IN THE

TENTH COURT OF APPEALS

No. 10-09-00380-CV

THOMAS WAYNE GIFFORD,

Appellant

v.

DAVID KELLEY,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 08-C-3694

MEMORANDUM OPINION

Thomas Wayne Gifford sued David Kelley1 for injuries Gifford sustained on 

Kelley’s business premises. Kelley filed a no-evidence motion for summary judgment 

which the trial court granted. See TEX. R. CIV. P. 166a(i). Gifford appealed. Because the 

trial court did not err in granting Kelley’s motion for summary judgment, the trial 

court’s judgment is affirmed.

 

1 Kelley’s name has been improperly spelled by Gifford throughout this proceeding. We will use the 

proper spelling.
Gifford v. Kelley Page 2

In his sole issue, Gifford argues that the trial court erred in granting summary 

judgment in favor of Kelley. But first, we must address the question raised by Kelley: 

do we have jurisdiction of this appeal?

Jurisdiction

The summary judgment in this case was signed by the trial court on September 3, 

2009. Gifford filed a motion for new trial on November 20, 2009, 48 days late. TEX. R.

CIV. P. 329b(a). However, under the Texas Rules of Civil Procedure, a party can extend 

pertinent post-trial deadlines if he does not learn of the adverse judgment within 20 

days of its entry. See TEX. R. CIV. P. 306a. Kelley contends that Gifford did not comply 

with Rule 306a in order to receive its benefits. 

We looked at this issue when the appeal was filed and determined that we had 

jurisdiction of this appeal. Gifford filed a verified motion for new trial more than 20 

days but less than 91 days after he received notice of the trial court’s judgment. See TEX.

R. CIV. P. 306a; see also In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006). In that motion, he 

stated he received notice of the trial court’s judgment by letter dated October 23, 2009. 

He attached a copy of that letter to the motion as an exhibit. The copy is stamped 

“received” on October 27, 2009. The sworn motion establishes a prima facie case that 

Gifford lacked timely notice and invokes a trial court's otherwise-expired jurisdiction 

for the limited purpose of holding an evidentiary hearing to determine the date on 

which the party or its counsel first received notice or acquired knowledge of the 

judgment. In re Lynd Co., 195 S.W.3d at 685. 
Gifford v. Kelley Page 3

It is unclear from the record whether a hearing was held in open court, but the 

trial court, in its Order on Motion for New Trial and Motion for Reconsideration, found 

that there was good cause for the untimely filing of the motion and “for all current 

purposes of this Court and for any future appellate purposes, considers this Motions as 

having been timely filed.” (Emphasis and spelling as in original order.) The trial court 

did not enter a specific date of when Gifford received notice of the court’s judgment, 

but when the trial court fails to specifically find the date of notice, the finding may be 

implied from the trial court's judgment, unless there is no evidence supporting the 

implied finding or the party challenging the judgment establishes as a matter of law an 

alternate notice date. Id. at 686. As stated previously, Gifford attached evidence to his 

verified motion for new trial that the notice letter was received on October 27, 2009. 

There is no evidence refuting Gifford’s claim in the record before us. Therefore, a 

finding is implied that Gifford received notice of the trial court’s judgment on October 

27, 2009. 

Gifford’s notice of appeal was then timely filed on November 19, 2009. See TEX.

R. APP. P. 26.1(a). Accordingly, we have jurisdiction of this appeal.

Summary Judgment

Gifford alleged in his first amended petition that he was invited onto the 

business premises of Kelley’s to work and was seriously injured as a result of a 

dangerous condition. He further alleged that his injury was a direct result of a fall that 

was proximately caused by the dangerous condition of which Kelley knew or should 

have known. According to Kelley’s motion for summary judgment, Gifford fell at the 
Gifford v. Kelley Page 4

base of a ramp to a trailer located on Kelley’s property. Kelley contended that there was 

no evidence to support the following elements of Gifford’s suit:

1) that the condition on Kelley’s property posed an unreasonable risk of 

harm;

2) that Kelley knew, or reasonably should have known of the danger;

3) that Kelley failed to exercise reasonable care to reduce or eliminate the 

risk; and

4) that Kelley’s failure to use such care proximately caused Gifford’s 

injuries.

A no-evidence motion for summary judgment must be granted if, after adequate 

time for discovery, the moving party asserts that there is no evidence of one or more 

specified elements of a claim or defense on which the adverse party would have the 

burden of proof at trial and the respondent produces no summary judgment evidence 

raising a genuine issue of material fact on those elements. LMB, Ltd. v. Moreno, 201 

S.W.3d 686, 688 (Tex. 2006); Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006); see 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, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 

S.W.3d 193, 208 (Tex. 2002)). 
Gifford v. Kelley Page 5

If the respondent brings forth more than a scintilla of probative evidence to raise 

a genuine issue of material fact on each challenged element, a no-evidence summary 

judgment cannot properly be granted. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 

2009). But conclusory statements are not competent evidence and will not raise a fact 

issue to defeat summary judgment. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 

(Tex. 1997); see also City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009); LMB, 

Ltd. v. Moreno, 201 S.W.3d 686, 689 (Tex. 2006).

The only evidence presented by Gifford was his affidavit attached to his 

response to the motion for summary judgment. In the affidavit, Gifford states in 

pertinent part:

“2. The case’s issues are inherent fact such as ‘reasonable care’ and subjective 

negligence.

The condition on Defendant David Kelley’s property posed an unreasonable risk 

of harm.

3. Defendant David Kelley knew or reasonably should have known of the 

danger.

4. Defendant David Kelley failed to exercise reasonable care to reduce or 

eliminate the risk; and

5. Defendant David Kelley’s failure to use such care proximately caused my

injuries.”

Gifford’s assertions in his affidavit are nothing more than conclusions 

affirmatively stating the legal elements of his causes of action and therefore do not 

comprise evidence that some premises condition or an act or omission of Kelley was 

causally related to Gifford’s resulting injuries. His statements fail to address any 
Gifford v. Kelley Page 6

particular condition of the premises, conduct of Kelley, or underlying facts on which his 

conclusions are based. His affidavit does not set out specific facts from which a jury 

could reasonably infer that Kelley knew or should have known of some unreasonably 

dangerous condition of the premises which was involved in Gifford’s injury. Nor does 

his affidavit amount to more than a bare conclusion that some unknown conduct, or

omission, of Kelley was a proximate cause of unspecified injuries. These conclusory 

statements are not competent evidence and do not raise a fact issue to defeat Kelley’s 

no-evidence summary judgment motion. 

Accordingly, there being no evidence presented by Gifford on any of the 

elements attacked by Kelley, the trial court did not err in granting the motion for 

summary judgment. Gifford’s sole issue is overruled.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed May 5, 2010

[CV06]