Sabrina Andrews, Individually and on Behalf of the Estate of Bernard Deamon Nickerson, Deceased v. Marvin F. Poer & Co. d/b/a, The Mint Apartments and/or Rodeo Square Apartments, L.P.--Appeal from 333rd District Court of Harris County

Opinion issued July 20, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00548-CV

SABRINA ANDREWS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BERNARD DEAMON NICKERSON, DECEASED, Appellant

V.

RODEO SQUARE APARTMENTS D/B/A THE MINT APARTMENTS, // Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2004-03684

MEMORANDUM OPINION

Appellant, Sabrina Andrews, individually and on behalf of the estate of Bernard Deamon Nickerson ( Andrews ), appeals a traditional summary judgment entered in favor of appellee, Rodeo Square Apartments d/b/a The Mint Apartments ( the Mint Apartments ). We determine whether the trial court (1) erred by granting the Mint Apartments s motion for summary judgment and (2) abused its discretion by denying Andrews s request to file a late summary-judgment response. We affirm the judgment of the trial court.Facts

On December 22, 2002, Bernard Deamon Nickerson ( Nickerson ) died of a gunshot wound to the head. He was shot at an apartment located at 12770 Rodeo Square in apartment 2701. At the time of incident, the apartment was occupied by Nickerson, Shanekoua Woodberry ( Shanekoua ), and Charalette Woodberry ( Charalette ). Sergeant John Swaim investigated Nickerson s murder by conducting a visual examination of the scene and witness interviews. // Based on his investigation which revealed the following facts, Sergeant Swaim concluded that the attack was deliberate and targeted. Two female suspects had knocked on the door of apartment number 2701 at 2:33 a.m. and asked Shanekoua if Old Boy was home. Shanekoua shut the door and told Nickerson that he had visitors. When Shanekoua returned to the door to ask the female visitors to leave, two male suspects entered the apartment and asked for Cuz. Shanekoua told them that he was in the back bedroom. Shortly thereafter, Shanekoua heard a gunshot, the suspects left the apartment, and Nickerson was found shot in the hallway of the apartment. There were no signs of forced entry to the dead-bolt lock, the handle lock, or anywhere else in the apartment. Neither Shanekoua nor Charalette was physically harmed, nor was any property taken from the apartment.

Andrews sued the Mint Apartments, alleging causes of action for negligence, wrongful death, and survival and alleging physical and mental anguish and malice. The Mint Apartments moved for summary judgment on January 20, 2005. A hearing was set for February 18, 2005. The summary-judgment hearing was reset for March 11, 2005. The hearing was again reset, upon Andrews s motion, for April 1, 2005. On April 1, 2005, the Mint Apartments appeared before the trial court for the scheduled summary-judgment hearing. Andrews did not appear, nor had she responded to the Mint Apartments s motion for summary judgment. On April 1, 2005, the trial court granted the Mint Apartments s motion for summary judgment. On April 28, 2005, Andrews filed a motion to vacate the order granting summary judgment and a motion for new trial. Andrews attached the affidavit of her trial counsel, George Neely, and her expert, Bernard Ash. The Mint Apartments filed a response opposing Andrews s motion to vacate. On May 6, 2005, the trial court entered an order denying Andrews s post-judgment motions.

Compliance with Appellate Procedural Rules

The Mint Apartments argues that Andrews failed to comply with the applicable procedural rules because (1) her notice of appeal failed to identify the order denying her motion for new trial and motion for reconsideration; (2) her motion for new trial and motion for reconsideration were not included in the appendix of her brief; and (3) Andrews failed to follow the briefing rules in presenting her point of error.

A. Failure to Identify Motions in Notice of Appeal

The Mint Apartments contends that [t]he notice of appeal only identifies the final judgment as the subject of the instant appeal. . . . Having failed to identify the order denying the Motion for New Trial and Motion for Reconsideration, [Andrews] has waived her right to appeal those orders.

A notice of appeal must state the date of the . . . order appealed from. Tex. R. App. P. 25.1(d)(2). We must construe the appellate rules reasonably but liberally, so that the right of appeal is not lost by creating a requirement not absolutely necessary from the literal words of the rule. Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex. 1994). A court of appeals has jurisdiction over any appeal in which the appellant files an instrument that was filed in a bona fide attempt to invoke appellate jurisdiction. Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991). The factor that determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the perfecting instrument, but whether the instrument was filed in a bona fide attempt to invoke appellate court jurisdiction. Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989).

Applying the standard enunciated in Maxfield, we conclude that the notice of appeal is sufficient to perfect an appeal from the order granting summary judgment and from the orders denying Andrews s motion for new trial or motion for reconsideration. See Maxfield, 888 S.W.2d at 811.

