### NUMBER 13 - 17 - 00425 - CV 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

DANIEL MARTINEZ , Appellant,

v. DOLGENCORP OF TEXAS, INC. D/B/A DOLLAR GENERAL, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.


## MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa Mem orandum Opinion by Justice Contreras Appellant Daniel Martinez appeals from a summary judgment entered in favor of appellee Do lgencorp of Tex as, Inc. d/b/a Dollar General ( Dolgencorp). By three issues, Martinez contends the trial court erred in: (1) holding that Dolgencorp did not owe him a duty of care, (2) relying on Dolgencorp’s summary judgment evidence because the2

suppor t ing affidavit was deficient , a nd (3) denying his motion for a continuance. We reverse and remand for further proceedings.
I. B ACKGROUND Martinez visited Dolgencorp’s place of business in Edinburg, Texas on September 14, 2014. As Martinez exited the premise s, it began to rain, and he slipped and fell on the ramp leading from the sidewalk to the parking lot. On September 9, 2016, Martinez filed suit under a premises liability theory against Dolgencorp for injuries he suffered from the fall and alleged the ra mp’s surface became slippery due to “the type of paint and/or composition of the materials” used to make it

. Dolgencorp occupied the building which housed its business by way of a lease

a greement with Buchalter II, Inc

. (Buchalter). In response to Marti nez’s suit, Dolgencorp filed a traditional motion for summary judgment and asserted it owed no duty to Martinez because it did not control the ramp on which Martinez fell . As evidence in support of its
summary judgment motion, Dolgencorp attached : (1) a copy of the lease with Buchalter and two subsequent lease modifications ( together referred to herein as “ the lease ” ) ; (2) a still photograph from a surveillance camera video showing several individual s inside the
store ; and (3) a one - page affidavit by Suz z anne S. Peet, an employee of Dolgencorp. Martinez filed a response to Dolgencorp’s motion for summary judgment in which he argued that: Peet’s affidavit was not based on personal knowledge, and, therefore, the trial court could not rely on the evidence submitted with Dolgencorp’s motion for summary judgment ; there was an issue of fact as to whether Dolgencorp had control over the ramp on which Martinez fell; and he should be granted a continuance to conduct additional discovery. After a hearing on June 15, 2017, both parties submitted briefs in3

support of their arguments. The trial court then rendered summary judgment in favor of Dolgencorp on the basis that Dolgencorp did not control the ramp and, therefore, owed no duty to Martinez

. This appeal follo wed.
II. S TANDARD OF R EVIEW We review the grant of summary judgment de novo. Nall v. Plunkett , 404 S.W.3d 552, 555 (Tex. 2013) (per curiam )

. The party moving for traditional summary judgment has the burden to submit sufficient evidence to establish that no genuine issue of a material fact exists and that it is entitled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC , 437 S.W.3d 507, 511 (Tex. 2014)

. A party moving for summary judgment who conclusively negates at least one essential element of the non

- movant’s cause of action is entitled to summary judgment on that claim. Sw. Electric Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002); see , e.g. , Park Place Hosp. v. Estate of Milo , 909 S.W.2d 508, 510

– 11 (Tex. 1995) (concluding summary judgment was proper because defendant disproved causation as a matter of law). After the movant prod uces evidence sufficient to show it is entitled to summary judgment, the burden shifts to the non

- movant to present evidence raising a fact issue. See Amedisys , 437 S.W.3d at 511; Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996). In reviewing the grant of a summary judgment, we take as true all evidence favorable to the non

- movant, and we indulge every reasonable inference and resolve any doubts in the non

- movant’s favor. Buck v. Palmer , 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); Sw. Electric Power

, 73 S.W.3d at 215.4 III. S UMMARY J UDGMENT E VIDENCE By his second issue, which we address first, Martinez argues that the trial court erred in c onsidering Dolgencorp’s summary judgment evidence because all the evidence relied on the affidavit by Peet , whic h was not based on personal knowledge

. Dolgencorp, on the other hand, contends Peet’s affidavit was based on personal knowledge , but it does not dispute that its summary judgment evidence relied on the affidavi t

. A. Standard of Review and Applicable Law We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Serv. Corp. Int’l v. Guerra , 348 S.W.3d 221, 235 (Tex. 2011); Rogers v. RREF II CB Acquisitions, LLC , 533 S.W.3d 419, 426 (Tex. App.

