### NO.13-15-00072-CV

IN THE COURT OF APPEALS THIRTEENTH COURTS OF APPEALS DISTRICT CORPUS CHRISTI/EDINBURG,TEXAS

JIMMIE DONNAN

Appellant 1~~ HIMCO REALTY CORPORATION AND MAURICE REYNOLDS Appellees

APPELLEES'BRIEF Respectfully submitted, HUNTER*BARKER*FANCHER, LLP F.Edward Barker State Bar No.01741000 Floyd W.Brown,Jr. State Bar No.00796254 555 N. Carancahua,Suite 1200 Corpus Christi,Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEES HIMCO REALTY CORPORATION AND MAURICE REYNOLDS ACCEPTED 13-15-00072-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 6/16/2015 11:18:38 AM CECILE FOY GSANGER

CLERKLIST OF PARTIES

Appellant Jimmie Dorman Appellant's Counsel John J. Hopkins State Bar No. 00796775 THE LAW OFFICES OF THOMAS J. HENRY 521 Starr Street Corpus Christi, Texas 78401 Telephone: 361-986-0600 Facsimile: 361-985-0601 Appellees KIMCO Realty Corporation and Maurice Reynolds Appellee's Trial Counsel F. Edward Barker State Bar No. 01741000 HUNTER*BARKER*FANCHER,LLP 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437 Appellee's Appellate Counsel Floyd W.Brown,Jr. State Bar No. 00796254 HUNTER*BARKER*FANCHER,LLP 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-884-8777 Facsimile: 361-882-9437

iiTABLE OF CONTENTS

List ofParties.................................. ................... ii Index ofAuthorities................................................ iv Statement ofthe Case............................................... v Statement Concerning Oral Argument..................................vii Issues Presented....................................................vii Statement ofFacts.................................................. 1 Summary ofArgument

...............................................2 Argument.........................................................4 I. Standard ofReview....................................... 4 II. Reply Issue No. 1: The Trial Court ruled correctly in finding noevidence ofactual or constructive knowledge ofa premises defect 4 A.Appellant's misstatement ofthe Record .................... 4 B. There is no evidence of actual or constructive knowledge of an alleged defect ........................................... 6 C.Reliance on Cohen v. Land~y's Inc. is misplaced ............. 9 D.Appellant waived argument by failing to raise issue at Trial Court

...................................................... 11 III. II. Reply to issue No. 2: Appellant has waived issue No. 2 by failing to briefthe issue before this Court .............................. 13 IV. Conclusion ............................................ 14 V. Prayer..................................................14 iiiINDEX OF AUTHORITIES

INDEX OF AUTHORITIES Cases City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979)

................................................................ 11 CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000) ............7,13, Cohen v. Landry's Inc., 442 S.W.3d 818 (Tex. App.-Houston[14th Dist.] 2014,pet. denied) ..................................................... 9,10,11 Corbin v. Safeway Stores, 648 S.W.2d 292, 295 (Tex. 1983) ............. 7, 13 DelLargo Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) ........... 6, 13 F. W. Woolworth Co. v. Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo 1941,writ refld w.o.m.) ............................................. 7 H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992) ...... 13, 14 McDanielv. ContinentalApartments.Ioint Venture,887 S.W.2d 167, 171(Tex.App.- Dallas 1994, writ denied) ........................................... 14 Smith v. Tilton, 3 S.W.3d 77, 84 (Tex. App.-Dallas 1999,no pet.) ......... 7,13 Wal-Mart Stores, Inc. v. Reece, 81 S. W.3 d 812, 815 (Tex. 2002) ............. 7 Wooldridge v. Gross National Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.-Waco 1980,no writ) ................................................... 12

Court Rules Tex. R. Civ. P. 166a (c) ............................................. 11 Tex. R. Civ. P. 166a(i) ............................................. 4, 6 ivSTATEMENT OF THE CASE