B. Requirements of Appellate Brief

The Mint Apartments contends that Andrews did not comply with appellate briefing rules because she failed to include an appendix containing the order of which she complains and because Andrews provides no references to the record in her briefing on whether the trial court erred in granting summary judgment.

Requisites of appellate briefs are set forth in rule 38 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38. Rule 38.1(h) requires that an appellant s brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See Tex. R. App. P. 38(h). Rule 38.1(j) provides that, unless an appendix would be voluminous or impracticable, an appellate brief must include an appendix that contains a copy of (a) the trial court s judgment or other appealable order from which relief is sought; (b) the jury charge and verdict, if any, or the trial court s findings of facts and conclusions of law, if any; and (c) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based and the text of any contract or other document that is central to the argument. See Tex. R. App. P. 38(j).

In the event that a brief does not comply with rule 38, an appellate court may require amendment, supplementation, or redrafting. See Tex. R. App. P. 38.9(a). An appellate court may not dismiss an appeal for formal defects or procedural irregularities without allowing a reasonable time to correct or to amend those matters. See Tex. R. App. P. 44.3.

The briefing rules found in the Texas Rules of Appellate Procedure are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case. Tex. R. App. P. 38.9. The rules are to be construed liberally, and substantial compliance with the rules is sufficient, unless the court determines that the rules have been flagrantly violated (in which case the court may require further briefing), that the case has not been properly presented, or that the law and authorities have not been properly cited (in which case the court may postpone submission, require additional briefing, or make any other necessary orders for a satisfactory submission of the case). See Tex. R. App. P. 38.9. Even though Andrews s brief does not contain an appendix containing the complained-of order or judgment, we are readily able to locate those items in the record. Under these circumstances, we are able to analyze the issues fairly raised in Andrews s brief without requiring the delay that would occur from ordering re-briefing.

Summary Judgment

In her sole point of error, Andrews argues that [t]he trial court erred and abused its discretion in refusing to vacate the default summary judgment and grant a new trial when genuine issues of material fact existed.

A. Standard of Review

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). When reviewing a summary judgment, 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. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). The non-movant is not required to file a summary judgment response, and the trial court cannot grant the movant s traditional summary-judgment motion merely because the non-movant failed to do so. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 23 (Tex. 1999). However, when a non-movant fails to respond to a summary-judgment motion, the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 43 (Tex. 1993) (citations omitted). When the trial court does not specify the grounds on which it ruled, we affirm the summary judgment if any of the theories presented to the trial court is sufficient to sustain the judgment. Two Thirty Nine Joint Venture, 145 S.W.3d at 157.

B. Analysis

Andrews contends that the Mint Apartments failed to establish as a matter of law that it was entitled to summary judgment on Andrews s negligence claim. // The Mint Apartments moved for traditional summary judgment on the grounds that (1) the incident in question was the result of a superseding cause; (2) the Mint Apartments owed no duty to Nickerson; (3) the Mint Apartments did not breach any duty to Nickerson or to Andrews; and (4) any negligence of the Mint Apartments was not the proximate cause of Nickerson s death.

A common-law negligence cause of action requires proof that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff s injury. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The threshold issue in a negligence action is duty. Greater Houston Transp. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a duty exists is usually a question of law for the court to determine. // Tri v. J.T.T., 162 S.W.3d 552, 563 & n.25 (Tex. 2005).

Generally, a person has no legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). A landowner s duty to protect persons on his property from criminal conduct exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id. Whether such risk was foreseeable must not be determined in hindsight, but, rather, in light of what the premises owner knew or should have known before the criminal act occurred. Id. at 757. In determining whether the occurrence of certain criminal conduct on a landowner s property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct for which suit was brought, and what publicity was given the prior occurrences to indicate that the landowner knew or should have known about them. Id.

A matter is conclusively established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Martinez Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). After examining the evidence presented and indulging every reasonable inference in favor of Andrews, we hold that the trial court did not err in rendering summary judgment because reasonable minds could not differ in concluding that the Mint Apartments could not have foreseen an unreasonable risk of danger of violent crime, such as the targeted murder that occurred here. The Mint Apartments attached as summary-judgment evidence Sergeant Swaim s affidavit that described his investigation of Nickerson s murder, which included his visual examination of the scene and witness interviews. The summary-judgment evidence established that the attack was deliberate and targeted. Once the Mint Apartments provided sufficient evidence to establish a right to summary judgment on the causation element of Andrews s claim, the burden shifted to Andrews to produce sufficient evidence to raise a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Andrews failed to raise such fact issue.