— Corpus C hristi 2016, no pet.) (applying an abuse of discretion standard to rulings on summary judgment evidence). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Crawford v. XTO Energy, Inc. , 509 S.W.3d 906, 911 (Tex. 2017). Texas Rule of Civil Procedure 166a(f) requires that affidavits in support of summary judgment must be made on personal knowledge and set forth facts which would be admissible in evidence. T EX

. R. C IV

. P. 166a(f) ; see also T EX

. R. E VID

. R

. 602 ( “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” )

. “An affidavit which does not positively and unqualifiedly represent the facts as disclosed i n the affidavit to be true and within the affiant’s personal knowledge is legally insufficient.” Humphreys v. Caldwell , 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding) ; see Pipkin v. Kroger Tex., L.P. , 383 S.W.3d 655, 669 (Tex. App.

— Houston [14th Dist.] 2012, pet . denied )

. A ccordingly, a n affidavit must disclose the basis on which the affiant has personal knowledge of the facts5

asserted. Rogers , 533 S.W.3d at 428; see Radio Station KSCS v. Jennings , 750 S.W.2d 760, 761

– 62 (Tex. 1988) (per curiam)

. “As to the personal knowledge requirement, an affiant’s position, job responsibilities, and status as custodian of records may help demonstrate the basis of his personal knowledge.” Berry Contracting, L.P. v. Mann , __ S.W.3d __, __ , No. 13

- 17

- 00063

- CV, 2018 WL 1972817, at *9 (Tex. App.

— Corpus Christi Apr. 26, 2018, no pet. h. ) (citing Rogers , 533 S.W.3d at 429) ; see , e.g. , Nat’l Health Res. Corp. v. TBF Fin., LLC , 429 S.W.3d 125, 130 (Tex. App.

— Dallas 2014, no pet.) (concluding status as a custodian of records with a relationship to the facts of the case may help establish the affiant’s personal knowledge) ; Valenzuela v. State & Cty. Mut. Fire Ins. , 317 S.W.3d 550, 553 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) (“Affidavits demonstrating personal kno wledge often state the affiant’s knowledge is acquired through not only the person’s position, but also through his specifically described job duties.”) ; Stucki v. Noble , 963 S.W.2d 776, 780 (Tex. App.

— San Antonio 1998, pet. denied) (concluding the persona l knowledge requirement may be satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit)

. “The key is whether the affidavit clearly shows the affiant is testifying from personal knowledge.” Pipkin , 383 S.W.3d at 669. Thus, “[t] he affidavit must ‘itself’ state the facts and demonstrate the affiant’s competency.” Valenzuela , 317 S.W.3d at 553 (citing Keenan v. Gibraltar Sav. Ass ’n , 754 S.W.2d 392, 394 (Tex. App.

— Houston [14th Dist.] 1988, no writ))

. “We look to the entire affidavit to determine whether the facts asserted therein are based on6

personal knowledge.” Rogers , 533 S.W.3d at 428 (citing Noriega v. Mireles , 925 S.W.2d 261, 264 (Tex. App.

— Corpus Christi 1996, writ denied)).
B. Application Peet’s affidavit provides the following:
1. My name is Suzzanne S. Peet. I am over 18 years of age, of sound mind, and capable of making this affidavit. T he facts stated in this affidavit are within my personal knowledge and are true and correct. 2. I am a Senior Claims Representative (#2) with Dollar General, which has been sued in this action in connection with an incident involving Daniel Martinez outside the store of Dollar General located at 1121 S. Raul Longoria Road in Edinburg, Texas (the “incident”). 3. I have an awareness of the lease and modification agreements, referred to herein by individual name or as Lease and Modification Agreements, that Dolgen corp of Texas, Inc. d/b/a Dollar General executed for the use of the property located at 1121 S. Raul Longoria Road in Edinburg, Texas (“Dollar General”). 4. Attached to Defendant Dolgencorp of Texas, Inc. d/b/a Dollar General’s Traditional Motion for Summar y Judgment (“Motion for Summary Judgment”) are to the best of my knowledge true and correct copies of the Lease dated May 24, 2014, between Buchalter II, Inc. and Dolgencorp of Texas, Inc., Lease Modification Agreement #1, and Lease Modification Agreement #2. 5. The Lease and Modification Agreements to the best of my knowledge have been kept in accordance with the normal course of business. 6. I have an awareness of the surveillance video of the incident taken by one of the security cameras of Dollar General, which captured the incident occurring outside of Dollar General. I have viewed the video. I made a photograph of the video, a copy of wh ich is attached as Exhibit 1 of the Motion for Summary Judgment. The photograph is a true and correct copy of the picture frame/section of the video. Here, Peet’s position as a senior claims representative alone , without more, does not affirmatively sho w how she is testifying from personal knowledge as to the copy of the7

lease

. 1 See Rogers , 533 S.W.3d at 429

– 30; Valenzuela , 317 S.W.3d at 554

– 55; Stucki , 963 S.W.2d at 780; see also Landmark Org., L.P. v. Tremco Inc. , No. 03

- 07

- 00673

- CV, 2010 WL 2629863, at *11 (Tex. App.

