pp

v. 

K&N MANAGMENT, INC. dlb\a RUDY'S COUNTRY STORE and BAR-B-Q 

Appellees 

ON APPEAL FROM 

THE 98 1h JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

(Honorable Rhonda Hurley) 

APPELLANT'S BRIEF 

Law Offices of Price Ainsworth, P.C. 

Price Ainsworth 

State Bar No. 00950300 

3821 Juniper Trace, #210 

Austin, Texas 78738 

512-233-1111 

512-472-9157 fax 

ATTORNEY FOR APPELLANT 

KRISTIN LEE 
IDENTITY OF PARTIES AND COUNSEL 

The following is a complete list of all parties, as well as the names and address of all trial 

and appellate counsel. 

P laintiffsl Appellants: Counsel for the Freiheit: 

Kristin Lee Price Ainsworth 

Law Offices Ainsworth, P.C. 

3 821 Juniper Trace, #21 0 

Austin, Texas 78738 

Defendants/Appellees: Counsel for K&N Management d\b\a Rudy's 

Country Store and Bar-B-Q: 

K&N Management d\b\a Rudy's 

Country Store and Bar-B-Q Ethan Goodwin 

Clark, Trevino & Associates 

1701 Directors Boulevard, #920 

A us tin, Texas 7 8 7 44 

II 
TABLE OF CONTENTS 

IDENTITIES OF PARTIES AND COUNSEL..................................................................... u 

TABLE OF CONTENTS...................................................................................................... m 

INDEX OF AUTHORITIES ································································································· IV 

APPELLANTS' BRIEF......................................................................................................... 1 

STATEMENT OF THE CASE............................................................................................. 2 

ISSUES PRESENTED IN THIS BRIEF............................................................................... 2 

STATEMENT OF THE FACTS........................................................................................... 2 

SUMMARY OF THE ARGUMENT.................................................................................... 3 

STANDARD OF REVIEW................................................................................................... 3 

ARUGMEMENT AND AUTHORITIES.............................................................................. 4 

A. Evidence presented to the Trial Com1 on both motions for summary 

judgment raised genuine issues of material fact............................................ 4 

B. Evidence Inferences Establish Constructive Knowledge ofDefects............. 6 

PRAYER................................................................................................................................ 7 

CERTIFICATE OF SERVICE.............................................................................................. 8 

Ill 
INDEX OF AUTHORITIES 

CASES PAGE 

Huckebee v. Time Warner Entm't Co. 19 S.W. 3d 413,422 (Tex. 2000) 

19 S.W. 3d 413,422 (Tex. 2000) .............................................................................. 3 

Park Place Hasp. v. Estate of Milo 

909 S.W. 2d 508, 510 (Tex. 1995) ............................................................................ 3 

Timpte Indus. v. Gish 

286 S.W. 3d 306, 310 (Tex. 2009) ............................................................................ 3,4 

Ford Motor Co. v. Ridge·way 

82 S.W. 3d 26,29 (Tex. App. --San Antonio 2002), rev'd on other grounds, 135 4 

S.W. 3d 598 (Tex. 2004) .......................................................................................... . 

Wyatt v. Furr 's Supermarket, Inc. 

908 S.W.2d 266,268 (Tex. App.- El Paso 1995, no writ) (emphasis added).............. 4 

Wal-Mart Stores, Inc. v. Gonzalez 

(968 S.W.2d 934- Tex. 1998) .................................................................................... 5 

iv 
No. 03-15-00243-CV 

IN THE COURT OF APPEALS 

THIRD APPELLATE DISTRICT OF TEXAS 

AT AUSTIN 

KRISTIN LEE, 

Appellant 

v. 

K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BARB-Q 

Appellee 

ON APPEAL FROM 

THE 981

h JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

(Honorable Rhonda Hurley) 

APPELLANT'S BRIEF 

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: 

Appellant Kristin Lee files this Brief of Appellant. The Clerk's Record will 

be referenced to as "CR at [page#]." 
STATEMENT OF THE CASE 

Appellant Kristin Lee was a business invitee on the premises owned and 

operated by Appellee K & N Management, Inc. doing business as Rudy's Country 

Store and Bar-B-Q (Rudy's). She alleges that she fell over shrubbery that 

extended over the entry way to the Rudy's restaurant. Appellant alleges that her 

fall was a proximate result of a negligently dangerous condition on the property. 

