Opinion
NO. 01-17-00317-CV
07-03-2018
MIKEL OBIALO, Appellant v. NORTHERN HEALTHCARE LAND VENTURES, LTD., Appellee
On Appeal from the 157th District Court Harris County, Texas
Trial Court Case No. 2015-61561
MEMORANDUM OPINION
Appellant, Mikel Obialo, appeals the trial court's order granting summary judgment in favor of appellee, Northern Healthcare Land Ventures, Ltd. ("Northern Healthcare"), on her claims of premises liability and negligence. In four issues, she contends that the trial court erred because (1) a genuine issue of material fact exists regarding whether Northern Healthcare is the owner of the property at issue; (2) the affidavit of Dr. Robert A. Behar is not competent summary judgment evidence; (3) a genuine issue of material fact exists regarding whether Northern Healthcare had actual or constructive knowledge of a dangerous condition on the premises; and (4) a genuine issue of material fact exists regarding the elements of duty and breach of her negligence claim. We affirm.
Background
On October 15, 2015, Obialo filed suit against Dr. Juanita P. Edwards and Northern Healthcare, asserting claims for premises liability and negligence arising from injuries she allegedly sustained when the exit sign in Dr. Edwards's office fell on Obialo's head as she was leaving the office. In her petition, Obialo alleged that Northern Healthcare was the landlord and owner of the building in which she sustained her injuries.
Dr. Edwards filed a traditional and no-evidence motion for summary judgment which the trial court granted on October 14, 2016. Obialo's claims against Dr. Edwards were subsequently severed from this case.
On November 19, 2015, Northern Healthcare filed its original answer. On April 27, 2016, it filed its first amended answer, which included a verified denial alleging that "it is not liable to Plaintiff in the capacity in which it has been sued and/or that there is a defect of parties." Specifically, Northern Healthcare alleged that it was not the "landlord and owner of the building located at 21212 Northwest Freeway, Houston, Texas . . . as plead[ed] in Paragraph 6 of Plaintiff's Original Petition."
On September 6, 2016, Northern Healthcare filed a hybrid traditional and no-evidence motion for summary judgment. As an exhibit to the motion, Northern Healthcare attached the affidavit of Robert A. Behar, M.D. On October 7, 2016, Obialo filed a response to the motion to which she attached as exhibits a copy of Harris County Appraisal District's ("HCAD") Real Property Account Information for the property in question and a copy of a Team Ops work order reflecting the maintenance details related to the exit lights on the fifth floor of the office building in which Dr. Edwards's office was located.
On March 16, 2017, Northern Healthcare filed an amended traditional and no-evidence motion for summary judgment. In addition to Dr. Behar's amended affidavit, Northern Healthcare attached as exhibits to the motion (1) a net ground lease executed by Northern Healthcare and North Cypress Professional Office Building Company II, Ltd. ("North Cypress") on May 1, 2008, and (2) a lease agreement entered into by North Cypress and Michelle Bricker, M.D., dated May 5, 2008. On April 14, 2017, Obialo filed an amended summary judgment response to which she attached, in addition to the previously attached exhibits, her sworn affidavit.
On April 19, 2017, Northern Healthcare filed an objection to Obialo's summary judgment evidence attached to her amended response. Specifically, Northern Healthcare objected to (1) the Team Ops work order on the grounds that it was not authenticated or proved up as a business record, and (2) Obialo's affidavit on the grounds that it contained conclusory statements.
On April 21, 2017, the trial court granted Northern Healthcare's amended no-evidence and traditional motions for summary judgment. The trial court also entered orders sustaining Northern Healthcare's objections to Obialo's summary judgment evidence and overruling Obialo's objection to Dr. Behar's affidavit. This appeal followed.
Sufficiency of Summary Judgment Affidavit
In her second issue, Obialo contends that the trial court erred by allowing Dr. Behar's affidavit as summary judgment evidence because it is conclusory, contradictory, and false. The trial court overruled Obialo's objections to Behar's affidavit in its order signed April 26, 2017.
