In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-21-00098-CV 

 

STACI DENNY, APPELLANT 

V. 

GEORGE REINEMUND D/B/A GEORGE REINEMUND REAL ESTATE, AND KLAUS P. 

HARTMANN, AND CYNTHIA HARTMAN, AND JACKIE LOVE, APPELLEES 

On Appeal from the 423rd District Court 

 Bastrop County, Texas 

Trial Court No. 423-7225, Honorable Christopher Darrow Duggan, Presiding 

July 19, 2022 

MEMORANDUM OPINION 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

In this appeal1 of a no-evidence summary judgment rendered in a premises liability 

case, Appellant Staci Denny argues she presented more than a scintilla of evidence 

supporting each element of her cause of action and that the trial court erred by rendering 

judgment in favor of Defendants George Reinemund d/b/a George Reinemund Real 

1 This appeal was originally filed in the Third Court of Appeals and was transferred to this Court by 

order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2

Estate, Klaus P. Hartmann, and Cynthia Hartman (Reinemund). Denny also challenges 

the trial court’s ruling on Reinemund’s motion to strike a portion of Denny’s summary 

judgment evidence. Because we conclude that the summary judgment record, even 

when considering the portions allegedly stricken in error, show that there is no genuine 

issue of material fact and Reinemund was entitled to judgment as a matter of law, we 

affirm the judgment. 

Background

The record reflects that Love occupied a leased residence. According to Denny, 

“[o]n September 28, 2019, [Denny], as an invitee,2 walked onto Defendant’s (sic) 

premises. While entering, and going through a gate, [Denny] stepped onto a section of 

the cement walkway that has a piece missing causing her to lose her balance and fall, 

injuring her knee and back.” The missing concrete, described as a “chip,” exists at the 

sidewalk’s end abutting gravel and bare soil. 

As one who passed over that same walkway “almost every day” for eight to nine 

years, Denny indicated knowledge of its conditions. She expressly acknowledged during 

her deposition that she had previously seen the concrete’s condition. Via summary 

2 On the limited record we have it appears Denny’s fall occurred on an area of leased premises 

over which Reinemund retained control. Generally, a landlord does not owe a duty to its tenants or their 

invitees for dangerous conditions on the leased premises. Johnson County Sheriff’s Posse, Inc. v. Endsley,

926 S.W.2d 284, 285 (Tex. 1996). However, if the “landlord retains possession or control of a portion of 

the leased premises, the landlord is charged with the duty of ordinary care in maintaining the portion 

retained.” Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). See also Parker v. Highland Park, Inc., 

565 S.W.2d 512, 514–15 (Tex. 1978) (holding that the duty a landlord owes its tenants extends to the 

tenant’s guests). We therefore hold that Reinemund owed Denny the same duty owed their tenant, Denny’s 

mother. 
3

judgment affidavit, Denny stated her personal knowledge about the “crumbling condition” 

of the walkway:

As I testified to in my deposition, the broken and crumbling condition of 

the walkway which caused my fall had been in existence for quite some 

time. I was not asked at deposition specifically how long the condition 

existed, but I am certain that said condition had existed for no less than 

three months. 

Denny filed suit in April 2020. Approximately ten months later, Reinemund filed a 

no-evidence motion for summary judgment. Denny responded with arguments and 

authorities and attached a copy of her deposition, deposition exhibits, her affidavit with 

three photographs attached, and Love’s affidavit. Without particularization, Reinemund 

moved to strike the two affidavits as “self-serving and conclusory.” 

Via order of April 21, 2021, the trial court granted Reinemund’s motion for summary 

judgment. The court also indicated it was partially granting Reinemund’s motion to strike, 

noting without further detail that it “did not consider any of the self-serving and conclusory 

statements in the affidavits.” Denny filed a notice of appeal two days later.

Analysis

Appellate Jurisdiction

On our own motion, we first consider our jurisdiction over this appeal. See Buffalo 

Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex. App.—Amarillo 1995, no writ) 

(noting our obligation to consider jurisdiction sua sponte). Generally, courts of appeals 

have jurisdiction only over appeals of final judgments and certain interlocutory orders 

made immediately appealable by statute. See TEX. CIV. PRAC. & REM. CODE ANN.
4

§§ 51.012, 51.014; De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (op. on reh’g) 

(citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). A judgment is final 

for purposes of appeal if it disposes of all pending parties and claims. Lehmann, 39 

S.W.3d at 195. 

Denny’s original petition names the Reinemund defendants as the only parties 

being sued. On April 22, 2020, two days after she filed her original petition, Denny filed 

a first amended petition; she named her mother, Jackie Love, as a defendant, although 

the allegations and causes of action appear to be identical in all respects. The record 

does not reflect that Love was ever served with citation; she did not file an answer. The 

order granting Reinemund’s motion for summary judgment does not contain decretal 

language disposing of Denny’s claim against Love, nor does it contain language 

expressing its intended finality of all parties and claims. 

Although the face of the summary judgment order lacks finality language, see 

Lehmann, 39 S.W.3d at 205, 206, we conclude the summary judgment order is final and 

appealable. “[A] judgment may be final, even though it does not dispose of all parties 

named in the petition, if the remaining party was never served with citation and did not 

file an answer, and nothing in the record indicates that the plaintiff ever expected to obtain 

service upon the remaining party.” Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 

(Tex. App.—Corpus Christi 2009, pet. denied) (citing Youngstown Sheet & Tube Co. v. 