In the trial court, Appellee Rudy's filed an amended motion for summary judgment 

- including a "traditional" motion and a "no-evidence" motion which was granted 

on April 8, 2015. In essence, the motion asserted that the Appellee did not have 

constructive notice of a dangerous condition on the premises. 

ISSUE PRESENTED 

1. Were genuine issues of material fact present at the time of the summary 

judgment hearing such that reasonable minds could differ regarding whether or not 

Appellee Rudy's had constructive notice of a dangerous condition on the premises. 

STATEMENT OF THE FACTS 

On August 21, 2009, Appellant Kristin Lee was a customer on the premises 

owned and operated by Appellee K & N Management, Inc. d\b\a Rudy's Country 

Store and Bar-B-Q located at 2400 North IH-35, Round Rock, Texas 78681. 

Appellant Lee alleges that 1) she slipped on a landscaping bush which had fallen 

out of the curb planter area and onto the walkway located at the entrance of the 

restaurant; 2) the fall was a proximate result of the negligently dangerous condition 

2 
of the landscaping at the property; 3) P. S. Landscapes, Inc. had recently 

maintained the landscaping on the premises and negligently left the bush extending 

onto the walkway; and 4) Appellee K & N Management, Inc. negligently failed to 

maintain the parking lot, specifically the walkway, and its negligence was a 

proximate cause of the Appellant's injuries and damages. 

Appellees filed their first amended no-evidence and traditional motion for 

summary judgment on February 23, 2015. Lee filed a response, and a hearing was 

held on April2, 2015. The trial comi granted the motion on April 8, 2015. 

SUMMARY OF THE ARGUMENT 

Genuine issues of material fact were present at the time of the summary 

judgment hearings before the Trial Court such that reasonable minds could differ 

as to whether Appellee Rudy's had constructive notice of a dangerous condition on 

the premises. 

STANDARD OF REVIEW 

As to a traditional motion for summary judgment, it is axiomatic that the 

trial court's duty at the summary judgment stage is not to weigh the evidence but to 

determine if a material question of fact exists.1 The trial court must accept as true 

evidence favoring the plaintiff nonmovant, indulging every reasonable inference 

and resolving all doubts in plaintiffs favor. 2 

1 Hucke bee v. Time Warner Entm 't Co., 19 S.W. 3d 413,422 (Tex. 2000) 

2 Park Place Hasp. v. Estate of Milo, 909 S.W. 2d 508,510 (Tex. 1995) Timpte Indus. v. Gish, 

286 S.W. 3d 306,310 (Tex. 2009). 

3 
Tex. R. Civ. P. 166 a(i) states in the notes and comments thereto that, to 

defeat a no-evidence motion for smnmary judgment, the nonmovant "is not 

required to marshal its proof, its response need only point out evidence that raises a 

fact issue on the challenged elements." If the nomnovant presents more than a 

scintilla of evidence on the challenged elements, she is entitled to a trial on the 

merits.3 In reviewing a no-evidence summary judgment, the appellate court must 

consider all of the evidence in the light most favorable to the party against whom 

the summary judgment was rendered, crediting evidence favorable to the party if 

reasonable jurors could and disregarding contrary evidence unless reasonable 

jurors could not. 4 

ARGUMENTS & AUTHORITIES 

A. Evidence presented to the Trial Court on both motions for summary 

judgment raised genuine issues of material fact. 

1. Constructive Knowledge Standard. 

For a premises owner to have sufficient knowledge of a condition to be held 

liable for any injuries caused by the condition, 

The owner/operator must have put the foreign substance on the floor 

and knew that it was on the floor and negligently failed to remove it, or 

the substance must have been on the floor for so long it should have 

been discovered and removed in the exercise of ordinary care.5 

3 Ford Motor Co. v. Ridgeway, 82 S.W. 3d 26, 29 (Tex. App. --San Antonio 2002), rev'd on 

other grounds, 135 S.W. 3d 598 (Tex. 2004). 