A. Standard of Review and Applicable Law
A summary judgment affidavit must be based on personal knowledge, contain facts that would be admissible at trial, and show that the affiant is competent to testify. TEX. R. CIV. P. 166a(f). "An affidavit that states only legal or factual conclusions without providing factual support is not proper summary judgment evidence because it is not credible or susceptible to being readily controverted." Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). We review a trial court's decision to admit or exclude summary judgment evidence for abuse of discretion. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719, 747 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
B. Dr. Behar's Affidavit
On March 16, 2017, Northern Healthcare filed an amended summary judgment motion, to which it attached Dr. Behar's amended affidavit, in which he averred:
My name is Robert A. Behar, M.D. I am over twenty-one years of age, of sound mind, and competent to make this affidavit.
As the Vice Chairman and Managing Partner of/for Northern Healthcare Land Ventures, Ltd. and as the General Partner for North Cypress Professional Office Building Company II, Ltd., I am familiar with the lease on the property in the North Cypress Medical Center where the incident in question occurred. I have knowledge of the lease through my role as the Vice Chairman and Managing Partner of/for Northern Healthcare Land Ventures, Ltd. where I was personally involved in the handling of this lease. Based on my personal knowledge of the property and the lease on that property, I can and do swear that the facts contained in this Affidavit are true and correct. I can further swear that the leases attached to this Affidavit are true and correct copies.
By a lease dated May 1, 2008, the real estate on which the building in question was constructed was leased to North Cypress
Professional Office Building Company II, Ltd. by Northern Healthcare Land Ventures, Ltd. By this lease, North Cypress Professional Office Building Company II, Ltd. had the exclusive right to place a building on the real estate made the basis of the lease and the ownership of any building placed thereon for forty (40) years, the term of the lease. Once the building in question was constructed, it was owned and controlled by North Cypress Professional Office Building Company II, Ltd. and [] was owned and controlled by North Cypress Professional Office Building Company II, Ltd. on the date of the accident in question. A true and correct copy of this lease is attached to this Affidavit in support of Defendant's Amended Motion for Summary Judgment on file in this cause (at A1).
By a lease dated May 5, 2008, a portion of the building in question was leased to Michelle Bricker, M.D. The lease was entered into between North Cypress Professional Office Building Company II, Ltd. as the landlord and Michelle Bricker, M.D. as the tenant. On the date of the accident made the basis of this lawsuit, this lease was in full force and effect and on that date Northern Healthcare Land Ventures, Ltd. was not the landlord and had no control or right to control the building in question. A true and correct copy of the lease in question is attached to this Affidavit in support of Defendant's Amended Motion for Summary Judgment (at A2). On the date of the accident made the basis of this lawsuit, the only connection Northern Healthcare Land Ventures, Ltd. had to the building in question was its ownership of the real estate on which the building was constructed. On the date of the accident in question, Northern Healthcare Land Ventures, Ltd. did not maintain or control the operations of the building in question and specifically had no right to control or maintain the fixtures including the exit sign involved in this lawsuit.
As indicated above, Northern Healthcare Land Ventures, Ltd., as reflected in the attached lease documents, did not, and does not, have the right to control or the ability to exercise actual control over any aspect of the professional office building located at 21212 Northwest Freeway, Houston, Texas.
C. Analysis
Obialo argues that Dr. Behar's affidavit is not competent summary judgment evidence because it is conclusory and unsupported by the lease documents. In particular, Obialo takes issue with Dr. Behar's statement that "[o]nce the building in question was constructed, it was owned and controlled by North Cypress Professional Office Building Company II, Ltd. and was owned and controlled by North Cypress Professional Office Building Company II, Ltd. on the date of the accident in question." The lease documents to which Obialo refers are (1) the "Net Ground Lease" executed by Northern Healthcare, as landlord, and North Cypress, as tenant, on May 1, 2008, and attached as Exhibit A1 to Dr. Behar's affidavit, and (2) the lease agreement dated May 5, 2008, between North Cypress, as landlord, and Michelle Bricker, M.D., as tenant, attached to Dr. Behar's affidavit as Exhibit A2.
