### TEXAS COUR T OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00498
- CV

Paula Chavez ; Daniel Fagan ; and April Chavez, Individually and as next friend of D. C., a minor, M. G., a minor, and S. C., a minor; and Tommy Chavez , Appellant s

v. Silverleaf Res o r ts, LLC, formerly Silverleaf Resorts, Inc; and Holiday Inn Club Vacation

Incorporated, formerly Orange Lake Country Club, Inc. , Appellee s

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. C2018
- 0902B , THE HONORABLE DIB WALDRIP , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

P aula Cha vez ; Danie l Fagan ; and April Chavez , Indi vidually and as next friend of D.C., a minor , M.G., a m inor, and S.C., a minor; and Tomm y Chavez ( collect ively, “ the Chavezes ” ) filed suit a ga inst Si lver leaf Re sorts, LLC, f ormerly Silverlea f Resorts, Inc; and Holiday Inn Club Vacation Incorpora ted, formerly Orange Lake Country Club, Inc. (collectively,

“ Silverleaf

” ) al leging a cause of action for p remises liability. Silverleaf filed a moti on for summary judgment, which th e trial court granted. The Chave zes appeal, a rguin g that the tri al court erred in determin ing that they were trespassers as a matter of law and, co nsequently, Silverleaf owed them no duty. Bec ause Silverleaf failed to estab lish as a matter of law that th e Chavezes were tres passers, w e will revers e and remand.2 BACKGROUND After suffering injuries from a fall ca used by the collapse of a deck an d stairway

a t the Hill Country Reso rt (the Resort) , the Chave zes sued Silverleaf alleging a caus e of action for p r emises liability. Th e Chavezes alleged that they were invitees at a hillside ca bin owned and managed by Silverl eaf and that, while they were on the stairs and deck of the cabin, “ the deck and stairway suddenly and without warn ing coll apse d, ” causing the i r injuries. Silverleaf filed an answ er asserting that the Chave zes were not invitees but were trespassers or , alternatively , licensees, and that Silverlea f did not have actual or cons tructive knowledge of the allegedly dangerous condition of the deck and s tairway.

Silver leaf filed a tr aditional motion for summary judgment in which it asserted tha t , as a matter of law, the Chavezes were trespas sers at the prop erty and, conse quently, Silverlea f had no duty to warn the Chave zes of any defect on the propert y or to cure it. With its
summary - ju dgment motion , Silverleaf submit te d evidence that the Chave zes were family members of Pablo Chavez and Amanda Chavez ( collectively, “ the Time share Owners ” ) , individuals who had purchased a timeshare at the Resort in Nov e m ber 2005

. As part of timeshare purchase, the Timeshare Owners received access to the Resort a nd other participating

res orts for ad ditional stays pursuant to the terms of a “ Bo nus Ti me Pr o gram. ” Contemporaneously with the ir timeshare purchase , t he Times h a r e Owners si gned a docum ent titled “ Bonus Time Disc losure Sta t ement Rules and Regulations Gove rning the Bonu s Time Program ” (the Bo nus Time Progr am Rul es). The Bonus Ti me Program Rules provide, in part, the following:

2. The Bonus Time Program a l lows y o u accommodations at certain Silve rleaf Resorts Sunday t hrough Thursday at no present a dditional cost to you an d Friday3

through Saturday at a present cost of $0.00 per night. Owner ’ s dependent children living at home and under the age of 21 may use the R e s or t with the Owner. Only the two primar y o wners as named on the contract will be allowed to mak e reservations or check into the Resort. Sorry, no exceptions will be made to this condition.

. . . . 15. Day usage of amenit ies , subject to regular fees and de posits, will be available at all Si lverleaf owned resorts. Usage is limited to ten (10) peop l e per day per Unit Week owned. Amenity usage may be limited du ring peak seasons.

Silverleaf submitted evidence that Pablo Cha vez made a re servation for a “ sin g le unit stay ” at the Resort from Augus t 5, 2016 , to August 11, 2016 , under the Bonus Time Program . The Timesh are Owners drove to the Resort , and Amanda Chave z checke d in and ob tained a Resort access card. After checking in , the Timeshare Owners and thei r a dult daughter, appellant Paula
C havez, dr ove to the Resort unit assigned to the Timeshare Own ers. Th e T i meshare Owners then left the Resort , spending the nights of August 5 and Aug ust 6 at a different location. The next day, the Timeshare Owners ’ othe r a dult da ughters, appellant April Chave z and Cindy Chavez, along with the ir families, drove to the res ort.

