MARTY AND LYNNE DUFRENE,FROM A DISTRICT COURT APPELLANTS, v. CORPORATE PROPERTIES, INC. F/K/A CECIL PROPERTIES, INC., APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00775-CV
MARTY AND LYNNE DUFRENE,FROM A DISTRICT COURT
 
        APPELLANTS,
 
v.
 
CORPORATE PROPERTIES, INC.
F/K/A CECIL PROPERTIES, INC.,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
JUNE 16, 1989
        Marty and Lynne Dufrene brought suit against Corporate Properties, Incorporated (CPI) after Marty Dufrene (Dufrene) was injured in a swimming pool accident on property owned by CPI. The trial court granted a summary judgment in favor of CPI. We conclude that the trial court erred in not considering plaintiff's amended original petition wherein the Dufrenes alleged that the swimming pool was negligently designed. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings.
FACTUAL BACKGROUND
        Marty and Lynne Dufrene attended a party hosted by a student group from a chiropractic college. The party was held at the clubhouse of an apartment complex owned by CPI. A resident of the apartments, Stephen Hambright, secured management permission to host the party at the clubhouse. The clubhouse adjoins the swimming pool area and is separated by doors which are sometimes locked. The "clubhouse agreement" signed by Hambright expressly prohibits use of the pool, and posted pool rules prohibit use of the pool for private parties. Nevertheless, Hambright testified that he was not informed of the restrictions against use of the pool, and he was unaware that the pool and the clubhouse were considered two separate entities. Guests began to arrive at the party at approximately 8:00 p.m. Most guests were wearing street clothes, but some were wearing swimwear. Shortly after the party began, guests spilled out of the clubhouse and into the swimming pool area. The door separating the clubhouse and the swim area was unlocked by the time the party began. At approximately midnight, Marty Dufrene and two other men began roughhousing near the swimming pool. Dufrene either fell or was thrown into the water. Dufrene suffered a fracture of the cervical vertebrae and is now paralyzed. At the point where Dufrene entered the swimming pool, there is an approximate three-foot drop from the deck edge to the surface of the water. The water at that point is three feet deep. Dufrene testified that he never hit the bottom of the pool. He stated that one doctor surmised that his injury was due to "the force by just hitting the water like that and having your head in a certain position. . . ."
PRE-TRIAL PROCEEDINGS
        The threshold question is what causes of action were before the trial court. Plaintiff's Original Petition alleged that Dufrene was an invitee and that CPI had a duty to either prohibit the type of conduct which led to his injury or to closely supervise the swimming pool area to insure that conduct leading to such injuries would not occur. CPI originally answered with a general denial and later specially excepted on the basis of failure to state a cause of action. The trial court never ruled on the special exceptions. CPI moved for summary judgment on the basis that CPI owed no legal duty to Dufrene; that even if a duty was owed, CPI did not breach it; or, alternatively, any breach was not a proximate cause of Dufrene's injury. The affidavits and exhibits attached to CPI's motion all concerned whether Dufrene had permission to be in the pool area. The motion did not address whether the pool was negligently designed. The next filing was plaintiff's first amended original petition (amended petition) which was filed eight days before the summary judgment hearing. Therein, the Dufrenes alleged that the swimming pool was unreasonably dangerous because at the location where Dufrene entered the pool, there is a drop of about three feet from the deck edge to the water's surface. Consequently, CPI had a duty to either warn invitees of the condition or to erect a barrier such as a railing or planter box to prevent a person from entering the pool at that point. Concurrent with the filing of the amended petition, the Dufrenes filed with the court and mailed to CPI a response to CPI's motion for summary judgment. Therein, the Dufrenes again asserted the negligent design theory. Attached to the response was an affidavit from a safety expert in support of the negligent design theory. CPI objected to both the amended petition and the summary judgment response as untimely. The trial court sustained both objections and entered a summary judgment in favor of CPI.
