### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00107- CV

P aul Mattox, Appellant

v. Ge raldine Ti m m erm an, In divid ually an d as Representat ive of Timm erm an Pr opertie s, Inc.; and T im m erm an Pr opertie s, Inc., Appellees

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 11- 0046 26, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Paul Mattox , acting pro se, bring s this appea l from a no-evide nce summary judgme nt g rante d in favor of Ger aldine Tim merman and Timmerman Proper ties (Timmerman) on Mattox ’s premises liability claim. I n the underly ing suit, Mattox alleged t h at h e was bitten by a dog while visiti ng a friend at an apar tment complex that Timmerman owned and opera ted. Mattox challeng es summary judgme nt in three iss u es , co ntending that the trial court should have considere d his witness’s amende d aff

idavit, that the aff

idavit did not contain hear say , and that the trial court should not have r uled without adequa tely

considering all of Mattox’s filed pleading s. We will affirm the trial court’ s judgme nt.BACK GR OUND Mattox alleg ed that he was attacke d by a larg e d o g wh i l e v i siting a friend at Timmerman’s apar

tment compl ex . I n his subsequent premises liability suit, he alleg ed that Timmerman knew or should have known that a dang erous condition (the larg e dog ) was prese nt on the proper

ty and that Timmerman failed to take steps to eliminate or reduc e the unrea sonab l y dang erous condition posed by the dog ’s prese nce. I n response , Timmerman filed a no-evide nce motion for summary judgme nt claiming that Mattox failed to establish eac h element of his premises liability cause of action. Mattox filed a response , which he amende d twice. Timmerman then filed objections to Mattox ’s evidenc e, arg uing that the aff idavit of Cindy Br own lack ed a j u ra t and contained hear say . At the summary judgme nt hear ing, the court g ave Matto x an o pportunity to

cure the af

fidavit’s def

iciencie s and took the summary judgme nt unde r adviseme nt. After Ma ttox filed his third amende d response , the trial court g rante d Timmerman’s no-evide nce mot i o n for summary judgme nt without ruling on the objec tions to the Br own af fidavit. Mattox filed motions t o rec onsider, and Timmerman filed a response , but the motion was never set for a hear ing. This appea l followed.

Stand ard of review

We revie w s ummary

judgme nts de novo. Neely v . W ilson , No. 11-0228, 2013 WL 3240040, at *4 (Tex. J une 28, 2013); Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A no-evide nce motion for summary judgm en t i s v i ew ed as a motion for pretria l direc ted verdic t to which we app l y a leg al sufficie ncy standard. Timpte Indus., Inc. v. Gish , 286 S.W .3d 306, 310 (Tex. 2009)

. Texas Rule of Civil Procedur e 166a(i) permits a party to move
2for summary judgme nt on the g round that there is no evidenc e of one or more essential elements of

the nonmovant’s claim. Tex. R. Civ. P. 166a(i). The burden then shifts to the responde nt to produce

some evidenc e raising a g enuine issue of materia l fac t, failing which the court must g rant the motion. Id .; Jennings v. Bindseil , 258 S.W .3d 190, 194 (Tex. App.—Austin 2008, no pet.). We consider the evidenc e in the l ight most favor able to the nonm ovant, i ndulgi n g all infere nces and resolving any doubts in the nonmovant’s favor

. Timpte Indus., Inc. , 286 S.W .3d at 310 (quoting Mack Trucks, Inc.

v. Tamez , 206 S

. W

. 3 d 5 7 2 , 582 (Tex. 2006)). A no-evide nce motion will be g rante d when no
ev idence of a vital fac t exis ts, there is no more than a scintilla of evidenc e to prove the fac t, o r the evidenc e establishes the opposite of the fac t. City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005). Using this standard, we addre ss Mattox ’s issues on appe al.

DISCUSSIO N Mattox ’s first two issues conce rn Cindy Br own’s aff idavit, which Mattox included in his summary judgme nt evidenc e to show Timmerman knew the dang erous dog was on the proper ty
. Timmerman objected to Br own’s aff id av i t as containing hear say and lacking a jurat. See Acme Brick, a Div. of

Justin Indus., Inc. v. Temple Assocs., Inc ., 816 S.W .2d 440, 441 (Tex. App.—Waco 1991, writ denied) (stating that a jurat is a cer tificate made by an authorized office r that statements made in an aff

idavit wer e sworn to by the aff iant); Coastal Ceme n t S

a nd Inc. v. First Interstate C r ed i t A lliance, Inc. , 956 S.W .2d 562, 567 (Tex. App.—Houston [14t h Dist.] 1997, writ denied) (g ener ally , without notarization or jurat, an unsworn statement is “not an af fi d avit, and it is not proper summary judgme nt evidenc e”)

. The court allowed Mattox time to fix the aff idavit. See Tex. R. Civ. P. 166a(f

) (g iving courts discretion to allow addition or supplementation of aff idavits).
3Mattox filed an amende d aff idavit from Br own in his third amende d response to Timmerman’s motion for summary judgme nt. The trial cour t g rante d the summary judgme nt four day s later. Mattox contends that the court err ed i f i t we n t b ac k on its decision to allow him time to cure Br own’s defe ctive aff

idavit befor e ruling on the summary judgme nt. Howeve r, we find nothing in the rec ord sug g esting that the trial court did not consider Br own’s amende d aff idavit. As such, we
overr ule Mattox ’s first issue. Mattox next claims that the trial court err ed if it g rante d summary judgme nt based on the aff idavit containing hear say . Howeve r, Mattox ’s asser tion that summary judgme nt was g rante d beca use of hear say contained in B rown’s aff idavit is pure specula tion. Further , beca use there was
no ruling on Timmerman’s objections to Mattox ’s summary judgme nt evidenc e, this rec ord does not show that the court excluded any alleg ed hear say statements in Br own’s aff idavit. Acc ording ly , we
overr ule Mattox ’s sec ond issue. I n his third issue, Mattox arg ues that the court err ed in ru l i n g on Timmerman’s summary judgme nt without adequa tely considering all of Mattox ’s filed pleading s. Nothing in the

rec ord sug g ests that the trial court failed to do so befor e issuing its order