This is an appeal from a Summary Judgment granted on October 17, 2014 in Cause No. 2013-CCV-60590-2,Jimmie Dorman v. Kimco Realty Corporation , et al, by County Court at Law No. 2,Nueces County,Texas,the Honorable Lisa Gonzales presiding.(CR 1325).Plaintiff/Appellant filed suit on April 2,2013 seeking personal injury damages allegedly sustained from a fall that occurred on November 5, 2012. (CR 12-19). Plaintiff/Appellant originally brought suit against KIMCO Realty Corporation and Maurice Reynolds,the owner ofIsland Gate Plaza Shopping Center and the property manager of the facility.(CR 12-19).Plaintiff/Appellant amended her Petition to join Bed Bath &Beyond, Inc. and Elite Commercial Services, Inc. on March 17, 2014 and April 14, 2014 respectively. (CR 267-275 and CR 316-324). Plaintiff/Appellant asserted claims sounding in premises liability and negligence against KIMCO Realty Corporation and Maurice Reynolds (CR 316-324). On February 21, 2014 Defendants/Appellees filed a Traditional Motion for Summary Judgment relating to Plaintiff/Appellant's negligence related allegations. (CR 228-253). On June 10,2014 Defendants/Appellees filed a No-Evidence Motion for SummaryJudgmentrelating toPlaintiff/Appellant'spremises liability allegations. (CR 355-367). Bed Bath &Beyond and Elite Commercial Services filed dispositive motions on September 10,2014 and September 18,2014.(CR 542-774) respectively

v(CR 542-774; 781-801). Plaintiff/Appellant filed a Joint Response to all of the

Defendants' Motions for Summary Judgments relating to Plaintiff's negligence claims on October 3, 2014. (CR 847-888). Plaintiff/Appellant also filed a Joint Response to all of the Defendants' Motions for Summary Judgment relating to Plaintiff's premises liability claims on October 3, 2014.(CR 889-1168). On October 16, 2014 and October 17, 2014 The Honorable Lisa Gonzalez granted each Defendant's Traditional and No-Evidence Motions for Summary Judgments. (CR 1317-1326). Appellant filed a Notice of Appeal solely as to her claims againstKIMCO Realty Corporation and Maurice Reynolds.(CR 2168-2169). Appellant's appeal is limited to her premises liability claims against KIMCO Realty Corporation and Maurice Reynolds. (Appellant's Briefpg. 5).

viSTATEMENT CONCERNING ORAL ARGUMENT

This is an appeal from a No-Evidence Summary Judgment granted in a premises liability suit based upon no evidence ofactual or constructive knowledge ofthe alleged premises defect.Appellees contend oral argumentis unnecessary in this

case. In the event this Honorable Court requests oral argument from Appellant, Appellees would respectfully request the opportunity to participate in arguments and be afforded the opportunity to respond to Appellant's argument. ISSUES PRESENTED Re~ly to Issue No. 1: The Trial Court ruled correctly in finding no evidence ofactual

or constructive knowledge ofa premises defect. Re~ly to Issue No.2:Appellant waived Issue 2by failing to briefthe issue before this Court.

viiSTATEMENT OF FACTS

On November 5, 2012 Jimmie Donnan was walking on a sidewalk in front of the Bed Bath &Beyond store located at the Island Gate Shopping Center in Corpus Christi,Texas.(CR 13)Ms.Dorman alleges that she tripped on a plumbing drain cap cap located in the sidewalk and sustained injuries as a result ofthe fall. (CR 13)Ms. Dorman brought suit against Kimco Realty Corporation, the management company for Island Gate Shopping Center and the property manager,Maurice Reynolds.(CR 12)Plaintiff later joined Elite Commercial Services, Inc. and Bed Bath &Beyond, Inc. (CR 316) Plaintiff made allegations sounding in negligence and premises liability.(CR 318-321)In Plaintiff's Petition she alleged "it is unclear whether the unsafe condition was a condition that existed on the premises or had recently arisen from some sort of activity." (emphasis added)(CR 318) On February 21,2014Defendants, KIMCO Realty and Maurice Reynolds,filed

a Traditional Motion for Summary Judgment addressing Ms.Donnan's negligence theories ofrecovery.(CR 228)On June 10, 2014 KIMCO Realty and Reynolds filed

a No-Evidence Motion for Summary Judgment addressing Plaintiff's premises liability claims.On October 3,2014Plaintifffiled separate Responses to Defendants' Traditional and No-Evidence Motion for Summary Judgments.(CR 847, 889). On October 17,2014the Honorable Lisa Gonzales signed an Order granting Defendants' 1Traditional and No-Evidence Motions for Summary Judgment.(CR 1325)

