Pamela K. Bergman v. Minnie Martin Daugherty--Appeal from 280th District Court of Harris County

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Affirmed and Memorandum Opinion filed July 31, 2007

Affirmed and Memorandum Opinion filed July 31, 2007.

In The

Fourteenth Court of Appeals


NO. 14-05-01268-CV





On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2004-39290


In a single issue, appellant Pamela K. Bergman appeals the trial court=s grant of summary judgment in favor of appellee Minnie Martin Daugherty on Bergman=s premises liability claims. We affirm.

I. Factual and Procedural Background

In July 2002, Bergman, an attorney, along with two of her colleagues visited Daugherty=s home in San Miguel de Allende, Mexico (known as ACasa Carino@). On the night of July 28, 2002, various pieces of Bergman=s jewelry went missing, which she reported as stolen to the Mexican police. Bergman thereafter brought suit against Daugherty, claiming that Daugherty had a duty to warn of and protect her from the risk of theft by a third party, which she claimed was foreseeable to Daugherty based on two recent thefts at Casa Carino.

The summary judgment evidence reveals the following primary factual disputes: (1) Bergman=s purpose for visiting Casa Carino and (2) whether items had been reported as stolen, instead of missing, at Casa Carino prior to Bergman=s visit. As to Bergman=s purpose for visiting Casa Carino, the parties agreed Daugherty hired Bergman=s law firm to assist her with proceedings subsequent to her recent divorce, but they disagreed as to whether Bergman was a social guest during the July 2002 visit. Bergman contended she visited for purely business-related matters. She asserted that Daugherty hired her firm for representation in Apost-divorce matters in general,@ including preparation for a post-divorce arbitration in which various issues relating to marital property and interpretation of the divorce decree were to be resolved. According to Bergman, she agreed upon Daugherty=s request to meet at Casa Carino, rather than Daugherty=s residence in Houston, Texas, to accommodate Daugherty=s vacation schedule and Bergman=s own travel schedule, as she had already planned to visit a nearby Mexican city on other business. During her stay at Casa Carino, Bergman claimed she performed many hours of legal work in preparation for the arbitration, including Apreparing for different inventories, different appraisals of different things.@ While Bergman admitted attending social functions with Daugherty during the stay, she explained that Daugherty specifically requested her attendance, suggesting attendance was mandatory. She added that she did not maintain a social relationship with Daugherty prior or subsequent to her visit.

Daugherty, on the other hand, contended Bergman visited Casa Carino for purely social reasons. She claimed she hired Bergman=s firm to assist her only with the division of personal property located in her Houston residence and maintained she invited Bergman to Casa Carino as a courtesy, since she would already be in Mexico and wanted to see the house. Although she admitted Athere was some reference to the post-divorce proceedings,@ she denied Bergman performed any legal work at Casa Carino, including any inventorying of property. Daugherty noted that the divorce decree awarded all of the property in Casa Carino to her, and, thus, a trip to the house to work on dividing such property would have been unnecessary. She further noted that the firm=s billing records during the time of Bergman=s visit do not explicitly refer to any work performed in or relating to Mexico. Regarding the social functions, she denied requiring Bergman=s attendance, instead claiming she invited her to come along at her discretion.

As to whether items had been previously reported as stolen or missing, the parties generally agreed Daugherty=s previous guests had reported both a pair of expensive sunglasses and a digital camera missing, but they differed over the circumstances surrounding the reports. Pamela Ferguson, the owner of the sunglasses who had visited Casa Carino shortly before Bergman, came to the house after Bergman=s jewelry was stolen to report the sunglasses as missing. Bergman claims Ferguson specifically said she left her sunglasses on a coffee table at the house, asked if anyone had found them, and stated that if someone found them or if Asomebody puts them back, . . . I=d like to have them.@ Bergman did not recall hearing Ferguson allege the sunglasses were stolen, but she claimed Daugherty later told her she was Asure@ her driver had stolen them. According to Bergman, Daugherty added that she was Aconvinced@ her driver had also stolen a digital camera that went missing earlier that summer after a guest left it in Daugherty=s car, she Abelieved@ he stole Bergman=s jewelry, and she Asuspected@ him generally of Astealing from her and her guests.@ Bergman Asurmised,@ based on Daugherty=s alleged statements, that the camera disappeared a few weeks to a month before her jewelry was stolen.

