NO. 03—l5—00243—CV 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS DIVISION 

KRISTIN LEE 

Appellant 

V. 

K & N MANAGEMENT, INC. D/B/A RUDY’S COUNTRY STORE AND 

BAR—B—Q 

Appellee 

On Appeal from the 98”‘ Judicial District Court, 

Travis County, Texas 

BRIEF OF APPELLEE 

ETHAN F. GOODWIN 

State Bar No.2 24064492 

e-mail: 

ethan.goodwin@farmersinsurance.com 

CLARK, TREVINO & ASSOCIATES 

1701 Directors Boulevard, Suite 920 

Austin, Texas 78744 

Telephone: (512) 445-1580 

Telecopier: (512) 383-0503 

ATTORNEY FOR APPELLEE

ACCEPTED

03-15-00243-CV

6200252

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/23/2015 3:24:05 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/23/2015 3:24:05 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS 

INDEX OF AUTHORITIES .................................................................................... .. i 

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

ISSUES PRESENTED ............................................................................................ .. 2 

Whether the trial court erred by granting summary judgment on 

grounds that the plant growth was not dangerous when Rudy’s showed 

that it was not, when Appellant failed to respond, and when the Final 

Summary Judgment does not state the grounds on which it was granted? 

Whether there is some basis upon which a fact finder can assess Rudy’s 

opportunity to discover the plant growth when Appellant failed to show 

how long it was present prior to Appellant’s fall? 

STATEIVHENT OF FACTS ...................................................................................... .. 3 

SUMMARY OF THE ARGUIVIENT ...................................................................... .. 4 

ARGUMENT AND AUTHORITIES ..................................................................... .. 5 

The trial court did not err in granting summary judgment because 

Appellee showed the plant growth at issue was not dangerous and 

Appellant failed to address the challenged essential element. 

There is no basis upon which a fact finder can assess Rudy’s 

opportunity to discover the plant growth because Appellant failed to 

show how long it was present prior to Appellant’s fall. 

CONCLUSION ............................................................... .; ......... ......................... .. 10 

PRAYER ............................................................................................................... .. 10 

CERTIFICATE or COMPLIANCE .................................................................... .. 11 

CERTIFICATE OF SERVICE .............................................................................. .. ll
INDEX OF AUTHORITIES 

Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) ....................................................... .. 5 

City ofHousz‘on V. Clear Creek Basin Auth, 589 S.W.2d 671 (Tex. 1979) ........... .. 9 

Dolcefino v. Randolph, 19 S.W.3d 906 (Tex. App. ~ Houston [14‘h Dist] 

2000, pet. denied) .................................................................................................... .. 6 

Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) ........................................ .. 5 

Frost Nat’! Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) ................................ .. 5 

Keetch v. Kroger, 845 S.W.2d 262 (Tex. 1992) .................................................. .. 6, 7 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) ................................ .. 6 

Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) ............................... .. 6 

Saenz v. Southern Un. Gas Co., 999 S.W.2d 490 (Tex. App. — E1Paso 1999, 

pet. denied) .............................................................................................................. .. 6 

Wal-Mart Stores, Inc. V. Gonzalez, 968 S.W.2d 934 (Tex.1998) ....................... .. 7, 9 

Wal—Mart Stores, Inc. V. Reece, 81 S.W.3d 812 (Tex. 2002) .......................... .. 6, 7, 8 

Wal-Mart Stores, Inc. v. Spares, 186 S.W.3d 566, 567 (Tex. 2006) ...................... .. 7 

Wong v. Tenet Hosps. Ltd., 181 S.W.3d 532 (Tex. App. — E1 Paso 2005, no pet.) .. 5 

STATUTES AND RULES: 

TEX. R. Crv.P. 166a(i) ............................................................................................. .. 9 

TEX. R. APP. P. 9.4(i)(2)(B) ................................................................................... .. 11
NO. 03—15—00243-CV 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS DIVISION 

KRISTIN LEE 

Appellant 

V. 

K & N MANAGEMENT, INC. D/B/A RUDY’S COUNTRY STORE AND 

BAR—B—Q 

Appellee 

On Appeal from the 98"‘ Judicial District Court, 

Travis County, Texas 

BRIEF OF APPELLEE 

TO THE HONORABLE COURT OF APPEALS: 

K & N Management, Inc. d/b/a Rudy’s Country Store and Bar—B-Q (“Rudy’s” 

or “Appellee”) respectfully asks the Appellate Court to affirm the Final Summary 

Judgment of the trial court, that Appellant Kristin Lee take nothing on her claims, 

and respectfully shows the following:
STATEMENT OF THE CASE: 

Appellant brought this suit to recover personal injury damages. CR. 5 — 6. 

