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Opinion issued April = 30,=20 2009 In=20 The For=20 The
XIAO YU =
ZHONG AND=20
YING CHUN MA, INDIVIDUALLY AND AS NEXT FRIEND OF HONG YA ZHONG AND =
DAONAN=20
HE, MINOR CHILDREN, Appellants SUNBLOSSOM GARDENS,=20
L.L.C. D/B/A SUNBLOSSOM GARDENS, Appellee
On =
Appeal from the=20
189th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2007-22936
MEMORANDUM=20
OPINION Appellants, Xiao Yu Zhong and =
Ying Chun=20
Ma, Individually and as Next Friend[s] of Hong Ya Zhong and Daonan =
He,=20
Minor Children, challenge a no-evidence summary judgment rendered =
in favor=20
of appellee, Sunblossom Gardens, L.L.C. d/b/a Sunblossom Gardens=20
(Sunblossom). Appellants' claims derive from an assault on Xiao Yu =
Zhong=20
on apartment-complex premises owned by Sunblossom, where =
appellants were=20
residents. In five issues, appellants contend that the trial court =
erred=20
by rendering a no-evidence summary judgment dismissing the claims =
of each=20
appellant, by overruling their objections to the sufficiency of=20
Sunblossom's no-evidence motion, and by sustaining Sunblossom's =
objections=20
to some of appellants' summary-judgment proof. Appellants further =
contend=20
that they raised a genuine issue of material fact on each =
challenged=20
element of their claims and that the trial court erred by denying =
their=20
motion for reconsideration. We affirm.
Appellants, =
a husband=20
and wife and their two children, became residents of the =
Sunblossom=20
apartment complex in November 2003. On March 13, 2007, Xiao Yu =
Zhong was=20
stabbed and robbed at night after parking his car in the complex =
parking=20
lot. He sued Sunblossom for damages, claiming that defects on the =
premises=20
that were known to Sunblossom but not to Xiao Yu Zhong proximately =
caused=20
his injuries. Xiao Yu Zhong filed an amended petition in which he =
added=20
his family members as additional plaintiffs for his underlying =
claim.=20
After the parties completed =
formal=20
discovery, and the deadline to designate experts had passed, =
Sunblossom=20
filed a no-evidence motion for summary judgment seeking a =
take-nothing=20
judgment on appellants' claims. See Tex. R. Civ. P. =
166a(i).=20
Sunblossom maintained it was entitled to prevail as a matter of =
law=20
because appellants had no evidence of one or more essential =
elements of=20
their premises-liability claim. In response, appellants listed =
each=20
element of their premises-liability claim and argued that their =
supporting=20
proof satisfied their burden to raise a fact issue on each =
element. Their=20
summary-judgment evidence consisted of the affidavits of Xiao Yu =
Zhong and=20
his wife, Ying Chun Ma. Their affidavits stated, in part, that =
Xiao Yu=20
Zhong was stabbed five times and robbed on the Sunblossom premises =
and=20
expressed their reliance on Sunblossom's representations regarding =
security at the apartment complex and concerns regarding safety =
and=20
criminal activity at the complex. Appellants attached to their =
response a=20
voluminous computer printout of 911 emergency summonses to the =
complex,=20
which Xiao Yu Zhong and Ying Chun Ma described in their affidavits =
as=20
copies of public records. Appellants' response also asserted =
objections=20
and exceptions to Sunblossom's summary-judgment motion. In reply, Sunblossom objected =
to the=20
admissibility of the 911 records and to the affidavits provided by =
Xiao Yu=20
Zhong and by Ying Chun Ma. Sunblossom also reiterated that =
adequate time=20
for discovery has passed, reasserted its summary-judgment =
contentions, and=20
provided excerpts from the deposition testimony of Xiao Yu Zhong =
in=20
further support of Sunblossom's no-evidence contentions. =
The record on appeal contains =
the=20
reporter's record of the hearing at which the trial court =
considered=20
Sunblossom's motion, appellants' response, and the parties' =
objections. At=20
that hearing, the trial court rendered a take-nothing judgment in =
favor of=20
Sunblossom after overruling appellants' objections to Sunblossom's =
motion,=20
sustaining Sunblossom's objections to the 911 printouts offered by =
appellants, but overruling Sunblossom's objections to the =
affidavits of=20
Xiao Yu Zhong and of Ying Chun Ma. The record on appeal also =
contains the=20
reporter's record of the hearing on appellants' motion for=20
reconsideration, during which the trial court denied appellants' =
request=20
to provide authenticated copies of the 911 records on which they =
had=20
previously relied.