In its motion for summary judg ment, Silverleaf asserted that “ none of [the Chaveze s ] were authorized to be on [the Resort] property or in the u nit wh en the incident in quest ion occurr ed. ” Si lver leaf argued that the summary judgment evidence established that the Timeshare Owners “ made the reservation and gained access to the unit by personally appearing at the resort registration office to check i n t o a un it that they were no t going to use as r equired under the Bonus Time Program. ” Silver leaf further argued that the Chavezes did not have “ the permission of the resort to stay in the unit that t hey had improperly gained access to through [the Times har e O wners]. ” Accordin g to S ilverleaf, the summary

- judgment evidence established that the Chavezes were trespass ers on th e Resort to whom Si lverleaf owned no duty other than4

to not injur e them willfully and wantonly or through gross negligence. Absent su ch ev idence, Silverleaf argued , it was entitled to sum mary judgment on the Chave zes ’ premises liability claim. After a hearing, the trial cour t granted Si lverleaf ’ s t radi tional motion for summary judgment. Th e Chave zes filed a motio n for new trial, whic h the trial court denied. Aft er filing a motion for reconsideration , which w as also denied, the Chavezes perfected thi s appeal. In two issues, the Cha vezes assert that the tri al court erred by (1) determinin g that they were trespassers at the R esort and g r ant ing Si lverleaf ’ s motion f or summary judgm ent on that grou nd and (2) denyi ng th eir motion for new trial.

DISCUSSION

We review the trial co urt ’ s summary judgment de novo , taking as tru e all evidence favorable to the nonmovant and indulgin g every rea s o nabl e inf erence and resolvin g
any dou bts in the nonmovant ’ s favor. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)

. A traditional motion for summary judgment is proper l y gr ante d when the movant establis hes that ther e is no genuine iss u e of mat erial fact and that i t is entit led to judgment as a matter of law. See Te x . R. Civ. P. 166a (c) ; Browning v. Prostok , 165 S.W.3d 336, 344 (Tex. 2005)

. “ A defendant who conclusively negates at least one of the el ements of the plaintiff ’ s cause of a c ti on is entitled to summary judg ment. ” Little v. Texas Dep ’ t of Cri m. Justice , 148 S.W.3d 374, 381 (Tex. 2004) . In reviewing the record, we vie w the e vidence in the light most favora

ble to the nonmovant and di sregard al l contrary evidence and inferences unle ss a reasonable fact

- finder could not. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005)

.5 “ A claim against a p ropert y owner for injury caused by a condition of real property generally sounds in pr emises liability. ” Occid ental Chem. Corp. v

. Je nkins , 478 S.W.3d 640, 642 (Tex. 2016) . When the claim is based on the property owner ’ s negligence, the thr esh old question is whethe r the owner ow ed a duty to the inju red person. See Brookshire Grocery Co. v. Goss , 262 S.W.3d 793, 794 ( Tex. 2008)

. T h e d uties o wed by a landowner in a premises liability case “ depend upon the role of the perso n injur e d on his premi ses. ” Rosas v. Buddies Food Store , 518 S.W.2d 534, 535 (Tex. 1975)

. When the injured person qua lifies as

a n invitee, as the Chavezes claim t hey do, then as a general rule the landowner owes a “ duty

to make safe or warn agai nst any concealed, unreas onably danger ous conditions of which the landowner is, o r reasonably should be, aware but the invitee i s not. ” 1 Austin v. Kroger, L. P. , 465 S.W.3 d 19 3, 203 (Tex. 2015) . In contra st, the only duty a premises owner owes a trespasser is not to injur e him wil lf ully, wantonly, or through gros s negligence. Texas Utils. Elec. Co. v.
Timmons , 947 S.W.2d 191, 193 (Tex. 1997) (citing Burton Co nstr. & Sh ipb u ild ing Co. v. Broussard , 273 S.W.2d 598, 603 (1954) ).

I n th e present c ase, Silverleaf sought to conclusively negate the duty e lement of the Chavezes ’ premises liability claim by establishing that th e C have zes wer e trespassers to whom Silve r l ea f had no d u ty to warn or protect f rom de fects or co nditions of th e Resort. See City of Waco v. Kirwan , 298 S.W.3d 618 , 623 (Tex. 2009) (landowner has no duty to warn or protect tresp assers from o bvious defec t o r conditions); City of Lubb ock v. Rule , 68 S.W.3d 853 , 8 59 (Tex. App.

— Amarill o 2002, no p et.) (trespasser must take pre mises as he find s it , and if he is injured by un expected dangers , the loss is his own) ; cf. United Scaffolding, Inc. v. Levine ,

1 There is no dispute that the Time share Owners had complied with the requirement s that they make the r eservation and that one of them ch eck i n at t he Resort, making them invitees at the Property.6

537 S.W.3d 463, 471 (Tex . 2017) (landowner ’ s duty to inv itee is t o “ use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premise condition which the owner . . . knows about or in the existence of ordinary care should know about ” ). A trespasser is on e who

enters u pon the prop ert y of anothe r wi thout any right , lawful authority, or express or implied invi tation, permission , or license, n ot in the per formance of any duty to the owner, but merely for his own purposes, ple asure , or convenience. See Mayer v . Wil lowbrook Plaza Ltd. P ’ sh ip , 278 S. W .3d 901, 909 (Tex. App.