Plaintiff/Appellant has brought this appeal complaining of the Trial Court's granting of Defendant/Appellees' No-Evidence Motion for Summary Judgment relating to her premises liability claim. (Appellant's Briefpg. 5). The Trial Court properly granted Appellees' Motion for Summary Judgment

as there is no evidence that Defendants had actual or constructive knowledge of an alleged premises defect. There was no evidence that Appellees had actual knowledge ofan alleged defect, as admitted by Appellant. (Appellant's Briefpg. 10)Similarly, there is no temporal evidence establishing constructive knowledge of an alleged defect. SUMMARY OF ARGUMENT To prevail in a premises liability claim the claimant mustpresent evidence that the defendant had actual or constructive knowledge of an alleged defect in the premises.In the absence ofevidence ofactual knowledge there must be evidence that

a defect existed for a period oftime sufficient to establish that the defendant should have known ofthe defect. Without some temporal evidence, there is no basis upon which a factfinder can reasonably assess the opportunity the premises owner had to discover the condition and therefore constructive knowledge cannot be found.

2Appellant, in Response to Appellees' No-Evidence Motion for Summary

Judgment,acknowledged that there was no evidence ofactual knowledge on behalf of Defendants, KIMCO Realty and Maurice Reynolds. (CR 895) Additionally, Appellant failed to produce any evidence that KIMCO Realty or Maurice Reynolds had constructive knowledge of an alleged defect. Appellant admitted that it was unknown ifthe alleged defect had just occurred or had existed on the premises for a period oftime.(CR 318)Summary Judgment was properly granted as to Appellant's premises liability cause of action. Appellant did not raise a point issue error regarding to her negligence related

causes ofaction. Appellant did present an issue that the Appellees were negligent in failing to provide safe ingress and egress onto the property. (Appellate's Briefpage 6) Appellant failed to briefthis issue and therefore the issue is waived. Irrespective ofthe waiver,the issue presented,as worded,relates to Appellate's premises liability

cause of action.

3ARGUMENTS AND AUTHORITIES

I. STANDARD OF REVIEW In a No-Evidence Motion for Summary judgment the movant "must state the elements as to which there is no evidence." Tex. R. Civ.P. 166a(i). Ifthe movant has identified specific elements he claims lack evidence, the Appellate Court must determine de novo whether the non-movant has produced more than a scintilla of probative evidence to raise a genuine issue ofmaterial fact. Clearview Props., L.P.

v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 137 (Tex. App.-Houston[14th Dist.] 2009,pet. denied). Ifthe non-movant fails to produce summary judgment evidence that raises a genuine issue ofmaterial fact the trial court must grant the No-Evidence Motion for Summary Judgment. Tex. R. Civ. P 166a(I). II. Re~ly Issue No.1: The Trial Court ruled correctly in finding no-evidence of actual or constructive knowledge of a premises defect. A.Appellant's misstatement of the Record Appellant has brought this appeal complaining ofthe granting ofAppellees' Motion for Summary Judgment relating to Appellant's premises liability claim. (Appellant's Brief pg. 5) In support of her arguments Appellant alleges that Appellees' Summary Judgment was based, in part, upon the affidavit of Maurice Reynolds. (Appellant's Brief pg. 9). Appellant further alleges that the allegedpremises defect, a drain cap, was only accessible by Appellants. (Appellant's Brief

pg. 10) Appellees'arguments relating to these statements are incorrect and border on contemptuous. Appellees filed a No-Evidence Motion for Summary Judgment relating to Appellant's premises liability claim. (CR355-358). Appellees did not rely upon the affidavit ofMaurice Reynolds in support oftheir No-Evidence Motion for Summary Judgment.

(CR355-358)

Appellees moved for summaryjudgmentbased uponthe lack ofevidence ofactual or constructive knowledge ofa defect, an essential element to Appellant's premises liability claim. (CR355-358). In doing so Appellees were not required to rely upon any evidence pursuant to Tex.R. Civ.P. 166a(i).Appellantbore the burden ofproducing evidence ofactual or constructive knowledge. Additionally,Appellant is incorrect in misleading this Court by alleging that the drain cap was only accessible by or through the acts of the Appellees. (Appellant's Brief pg. 10) Appellant directs the Court to the testimony of Steve Eshleman in support ofthis argument. (Appellant's Briefpg. 10)The testimony of Mr. Eshleman in no way indicated that the drain cap was only accessible by Appellees. In fact,the drain cap is open to the general public and can be manipulated by any individual walking on the sidewalk.(CR1143-1146) These arguments should be disregarded by this Court as the arguments are incorrect and unsupported by the

5Record in this matter.