A =
party who=20
files a no-evidence summary judgment motion pursuant to rule =
166a(i) has=20
essentially moved for pretrial directed verdict. Mack Trucks, =
Inc. v.=20
Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files =
its=20
motion in proper form, the burden shifts to the nonmovant to =
defeat the=20
motion by presenting evidence that raises an issue of material =
fact=20
regarding the elements challenged by the motion. Id. at =
582.=20
We review the evidence =
presented by=20
the summary judgment record in the light most favorable to the =
party=20
against whom the summary judgment was rendered, crediting evidence =
favorable to that party if reasonable jurors could, and =
disregarding=20
contrary evidence unless reasonable jurors could not. Id. =
(citing=20
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. =
2005)). The=20
evidence produced must amount to more than a scintilla in order to =
raise a=20
genuine issue of material fact. Madison v. Williamson, =
241 S.W.3d=20
145, 151 (Tex. App.--Houston [1st Dist.] 2007, pet. denied). =
Evidence=20
amounts to more than a scintilla if the evidence enables =
reasonable and=20
fair-minded people to differ in the conclusions to be drawn from =
that=20
evidence. See id. at 151-52. Evidence fails the scintilla =
test if=20
it gives rise to only surmise or suspicion about the fact to be =
proven.=20
See id. at 152. When, as here, a summary =
judgment does=20
not specify the grounds on which it was granted, the appealing =
party must=20
demonstrate on appeal that none of the proposed grounds is =
sufficient to=20
support the judgment. Rogers v. Ricane Enter., 772 S.W.2d =
76, 79=20
(Tex. 1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 =
(Tex.=20
App.--Houston [1st Dist.] 1988, writ denied). Conversely, we will =
affirm=20
the judgment if any one of the theories advanced in the motion is=20
meritorious. Joe v. Two Thirty Nine Joint Venture, 145 =
S.W.3d=20
150, 157 (Tex. 2004).
Appellants' contentions on =
appeal=20
incorporate contentions that they alleged both negligence and=20
premises-liability theories of liability against Sunblossom. =
Sunblossom=20
disagrees and contends that appellants' pleadings allege only =
premises=20
liability. Because Sunblossom filed no special exceptions to the=20
pleadings, we construe them liberally in favor of appellants, =
see=20
Attorney General of Texas v. Lavan, 833 S.W.2d 952, 954 (Tex. =
1992),=20
to discern every fact "that can reasonably be inferred" from the =
facts=20
specifically alleged. See Roark v. Allen, 633 S.W.2d 804, =
809=20
(Tex. 1982). Though similar to and grounded =
in simple=20
negligence, a premises-liability action requires more specific =
proof and=20
is based on allegations that a real-property premises is unsafe. =
See=20
Clayton Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 =
(Tex. 1997)=20
(holding that premises-liability case requires specific =
instructions=20
beyond simple negligence); see also Timberwalk Apartments, =
Partners,=20
Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (describing =
negligence=20
as "simply doing or failing to do what a person of ordinary =
prudence in=20
the same or similar circumstances would have not done or done" and =
premises liability as "failure to use ordinary care to reduce or =
eliminate=20
an unreasonable risk of harm created by a premises condition which =
the=20
owner or occupier [of land] knows about or in the exercise of =
ordinary=20
care should know about"). A complaint that a landowner failed to =
provide=20
adequate security against criminal conduct is ordinarily a=20
premises-liability claim. Timberwalk, 972 S.W.2d at 753. =
To hold=20
the landowner liable under an exception to the rule that persons =
generally=20
have no duty to protect another from criminal acts by a third =
party, the=20
claimant must be an invitee and the landowner must have retained =
control=20
over security and safety of the premises. See id. at 756; =
Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. =
1999);=20
Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).=20
It is undisputed that =
appellants are=20
tenants at the apartment complex owned by Sunblossom and are thus=20
Sunblossom's invitees. See Dickinson Arms-REO, L.P. v. =
Campbell,=20