Appellant sued Rudy’s on premises liability and negligent activity theories of 

recovery after she allegedly slipped and fell on some plant growth on a walkway on 

Rudy’s premises. C.R. 4 — 5. Appellee, after an adequate time for discovery, filed 

its First Amended Traditional and No-Evidence Motion for Summary Judgment 

(“Rudy’s Motion”) on all of Appellant’s claims. C.R. 57 ~ 110. Judge Rhonda 

Hurley, on April 8, 2015, granted both motions in favor ofAppe11ee by letter ruling. 

C.R. 187. The Final Summary Judgment was entered on April 10, 2015. CR. 188 

— 190. This appeal followed. C.R. 191 ~ 198. Appellant’s only issue on appeal 

concerns Rudy’s constructive knowledge of the plant growth on her premises 

liability claim. See Appellant’s Brief. 

ISSUES PRESENTED: 

1. Whether the trial court erred by granting summary judgment on grounds that 

the plant growth was not dangerous when Rudy’s showed that it was not, when 

Appellant failed to respond, and when the Final Summary Judgment does not state 

the grounds on which it was granted? 

11. Whether there is some basis upon which a fact finder can assess Rudy’s 

opportunity to discover the plant growth when Appellant failed to show how long it 

was present prior to Appellant’s fall?
STATEMENT OF FACTS: 

Appellant, after admittedly consuming alcohol at Chuy’s during a four hour 

dinner, went to Rudy’s “to get chocolate pudding” with her mother, Mary Lee, and 

brother. C.R. 57, 69 — 70, 84 — 86. Mary Lee drove, Appellant’s brother occupied 

the passenger seat next to Mary Lee, and Appellant sat in the rear passenger seat 

behind her brother. C.R. 57 — 5 8, 71 — 72, 79 — 80. When they arrived at Rudy’s, 

Mary Lee did not park in a designated parking space; instead, she pulled up next to 

a Walkway to let Appellant out. C.R. 58, 71, 80. Appellant was Wearing rubber flipflops when she got out of the car, “took a couple of steps and then was on the 

ground.” C.R. 58, 72 — 73, 82. 

Appellant could not recall What caused her to fall. C.R. 58, 72, 78, 83, 87 ~ 

88. Appellant, however, Was able to recall opening the door of the car, looking 

Where she was going to step on the Walkway, and seeing that it was clear of plants. 

C.R. 58, 80 — 81. Appellant felt that she could see clearly Where she was stepping 

and what she was stepping on. C.R. 58, 82. Appellant, despite the aforementioned 

recollections, was not sure why she fell. C.R. 58, 83, 87 — 88. After she fell, 

Appellant got back into the car without inspecting the scene to determine what, if 

anything, caused her to fall and Went home before going to the hospital. C.R. 58, 72 

— 74, 76 — 77.
Appellant’s mother did not see where Plaintiff stepped or what caused her to 

fall. C.R. 58, 92 — 93. She did not investigate the scene immediately after Appellant 

fell. C.R. 58, 93. Plaintiff’ s mother contends that Justin House, a family friend and 

Rudy’s employee at that time, told her son the following day that Plaintiff stepped 

onto some groundcover that protruded onto the walkway and caused her to fall. C.R. 

58, 92 ~ 93. Before that, Appellant’s mother “literally thought she just tripped over 

her own two feet.” C.R. 58, 92 — 93. 

Justin House testified that the area where Appellant fell was “well-lit” and 

that if someone was stepping out of a car, they’d easily be able to see what, if 

anything, was on the sidewalk. C.R. 5 8, 99. He did not dot see anything on the 

sidewalk that concerned him that Appellant might fall prior to her actually falling. 

C.R. 58 — 59, 100. While Justin House did not actually see what Appellant stepped 

on that caused her to fall or actually go to that area after the fall, he testified that 

there was some plant growth on the sidewalk after she fell in “one spot.” C.R. 59, 

100 ~l04, 108 ~ 109. 

SUMMARY OF THE ARGUMENT: 

I. The plant growth was not dangerous as a matter of law. Appellant conceded 

the issue by failing to respond and present any evidence otherwise. 

H. Rudy’s cannot be charged with constructive knowledge because Appellant 

failed to show how long the plant growth existed prior to Appellant’s fall.
ARGUMENT AND AUTHORITIES: 

1. The trial court did not err in granting summary judgment because 

Appellee showed the plant growth at issue was not dangerous and 

Appellant failed to address the challenged essential element. 