4 Timpte Indus. v. Gish, 286 S.W. 3d 306,310 (Tex. 2009). 

5 Wyatt v. Fun·'s Supermarket, Inc., 908 S.W.2d 266, 268 (Tex. App. - E1 Paso 1995, no writ) 

(emphasis added). 

4 
To establish constructive knowledge on the part of the premises owner, Lee 

must demonstrate that the hazard was (more likely than not) present for sufficient 

time for the defendant to have discovered and rectified it. "This rule, while harsh and 

demanding on plaintiffs, is nevertheless well established and plaintiffs must always 

discharge the burden of proving that the dangerous conditions was either known to 

the defendant or had existed for such a length of time that it should have known it."6 

Lee set fmih in the trial court evidence demonstrating that Rudy's had constructive 

knowledge of a dangerous condition at the entryway to the restaurant. 

2. Lee's Testimony. 

Kristin Lee testified that after having one, small, strawberry margarita at 

dinner several hours earlier, she rode with her mom and brother to Rudy's for 

dessert.7 Her mom pulled up to the walkway to the entrance at Rudy's, and Kristin 

Lee got out of the backseat. 8 Kristin Lee got out of the car, took a couple of steps, 

and fell. 9 She fell with her leg beneath her. 10 The fall resulted in her suffering a 

fractured ankle that had to be surgically repaired. 11 Eventually, a second surgery to 

remove implanted hardware was required. 12 

6 Wal-Mart Stores, Inc. v. Gonzalez, (968 S.W.2d 934- Tex. 1998). 

7 CR at p. 121 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and 

No-Evidence Motions for Summary Judgment Exhibit A- Kristin Lee depo. at pp. 26-29). 

8 !d. (Lee depo at p. 29). 

9 !d. 

10 !d. (Lee depo at p. 31 ). 

11 !d. at pp 122 (Lee depo at pp. 41-44 ). 

12 !d. at p. 123 (Lee depo at p. 49). 

5 
Appellant Kristin Lee testified that her mom (as evidenced by a letter written 

by her mother Mary Lee) eventually detennined that Kristin Lee had tripped over a 

landscape bush that extended over the walkway to the restaurant. 13 

3. Witness' Testimony. 

Mary Lee, Kristin Lee's mother, testified that Justin House (an eyewitness to 

the accident, a friend of the Lee family, and also an employee at Rudy's) told the 

family that Kristin Lee fell over a landscape bush that was laid over the side of the 

planter. 14 Mrs. Lee did not actually see where Kristin Lee stepped when she fell 

because Mrs. Lee was driving the stopped car. 15 

4. Rudy's employee's Testimony. 

Justin House was an employee of Rudy's at the time of the incident. 16 He 

was about 25 feet from Kristin Lee when she fell. 17 He observed an obstacle, a 

plant, on the sidewalk. 18 The plant had overgrown onto the sidewalk. 19 The plant 

protruded out over the sidewalk. 20 When he went back to work in the next day or 

two, the plant had been removed. 21 

ll I d. at pp. 124 (Lee depo at p. 59). 

14 C.R. at p. 131 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and 

No-Evidence Motions for Summary Judgment Exhibit B- Mary Lee depo. at pp. 33-34). 

15 I d. at pp. 130 (Mary Lee depo at p. 24). 

16 C.R. at p. 138 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and 

No-Evidence Motions for Summary Judgment Exhibit C- depo. of Justin House at p. 8). 