4 S.W.3d 333, 336 (Tex. App.--Houston [1st Dist.] 1999, pet. =
denied).=20
Appellants' live pleadings allege the following: that Xiao Yu =
Zhong=20
sustained "massive injuries" when he was robbed and assaulted =
after he had=20
parked his car on the premises and was walking to his apartment; =
that=20
Sunblossom had "such control over the premises" that Sunblossom =
owed=20
certain duties to appellants; that Sunblossom had actual knowledge =
of the=20
dangerous condition of the premises, which Xiao Yu Zhong did not; =
and that=20
Sunblossom failed to protect Xiao Yu Zhong from the danger, both =
by=20
adequately warning and by making the premises reasonably safe, =
which=20
failure proximately caused his injuries. Appellants further =
alleged=20
specific acts and omissions by Sunblossom that included lack of =
adequate=20
lighting, lack of proper maintenance and inspection, failure to =
take=20
corrective action after a similar event, failure to warn of lack =
of=20
safety, and failure to provide adequate security to protect =
tenants.=20
Having reviewed appellants' =
pleadings in=20
the requisite liberal light, see Lavan, 833 S.W.2d at =
954, we=20
hold that appellants claimed a status as Sunblossom's invitees =
that=20
tracked the elements required to invoke a premises-liability claim =
against=20
Sunblossom; the allegations far exceed simple negligence and =
differ from=20
those required to trigger a negligent-activity claim. See=20
Timberwalk, 972 S.W.2d at 753 (stating that claimant did not =
allege=20
she was injured "by or as a contemporaneous result of any activity =
of=20
defendants" so as to state negligent-activity claim). Accordingly, =
Sunblossom properly relied on appellants' pleadings as having =
invoked a=20
premises-liability claim that imposed on appellants the more =
rigorous=20
proof required by a premises-liability cause of action. See=20
id.
A. Challenges to =
Sunblossom's=20
Rule 166a(i) Motion In their first =
and=20
second issues, appellants argue that summary judgment was improper =
because=20
Sunblossom's motion did not comply with rule 166a(i). See =
Tex. R.=20
Civ. P. 166a(i). 1. Claimants =
Properly=20
Identified In their first issue, =
appellants reassert=20
their contention that rule 166a(i) required Sunblossom to identify =
each=20
individual claimant and to challenge the elements required for =
recovery by=20
each individual claimant. The trial court expressly overruled =
appellants'=20
objection, both orally and in writing, during the hearing on =
Sunblossom's=20
motion for summary judgment. See Tex. R. App. P. =
33.1(a)(2)(A)=20
(governing preservation of appellate complaints). Rule 166a(i) permits a party to =
"move for=20
summary judgment on the ground that there is no evidence of one or =
more=20
essential elements of a claim or defense on which an adverse party =
would=20
have the burden of proof at trial." Tex. R. Civ. P. 166a(i). "The =
motion=20
must state the elements as to which there is no evidence." =
Id.=20
Nothing in rule 166a(i) required Sunblossom to list the individual =
claimants seeking recovery on the premises-liability theory of =
recovery.=20
See id. Furthermore, it is undisputed, given appellants'=20
concession in the trial court, that all recovery is premised on =
recovery=20
by Xiao Yu Zhong. Because the claims of all remaining appellants =
derive=20
from the premises-liability claim of Xiao Yu Zhong, no evidence of =
the=20
elements of his claim constitutes no evidence of their claims as a =
matter=20
of law. See Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002) =
(holding that family members constitute single claimant for =
purposes of=20
settlement-credit statute). We hold, therefore, that the =
trial court=20
correctly overruled appellants' similarly phrased objection in the =
trial=20
court, and we overrule their first issue. 2.=20
Claims In their second issue, =
appellants contend=20
that Sunblossom's rule 166a(i) motion was conclusory, on the =
grounds that=20
Sunblossom's summary-judgment contentions did not address =
appellants'=20
claim for negligence or negligent activity. Through this issue, =
appellants=20
essentially challenge this Court's jurisdiction to consider this =
appeal,=20
given that failure to dispose of a properly pleaded cause of =
action would=20
render the summary judgment interlocutory and nonappealable. =