The Final Summary Judgment in this case does not state the grounds on which 

it was granted. C.R. 188 ~ 190. “Where the trial court has granted summary 

judgment Without stating the grounds for doing so . . . We must consider all grounds 

for judgment presented in the motion and affirm if any has meri .” Wong 1/. Tenet 

Hosps. Ltd., 181 S.W.3d 532, 536 (Tex. App. —El Paso 2005, no pet.). The appellate 

court may, in other words, affirm the summary judgment on any one meritorious 

ground alleged. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Carr 

v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). 

Rudy’s showed in its traditional summary judgment motion that the plant 

growth at issue was not dangerous as a matter of law. C.R. 60 — 61, 108 — 109. 

Rudy’s, in other words, disproved the facts of one of the essential elements of 

Appellant’s premises liability claim. Ia’. “A defendant who conclusively negates at 

least one of the essential elements of a cause of action . . . is entitled to summary 

judgmen .” Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). 

Appellant did not contest Rudy’s entitlement to traditional summary judgment in her 

Response. C.R. 111 ~ 117. Therefore, the trial court did not err by granting Rudy’s 

traditional summary judgment motion.
Rudy’s, in its no-evidence summary judgment motion, also contended there 

was no evidence that any condition on its premises posed an unreasonable risk of 

harm to Appellant. C.R. 62. Appellant failed to address the no~evidence challenge 

in her Response. C.R. 111 — 117. TEX. R. CIV. P. 166a(i), consequently, required 

the trial court to grant Rudy’s no—evidence summary judgment motion because 

Appellant failed to produce any summary judgment evidence that raised a genuine 

issue of material fact. Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App. — 

Houston [14th Dist. 2000, pet. denied); Saenz v. Southern Un. Gas Co., 999 S.W.2d 

490, 493 (Tex. App. — El Paso 1999, pet. denied). An appellate court must affirm a 

no-evidence summary judgment if the records shows there is no evidence on the 

challenged element. Merriman V. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 

2013);_Kz'ng Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The record 

is clear; Appellant presented no evidence on the challenged element. CR. 111 — 

117. Therefore, the trial court did not err in granting Rudy’s no—evidence summary 

judgment motion. 

2. There is no basis upon which a fact finder can assess Rudy’s opportunity 

to discover the plant growth because Appellant failed to show how long 

it was present prior to Appel1ant’s fall. 

Appellant must prove that the plant growth that she claims caused her to fall 

existed for so long that Appellants had a reasonable opportunity to discover it. See 

Wal—marz‘ Stores v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); Keetch V. Kroger C0,,
845 S.W.2d 262, 265 (Tex. 1992). In other words, there must be some evidence of 

how long the plant growth existed prior to Appellant’s fall in order to charge Rudy’s 

with constructive knowledge. Reece, 81 S.W.3d at 816. “Without some temporal 

evidence, there is no basis upon which the fact finder can reasonably assess the 

opportunity the premises owner had to discover the dangerous condition.” Reece, 

81 S.W.3d at 816; see also Wal-Mart Stores, Inc. v. Spares, 186 S.W.3d 566, 567 

(Tex. 2006)(evidence that employee was in close proximity to spill legally 

insufficient to support a finding of constructive notice without evidence of how or 

when it came to be on the floor). Otherwise, “constructive knowledge” would be 

imputed on a landowner the instant a dangerous condition is created, whether or not 

there was a reasonable opportunity to discover it. Reece, 81 S.W.3d at 815. 

“When circumstantial evidence is relied upon to prove constructive notice the 

evidence must establish that it is more likely than not that the dangerous condition 

existed long enough to give the proprietor a reasonable opportunity to discover the 

condition.” Wal—Marz‘ Stores, Inc. v. Gonzalez, 968 S.W.2d 936, 936 (Tex. 1998). 

Circumstantial evidence from which “equally plausible but opposite inferences may 

be drawn” is speculative and, thus, legally insufficient to support a finding of 

constructive knowledge. Id. The Texas Supreme Court in Reece also reiterated that 

a court may not “refus[e] to apply the ‘time—notice rule’ simply because it might be
impossible for the Plaintiff to show actual or constructive knowledge.” Reece, 81 

S.W.3d at 816. 

There is no evidence of how long the plant growth existed before Appellant 

fell. C.R. 61 — 62, 72, 78, 83, 87 ~ 88. Appellant could not recall what caused her 

to fall. C.R. 58, 72, 78, 83, 87 ~88. Appellant was not sure why she fell. C.R. 58, 

83, 87 — 88. Appellant did not inspect the scene after she fell to determine what, if 

anything, caused her to fall. C.R. 58, 72 — 74, 76 — 77. Appellant, thus, could not 

describe the alleged defect or attribute any characteristic to it that would indicate 

that it had been there long enough that it should have been discovered. C.R. 61 — 

62, 72, 78, 83, 87 ~ 88. 