— Austin June 30, 2010, no pet.) (mem. op.) (concluding affiant did not establish personal knowledge where she failed to explain how she would have acquired knowledge through role as secretary of general partner); Lawrence Marshall Dealersh ips v. Meltzer , No. 14

- 07

- 00920

- CV, 2009 WL 136908, at *4 (Tex. App.

— Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op.) ( concluding affiant failed to establish personal knowledge where he state d job title but failed to identify his duties or other bas is for personal knowledge)

. Although the affidavit states Peet is
current ly a claims representative for Dolgencorp, it does not state whether she was the claims representative for the underlying suit, what any of her job duties are , how her position as a claim s representative afforded her knowledge about Martinez’s claim, or how she became familiar with the true and correct copy of the lease. See Valenzuela , 317 S.W.3d at 554 ; see also Coleman v. United Savs. Ass’n of Tex. , 846 S.W.2d 128, 131 (Tex. App.

— Fort Worth 1993, no writ) (explaining that the requirement that an affidavit be made on personal knowledge is satisfied by an affirmative showing in the affidavit of how the affiant became personally familiar with the facts so as to be able to testify as a witness, “not by a self

- serving recitation by the affiant that she has ‘personal

1 Along with its summary judgment motion, Dolgencorp also submitted a picture of three individuals standing inside the store, and it is undisputed that Martinez fell and suffered his injuries on the ramp outside the store. Accordingly, the relevant item of evidence for the summary judgment granted by the trial court was the copy of the lease, as it was used to show Dolgencorp did not have control of the ramp as a matter of law. See United Scaffolding, Inc. v. Levine , 537 S.W.3d 463 474

– 75 (Tex. 2017) (“[A] premises liability defendant may be subject to liability if it has a right to control the premises, which ‘may be expressed by contract or implied by conduct.’”) (quoting Gen. Elec. Co. v. Moritz , 257 S.W.3d 211, 214 (Tex. 2008)); Walmart Stores , Inc. v. Alexander , 868 S.W.2d 322, 324

– 35 (Tex. 1993) (concluding that lessee is responsible for those areas adjacent to the premises which it actually controls). Accordingly, we focus our analysis only on the affidavit’s sufficiency as it pertains to the lease a nd the two lease modifications.8

knowledge

. ’”)

. Finally, Peet does not attest that she is a custodian of the records. See Nat’l Health Res. , 429 S.W.3d at 130 (“When an affiant’s summary judgment affidavit contains testimony that identifies him as a record custodian and establishes his relationship with the facts of the case in a manner sufficient to demonstrate the facts at issue, the personal knowledge requirement for summary judgment affidavits may be

sa tisfied.”); see also T EX

. R. E VID

. R. 902(10) (business record affidavit). Thus, we conclude Peet’s affidavit does not demonstrate how she is testifying from personal knowledge as to the copy of the lease. Furthermore, qualified statements such as “to th e best of my knowledge” are insufficient to prove up the facts asserted. Price v. Am. Nat’l Ins. , 113 S.W.3d 424, 429

– 30 (Tex. App.

— Houston [1st Dist.] 2003, no pet. ) (citing Hall v. Stephenson , 919 S.W.2d 454, 466 (Tex. App.

— Fort Worth 1996, writ denied) (“Statements that are equivocal or are merely based on the affiant’s ‘best knowledge’ constituted no evidence at all

. . . . ”); Geiselman v. Cramer Fin. Group, Inc. , 965 S.W.2d 532, 537 (Tex. App.

— Houston [14th Dist.] 1997, no pet.); Flanagan v. Martin , 88 0 S.W.2d 863, 866 (Tex. App.

— Waco 1994, writ dism’ d w.o.j.) (“When the affiant states that all of the facts are true and correct ‘ to the b est of my knowledge and belief,’ the trial court is justified in not considering any of those facts.”)

. Here, Peet st ates she has an “awareness” of the lease and that the copies submitted with Dolgencorp’s motion for summary judgment are true and correct copies of the original “to the best of [her] knowledge

. ” An affidavit may be sufficient if sworn to the phrase “to th e best of my knowledge” if the statements within the affidavit demonstrate the basis for the affiant’s personal knowledge, see Shaheen v. Motion Indus., Inc. , 880 S.W.2d 88, 91 n. 1 (Tex. App.