An affidavit from a company officer claiming personal knowledge of the issue and the company's records is sufficient evidence for summary judgment. See Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 301 (Tex. App.—Houston [14th Dist.] 1987, writ, ref'd n.r.e.). However, such an affidavit is sufficient summary judgment evidence only when it gives detailed accounts of the facts it attests to or when it provides supporting documents which tend to support the statements made. See Am. 10-Minute Oil Change, Inc. v. Metro. Nat'l Bank-Farmers Branch, 783 S.W.2d 598, 601 (Tex. App.—Dallas 1989, no writ) (noting principal balance along with interest was designated in detail); see also Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500, 513 (Tex. App.—El Paso 2010, no pet.) ("Because Loughlin's statements regarding balances owed for principal and interest under the terms of the letter agreement are supported by facts or documentation, her conclusion regarding those balances is not impermissibly conclusory.").
The first page of the net ground lease states, in part, "Landlord [Northern Healthcare] intends to lease certain real property . . . to Tenant [North Cypress] and Tenant intends to rent and hire said real property from Landlord[.]" The parcel of real property in question is described in the metes and bounds description attached as exhibits to the lease. Paragraph 6 of the lease, "Construction of Improvements," states, in part, "Tenant, during the term, shall own all buildings and other improvements placed upon the Premises [and u]pon the expiration or earlier termination of this lease, all building and other improvements located upon the Premises shall be and become Landlord's property, provided tenant or any other owner thereof shall have the right to remove all equipment, furniture and other personal property from the Premises on or prior to the expiration or earlier termination of this Lease." The lease, which began on May 1, 2008, is for a term of forty years. The second lease agreement, under "Recitals," states "Landlord [North Cypress] intends to construct upon the Land . . . a 151,424 gross square foot professional office building (The 'POB') and a garage/surface parking lot with approximately 500 parking spaces (the 'Garage/Parking Lot')." These documents support Dr. Behar's statement that North Cypress owned and controlled the building in question once it was constructed and at the time of the incident. See Brown, 414 S.W.3d at 287.
Obialo also argues that Dr. Behar's statements that, on May 5, 2008, "a portion of the building in question was leased to Michelle Bricker, M.D." and "[t]he lease was entered into between North Cypress Professional Office Building Company II, Ltd. as the landlord and Michelle Bricker, M.D. as the tenant" are contradictory and false. According to Obialo, "[i]f Defendant Northern is the lessor to North Cypress, then North Cypress cannot be the landlord to Michelle Bricker, M.D. North Cypress can only be a sublessor and Michelle Bricker as the sublessee." Contrary to Obialo's assertion, North Cypress, as owner of the building, can be the landlord and Dr. Bricker the tenant under the May 5, 2008 lease agreement.
Obialo also argues that the net ground lease is not authenticated. Under the summary judgment standard, copies of documents must be authenticated in order to constitute competent summary judgment evidence. See Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam); see also Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 729 (Tex. App.—Fort Worth 2006, no pet.). A properly sworn affidavit stating that the attached documents are true and correct copies of the originals authenticates the copies so they may be considered as summary judgment evidence. Republic, 717 S.W.2d at 607. In his sworn affidavit, Dr. Behar states that the documents attached to his affidavit are true and correct copies of the lease agreements. Thus, these documents are properly authenticated.
The trial court did not abuse its discretion in overruling Obialo's objections to Dr. Behar's affidavit and the attached lease documents. We overrule Obialo's second issue.