B.There is no evidence of actual or constructive knowledge ofan alleged defect To prevail in a premises liability action the plaintiffmust produce evidence ofthe following elements: (1)the plaintiffwas an invitee; (2)the defendant was the possessor ofthe premises;(3) a condition on the premises posed an unreasonable risk ofharm;(4)

the defendant knew or reasonably should have known ofthe danger;(5) thatthe defendant breached its duty ofordinary care by failing to adequately warn the plaintiffofthe condition or failing to make the condition reasonably safe; and (6) the defendant's breach proximately caused the plaintiff's injury.DelLargo Partners v. Smith,307 S.W.3d 762,767(Tex.2010); Corbin v. Safeway Stores,648 S.W.2d 292, 295 (Tex. 1983). A defendant has actual knowledge ofa premises defect if it actually knew of the defect. Keetch v. TheKroger Co.,845 S.W.2d 262,265(Tex. 1992).Constructive knowledge is based upon the defect existing long enough that the defendant should have known ofthe defect. See, Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex. 2002).The rule requiring proof that a dangerous condition existed for some length oftime before a premises owner may be charged with constructive knowledge is firmly rooted in Texas jurisprudence. Wal-Mart Stores, Inc. 81 S.W.3d at 815.

.~There is no rule oflaw that is better established in this state. F.W. Woolworth Co. v.

Goldston, 155 S.W.2d 830, 832(Tex. Civ. App.-Amarillo 1941, writ ref d w.o.m.). The so called time-notice rule is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy the a dangerous condition. CMHHomes,Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000).Without some temporal evidence, there is no basis upon which the factfinder can reasonably assess the opportunity the premises owner had to discover the dangerous condition. WalmartStores,Inc., 81 S.W.3d at 815. Before liability can be imposed on the premises owner for failing to discover and rectify, or warn of,the dangerous condition,there must be some proofas to how long the hazard was there. 

### Id. In the case at bar Appellant failed to provide any evidence of actual or constructive knowledge.Appellant did not direct the Trial Court nor this Honorable Courtto any evidence,much less a scintilla ofevidence,ofactual knowledge.In fact, Appellant states in her Brief "[t]here has been no evidence discovered that suggest that any ofthe Appellees had actualknowledge so Appellantmust show that they had constructive knowledge ofthe defect." (Appellant's Briefpg. 10)

7Despite this admission Appellantattemptsto misdirectthis Courtby suggesting

Appellees had actual knowledge as a result oftheir alleged exclusive access to the drain cap.Appellant attempts to imply that Appellees "must have"actual knowledge because Appellees had exclusive access to the drain cap and must have created the defect. (Appellant's Brief pg. 10) As mentioned above, Appellant's argument is unsupported as the drain cap was accessible to the general public. (CR 1143-1146) There is no evidence that Appellees "must have" created the danger. Appellant's argument is simply that- argument by counsel completely unsupported by the record

or the evidence. There is no evidence ofactual knowledge. Likewise,there is no evidence ofconstructive knowledge of the alleged defect. To establish constructive knowledge the Appellant is required to provide some temporal evidence to establish thatthe premises ownerhad an opportunity to discover the defect. Walma~tStores,Inc. v. Reece,81 S. W.3 d at 815.Appellant acknowledges the lack of temporal evidence in her pleadings wherein she states "it was unclear whether the unsafe condition was a condition that existed on the premises or had recently arisen." (CR 837) Appellant did not provide any evidence that would establish the length of time the allege defect existed before the accident occurred. Without such evidence there is no evidence of constructive knowledge. Walma~t Stores, Inc., 81 S.W.3d at 815.Realizing the lack oftemporal evidence Appellant attempted to rely upon the