Daugherty generally denied that any criminal acts ever occurred at Casa Carino, that she ever suspected any theft or criminal activity at Casa Carino, and that she ever told Bergman anything to that effect. Daugherty stated that neither she nor Ferguson could recall whether Ferguson left the sunglasses at Casa Carino and maintained they were never alleged to have been stolen. She further contended the camera was reported stolen after Bergman=s visit and was later recovered under a sofa in the house.

Daugherty=s motion for summary judgment[1] challenged the element of duty on three grounds. First, Daugherty alleged that because Bergman was a social guest, Daugherty owed her no greater duty of protection against third-party criminal conduct than Daugherty owed to herself, which Daugherty claimed she provided through various security measures. Bergman responded that her status was irrelevant to the issue of duty, but nonetheless maintained the evidence showed she was a business invitee. Second, Daugherty contended that, even if Bergman was an invitee, Bergman could not establish a duty arising from the foreseeable risk of theft because the two incidences of prior Atheft@ were merely reports of missing items and thus not Acrimes@ as required under Timberwalk.[2] Third, Daugherty maintained that, even if the reports of missing items resulted from thefts, they otherwise lacked sufficient frequency, recency, similarity, and publicity to establish foreseeability under Timberwalk. Bergman countered that Daugherty admitted knowledge of the recent thefts by relaying her suspicions that her driver took the missing items, and, as such, foreseeability had been established under Timberwalk.

The trial court granted Daugherty=s motion without specifying its grounds. Bergman now appeals, claiming material fact issues remain on the issue of duty.

II. Standard of Review

The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant who either conclusively negates at least one of the essential elements of each of the plaintiff=s causes of action or conclusively establishes all elements of an affirmative defense is entitled to summary judgment. Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). In order to conclusively negate at least one of the requisite elements, the motion must identify or address the cause of action or defense and its elements. Id. Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Under this traditional standard, this court must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor. See id.

Moreover, when the trial court does not specify the basis for its summary judgment, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). In other words, the appealing party must show that each independent ground alleged is insufficient to support the summary judgment granted. See Star Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

III. Analysis

Bergman first contends Daugherty has failed to negate the element of duty because the evidence shows she was a business invitee at Casa Carino and thus Daugherty owed her a duty under Timberwalk to warn or protect her against the jewelry theft, a foreseeable third-party criminal act. She alternatively contends she is owed the same duty even if her status constitutes a social guest-licensee. Under either status, Bergman claims the jewelry theft was foreseeable to Daugherty because the evidence demonstrates she had knowledge of two prior, recent thefts at Casa Carino. Daugherty disputes Bergman=s status as a business invitee and challenges whether Timberwalk applies but contends that, even under Timberwalk, the jewelry theft was unforeseeable because the evidence at best reveals only two prior incidents of missing items at Casa Carino, not specific thefts or crimes.

In a premises liability case, the duty owed to the plaintiff generally depends upon the plaintiff=s status at the time the incident occurred. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004). An invitee is one who enters another=s land with the owner=s knowledge and for the mutual benefit of both. Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 134 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). An owner or occupier of land has a duty to use reasonable care to protect an invitee from conditions that create an unreasonable risk of harm of which the owner or occupier knows or by the exercise of reasonable care would discover. Id. Additionally, although one generally has no duty to protect another against criminal acts of a third person, A[o]ne who controls . . . premises [has] a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.@ Timberwalk, 972 S.W.2d at 756 (internal quotation marks omitted). A licensee, on the other hand, enters and remains on the land with the owner=s consent and for his own convenience or on business with someone other than the owner. Ruvalcaba, 64 S.W.3d at 134. Under Texas law, a social guest is generally classified as a licensee. See Knorpp v. Hale, 981 S.W.2d 469, 472 (Tex. App.CTexarkana 1998, no pet.); Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex. App.CSan Antonio 1988, writ denied). An owner or occupier of land owes a licensee a duty to refrain from injuring the licensee willfully, wantonly, or through gross negligence and, in cases in which the owner or occupier has actual knowledge of a dangerous condition unknown to the licensee, to warn of or make safe the dangerous condition. Ruvalcaba, 64 S.W.3d at 134.

We conclude a fact issue exists as to Bergman=s status at Casa Carino. The parties dispute whether Bergman came to the house purely for social or business reasons, providing substantial evidence supporting each position, which directly relates to whether Bergman was a business invitee or social guest-licensee. See id.; Knorpp, 981 S.W.2d at 472. This fact issue, however, does not affect our decision because even if we assume, as Bergman suggests, that Timberwalk applies regardless of her status, her claim still fails.[3]

Under Timberwalk, the Aforeseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from risk.@ 972 S.W.2d at 756. To establish foreseeability in this context, the evidence must reveal specific previous crimes on or near the premises. See id. We consider the following factors in determining foreseeability: Awhether 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 on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.@ Id. at 757.