See=20
generally Lehmann v. Har-Con Corp., 39 S.W.3d 191, =
206 (Tex.=20
2001) (holding that judgment was not final because it did not =
dispose of=20
claims of a defendant). As explained above, however, appellants =
grounded=20
their claims to recover damages from Sunblossom on principles of =
premises=20
liability and tracked the requisite elements in their pleadings.=20
Sunblossom relied on those pleadings in moving for no-evidence =
summary=20
judgment by contending that appellants could not provide any =
evidence of=20
the following: (1) that Sunblossom had actual or constructive =
knowledge of=20
a condition on the Sunblossom premises; (2) that the condition =
posed an=20
unreasonable risk of harm; (3) that Sunblossom did not exercise =
reasonable=20
care to eliminate that risk, and (4) that Sunblossom's failure to =
exercise=20
reasonable care proximately caused the injuries to Xiao Yu Zhong. =
See,=20
e.g., Timberwalk, 972 S.W.2d at 753 (stating elements of=20
premises-liability claim). Sunblossom's motion complied with rule =
1661(i)=20
by specifying the elements of appellants' premises-liability claim =
and by=20
stating that appellants had no evidence to support any of the =
requisite=20
elements. We overrule issue =
two. B. Challenge to =
Excluded 911=20
Records In their fourth issue, =
appellants contend=20
that the trial court erred by sustaining Sunblossom's objections =
to the=20
911 records that appellants produced in response to Sunblossom's =
motion=20
for no-evidence summary judgment. Documents submitted as =
summary-judgment=20
proof must be sworn or certified. Tex. R. Civ. P. 166a(f). =
Appellants=20
contend that the 911 records are competent summary judgment proof =
under=20
Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d =
606, 607=20
(Tex. 1986) and Tex. R. Evid. 902 (regarding self-authentication). =
Relying=20
on Republic Nat'l Leasing, this Court has recognized that =
copies=20
of original private documents like promissory notes, =
leases, and=20
contracts may constitute competent summary judgment evidence if=20
accompanied by a properly sworn affidavit stating that the =
attached=20
documents are "true and correct" copies of the originals. St. =
Paul=20
Cos. v. Chevron U.S.A., Inc., 798 S.W.2d 4, 6 (Tex. =
App.--Houston=20
[1st Dist.] 1990, writ dism'd by agreement) (citing Republic =
Nat'l=20
Leasing Corp., 717 S.W.2d at 607). Neither Xiao Yu Zhong nor =
Ying=20
Chun Ma stated in their affidavits that the 911 records they =
obtained were=20
true and correct copies of original documents. Furthermore, the Rules of =
Evidence and=20
summary-judgment practice treat public records =
differently from=20
private records. See Tex. R. Evid. 902(4). And though =
Rules 1003=20
and 1004(d) recognize that a "duplicate" of the original is =
admissible to=20
the same extent as the original when the original of a document is =
not=20
available, rule 1003 does not apply when as here, its authenticity =
is=20
questioned. See Tex. R. Evid. 1003(1). Appellant also invokes the =
principle that=20
a copy of a public record is considered authentic if a sponsoring =
witness=20
vouches for its authenticity or if the document meets the =
certification=20
requirements for self-authentication contained in Rule 902. =
See ESIS,=20
Inc., v. Johnson, 908 S.W.2d 554, 561 (Tex. App.--Fort Worth =
1995,=20
writ denied) (citing Tex. R. Evid. 1005 and Castro v. =
Sebesta,=20
808 S.W.2d 189, 195 (Tex. App.--Houston [1st Dist.] 1991, no writ) =
(op. on=20
reh'g)). As we have stated, no sponsoring witness vouched for the=20
authenticity of the 911 records on which appellants relied here.=20
Likewise, appellants offered =
nothing in=20
support of the 911 records to satisfy the requirements for=20
self-authentication established by rule 902, which governs=20
"Self-Authentication" and provides, A copy of an official record or =
report or=20
entry therein, or of a document authorized by law to be recorded =
or filed=20
and actually recorded or filed in a public office, including data=20
compilations in any form certified as correct by the custodian or =
other=20
person authorized to make the certification, by certificate =
complying with=20
. . . this rule or complying with any statute or other rule =
prescribed=20