theory ofyes ipsa loquito~ in an attempt to establish knowledge.(CR 840) Res Ipsa does not satisfy a plaintiff's burden to supply evidence ofa defendant's knowledge ofa dangerous condition in a premises liability action. Parks v. Steak &Ale ofTex., Inc.,2006 WL 66428 at *2-3 (Tex.App.-Houston[1st Dist.] 2006,pet. denied)Thus, Appellant's attempt to rely upon yes ipsa loquitor to establish actual or constructive knowledge is unfounded. C.Reliance on Cohen v. Landry's Inc. is misplaced Appellant relies upon Cohen v. Landry's Inc.' in support ofher argument that Appellees had actual or constructive knowledge of the alleged premises defect. (Appellant's Brief pgs. 16-17) Appellant's reliance on Cohen is misplaced as the Houston Court of Appeals found actual or constructive knowledge based upon completely distinguishable facts. In Cohen, the Fourteenth Court of Appeals found that Defendant, Landry's Inc.,knew or should have known ofa slight elevation in the sidewalk caused by tree roots growing underneath the sidewalk. Cohen v. Landry's Inc.,442 S.W.3d 826-27 The Court referred to an expert report included in the summary judgment evidence

' Cohen v. Landry's Inc., 442 S.W.3d 818 (Tex. App.-Houston[14th Dist.] 2014,pet. denied) Dwhich noted that small changes in elevations ofsidewalks caused by tree roots occur

over a period oftime.Id. Thus,due to the fact that the defect is created over a `period oftime" a reasonable inspection would have revealed the defect. Id. In a case such a Cohen, there is temporal evidence sufficient to establish constructive knowledge. The summary judgment evidence established that the tree roots take a period oftime to create the defect in the sidewalk. This period oftime is sufficient to allow a factfinder to determine that the Defendant should have discovered the defect. In the case at bar there is no summary judgment evidence that establishes that the alleged defect,a raised drain cap,takes a period oftime to develop. Appellant's Briefillustrates the lack ofevidence necessary to establish thatthe alleged defecttook time to create. Appellant states the alleged defect must have been "created by Appellees or, in the alternative, have occurred over a length oftime". (Appellant's Brief pg. 7)Appellant does not know because there is no evidence. Additionally, Appellant's pleadings illustrate the lack oftemporal evidence necessary to establish constructive knowledge. Appellant's Third Amended Petition stated "it is unclear whether the unsafe condition was a condition that existed on the premises or had recently arisen." (CR 837) The lack of temporal evidence in this case clearly distinguishes Cohen case from the case at bar. 10D.Appellant waived argument by failing to raise issue at Trial Court

A party responding to a Motion for Summary Judgmentmustexpressly present to the trial court, by written answer or response, any issues defeating the movant's entitlement to Summary Judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671,678 (Tex. 1979)(the written answer or response must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion)Issues not expressly presented to the trial court by written motion,answer or response shall not be considered on appeal as grounds for reversal. See, Tex. R. Civ. P. 166a(c). Summary Judgments must stand or fall on their own merits. Clear Creek, 589 S.W.2d at 678. In response to Appellees' No-Evidence Motion for Summary Judgment Appellant filed over 265 pages of documents. (CR 901-1168) Included in her summary judgment evidence Appellant filed the report ofGary Nelson, an eighteen page single spaced report. (CR 1150-1167)Appellant did not direct the Trial Court

nor Appellees to any specific language or portion of the Nelson report, but rather simply stated that the report illustrates Appellees' failure to "identify, evaluate and control" premises defects. (CR 897) A failure to identify, evaluate and control premises defects relate to a party's duty to inspect and warn ofpremises defects, an element not attacked by Appellees. 11For the first time on appeal Appellant directs the Court to specific language in

the Nelson reportand argues thatthe language illustrates Appellees'failure to inspect the premises. (Appellant's Briefpg. 16)Appellant failed to direct the trial court to these arguments and failed to refer the trial court to the specific language in the report. A trial court is not required to sift through a party's evidence in an attempt to find a fact issue to defeat a Motion for Summary Judgment. Wooldridge v. Gross NationalBank,603 S.W.2d 335,344(Tex.Civ.App.-Waco 1980,no writ)Appellant has waived these arguments for failure to expressly present the arguments to the trial court. Clear Creek, 589 S.W.2d at 678. Irrespective ofAppellant's waiver,the language referred to by Appellant does not create a fact issue relating to actual or constructive knowledge.The Nelson report criticizes Appellees for failing to inspect the premises. Failure to inspect is simply

one element of a premises liability claim. A claimant is still required to produce evidence of actual or constructive knowledge. Del Largo Partners, 307 S.W.3d at 767; Corbin, 648 S.W.2d at 295. There still must be evidence that the condition did

occur for a sufficient length of time so that a reasonable inspection would have revealed it. CMHHomes,Inc., 15 S. W.3 d at 102-03 Appellantproduced no temporal evidence and therefore there is no evidence ofactual or constructive knowledge.The Trial Courtcorrectly granted Appellees'No-Evidence Motion for Summary Judgment

12relating to Appellant's premises liability claim.