. The court hear d arg ument from the parties at the hear ing, took the motion under advisement, and allowed additional briefing and amendment of Br own’s aff idavit befor e ruling

. Fur

ther, the summary judgme nt order states that the court considere d the pleading s on file. I n any event, while pleading s may provide context, they

are not competent su m m ary judgme nt evidenc e. Elite Towi ng, Inc. v. LSI Fin. Grp. , 985 S.W .2d 635, 641 (Tex. App.—Austin 1999, no pet.).

4Although Mattox did not expressly articula te an issue on appea l specific ally

challeng ing the trial court’s g rant of summary judgme nt, we construe his arg ument as doing so. As the responde nt to a no-evide nce motion for summar y judgme nt, Mattox had the bur den to pr ovide evidenc e ra ising a

g enuine issue of

materia l fac t. See Tex. R. Civ. P. 166a(i). Rule 166a(i) states that if the re spondent fails to meet this burden, the court “ must gra nt the motion.” Id

. To survive summary judgme nt on his pr emises liability claim, as an invitee Mattox had the bur den to ra ise a g enuine issue of materia l fac t on eac h of the following elements: (1) a ctual or c onstructive knowledg e of a condition on the premises by the owner ; (2) the c ondition posed an unrea sonable risk of ha rm; (3) the ow ner did not exercise rea sonable c are to reduc e or e liminate the risk; and (4) the ow ner’ s failure to use such ca re pr ox imately

cause d plaintiff’s injury

.
CMH Homes, Inc. v. Daene n , 15 S.W .3d 97, 99 (Tex

. 2 0 0 0 ). An essential element of Mattox ’s premises liability claim is whether Timmerman had actua l or constructive knowledg e of an alleg ed dang erous condition, in this c ase alleg ed by Mattox to be the pre sence of the dog

. See id. Mattox claims Br own’s aff

idavit proves Timmerman knew the dog was on the p ro p er t y beca use Ms. Timmerman questioned at least one tenant reg arding the dog ’s owner . Howeve r, the aff idavit lacks any indication that Timmerman had actua l or constructive knowledg e that the dog was, in fac t, dang erous or posed any kind of threa t. At most, the af fi d av i t s h o ws that Ms. Timmerman, while collecting rent from a tenant, saw the dog , asked the tenant about the dog ’s owner , and went to that tenant’s apar

tme n t
. T h at alone is insufficient to establish Timmerman’s knowledg e that the

5dog posed an unrea sonable risk of harm or a dang erous condition. See Batra v. Clark , 110 S.W .3d

126, 130 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding in a dog bite case that evidenc e land l o rd wa s on the proper ty when dog was barking was insufficient to show knowledg e of potentially vicious animal); see also P f eff er v. Simon , No. 05-02-01130- CV, 2003 WL 1545084, at *2 (Tex. App.—Dallas Mar. 26, 2003, no pet.) (mem. op.) (conc luding evidenc e was insufficient to overc ome sum m ar y j u dg ment in a dog bite case beca use aff idavits did not show dog had abnorma lly

dang erous pr opensities or constituted a da ng erous c ondition). Mattox acknow ledg es in his motion to rec onsider and in hi s b ri ef t h at he did not provide a ny evidenc e that the dog ha d ever bitten any one, that Timmerman ha d knowledg e of a ny previous attacks by that dog , or t hat any other person knew or had knowledge o f an attack by that dog

. Mattox arg ues that Ms. Timmerman’s “ala rmed” rea ction at seeing the dog is evidenc e enoug h of knowledg e that the dog was dang erous. Mattox ’s char acte rization of Ms. Timmerman’s alleg ed

rea ction to seeing the dog is not based on Br own’s aff idavit, b u t his own asser

tions in pleading s. Pleading s on t h ei r o wn are not considere d summary judgme nt proof. See Elite Towi ng, Inc. , 985 S.W .2d at 641 (“A lthough plea dings se t out the controver sy in a ca se, they are not c onsidered in deter mining whether fac t issues are expressly prese nted in summary judgme nt motions, and they

are not summary -judg ment proof.” ). Even if Mattox could show the dog ’s siz e and appea ranc e wer e indicative of his potentially dang erous nature , that is not the standard in Texas for imposing premises liability

. See Bake r v. Pennoak Props., Ltd ., 874 S.W .2d 274, 277 (Tex. App.—Houston [14t h Dist.] 1994, no writ) (apply ing a two-par t test in deter

mining whether landlord has a duty to keep common
are as safe and stating the second prong must s h o w l andlord had actua l or imputed knowledg e

6of dog ’s dang erous propensities). There is no evidenc e in the rec ord to prove Timmerman had

actua l or constructive knowledg e that the dog posed a dang erous condition. As such, the trial court proper ly g rante d the no-e vidence summary judgme nt.
CONCLUSION Having deter

mined that summary judgme nt was proper ly g rante d, we aff irm the trial court’s judg ment.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: Aug ust 22, 2013

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