitled to summary judgment. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). The 

non-moving party is not required to marshal all of its proof in response to a summary 

judgment motion, but it must present evidence that raises a genuine fact issue on the 

challenged elements. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

B. Analysis

1. Negligence Cause of Action

By her first issue, appellant argues that the trial court erred in finding that she did 

not have standing to sue because she did not have privity of contract to enforce the lease 

between Hewitt and Bowman. Appellant argues that privity of contract is not required 

because she has standing “under a premises liability theory.” Specifically, appellant 

argues that she is not trying to establish third party standing to enforce the lease, but 
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rather to “to show Robert Hewitt’s reservation [of his right to evict] and intent to evict 

should Jamie Bowman and The Downtown Grill use the premises for a criminal purpose 

or allow others to commit crimes on the premises.” Appellant urges that she brought a 

“premise[s] liability cause of action and not a third-party breach of contract case.” 

However, in her claim against Hewitt for negligence in failing to evict, appellant argues

that Hewitt retained the right to evict Bowman and that Hewitt “had actual and/or 

constructive knowledge” of lease violations, specifically including prior violations 

concerning overservice of alcohol on the property.

The common law doctrine of negligence consists of three elements: (1) a legal duty 

owed by one person to another, (2) a breach of that duty, and (3) damages proximately 

resulting from the breach. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 

(Tex. 1990); Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 605 (Tex. App.—Corpus 

Christi–Edinburg 1997, writ denied). The threshold inquiry in a negligence case is duty. 

Holt, 946 S.W.2d at 605. Appellant’s argument is solely focused on her premises liability 

action. Appellant presented no evidence at trial, and presents no argument on appeal, as 

to how Hewitt owed a duty to appellant to evict. Therefore, the trial court did not err in 

dismissing the negligence cause of action. See id. We overrule appellant’s first issue as 

it relates to the negligence cause of action.

2. Premises Liability Cause of Action

In his supplemental no evidence summary judgment motion, Hewitt argued that 

there was no evidence “of a condition that posed an unreasonable risk of harm,” and as 

such, appellant’s premises liability cause of action fails.
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To succeed on a premises liability claim, an invitee must prove the following 

elements: (1) actual or constructive knowledge of a condition on the premises by the 

owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3) that the 

owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and 

(4) that the owner or occupier’s failure to use such care proximately caused the plaintiff’s 

injury. CMH Homes, Inc. v. Daenena, 15 S.W.3d 97, 99 (Tex. 2000). Premises liability 

encompasses a nonfeasance theory based on the owner’s failure to take measures to 

make the property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 

2010). Criminal activity at a bar has been held to be a condition that poses an 

unreasonable risk of harm. See id. Hewitt, however, argues that there was no evidence 

to support an argument that there was a condition on the property that posed an 

unreasonable risk of harm. Appellant presented evidence that there was a history of 

criminal activity related to the overserving of alcohol on the premises, specifically the 

expert report detailing that there were over fifty reports of criminal activity, including overly 

intoxicated individuals, at the Downtown Grill. The evidence that on multiple prior 

occasions there was criminal activity, including the overservice of alcohol to patrons, at 

the location, raises a fact issue as to the element of whether “an unreasonable risk or 

harm” existed on the property. Accordingly, we sustain appellant’s issue as it relates to 

her premises liability claim.

3. Legal Entity

In her final issue, appellant argues it was error for the trial court to grant summary 

judgment on Hewitt’s argument that the “Estate of Rajolei Dehahl Pickens ‘is not a legal 
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entity and does not have capacity to sue of be sued.’” Appellant contends that Hewitt’s 

argument is unfounded because she is the administrator of Rajolei’s estate and has full 

capacity to bring the survival action. We agree. In general, only the estate’s personal 

representative has the capacity to bring a survival claim. Frazier v. Wynn, 472 S.W.2d 

750, 752 (Tex. 1971) (“[T]he personal representative . . . is ordinarily the only person 

entitled to sue for the recovery of property belonging to the estate.”); see also Shepherd 

v. Ledford, 962 S.W.2d 28, 31 (Tex.1998). Accordingly, in her capacity as the personal 

representative of Rajolei’s estate, appellant had the capacity and standing to bring a 

survival claim. Therefore, to the extent the trial court granted summary judgment on this 

argument, it was error. We sustain appellant’s third issue.

III. CONCLUSION

We affirm the trial court’s judgment granting of summary judgment as to appellant’s 

negligence action. We reverse the remainder of the judgment and remand for further 

proceedings consistent with this memorandum opinion.

NORA L. LONGORIA

Justice

Delivered and filed on the

27th day of June, 2024.