Premises Liability Claim
In her first and third issues, Obialo contends that the trial court erred in granting Northern Healthcare's motion for summary judgment on her premises liability claim because a fact issue exists as to whether Northern Healthcare (1) owns the building where the accident occurred and (2) had actual or constructive knowledge of a dangerous condition on the premises.
A. Standard of Review
We review the trial court's grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A no-evidence summary judgment motion is essentially a motion for a pretrial directed verdict. See TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant's claims on which the non-movant would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. See TEX. R. CIV. P. 166a(i). A no-evidence summary judgment will be sustained on appeal when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered by the non-movant to prove a vital fact, (3) the evidence offered by the non-movant to prove a vital fact is no more than a scintilla, or (4) the non-movant's evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In a traditional summary judgment motion, the movant bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). "A defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment." Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
In reviewing either type of summary judgment motion, 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. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When, as here, a party seeks both a traditional and a no-evidence summary judgment, we first review the trial court's decision regarding summary judgment under the no-evidence standard. See TEX. R. CIV. P. 166a(i).
B. Applicable Law
The elements for a premises liability claim are (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner's failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee. Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014); Costley v. Landry's Inc., No. 01-16-00605-CV, 2017 WL 6520430, at *2-3 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, no pet.) (mem. op.). "As a rule, to prevail on a premises liability claim a plaintiff must prove that the defendant possessed— that is, owned, occupied, or controlled—the premises where injury occurred." Wilson v. Tex. Parks & Wildlife Dep't, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam).
Texas law recognizes the separate ownership of the improvements located on leased land. See Dall. Cent. Appraisal Dist. v. Mission Aire IV, L.P., 279 S.W.3d 471, 474 (Tex. App.—Dallas 2009, pet. denied); Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 837 (Tex. App.—Austin 2004, no pet.); Holly v. Craig, 334 S.W.2d 586, 587 (Tex. Civ. App.—Fort Worth 1960, no writ). The general rule is that improvements become part of the land and belong to the landowner unless there is (1) an understanding between the parties that the improvements not become permanently annexed to the land, or (2) evidence showing intent of the improver that the improvements remain personalty with the right to be removed. See Signature Flight, 140 S.W.3d at 838. Additionally, "the parties to a contract can elect to determine who will be the owner of improvements located on leased real property." Id.; see also Bexar Appraisal Dist. v. Dee Howard Co., No. 04-96-00085-CV, 1997 WL 30884, at *2 (Tex. App.—San Antonio Jan. 29, 1997, writ denied) (not designated for publication); Holly, 334 S.W.2d at 587. Such intent must be clearly established. Signature Flight, 140 S.W.3d at 838.
One court of appeals explained:
Houses and other improvements placed [on land] by man may or may not be a part of the realty—depending upon contracts and intentions of parties thereto. Everyone knows that in many cases that have been before the courts men erect structures and even very valuable improvements on lands of another under contracts, agreements, and evident intentions that such improvements shall never be a part of the land and never become the property of the land owner. When such conditions arise the improvements do not become real property but remain personal.Rogers v. Fort Worth Poultry & Egg Co., 185 S.W.2d 165, 167 (Tex. Civ. App.—Forth Worth 1944, no writ).
C. Analysis
Northern Healthcare does not dispute that it owns the real estate on which the building was constructed. Instead, it argued in its amended summary judgment motion, as it does on appeal, that Obialo presented no evidence showing that Northern Healthcare owned, occupied, or controlled the building where Obialo was allegedly injured. Northern Healthcare further asserted that its summary judgment evidence conclusively established that it was not an owner, occupier, or someone with the right to control the premises and, therefore, it was entitled to summary judgment.