17 Jd. at p. 139 (House depo at p. 12). 

18 I d. at p. 140 (House depo at p. 17). 

19 Jd. at p. 141 (House depo at p. 18). 

20 I d. at p. 142 (House depo at p. 21). 

21 I d. at p. 144 (House depo at p. 28). 

6 
Mr. House testified that a landscaping company came out to the scene 

regularly (he said once a week). 22 He told the Lee family (he is a friend of 

Kristin's brother) that Kristin Lee fell over a plant.23 He also gave a statement to 

the general manager at Rudy's that Kristin Lee fell over some bushes hanging over 

the sidewalk.24 In Mr. House's opinion, the area looked safer after the plants were 

eliminated from hanging over the walkway, a main entrance to the restaurant.25 He 

noticed that the plants had been cut back about one week or so later. 26 

Mr. House saw Kristin Lee step on a bush protruding over the sidewalk. 27 

When asked whether the bush protruding over the sidewalk was a hazardous 

condition, Mr. House testified that "as a business owner, yes, I would take more 

precautions doing that." 28 

5. Written Discovery 

In its responses to Inten·ogatories, Rudy's testified that the grounds were 

maintained on a weekly basis.29 Rudy's is not sure how long the bush was on the 

ground before the accident.30 

22 I d. at p. 143 (House depo at p. 26). 

23 Jd. at p. 145 (House depo at p. 39). 

24 I d. at pp. 146-150 (House depo at pp. 46-50). 

25 I d. at pp. 151-152 (House depo at pp. 51-52). 

26 I d. at p. !53 (House depo at p. 55). 

27 Jd. at pp. 154-155 (House depo at pp. 59-60). 

28 I d. at p. !56 (House depo at p. 61 ). 

29 C.R. at p. 162 (Plaintiffs Response to Defendant K & N Management, Inc.'s Traditional and 

No-Evidence Motions for Sununary Judgment Exhibit D- Rudy's Interrogatory answers at #4). 

30 Jd. 

7 
B. Evidentiary Inferences Establish Constructive Knowledge of Defects 

The testimony delineated above suggests that the Appellent tripped over 

foliage that had been pennitted to extend over a walkway that patrons would 

foreseeably be required to use to enter the restaurant. There is no suggestion that 

the bush "suddenly" grew over the walkway. Indeed, the reasonable inference is 

that the plants grew slowly over the entrance. Unlike the event where a fellow 

shopper spills soap on a grocery store floor immediately before the next customer 

slips in it, the hazard at issue must logically have existed for a considerable time 

before Ms. Lee fell. The bush was observed by a Rudy's employee as an obstacle 

as the event took place, the employee thought that the walkway looked safer when 

the bush was removed after the event, and the company had a procedure in place 

for periodically maintaining the landscaping. Genuine issues of material fact exist 

as to how long Rudy's knew or should of known of the hazardous condition on its 

premises. 

PRAYER 

Wherefore, Appellant prays that this Court reverse the judgment of the Trial 

Court, and grant each and every request for relief set forth by Appellant, and for 

such other relief, at law and in equity, to which Appellant is entitled. 

8 
Respectfully submitted, 

LAW OFFICES OF PRICE AINSWORTH, P.C. 

3821 Juniper Trace, #21 0 

Austin, Texas 78738 

512-233-1111 

512-4 72-9157 fax 

By: ____________________ __ 

Price Ainsworth 

State Bar No. 00950300 

ATTORNEY FOR APPELLANT KRISTIN LEE 

CERTIFICATE OF COMPLIANCE 

I certifY that this document was produced on a computer using Microsoft 

Word and contains 1644 words, as determined by the computer software's wordcount function, excluding the sections of the document listed in Tex. R. App. P. 

9 .4(i)(1 ). 

Price Ainswmih 

9 
CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the above and foregoing document 

has been served to the following counsel of record as indicated below on the 21st 

day ofJuly 2015. 

VIA FACSIMILIE- 512-383-0503 

Ethan Goodwin 

Clark, Trevino & Associates 

1701 Directors Boulevard, #920 

Austin, Texas 78744 

Price Ainsworth 

10 
IN THE COURT OF APPEALS 

THIRD APPELLATE DISTRICT OF TEXAS 

AT AUSTIN 

KRISTIN LEE, 

Appellant 

v. 

K & N MANAGEMENT, INC. d\b\a RUDY'S COUTNRY STORE and BARB-Q 

Appellees 

ON APPEAL FROM 

THE 98th JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

(Honorable Rhonda Hurley) 

APPENDIX TO BRIEF OF APPELLANTS 

A. Final Summary Judgment signed on AprillO, 2015 

II 
Filed in The District Court 

ofTravis County, Texas 

Cause No. D-1-GN-11-001839 

AP: I 0 2015 M0~ At l1lJ A M. 