        We conclude that the amended petition was not timely filed pursuant to local court rules; however, the summary judgment response was timely filed and served. The summary judgment response raised the negligent design cause of action; thus, both CPI and the court were aware of that cause of action. Under these circumstances, we hold the trial court abused its discretion in denying leave to file the amended petition. The only portion of CPI's motion for summary judgment which was applicable to the negligent design cause of action was their assertion that they owed no legal duty to Dufrene. We find a fact issue exists on the duty question; accordingly, we reverse the judgment of the trial court and remand for further proceedings.
AMENDED PLEADING
        The issue of whether the amended pleading was timely is governed by Rule 1.9 of the Dallas Civil District Court Rules which provides generally that amended pleadings shall not be filed within fourteen days of trial except on leave of court or by agreement of all parties. For purposes of determining when pleadings may be amended, a summary judgment hearing is a "trial." See Energo Int'l Corp. v. Modern Indus. Heating, 722 S.W.2d 149, 151 (Tex. App.--Dallas 1986, no writ). The Dufrenes filed the amended petition within fourteen days of the summary judgment hearing without leave of court. Thus, the petition was not timely filed. We must further consider, however, whether the trial court erred in striking it.
        Whether a trial court must allow a late-filed amended pleading prior to trial is governed by rule 63 of the Texas Rules of Civil Procedure, which provides that "leave shall be granted . . . unless there is a showing that such amendment will operate as a surprise to the opposite party." TEX. R. CIV. P. 63. Whether an amended pleading surprises a party is a determination committed to the sound discretion of the trial court. See, e.g., Box v. Associates Investment Co., 389 S.W.2d 687, 689 (Tex. Civ. App.--Dallas 1965, no writ). We hold the court did abuse its discretion. Relevant to our holding is the determination that the summary judgment response raising the negligent design claim was, contrary to the court's finding, timely filed and served.
SUMMARY JUDGMENT RESPONSE
        Rule 166a(c) of the Texas Rules of Civil Procedure requires responses to be filed and served no later than seven days prior to the day of hearing. The Dufrenes' response was filed eight days prior to the hearing. Therefore, it was timely filed. The Dufrenes also mailed the response to CPI eight days before the hearing, and CPI received it five days before the hearing. CPI argues that the response was not timely served in light of Rule 21a of the Texas Rules of Civil Procedure which states that "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period" (emphasis added). If Rule 21a were applicable, a party who chooses to mail a summary judgment response must do so ten days in advance of the hearing.
        CPI has not cited any authority in support of applying Rule 21a to summary judgment responses. Furthermore, the plain language of the statute does not encompass summary judgment responses inasmuch as CPI neither had the right nor was it required to take any action within a prescribed period. Accordingly, we hold that service by mail is timely under Rule 166a(c) if the document is mailed not later than seven days prior to hearing.
        The summary judgment response raised the same cause of action as did the amended petition. Attached to the response was the affidavit of a recreational design specialist. The affidavit stated that the swimming pool was "defectively dangerous and unsafe." Furthermore, the deposition of Stephen Hambright, the apartment resident who hosted the party, also raised the negligent design cause of action:
 