As discussed above, Northern Healthcare attached Dr. Behar's affidavit, the May 1, 2008 net ground lease, and the May 5, 2008 lease agreement in support of its motion. In his affidavit, Dr. Behar stated that Northern Healthcare leased the real estate in question to North Cypress by agreement dated May 1, 2008. Under the terms of the lease, North Cypress had the exclusive right to place a building on the real estate made the basis of the lease and the ownership of any building placed on the real estate for forty years. He further stated that, once the building in question was constructed, it was owned and controlled by North Cypress and was owned and controlled by North Cypress on the date of the accident in question.
Dr. Behar's statements are supported by the net ground lease, which states, "[t]enant [North Cypress], during the term, shall own all buildings and other improvements placed upon the Premises." The lease further states that "[u]pon expiration of earlier termination of this lease, all building and other improvements located upon the Premises shall be and become Landlord's property, provided tenant or any other owner thereof shall have the right to remove all equipment, furniture and other personal property from the Premises on or prior to the expiration or earlier termination of this Lease." Paragraph 7 of the lease, "Maintenance and Repairs," states "[t]enant shall at all times, and at its own cost and expense, keep and maintain in good repair and condition all improvements constructed on the Premises."
In her amended summary judgment response, and on appeal, Obialo argued that Northern Healthcare owns the premises where she was injured. In support of her argument, Obialo attached a copy of HCAD's Real Property Account Information listing Northern Healthcare as the owner of the real property located at 21212 Northwest Freeway. Obialo argues that this document shows that Northern Healthcare owns the building.
Initially, we note that the HCAD document upon which Obialo relies is not attached as an exhibit to her amended summary judgment response, but only to her original response. Nonetheless, even taking this document into consideration, we conclude that the summary judgment evidence before the trial court established North Cypress as the owner of the building. The HCAD document, which identifies the party responsible for paying ad valorem taxes for the property located at 21212 Northwest Freeway, does not create a fact issue with regard to ownership of the office building constructed on the leased property. See Signature Flight, 140 S.W.3d at 843 (holding city was owner of improvements built by lessees and sublessees at city airport where leases provided, among other things, that city held legal title to improvements upon its acceptance of them); see also Dee Howard Co., 1997 WL 30884, at *2-*3 (concluding that lessee was owner of improvements on leased land, where lease agreement stated lessee was owner of improvements at beginning of lease period subject to change of title at various periods throughout lease). Because Obialo presented no evidence that Northern Healthcare owned the building where her injury occurred, Northern Healthcare was entitled to summary judgment on her premises liability claim. See Wilson, 8 S.W.3d at 635. We overrule her first and third issues.
Negligence Claim
In her fourth issue, Obialo contends that the trial court erred in granting summary judgment on her negligence claim because fact issues exist with regard to the elements of duty and breach of her claim.
"A plaintiff seeking to prevail on a negligence cause of action must establish the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach." Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017); Rampersad v. CenterPoint Energy Hous. Elec., LLC, ___ S.W.3d ___, ___, No. 01-16-00675-CV, 2017 WL 3261378, at *2 (Tex. App.—Houston [1st Dist.] Aug. 1, 2017, no pet.). "In determining whether a cause of action in negligence exists, the threshold inquiry is whether the defendants owed the plaintiffs a legal duty." Smith v. Merritt, 940 S.W.2d 602, 604 (Tex. 1997). "The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed." Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).
In its amended summary judgment motion, Northern Healthcare argued that Obialo presented no evidence that it was the owner, occupier, or possessor of the building in question which would give rise to a duty on behalf of Northern Healthcare. It further argued that, even if a duty existed, there was no evidence that it breached any duty owed to Obialo related to the maintenance and/or repairs of the exit sign at issue. In her amended response, Obialo argued that Northern Healthcare, as the building owner, owed a duty to Obialo "to use reasonable care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known," and that it breached that duty.
Because Northern Healthcare proved as a matter of law that it is not the owner of the building, Northern Healthcare has negated the duty element of Obialo's negligence claim. The trial court properly granted summary judgment on Obialo's negligence claim. We overrule Obialo's fourth issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Keyes, Brown, and Lloyd.