Penn, 363 S.W.2d 230, 232 (Tex. 1962)). Eighteen years ago, the Supreme Court of 

Texas reaffirmed this exception to the ordinary Lehmann finality rule. See M.O. Dental 

Lab v. Rape, 139 S.W.3d 671, 674–75 (Tex. 2004) (per curiam) (reaffirming Penn

following Lehmann, 39 S.W.3d at 205–06, and holding that summary judgment was final 
5

for appellate purposes despite the absence of language discharging liability against 

unserved defendant). Thus, “the case stands as if there had been a discontinuance as 

to [the unserved party], and the judgment is to be regarded as final for the purposes of 

appeal.” Rape, 139 S.W.3d at 674 (quoting Penn, 363 S.W.2d at 232). Concluding 

Denny successfully invoked our appellate jurisdiction, we turn to the merits of her appeal. 

Motion to Strike Summary Judgment Evidence

Denny complains in part that the trial court abused its discretion by sustaining 

Reinemund’s motion to strike part of her affidavits submitted as summary judgment 

evidence. It is unnecessary to consider this argument, however, because we find that the 

grant of summary judgment would be proper even if none of Denny’s affidavit evidence 

had been stricken. See TEX. R. APP. P. 44.1.

No-evidence Motion for Summary Judgment

After an adequate time for discovery, a party may file a “no-evidence” motion for 

summary judgment asserting there is no evidence of one or more essential elements of 

a claim or defense on which the adverse party would have the burden of proof at trial.

TEX. R. CIV. P. 166a(i). The standards governing our review of no-evidence summary 

judgments are well-established and need not be reiterated here. See Merriman v. XTO 

Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In our review, we consider the evidence 

in the light most favorable to Denny, “crediting evidence a reasonable jury could credit 

and disregarding contrary evidence and inferences unless a reasonable factfinder could 

not.” Id. 
6

To prevail on a premises liability claim, an invitee must prove: (1) that the owner 

or occupier had actual or constructive knowledge of some condition on the premises; (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 reasonable care proximately caused the plaintiff’s injuries. Motel 

6 G.P. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curiam). Among its no-evidence 

grounds, Reinemund asserted, “[Denny] has no evidence that the owner or occupier did 

not exercise reasonable care to reduce or eliminate the risk.” We look then to whether 

Denny presented any evidence that Reinemund breached its duty of ordinary care. 

The Supreme Court of Texas has recently reiterated the relevant law governing 

this matter. Reinemund’s duty to Denny as an invitee was to “make safe or warn against 

any concealed, unreasonably dangerous conditions of which [it was], or reasonably 

should [have been], aware,” but which Denny was not. United Supermarkets, LLC v. 

McIntire, No. 21-0208, 2022 Tex. LEXIS 543, at *3 (Tex. June 17, 2022) (per curiam) 

(quoting United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017)) (brackets 

in original). In most instances, an owner or occupier satisfies its duty by providing an 

adequate warning of the danger. Kennedy v. Wal-Mart Stores Tex., LLC, No. 03-19-

00587-CV, 2020 Tex. App. LEXIS 3402, at *4 (Tex. App.—Austin Apr. 23, 2020, no pet.) 

(mem. op.). But a premises owner or occupier generally has no duty to warn an invitee 

of hazards that are open, obvious, or known to the invitee. See, e.g., Austin v. Kroger 

Tex., L.P., 465 S.W.3d 193, 204 (Tex. 2015). “When an invitee is aware of an 

unreasonably dangerous condition on the premises, the condition, in most cases, no 

longer will pose an unreasonable risk because the law presumes that the invitee will take 
7

reasonable measures to protect against known risks, which may include a decision not to 

accept the invitation to enter onto the landowner’s premises.” Phillips v. Abraham, 517 

S.W.3d 355, 361 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Austin, 465 

S.W.3d at 203). 

In her summary judgment response, Denny attached portions of her deposition, 

her affidavit, Love’s affidavit, and photographs to discuss the condition of the walkway 

that allegedly caused her fall. Her submitted evidence makes clear that she was 

personally aware of the condition of the sidewalk: she passed that way almost daily and 

averred to her personal knowledge of the sidewalk’s “broken and crumbling condition” no 

less than three months before the accident. Because the walkway’s condition was known 

to Denny prior to her accident, any possible risk to her was not unreasonable as a matter 

of law. See Austin, 465 S.W.3d at 204; Phillips, 517 S.W.3d at 361. See also Brookshire 

Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (per curiam) (holding that because 

lowboy cart in cooler was “easily visible” to grocery store employee, employer owed no 

duty to warn of hazards commonly known or already appreciated by the employee).

The Supreme Court has recognized two instances under which an invitee’s 

awareness of the risk of injury would not relieve the landowner of its duty to make the 

premises reasonably safe: (1) the “criminal activity exception,” and (2) the “necessaryuse exception.”3

 Denny, however, offered no summary judgment evidence in support of 

3 Austin, 465 S.W.3d at 204. The necessary-use exception follows the Parker line of cases and 

provides the landowner’s duty to make the premises safe is not discharged when “despite an [invitee’s] 

awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner 

should have anticipated that the invitee is unable to take measures to avoid the risk.” Austin, 465 S.W.3d 

at 208.
8

the application of either exception. It is therefore unnecessary to consider these 

exceptions in the present appeal.

Conclusion

Having found Denny did not meet her no-evidence summary judgment burden of 

proof, we affirm the summary judgment of the trial court. 

Lawrence M. Doss

 Justice