pursuant to statutory authority. Tex. R. Evid. 902(4) (Certified =
Copies of=20
Public Records). Without the required certification by a records =
custodian=20
or other person authorized to certify them, the 911 records had no =
probative value and were incompetent summary-judgment evidence =
properly=20
excluded as hearsay. See Castro, 808 S.W.2d 189, 195-96; =
see=20
also Carr v. Hertz Corp., 737 S.W.2d 12, 14 (Tex. =
App.--Corpus=20
Christi 1987, no writ) (holding that unsworn, unverified driving =
record=20
attached to summary-judgment response had no probative value in =
negligent=20
entrustment action); Diaz v. Southwest Wheel, Inc., 736 =
S.W.2d=20
770, 773-74 (Tex. App.--Corpus Christi 1987, writ denied) (holding =
that=20
unauthenticated letter and unauthenticated excerpt of testimony =
from=20
out-of-state trial was not proper summary-judgment =
evidence). As the reporter's record of the =
hearing=20
on Sunblossom's motion reflects, the trial court sustained =
Sunblossom's=20
objections to the 911 reports because there was "no affidavit from =
any=20
person associated with the police department indicating that this =
is an=20
accurate or complete copy of what it purports to be." We agree. =
Because=20
appellants did not authenticate the 911 reports and did not =
establish that=20
they were self-authenticating, the trial court properly excluded =
the=20
reports as incompetent summary-judgment evidence. We overrule appellants' fourth=20
issue. D. Did Appellants =
Produce a Fact=20
Issue to Defeat Summary Judgment? In their third issue, =
appellants contend=20
that their summary judgment evidence was sufficient to defeat =
Sunblossom's=20
motion. Having overruled appellants' fourth issue above, we =
consider only=20
appellants' remaining proof, specifically the affidavits of Xiao =
Yu Zhong=20
and Ying Chun Ma, in addressing this issue. The grounds on which Sunblossom =
claimed=20
there was no evidence to support appellants' claims included the=20
contention that Sunblossom had no knowledge that Xiao Yu Zhong =
would be=20
criminally assaulted on the apartment-complex premises. The duty =
owed by=20
the defendant to the plaintiff is a preliminary consideration in a =
premises-liability case. See Barton v. Whataburger, Inc., =
276=20
S.W.3d 456, 462 (Tex. App.--Houston 2008, no pet. h.). The court=20
determines as a matter of law whether the defendant owes a duty,=20
Trammell Crow Cent. Texas, Ltd. v. Gutierrez, 267 S.W.3d =
9, 12=20
(Tex. 2008), and the "parameters" of that duty; =
Timberwalk, 972=20
S.W.2d at 756. As a general rule, no person has a legal duty to =
protect=20
another person from criminal acts by a third party. Id.;=20
Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. =
1995). To hold a landlord like =
Sunblossom liable=20
under an exception to the no-duty rule, the claimant must be an =
invitee,=20
and the landowner must have retained control over security and =
safety of=20
the premises, as addressed above. See Mellon, 5 S.W.3d at =
655;=20
Timberwalk, 972 S.W.2d at 756. Property owners may owe a =
duty to=20
those invitees who may be harmed by criminal acts of third parties =
if the=20
risk of criminal conduct is so great that it is both unreasonable =
and=20
foreseeable. Mellon, 5 S.W.3d at 655; =
Timberwalk, 972=20
S.W.2d at 756; see also Lefmark Mgmt. Co., 946 S.W.2d at =
53 ("One=20
who controls the premises does have a duty to use ordinary care to =
protect=20
invitees from criminal acts of third parties if he knows or has =
reason to=20
know of an unreasonable and foreseeable risk of harm to the =
invitee.").=20
Foreseeability of an =
unreasonable risk of=20
criminal conduct is the starting point in determining the extent =
of any=20
duty owed to prevent criminal acts. Timberwalk, 972 =
S.W.2d at=20
756. In considering whether a particular criminal act was so =
foreseeable=20
and unreasonable as to impose a duty upon a landlord to a =
tenant-invitee=20
like Xiao Yu Zhong, we first examine the particular criminal =
conduct that=20
occurred in light of "specific previous crimes on or near the =
premises."=20
See Mellon Mortgage, 5 S.W.3d at 656; =
Timberwalk, 972=20
S.W.2d at 756 (both quoting Walker v. Harris, 924 S.W.2d =
375, 377=20
(Tex. 1996)). Timberwalk describes how we conduct this=20
examination: In determining whether the =
