SANDRA GRAHAM v. FEDERATED DEPARTMENT STORES INC MACY DEPARTMENT STORE INC (2011)

MEMORANDUM OPINION

Opinion By Justice Moseley

Sandra Graham, appealing pro se, appeals from a summary judgment granted in favor of Federated Department Stores, Inc. a/k/a Macy's Department Store, Inc. on her premises liability suit.¹  The background of the case and the evidence adduced below are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm the trial court's judgment.

Graham alleged she slipped on a puddle of liquid on the floor of a Macy's Department Store and fell, suffering serious injury.   She alleged Federated breached its duty to keep its premises in reasonably safe condition for its invitees.   Federated filed a traditional and no-evidence motion for summary judgment.   In support of its traditional motion, Federated relied on Graham's 132–page deposition.

Graham filed a response, relying on a five-page excerpt from her deposition and a one-page affidavit from a daughter, Laketa V. Graham, as evidence.   The trial court granted Federated's motion to strike the affidavit, a ruling not challenged on appeal, and granted Federated's motion “in all respects.”   Graham appeals.²

Graham's second issue states:  “Defendant's Counsel's Discrepancies” and “During the deposition, the questions asked by Defendant's Counsel and answered by the Plaintiff were not along the same lines.   Contradictory questioning occurred during this method of discovery.”   However, Graham has waived any issue on appeal by failing to challenge a ruling by the trial court, preserve these complaints below, cite any authority, or make a “clear argument for the contentions made.”   See Tex. Rs.App. P.. 33.1(a), 38.1(h);  Brock v. Sutker, 215 S.W.3d 927, 929 (Tex.App.—Dallas 2007, no pet.).   Her second issue presents nothing for review.

Because the trial court's order granting summary judgment does not specify the basis for the ruling, the appellant must argue that every ground of the summary judgment motion is erroneous.   See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).   We must affirm the trial court's judgment if any of the theories advanced are meritorious.  Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).   We review a no-evidence summary judgment de novo.   See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex.2004).   We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.   Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006);  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005);  Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 881 (Tex.App.—Dallas 2007, no pet.).

We first consider the propriety of summary judgment under the no-evidence grounds.   See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).   After an adequate time for discovery, the party without the burden of proof may move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim.  Tex.R. Civ. P. 166a(i);  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).   The motion must specifically state the elements for which there is no evidence.  Tex.R. Civ. P. 166a(i).   The burden then shifts to the nonmovant to produce more than a scintilla of summary judgment evidence that raises a genuine issue of material fact as to each essential element identified in the motion.  Tex.R. Civ. P. 166a(i) & cmt.;  Mack Trucks, Inc., 206 S.W.3d at 582.

To prevail on a premises liability suit, an invitee-plaintiff must prove:  (1) a condition on the premises posed an unreasonable risk of harm;  (2) the premises owner had actual or constructive knowledge of the danger;  (3) the premises owner did not exercise reasonable care to reduce or eliminate the risk;  and (4) the premises owner's failure to use such care proximately caused the plaintiff's injuries.   See Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002);  Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998);  Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992).

In its no-evidence summary judgment motion, Federated asserted that there was no evidence of the following elements of Graham's premises liability claim:  (1) a condition on the premises posed an unreasonable risk of harm;  (2) Federated knew or reasonably should have known of the danger;  (3) Federated breached its duty of ordinary care by both (i) failing to adequately warn Graham of the condition, and (ii) failing to make the condition reasonably safe;  and (4) Federated's breach proximately caused Graham's injury.   See Tex.R. Civ. P. 166a(i);  see also Reece, 81 S.W.3d at 814.   Thus, unless Graham presented evidence creating more than a surmise or suspicion on each element that Federated challenged, summary judgment is proper.   See Tex.R. Civ. P. 166a(i);  Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002).

