Affirmed and Opinion On Remand filed April 14, 2015.

In The

Fourteenth Court of Appeals

NO. 14-12-00995-CV

CHRISTOPHER NORMAN, Appellant

V.

CHRISTOPHER HENKEL AND LISA HENKEL, Appellees 

On Appeal from the County Civil Court at Law No. 1 

Harris County, Texas

Trial Court Cause No. 1005041

OPINION ON REMAND

Appellant Christopher Norman sued appellees Christopher and Lisa Henkel 

after Norman slipped on a patch of ice and fell on the Henkels’ property. Norman 

appeals from the trial court’s summary judgment in favor of the Henkels. Initially, 

this court reversed the trial court’s summary judgment, holding that Lisa’s warning 

to Norman “don’t slip” was inadequate as a matter of law to discharge the 

Henkels’ duty to warn Norman, an invitee, of a condition on the Henkels’ property. 

See Norman v. Henkel, 407 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist.] 
2013), rev’d, Henkel v. Norman, 441 S.W.3d 249 (Tex. 2014). The Texas 

Supreme Court disagreed, reversing and remanding to this court for consideration 

of Norman’s remaining issues. Henkel, 441 S.W.3d at 253. We now address his 

two remaining issues.

I.

DISCHARGE OF DUTY VS. PROPORTIONATE RESPONSIBILITY

In his second issue on appeal, Norman contends “the trial court erred by 

holding that a warning discharges a defendant’s duty in a premises liability claim 

rather than presenting an issue of proportionate responsibility.” In its opinion in 

this case, the Texas Supreme Court noted that premises owners such as the 

Henkels have a “duty” to warn invitees of conditions posing unreasonable risks of 

harm. Id. at 251. Further, an owner’s warning may be “adequate as a matter of 

law to discharge a property owner’s duty to an invitee” such as Norman. Id. at 

252 (emphasis added). Accordingly, the supreme court has impliedly rejected 

Norman’s argument. We will not revisit it.

Norman’s second issue is overruled.

II.

OTHER SUMMARY JUDGMENT CLAIMS

In his third issue, Norman contends “the trial court erred by granting final 

summary judgment on claims on which the Henkels did not seek summary 

judgment.” See, e.g., Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 

1993) (“[S]ummary judgment cannot be affirmed on grounds not expressly set out 

in the motion or response.”). Norman contends he pleaded claims for negligence 

and gross negligence in addition to premises liability, and the Henkels sought 

summary judgment “only on Norman’s premises liability claim.” We disagree.

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In the one-paragraph “Grounds” section of the Henkels’ motion, the Henkels 

argued, “The evidence leaves no genuine issue of material fact upon which 

reasonable minds could differ, and because Plaintiff fails to raise a fact question as 

to negligence, Defendants are entitled to summary judgment as a matter of law.” 

(emphasis added). Thus, the Henkels expressly moved for summary judgment on 

Norman’s negligence claim. See Wortham v. Dow Chem. Co., 179 S.W.3d 189, 

201 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (motion encompassed 

negligence claim by stating that movant was “not liable under the theory of 

negligence”).

Further, the Henkels repeatedly asserted they were entitled to summary 

judgment on Norman’s “claims.” In the “Conclusion and Prayer” section of the 

motion, the Henkels sought “summary judgment on Plaintiff’s claims against 

Defendants in its entirety.” Although the Henkels did not use the words “gross 

negligence,” they sought summary judgment on the “entirety” of Norman’s 

“claims.” Assuming without deciding that a motion for summary judgment must 

address a gross negligence “claim” when it already addresses all underlying 

negligence claims,

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 we hold that the motion encompassed Norman’s gross 

negligence claim. See Martinez v. IBP, Inc., 961 S.W.2d 678, 685 (Tex. App.—

Amarillo 1999, pet. denied) (motion encompassed every claim in live pleading, 

including gross negligence, when it attacked “all claims”); see also Wortham, 179 

S.W.3d at 201–02 & n.16 (affirming summary judgment on gross negligence when 

the motion referred to “negligence”; refusing to separately address the appellants’ 

1 Compare Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th 

Dist.] 2011, no pet.) (holding that “ordinary negligence and gross negligence are not separate 

causes of action”), with Cobb v. Dall. Fort Worth Med. Ctr.—Grand Prairie, 48 S.W.3d 820, 

826 (Tex. App.—Waco 2001, no pet.) (summary judgment on gross negligence could not be 

affirmed because the issue of gross negligence was not expressly presented in the motion when 

the movant “did not present any specific argument on gross negligence”). 

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arguments regarding gross negligence because a finding of ordinary negligence is a 

prerequisite to a finding of gross negligence; overruling appellants’ issue

contending that gross negligence claim was not addressed in the motion). Norman 

does not otherwise challenge the granting of the summary judgment on negligence 

or gross negligence.

Norman’s third issue is overruled.

III.

CONCLUSION

Having overruled Norman’s remaining issues on appeal, we affirm the trial 

court’s judgment.

 

 /s/ Sharon McCally

 Justice

Panel consists of Justices Christopher, McCally, and Brown.

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