occurrence of=20
certain criminal conduct on a landowner's property should have =
been=20
foreseen, courts should consider whether any criminal conduct =
previously=20
occurred on or near the property, how recently it occurred, how =
often it=20
occurred, how similar the conduct was to the conduct on the =
property, and=20
what publicity was given the occurrences to indicate that the =
landowner=20
knew or should have known about them. Timberwalk, 972 S.W.2d =
at 757.=20
If we determine that the general danger of the criminal act was=20
foreseeable, after applying these factors, we proceed to the =
second step=20
of the foreseeability analysis and determine whether it was =
reasonably=20
foreseeable--before Xiao Yu Zhong was injured and not by =
hindsight--that=20
he or any other similarly situated person would be the victim of =
the=20
criminal act on which he bases his claims. See id. =
Conversely, if=20
danger to the claimant is not shown to be foreseeable, the law =
considers=20
the criminal conduct of the third party a superseding cause of the =
injury.=20
See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. =
1999);=20
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 550 =
(Tex.=20
1985); Barton, 276 S.W.3d at 462. The affidavits of Xiao Yu Zhong =
and Ying=20
Chun Ma in this case fail to give rise to the requisite issue of =
material=20
fact that Sunblossom should have foreseen that Xiao Yu Zhong would =
be=20
robbed and stabbed on the Sunblossom premises. Both affiants =
stated their=20
concerns about security in the apartment, referred to statements =
by=20
Sunblossom's managers that the complex provided "24-hour security" =
and had=20
an access-code gated entry, and expressed reliance on those =
statements. In=20
addition, both affiants stated that security officers did not =
patrol the=20
premises, that the access-code gate remained open for long periods =
of time=20
and was not working on the night Xiao Yu Zhong was attacked, that =
lights=20
were frequently out on the premises and were not working on the =
night Xiao=20
Yu Zhong was injured, and that the complex lacked a "security =
camera or=20
any other device that could help prevent any criminal activity =
from=20
happening." Xiao Yu Zhong and Ying Chun Ma =
also=20
stated in their affidavits that they observed police cars driving =
through=20
the complex and that, on investigating, Xiao Yu Zhong learned that =
the=20
police were responding to reports of criminal activity. To support =
that=20
statement, however, affiants referred to the 911 reports that the =
trial=20
court properly excluded, as addressed above. In addition, both =
affiants=20
stated that a visitor to their apartment had been robbed in the =
complex=20
and a neighbor burglarized within the year before Xiao Yu Zhong =
was robbed=20
and stabbed and that both incidents had been reported before his =
incident.=20
Both affiants concluded by offering their opinion that Xiao Yu =
Zhong would=20
not have been stabbed five times and robbed "if [Sunblossom] had =
done what=20
[it] represented or taken measures to deter crime" in the complex. =
In assessing the affidavits, we =
must=20
consider together the Timberwalk factors, specifically =
proximity,=20
frequency, similarity, and publicity, in determining =
foreseeability of the=20
crime that occurred. Id. at 759. As the supreme court =
explained=20
in Timberwalk, the frequency-of-crimes factor lessens, =
for=20
example, when the similarity factor increases. Id. =
Likewise,=20
frequent property crimes in the vicinity "is not as indicative of=20
foreseeability" as less frequent violent crimes that take place on =
the=20
landord's property. Id. In this case, as in =
Timberwalk,=20
violent crime is the criminal activity that serves as the basis of =
appellants' complaint. See id. at 759. In =
Timberwalk,=20
the evidence showed but a single sexual assault within a one-mile =
radius=20
of the premises and no violent crimes on the premises. =
Id.=20
Despite evidence of other property crimes in the complex and in=20
neighboring complexes, the risk that the claimant would be =
sexually=20
assaulted on the apartment premises was not a foreseeable risk =
that=20
imposed a duty on the property owner. Id. The same reasoning applies =
here. Nothing=20