KRISTIN LEE § 

§ 

vs. § 

§ 

K & N MANAGEMENT, INC. D/B/A § 

RUDY'S COUNTRY STORE AND BAR-B- § 

Q; AND P. S. LANDSCAPES, INC. § 

IN THE DISTRICT co~lva L Price, District Clerk 

TRAVIS COUNTY, TEXAS 

98TH JUDICIAL DISTRJCT 

FINAL SUMMARY JUDGMENT 

On the 2nd day of April, 2015, the Court considered Defendant K & N Management, Inc. 

d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion 

for Summary Judgment ("the Motion''). After considering the Motion, the summary judgment 

evidence, the Response filed by Plaintiff, and K & N Management, Inc. d!h/a Rudy's Country 

Store and Bar-B-Q's Objections and Reply, it is the opinion of the Court that Defendant K & N 

Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q is entitled to judgment as a matter of 

law. It is, therefore, 

ORDERED, ADJUDGED AND DECREED that Defendant K & N Management, Inc. 

d!h/a Rudy's Country Store and Bar-B-Q's First Amended Traditional and No-Evidence Motion 

for Summary Judgment before the Co uti is hereby GRANTED and that the Plaintiff take nothing 

against Defendant K & N Management, Inc. d!h/a Rudy's Country Store and Bar-B-Q. Costs of 

court are taxed against the Plaintiff for which execution shall be levied. 

It is further ORDERED, ADJUDGED AND DECREED that Defendant K & N 

Management, Inc., d!h/a Rudy's County Store and Bar-B-Q's Objections to Plaintiff's summary 

judgment evidence are OVERRULED. 

All such other relief sought by way of this action not specifically provided by this 

judgment is hereby denied. 
SIGNED this~ day of-'~"+'-'\'"_,_J _c_\ ----.-'' 2015. 

nm4:::f]n 

APROVED AS TO FORM: 

CLARK, TREVINO & ASSOCIATES 

BY•~~ TBN: 24064492 

Mailing Address: 

P.O. Box 258829 

Oklahoma City, OK 73125-8829 

Physical Address: 

1701 Directors Boulevard, Suite 920 

Austin, Texas 78744 

Telephone: (512) 445-1580 

Facsimile: (512) 383-0503 

ethan. goodwin@farmersinsurance.com 

ATTORNEYS FOR DEFENDANT K & N MANAGEMENT, 

INC. D/B/A RUDY'S COUNTRY STORE AND BAR-B-Q 

LAW OFFICES OF PRICE AINSWORTH, P.C. 

BY: 

PRICE AINSWORTH 

TBN: 00950300 

3821 Juniper Trace, #210 

Telephone: (512) 233-1111 

Facsimile: (512) 479-9157 

price@ainsworth-law.com 

ATTORNEY FOR PLAINTIFF KRISTIN LEE 
SIGNED this __ day of _______ ---". 2015. 

ruDGE PRESIDING 

APROVED AS TO FORM: 

CLARK, TREVINO & ASSOCIATES 

EY:?~I/_~ ~GOOD\IIJN TBN: 24064492 

Mailing Address: 

P.O. Box 258829 

Oklahoma City, OK 73125-8829 

Physical Address: 

1701 Di:reators Boulevard, Suite 920 

Austin, Texas 7&744 

Telephone: (512) 445-1580 

Facsimile: (512) 383-0503 

ethan.good\Vln@fimnersinsurance.com 

ATTORNEYS fOR DEFENDANT K & N MANAGEMENT, 

INc. D/B/A RUDYS CoUNTRY STORE AND BAR-B-Q 

LAW OFFICES OF 1'RIC1i: AXNSWORTH, l'.C. 

BY: ~ --

TBN: 

PlUCB 

00950300 

AINSWORTH 

·-----

3821 Juniper Trace, #21 0 

Telephone: (512) 233-1111 

Facsimile: (512) 479-9157 

price@ainsworth-law.com 

ATTORNEY FOR PLAINTIFF KRISTIN LEE 

P<j ~o+3