III.Reply to issue No.2: Appellant has waived issue No.2 by failing to briefthe issue before this Court Appellant presented two issues to the Court,however failed to briefand argue Issue No.2.(Appellant's Briefpg. 6) Appellant presented an issue stating "[t]he trial court erred in ruling that Appellees were not negligent in their failure to provide a safe ingress and egress to the Bed Bath &Beyond." (Appellant's Brief pg. 6) Appellant failed to briefthis issue and provided no argument or authorities in support of this issue. Appellant certainly did not make any argument that a "negligent activity" was occurring at the time ofthe accident. More importantly,Appellant did not provide any argument relating to this issue.Points oferror asserted on appeal but not briefed are waived.Smith v. Tilton, 3 S.W.3d 77, 84 (Tex. App.-Dallas 1999,no pet.) Pleading in the alternative, and only should this Court find that Appellant did not waive Issue no. 2, Appellant's Issue No. 2 is an attempt to reword a premises claim and make a claim of negligence. When the alleged injury is the result of a premises condition the injured party can only recover under a premises defect theory. H.E. Butt Grocery Co. v. Wainer, 845 S.W.2d 258,259 (Tex. 1992)Phrasing ofthe pleadings to encompass negligence theories does not affect application ofpremises

13liability law. McDaniel v. Continental Apartments Joint Venture, 887 S.W.2d 167,

171(Tex. App.-Dallas 1994, writ denied) As stated above,in the case at bar there was no evidence presented to the trial court sufficient to establish actual or constructive knowledge on behalf of the Appellees.The absence of an essential elementof Appellant'spremises liability claim made Summary Judgment proper in this matter. 

### IV. CONCLUSION Appellant failed to provide any evidence that Appellees had actual or constructive knowledge ofan alleged premises defect.Temporal evidence isrequired to establish constructive knowledge and Appellant did notdirectthe trial court orthis Court to any evidence ofthe length oftime the alleged premises defect existed. As such, the Trial Court was correct in granting Appellees' Motion for Summary Judgment. V. PRAYER Wherefore,

premises considered,Appelleesrespectfully requestthis Honorable Courtto Affirm the Judgment ofthe Trial Court.Additionally,Appellees pray for any other reliefthey are entitled to at law or in equity.

14Respectfully submitted, T ~kBARKER~kFANCHER,LLP

F. Edward Barker State Bar No. 01741000 Floyd W.Brown,Jr. State Bar No. 00796254 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 3

61-881-9217 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEE, Kimco Realty Corparation and Maurice Reynolds

15CERTIFICATE OF COMPLIANCE WITH WORD LIMITATIONS

I certify that have reviewed the Appellee's Briefand have concluded that every factual statement made herein is supported by competent evidence included in the appendix or the record. Pursuant to the TEXAS RULE OF APPELLATE PROCEDURE 9.4(1)(3), I hereby certify that the foregoing brief contains 3,456 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate ofcompliance). This is a computer generated document created in Word Perfect using 14point typeface. In making this certificate ofcompliance,I am relying

on the word count provided by the software used to prepare this document. ER*BA.RKE,~*FANCHER, LLP

F. Edward Barker State Bar No. 01741000 Floyd W.Brown,Jr. State Bar No. 00796254 555 N. Carancahua, Suite 1200 Corpus Christi, Texas 78401-0843 Telephone: 361-881-9217 Facsimile: 361-882-9437 ATTORNEYS FOR APPELLEE, Kimco Realty Corporation and Maurice Reynolds

16CERTIFICATE OF SERVICE

This is to certify that a true and correct copy ofthe foregoing instruments been forwarded to all counsel ofrecord in the manner indicated below on the ~ ~' day of JUNE,2015. Via E-Serve and Einail and Fax 361-985-0600 Mr. John J. Hopkins The Law Offices of Thomas J. Henry 521 Starr Street Corpus Christi, Texas 78401

F. Edward Barker

]7