in the affidavit of either Xiao Yu Zhong or Ying Chun Ma refers to =
any=20
crime involving violence against a person, either on the premises =
or in=20
the vicinity. Similarly, the two crimes described in the =
affidavits are=20
analagous to the tire-slashing and car burglary and car theft =
crimes=20
described in Timberwalk. See id. In addition, =
both=20
affiants stated their opinion that Sunblossom's having "done what =
[it]=20
represented or taken measures to deter crime" would have prevented =
the=20
violent attack on Xiao Yu Zhong." Expert testimony may bear on=20
foreseeability of criminal conduct. E.g., =
Mellon, 5=20
S.W.3d at 664 (Baker, J., concurring). But, neither Xiao Yu Zhong =
nor Ying=20
Chun Ma established the necessary expertise to qualify as expert=20
witnesses. See Tex. R. Evid. 702 (stating qualifications =
of=20
experts). As statements of opinion by lay, interested witnesses, =
their=20
opinions were neither readily controvertible, as required by rule =
166a(c)=20
nor competent, as required by rule 166a(f). Having failed to =
establish=20
that the injury to Xiao Yu Zhong was foreseeable, appellants did =
not=20
establish the first element of the duty analysis contemplated by=20
Timberwalk. See Timberwalk, 972 S.W.2d at=20
756. When the claimant's injury is =
not=20
sufficiently foreseeable to establish a duty in the premises =
owner, the=20
owner necessarily lacks the requisite knowledge of the likelihood =
that the=20
claimant would be injured. Sunblossom moved for no-evidence =
summary=20
judgment in part on that basis, and appellants did not meet their =
burden=20
to present competent evidence of any issue of material fact to =
establish=20
knowledge. Because appellants did not meet their summary-judgment =
on the=20
knowledge element, we need not address whether their proof raised =
a fact=20
issue on the remaining elements of their claim. See Joe, =
145=20
S.W.3d at 157. We hold that Sunblossom established its right to =
prevail as=20
a matter of law on appellants' claims, and the trial court =
properly=20
rendered summary judgment in Sunblossom's favor pursuant to rule =
166a(i).=20
We overrule appellant's third=20
issue. E. Whether Trial Court =
Abused its=20
Discretion by Denying Reconsideration In their fifth issue, =
appellants contend=20
that the trial court erred by denying their motion for =
reconsideration, by=20
which they sought to supplement their summary judgment proof, =
after the=20
trial court had rendered the final summary judgment, by providing=20
authenticated copies of the 911 records originally attached to =
their=20
response. The motion was overruled by operation of law. We review =
rulings=20
denying a motion for reconsideration for abuse of discretion. =
See In=20
re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Villegas v.=20
Carter, 711 S.W.2d 624, 626 (Tex. 1986). A trial court abuses =
its=20
discretion when it acts in an arbitrary and unreasonable manner or =
when it=20
acts without reference to any guiding rules or principles. =
Downer v.=20
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.=20
1985). Appellants have not =
demonstrated that the=20
trial court abused its discretion. It is undisputed that the =
deadline to=20
designate experts had passed, and appellants had never disputed =
that=20
adequate time for discovery had also passed. See Tex. R. =
Civ. P.=20
166a(i). Likewise, though rule 166a(c) permits parties to =
supplement their=20
summary-judgment proof after the hearing on the motion, they must =
do so=20
"before judgment with permission of the court." Tex. R. Civ. P. =
166a(c).=20
We overrule appellant's fifth =
issue. We affirm the judgment of the =
trial=20
court. Sherry Radack Chief Justice Panel consists of Chief Justice =
Radack=20
and Justices Alcala and Hanks.=20
1. The trial court recited its express =
ruling=20
sustaining Sunblossom's objection at the hearing on the motion for =
summary=20
judgment, when the court also stated on the record its reasons for =
that=20
ruling. See Tex. R. App. P. 33.1(a)(2)(A); Aguilar v. =
LVDVD,=20
L.C., 70 S.W.3d 915, 917-18 (Tex. App.--El Paso 2002, no =
pet.)=20
(citing Columbia Rio Grande Reg. Hosp. v. Stover, 17 =
S.W.3d 387,=20
395-96 (Tex. App.--Corpus Christi 2000, no pet.)).=20
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