 
            Q. Did you see anything else wrong with the pool?
 
            A. Design.
 
            Q. What do you think was wrong with the design?
 
            A. The ledge there, the drop-off from the pool to the water on that shallow end. There's about a two foot -- two foot and a half drop from the edge of the pool to the water.
        Because the summary judgment response and the Hambright deposition both raised the negligent design theory, we hold that an amendment to the pleading adding the negligent design theory was not a surprise to CPI. Accordingly, we hold the court abused its discretion in not allowing the late-filed amended pleading.
        General principles regarding summary judgment also preclude the trial court's action. The trial court granted a summary judgment without ruling on CPI's special exceptions and without allowing the Dufrenes to amend their pleadings. This is contrary to the rule of law set forth in Texas Dep't of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974). In Herring, as in the instant case, the non-movant was precluded from amending his pleadings once the trial court had granted a motion for summary judgment. The supreme Court held that:
 
 
    The protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff's pleadings, as here, fail to state a cause of action. To do so would revive the general demurrer discarded by Rule 90, Texas Rules of Civil Procedure. McDonald, Summary Judgments, 30 Tex.L.Rev. 285, 297 (1951); Suggs and Stumberg, Summary Judgment Procedure, 22 Tex.L.Rev. 433, 439-40 (1944); 2 McDonald, Texas Civil Practice § 7.18 at 205.
Id. at 10. Furthermore, recognizing that summary judgment is an extraordinary action, the Texas Supreme Court mandates the reviewing court to look beyond a non-movant's pleadings. If a written motion, answer, or other response indicates that an amendment to the non-movant's pleadings would render the movant's position insupportable, summary judgment is improper. See Meisler v. Bankers Capital Corp., 668 S.W.2d 828, 830 (Tex. App.--Houston [14th Dist.] 1984, no writ) (interpreting Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956) in light of the 1978 amendment to TEX. R. CIV. P. 166-A). The Dufrenes' timely filed summary judgment response squarely raised the negligent design theory. The court was on notice that an amendment was imminent. Under such circumstances, a court should not invoke the harsh remedy of summary judgment. FN:1
DUTY ISSUE
        Having held that the court erred in not considering the negligent design theory, we must next examine whether summary judgment was nevertheless warranted. The moving party has the burden of expressly setting out in his motion the issues on which he seeks a summary judgment. Stiver v. Texas Instruments, Inc., 615 S.W.2d 839, 843 (Tex. Civ. App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). CPI's motion for summary judgment did not address the negligent design theory specifically. However, the motion did assert that CPI owed no duty to Dufrene because he was, in effect, a trespasser because he did not have permission to be in the pool area. Dufrene, however, asserts that he was an invitee.
        If, as Dufrene claims, he was an invitee, then CPI owed a duty to inspect the property, and to either make safe any defects on the property or give an adequate warning of such defects. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972). Social guests of an apartment tenant are the equivalent of a business invitee of the landlord. Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex. 1978). However, if an invitee exceeds the scope of his invitation, his status may revert to that of trespasser or licensee. Hopkins v. Texas Power & Light Co., 514 S.W.2d 143, 148 (Tex. Civ. App.--Dallas 1974, no writ). CPI argues that Dufrene exceeded the scope of his authority because he only had authority to be in the clubhouse area. Once he wandered into the pool area, his status reverted to that of trespasser.
        In determining whether an invitee may have exceeded the scope of his authority, the issue is whether the owner should have anticipated the person may be present at the place of injury. Amoco Chems. Corp. v. Sutton, 551 S.W.2d 459, 462 (Tex. Civ. App.--Eastland 1977, writ ref'd n.r.e.). The area of invitation may also extend to "parts of the premises which the purpose may reasonably be expected to take the invitee, and to those which are so arranged as to lead him reasonably to think that they are open to him." Id. at 462. With those principles in mind, we consider the summary judgment evidence.
        Stephen Hambright, in reserving the clubhouse, stated he was unaware that the pool and the clubhouse were separate entities. He assumed his guests were allowed to use the pool. He specifically asked the leasing agent if there were any rules about which he should be informed, and the agent did not mention any rules regarding use of the pool. Linda Hambright, the host's wife and also an apartment resident, testified that there was a swimming pool party until past midnight just a week before the accident. The above is some evidence that the owners could reasonably anticipate that Dufrene might wander from the clubhouse to the pool area and that Dufrene could reasonably expect that the pool area was open to him. Accordingly, we hold that a fact issue exists regarding Dufrene's status on the property.
CONCLUSION
        In conclusion, we hold that the trial court erred in not granting leave to file the Dufrenes' amended petition raising a cause of action for negligent design. We further hold that summary judgment may not be granted in favor of CPI on the negligent design theory on the basis that CPI owed no duty to Dufrene as a matter of law. We express no opinion on the question of whether the alleged negligent design proximately caused Dufrene's injury. CPI did not raise that issue in its motion for summary judgment. A summary judgment may not be granted as a matter of law on a cause of action not addressed in a summary judgment proceeding. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). The movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Accordingly, CPI's motion was legally insufficient to merit summary judgment for lack of proximate cause on the negligent design claim.
        The judgment of the trial court is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion.
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00775.F
 
FN:1 The amended pleading did not include the negligent failure to supervise claim, therefore, that cause of action was no longer before the court.
File Date[01-02-89]
File Name[880775F]