— Houston [ 1 4th Dist.] 2009, no pet. ). In their motion for
summary judgment, Silverleaf argued that , despite being invited to the Resor t by the Time share Owners, the Chavezes were tres p asser s b ec ause the Bo nus Time Progr am Rul es “ li m ite d unit access to timeshare owners themselves , and their children under the age of twenty

- one (21) who live with them. ” Si lverleaf a lso asserted that the Time sh are Owners were not authorized to give

access to the Resort at times when the y wer e “ not usi n g t he accommodations thems elves. ”

Determini ng whether the Timeshare Owners were in violation of the Bonus Time Program Rules such that , as Silverl eaf asserts, their invitation to the Chavezes was unau t horized requi res us to construe the provi s i ons of th e B o nus Time Program Rules submitted by Silverleaf as summary judgment evidence. The parties agree th at the terms of the Bonus Time Program Rules control and determine the Timeshare Owners ’ rights with regard to in vi t ing o thers to the
Resort dur ing period s in which they are exercising their right to additional stays under the Bonus Time Program. Neither party contends that the Bonus Time Program Rules are ambig uo us; rather, they differ in their interpretation of whet her the Bonu s Time Program Ru les (1) pr o hib it the Times hare Owners from inviting others to the R esort and , corr elatively, (2) whether individuals invited to the R esort by the Time share O wners we re authorize d to remain at the
R esort during periods when the Timeshare Owners were absent. See Dyne g y M idstream Servs.,7

Ltd. P ’ ship v. Apache Corp. , 294 S.W.3d 164, 16 8 (Tex. 2009 ) ( “ A contract is not ambiguous simply because the parties disagree over its meanin g. ” ).

“ In construing a contract, a co urt must ascert ain the true intentions of th e parties

a s e xp res sed in the writing it se lf. ” See Italian Cowboy Par t n ers, Ltd. v . Prudential Ins. Co. of
Am. , 341 S.W.3d 323, 333 (Tex. 2011)

. Whether a contract is ambiguous i s its elf a legal question for the court. See D ynegy , 294 S.W.3d at 168

. Wh en, as her e , “ a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. ” National Fire I

n s. Co. of Pittsburgh, Pa. v. CBI Indus ., Inc. , 907 S.W.2d 517, 520 (Tex. 1995) (per curiam). “ When disc erni ng the con t ract ing parti es ’ i ntent, courts must examine the entire agreement and give effect to each provision so that no ne is rendered meaningless. ” Tawes v.
Barnes , 340 S.W.3d 419, 425 (Tex. 2011)

. “ We give contract terms t heir plain and ordinary

mea ni ng unless t he i nstru ment indicates the parties intended a different meaning. ” Dynegy , 294 S.W.3d at 168

. “ No single provision taken alone will be given controlling effect; rather , all the provisions must be considered with re ference to the who le i nstrume nt. ” Tawe s , 34 0 S.W.3d
at 425 (quotin g Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) ).

Applying these rules of i nterpre tation, we di sagree that the Bonus Time Program Rules prohibit the Timeshare Owners from inviting the C havezes to the Resort. Nothi ng in the p lai n lan guage of the rules places any such restriction on the Timeshare Owners. While Silverleaf points to language in paragraph 2 stating that : “ Owner ’ s dependent children living at home and under the age of 21 may use the R esort with the Owne r , ” this p r ovi sion in no way
l imits the Time share Owners ’ right to extend invitations to other s. Significantly, paragraph 15 of the Bonus Ti me Rules clearly contemplates that the Timeshare O wners can invite others to the Reso rt by including a pro vision p ermitting “ d ay usage of amenit ies ” for up to ten people.8

Si lverlea f has pointed to nothing in the Bonu s Time Program Rules that prohibits the Timeshare Owners from inviting guests to the Resort during their p eriods of p ossessi on pu rsuant to the Bonus Time Program.

Simi lar ly, we find nothi ng i n the Bonus Time Program Rules that requires the Timeshare O wner s to be present at the Res ort f or pe ople they have invited to the Resort to maintain their status as in vitees. See Burton , 273 S

. W .2d at 6 0 3 ( when person who is o n
pro perty as invitee “ us es the pr operty on a ven ture

. . . not within the scope of his in vitation or
purpose for which the property was reasonably intende d, he loses his status as an invitee ” and becomes trespass er )

. M o reover, Silverleaf pres ented no evidence that the Chavezes were usi ng the R esort outside of the scope of the Ti meshare O wners ’ invitat ion when they were on the deck and stairway at the ti me it collapsed.

CONCLUSION

The absence of a duty to the Cha v e zes other than to not injur e the m wil lf ully, wantonly, or through gros s negligence , b ased on the assertion that the Chavezes were trespassers, was the only stated b asis fo r Silverlea f ’ s motion fo r summary judgment. Because Si lverleaf failed to establish that the Chaveze s were tresp assers at th e Re s ort, the trial court ’ s determination that Silve rleaf had conclusively negated the duty element of the Ch avezes ’ premises liability claim was error . We therefore rev erse the trial court ’ s summary judgment order and r emand the cause to the t r ial court for f urthe r proceedings. 2

2 Because of o ur disposition of the Chaveze s first appellate issue, we need not address their se cond issue challenging the trial court ’ s denial of their motion fo r new tria l. See Tex. R. App. P. 47.1

.9 ______________________ ____________________ Chari L. Kelly , Justice Befor e Ju s tices Baker, Ke lly, and S mith Reversed a nd Remanded Filed: April 3, 20 24