— Corpus Christi 1994, pet. denied); however, as we9

previously con cluded, Peet’s affidavit fails to do this. Thus , Peet’s qualified statements are insufficient to prove up the facts asserted

— i.e., that the copy of the lease submitted is a true and correct copy

. L ooking at Peet’s entire affidavit, we cannot conclude that it affirmatively shows the basis on which she had personal knowledge of the facts asserted regarding the lease , see Rogers , 533 S.W.3d at 428; Pipkin , 383 S.W.3d at 669; Stucki , 963 S.W.2d at 780 , and it is inadeq uate to prove that the copy of the lease submitted with Dolgencorp’s motion for summary judgment is a true and correct copy of the original

. See Price , 113 S.W.3d at 429

– 30 ; Geiselman , 965 S.W.2d at 537

– 3 9

. Therefore, the trial court abused its discretio n by not sustaining Martinez’s objection and excluding the copy of the lease from consideration

. Dolgencorp argues that Martinez did not suggest anywhere in his response that the copy of the l ease is not a ctually a true and correct copy

. We disagree. Martinez specifically argued in his response to Dolgencorp’s motion for summary judgment that the trial court could not rely on the copy of the lease because Peet did not have personal knowledge as to whether the submitted copy was in fact a true and corre ct copy of the lease

. Furthermore , regardless of whether Martinez challenged the veracity of the copy submitted, the trial court could not have considered the copy of the lease in its summary judgment disposition due to Peet’s lack of personal knowledge

. See T EX

. R. C IV

. P. 166a(c), (f) ; Geiselman , 965 S.W.2d at 538

. Accordingly, we reject this argument by Dolgencorp and conclude that the copy of the lease was improperly considered as competent summary judgment evidence

. We sustain Martinez’s second issue.10 III. R EVIEW OF S UMMARY J UDGMENT Having concluded that the trial court should not have relied on the copy of the lease submitted by Dolgencorp as summary judgment evidence, we now address whether the trial court erred in granting Dolgencorp’s motion for summary judgment. To prove a claim for premises liability as an invitee , the plaintiff must prove: (1) the defendant was the possessor of the premises; (2) a condition on the premises posed

an unreasonable risk of harm; (3) the defendant knew or reasonab ly should have known of the dang er; (4) the defendant breached its duty of care by failing to adequately warn

o r by failing to make the condition reasonably saf e; and ( 5 ) the defendant’s breach proximately caused the plaintiff’s injury. See Del Lago Partn ers v. Smith , 307 S.W.3d 762, 767 (Tex. 2010) ; Wal

- Mart Stores , Inc. v. Gonzalez , 968 S.W.2d 934, 936 (Tex. 1998)

. A defendant is a “p ossessor ” if it exercises control over the premises. Thornhill v. Ronnie’s I

- 45 Truck Stop, Inc. , 944 S.W.2d 780, 788 (T ex. App.

— Beaumont 1997, writ dism’d); see United Scaffolding, Inc. v. Levine , 537 S.W.3d 463 , 474

– 75 (Tex. 2017) (“[A] premises liability defendant may be subject to liability if it has a right to control the premises, which ‘may be expressed by contract or implied by conduct.’”) (quoting Gen. Elec. Co. v. Moritz

, 257 S.W.3d 211, 214 (Tex. 2008) ) ; Walmart Stores , In c. v
. Alexander

, 868 S.W.2d 322, 324

– 35 (Tex. 1993) (concluding that lessee is responsible for those

areas which it actually controls that are adjacent to the premises). Here, t he trial court granted Do lgencorp ’s traditional motion for summary judgment

a fter concluding Dolgencorp was not in control of the ramp as a matter of law, and, therefore, it did not owe a duty to Martinez. The evidence used by Dolgencorp to prove it did not have control of the ramp was the copy of the lease attached to its motion ;11

however, as previously discussed, the trial court should not have considered the copy of the lease in its disposition. Thus, Dolgencorp failed to meet its burden for summary judgment to introduce evidence that disproved , as a matter of law, one of the el ements of Martinez’s claim

. See T EX

. R. C IV

. P. 166a(c); Amedisys , 437 S.W.3d at 511. Therefore, the trial court erred in granting Dolgencorp’s traditional motion for summary judgement. 2 See Valenzuela , 317 S.W.3d at 554

– 55 ; Geiselman , 965 S.W.2d at 539

. IV. C ONCLUSION We reverse the trial court’s summary judgment and remand for further proceedings consistent with this memorandum opinion. DORI CONTRERAS Justice

Delivered and filed the 21st day of June, 2018

.

2 Because we find Martinez’s second issue dispositive, we need not address his first and third issues. See T EX

. R. A PP

. P. 47.4

.