Appellant’s mbther, likewise, did not see where Appellant stepped or What 

caused her to fall. C.R. 58, 92 ~ 93. Appellant’s mother, just like Appellant, did not 

investigate the scene immediately after Appellant fell. CR. 58, 93. Appellant’s 

mother “literally thought that she just tripped over her own two feet.” CR. 58, 92 — 

93. Appel1ant’s mother’s testimony, just like Appellant’s testimony, failed to show 

how long the plant growth existed prior to Appellant’s fall. C.R. 58, 92 — 93. 

Justin House, Appellant’s family friend and Rudy’s former employee, 

testified that prior to Appellant’s fall, he did not see anything on the sidewalk that 

concerned him. C.R. 58 ~ 59, 100, 182. Justin House did not actually see 

Appellant’s feet hit an obstacle that caused her to fall. C.R. 100. After Appellant
fell, Justin House claimed he saw a plant that he estimated to be ten inches in 

diameter from twenty-five feet away while on the patio inside Rudy’s. C.R. 100 — 

101, 183. However, Justin House never actually went to the area where Appellant 

fell to investigate what caused her to fall. C.R. 101, 183. Justin House’s testimony, 

similarly, failed to show how long the plant growth that he concluded caused 

Plaintiffs fall existed. 

In order to prevail on appeal, Appellant must have clearly presented summary 

judgment proof to establish a fact issue. TEX. R. CIV. P. 166a; City of Houston v. 

Clear Creek Basin Auth, 589 S.W.2d 671, 678 (Tex. 1979). Appellant failed to 

sustain her burden of proof because her summary judgment evidence does not show 

when the plant growth came to be on the walkway or how long it was present before 

Appellant slipped. C.R. 111 — 117. Appellant argues that constructive knowledge 

should be imputed to Rudy’s because plants grow slowly implying that Rudy’s 

should have discovered it because “the hazard at issue must logically have existed 

for a considerable time before [Appellant] fell.” See Appellant’s Brief. Appel1ant’s 

argument is flawed and legally insufficient to impute constructive knowledge on 

Rudy’s because there are numerous other plausible alternative explanations for the 

creation of the condition at issue. Gonzalez, 968 S.W.2d 93 6, 936 (Tex. 1998). As 

such, Appellant failed to meet her burden and prove the plant growth at issue existed
for so long that it should have been discovered through the exercise of reasonable 

care. 

CONCLUSION: 

Appellant failed to prove the plant growth at issue was dangerous. Appellant, 

additionally, failed to prove Rudy’s constructive knowledge of the alleged plant 

growth that she claims caused her to slip and fall. Therefore, the appellate court 

shouldiaffirm the Final Summary Judgment in Appellee’s favor because Appellant 

failed to meet her burden. 

PRAYER: 

WHEREFORE, PREMISES CONSIDERED, Rudy’s respectfully asks the 

Court to affirm the Final Summary Judgment of the trial court that Appellant take 

nothing on her claim against Rudy’s, and for all other relief to which Rudy’s may be 

justly entitled, at law or in equity, including costs. 

Respectfully submitted, 

CLARK, TREVINO & ASSOCIATES 

1701 Directors Boulevard, Suite 920 

Austin, Texas 78744 

Telephone: 5l2 445-1580 

Telecopierz 512 383~0503 

Bf/”55&wC%/van?/WC Ethan F. Goodwirf 

State Bar No. 24064492 Email address: 

efhan. g00dwin( (Dfarmers ins urance. com 

ATTORNEY FOR APPELLEE
CERTIFICATE OF COMPLIANCE 

I certify by my signature above that I have reviewed Brief of Appellee and 

have concluded that every factual statement in it is supported by the Clerk’s Record 

and that the number of words in this document, as allowed by TEX. R. APP. P. 

9.4(i)(2)(B), is 2,761. 

CERTIFICATE OF SERVICE 

I hereby certify by my signature above that a true and correct copy of the 

document has been delivered by certified mail, return receipt requested, and or 

facsimile and or e—mail to the attorneys of record as listed below on the 23rd day of 

July, 2015 2

» 

Price Ainsworth 

Law Offices of Price Ainsworth, P.C. 

3821 Juniper Trace, #310 

Austin, Texas 78738 

(512) 233—111l 

(512) 472-9157 (Fax)