Bergman cites the purported Athefts@ of the sunglasses and digital camera from Casa Carino as evidence of prior crimes that establish the theft of her jewelry was foreseeable under Timberwalk. However, the summary judgment record fails to support this characterization. As to the sunglasses, it is undisputed that Ferguson reported them missing, but it is further undisputed that she never alleged to the police or others that they were stolen. Daugherty=s alleged statement that she was Asure@ her driver stole the sunglasses constitutes the only evidence they were stolen. As to the camera, the record does not reflect whether the owner alleged it was stolen, and Daugherty claimed the camera later turned up in her sofa at the house. Like the sunglasses, Daugherty=s alleged statement that she was Aconvinced@ her driver stole the camera constitutes the only evidence it was stolen. Even if we take as true Daugherty=s alleged comments about theft, they do not elevate these incidents to the level of a Aspecific previous crime@ required under Timberwalk to establish foreseeability. See id. at 756; see also Nichols v. Tanglewood Manor Apartments, No. 14 04 00864 CV, 2006 WL 278282, at *4 (Tex. App.CHouston [14th Dist.] Feb. 7, 2006, no pet.) (mem. op.) (holding that police call reports, including calls to report suspected criminal activity, are not necessarily probative of actual crime under Timberwalk); Ramirez v. AHP Mut. Hous. Ass=n, Inc., No. 14 04 00159 CV, 2005 WL 425486, at *2 (Tex. App.CHouston [14th Dist.] Feb. 24, 2005, no pet.) (mem. op.) (holding similarly in refusing to consider call reports in foreseeability analysis under Timberwalk and noting that Timberwalk considered only the police report involving actual crime in its foreseeability analysis). Moreover, assuming the missing sunglasses and camera constituted prior actual thefts, two similar incidents of theft in the month preceding the incident do not create a fact issue on foreseeability under Timberwalk. See Timberwalk, 972 S.W.2d at 758 (noting that Asignificant@ number of crimes within short time period strengthens claim of foreseeability and citing following examples: (1) ten incidents within three years, (2) 394 incidents within two and one half years, (3) approximately forty incidents within one year, (4) eighty-five incidents within three or four years, (5) seven incidents within one year, and (6) seventy-five to one-hundred incidents within three years); Benitez v. Benmac, Inc., No. 08-99-00348-CV, 2000 WL 799069, at *5 (Tex. App.CEl Paso June 22, 2000, no pet.) (not designated for publication) (holding one prior crime occurring on premises in three years prior to incident insufficient to establish foreseeability under Timberwalk). Accordingly, we hold that Daugherty negated the element of duty in Bergman=s premises liability claims as a matter of law and summary judgment was properly granted on this ground.

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Leslie B. Yates


Judgment rendered and Memorandum Opinion filed July 31, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Daugherty labeled her motion as a AMotion for Summary Judgment@ and attached various evidence in support. However, she did not cite either of the summary judgment rules or otherwise specify whether she moved under traditional or no-evidence grounds, and Bergman responded only on traditional grounds. See Tex. R. Civ. P. 166a(c), (i). We will thus treat Daugherty=s motion as traditional. See J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 195 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (treating motion for summary judgment as traditional where movant failed to specify whether it brought motion on traditional or no-evidence grounds and thus provided insufficient notice it sought no-evidence summary judgment under Rule 166a(i)); McArdle v. Stahl, No. 03 04 00817 CV, 2006 WL 1648988, at *1 n.1 (Tex. App.CAustin June 15, 2006, no pet.) (mem. op.) (treating motion for summary judgment as traditional where movant failed to specify whether he brought motion on traditional or no-evidence grounds, and movant attached evidence to motion but also argued there was no evidence of certain elements non-movants= claims).

[2] See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998).

[3] Because her claim fails in any event, we need not decide whether the duty described in Timberwalk applies to licensees as well as invitees. See Ynclan v. Valdez, No. 14 99 00404 CV, 2000 WL 854847, at *2 n.4 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (not designated for publication) (citing duty to invitees described in Timberwalk in premises liability case based on third-party criminal conduct but declining to address appellant=s alleged status as Asocial guest@ because appellant=s status as such was not basis on which summary judgment was sought).