Andrews relies on Timberwalk for the general rule that a landowner who affirmatively creates an unreasonable risk of harm owes a duty to foreseeable victims to prevent the harm. See Timberwalk, 972 S.W.2d at 756 (holding that landowner or apartment manager has duty to use ordinary care to protect against unreasonable and foreseeable risk of harm from criminal acts of third parties). Andrews asserts that the premises security at the Mint Apartments was unreasonable and inadequate because there was no uniformed security guard, no controlled gate doors or fences, no security cameras, and inadequate security lights. However, The Mint Apartments s summary-judgment evidence showed that the murder of Nickerson was deliberate and targeted and that entry into the apartment was not forced. Andrews did not show below and does not explain on appeal, that any of these cited measures would have prevented the alleged perpetrator from coming into Nickerson s apartment and killing him.

Assuming without deciding that the post-judgment evidence attached to Andrews s motion to vacate the order granting summary judgment and motion for new trial could have been and was considered, it does not raise a fact issue. Ash averred that he examined Sergeant Swain s report and the records of the Houston Police Department for calls for services to the Mint Apartments and that those records reflected that there were 876 calls for services at the Mint Apartments at one of these four addresses. // Call reports, however, are not necessarily probative of actual crimes. See Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 399 (Tex. App. Houston [1st Dist.] 2002, pet. denied) ( Call reports include hang-up calls, mistake calls, missing person calls, information calls, calls for medical assistance, and calls to report suspected criminal activity. ).

Ash also averred that there had been six robberies and eight aggravated assaults with serious bodily injuries reported at the Mint Apartments. Andrews produced no evidence that these assaultive crimes were deliberate, targeted crimes, i.e. that they were crimes similar to the one against Nickerson, as required by Timberwalk. See Timberwalk, 972 S.W.2d at 759; see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Ash contended that, had the Mint Apartments inspected police records, it would have known about the incidents of crime. However, [p]roperty owners have no duty to regularly inspect criminal records to determine the risk of crime in the area. See Timberwalk, 972 S.W.2d at 759 (requiring these elements as factors in analysis because foreseeability depends on establishing that landowner had notice of danger). Further, there is no evidence that any of these crimes was ever reported in the media, or that the Mint Apartments knew, or had any way of knowing, about them.

The summary-judgment evidence showed that the front door to the apartment was equipped with a dead-bolt lock and a handle lock. There was no sign of forced entry. Neither Shanekoua or Charalette was harmed, nor was any property taken from the apartment. After the summary-judgment burden shifted to her, Andrews produced no summary-judgment evidence that increased security would have prevented Nickerson s murder. Neither did she produce evidence that the Mint Apartments had knowledge that Nickerson was a target, or that even if it had had such knowledge, it could have prevented the murder. Accordingly, Andrews did not raise a fac issue on whether the risk that Nickerson would be targeted for murder was not foreseeable to the Mint Apartments.

Because the summary-judgment order did not specify the ground or grounds on which the trial court relied for its ruling, we will affirm the summary judgment if any theory that the Mint Apartments advanced has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 26 (Tex. 1996); Weiner v. Wasson, 900 S.W.2d 316, 317 n.2 (Tex. 1995). Accordingly, we hold that the Mint Apartments was entitled to summary judgment on Andrews s negligence claims because the Mint Apartments conclusively established it owed no duty to Nickerson.

We overrule Andrews s sole point of error to the extent that it argued that the trial court erred by granting the Mint Apartments s motion for summary judgment.

Late Summary-Judgment Response

Also under her sole point of error, Andrews argues the trial court erred by denying her motion to vacate the order granting summary judgment and by denying her motion for new trial. Andrews specifically contends that her motion for new trial should have been granted because the evidence attached to Andrews s motion to vacate the order granting summary judgment and motion for new trial established that her failure to file a response to the Mint Apartments s motion for summary judgment was not intentional or the result of conscious indifference on her part, that she had a meritorious defense, and that granting the motion would occasion no delay or otherwise work an injury to the Mint Apartments. We construe Andrews s challenge on appeal and below to be that the trial court erred because it denied Andrews s request to file a belated summary-judgment response. // See Wheeler v. Green, 157 S.W.3d. 439, 442 (Tex. 2005) (holding that although appellant never filed motion to allow belated summary-judgment response, arguments and requests in her motion for new trial were sufficient to put trial court on notice of exactly that complaint); // Tex. R. App. P. 33.1(a); see also Stephens v. Dolcefino, 126 S.W.3d 120, 133 34 (Tex. App. Houston [1st Dist.] 2003, pet. denied) (holding that trial court may accept summary judgment evidence filed late, even after summary judgment, as long as court affirmatively indicates in record that it accepted or considered that evidence).

Because we have already held that even considering Ash s affidavit, the risk that Nickerson would be targeted for murder was not foreseeable to the Mint Apartments, error, if any, in failing to consider Andrews s belated summary-judgment evidence would have been harmless as a matter of law.

Accordingly, we overrule all of Andrews s challenges under her sole point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

JusticePanel consists of Justices Taft, Higley, and Bland.