In her first issue, Graham argues she established a “prima facie” premises liability case.   Federated argues that Graham has waived her issues on appeal by failing to meet the briefing requirements because her issues are unsupported by argument and lack citation to the record or legal authority.   See Tex.R.App. P. 38.1(h).  A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure.  Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677–78 (Tex.App.—Dallas 2004, pet. denied).   On appeal, as at trial, the pro se appellant must properly present its case.  Id. If this were not true, a pro se litigant would be given an unfair advantage over those parties represented by counsel.   Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex.App.—El Paso 2007, pet. struck).   An appellate court has no duty to perform an independent review of the record and applicable law to determine whether there was error, even on behalf of a pro se litigant.  Id. Otherwise, we would stray from our role as a neutral adjudicator and become an advocate for that party.  Id.

Under her first issue, appellant discusses the following four “elements”:  (1) “actual or constructive knowledge” followed by the sub-heading “constructive notice”;  (2) “unreasonable risk posed”;  (3) “unreasonable risk”;  and (4) “proximate cause.”   However, we agree that Graham has waived any issue on appeal concerning her second, third, and fourth “elements” because of briefing inadequacies.

Although Graham cites authorities under each of her headings, they are cited for legal propositions only.   Graham fails to apply these legal authorities to the facts of this case.   See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.—Houston [1st Dist.] 2002, pet. denied).   Second, there are no references to the record of summary judgment evidence under these headings.   See Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.—Houston [14th Dist.] 2002, no pet.).   Finally, Graham does not argue she presented evidence raising a fact issue as to the challenged elements, and thus fails to challenge the granting of a no-evidence summary judgment under the standard set out above.   See Brock, 215 S.W.3d at 929 (briefing inadequate where appellant “makes no attempt to analyze the [challenged] order within the context of the statute or case law”).   As noted above, we will not make these arguments for her.   See Martinez, 218 S.W.3d at 844;  see also Tex.R.App. P. 38.1(h).

We conclude Graham's first issue presents nothing for review as to her second, third, and fourth elements.   Because her brief does not effectively present a challenge as to whether the trial court properly granted summary judgment based on her failure to raise a fact issue as to the first, third, and fourth elements of a premises liability claim, we must affirm the trial court's judgment on no-evidence as to these grounds.   See Tex.R.App. P. 38.1(h) (error on appeal waived by inadequate briefing);  Cates, 927 S.W.2d at 625 (when appealing general summary judgment, party must argue that every ground of summary judgment motion is erroneous);  Rogers, 772 S.W.2d at 79 (appellate court affirms summary judgment if any theory is meritorious);  Cruikshank v. Consumer Direct Mortg., Inc., 138 S.W.3d 497, 502–03 (Tex, App.—Houston [14th Dist.] 2004, pet. denied) (a general issue statement that trial court erred in granting summary judgment preserves complaint on appeal only if specific ground challenged on appeal is supported by argument;  citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970));  see also Reece, 81 S.W.3d at 814;  Gonzalez, 968 S.W.2d at 936;  Keetch, 845 S.W.2d at 264.   Thus, we need not address whether Graham raised an issue of fact to whether Federal had actual or constructive knowledge of the danger.   See Rogers, 772 S.W.2d at 79.

We affirm the trial court's judgment.

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FOOTNOTES

FN1. Graham also sued Kellermeyer Building Services, LLC. Graham nonsuited Kellermeyer, and the trial court granted Kellermeyer's motion to dismiss Federated's cross-action.   Kellermeyer is not a party to this appeal..  FN1. Graham also sued Kellermeyer Building Services, LLC. Graham nonsuited Kellermeyer, and the trial court granted Kellermeyer's motion to dismiss Federated's cross-action.   Kellermeyer is not a party to this appeal.

FN2. We initially dismissed Graham's appeal for failure to pay the filing fee.   Subsequently, we granted Graham's motion for rehearing, vacated the judgment dismissing her appeal, and recognized Graham as an indigent appellant.   Subsequently, we struck Graham's original brief for briefing inadequacies.   Graham's amended brief is before the Court..  FN2. We initially dismissed Graham's appeal for failure to pay the filing fee.   Subsequently, we granted Graham's motion for rehearing, vacated the judgment dismissing her appeal, and recognized Graham as an indigent appellant.   Subsequently, we struck Graham's original brief for briefing inadequacies.   Graham's amended brief is before the Court.

JIM MOSELEY JUSTICE