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Affirmed and Memorandum Opinion filed December 28, 2006.
Fourteenth Court of Appeals
WILSON RODRIGUEZ, Appellant
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 03-36387
M E M O R A N D U M O P I N I O N
Appellant Wilson Rodriguez appeals a summary judgment granted in favor of appellees Gulf Coast & Builders Supply, Inc. and KJR, Ltd. dismissing Rodriguez=s negligence claims. We affirm.
I. Factual and Procedural Background
Wilson Rodriguez was injured while helping his roommate, Jose Mejia repair a truck. Mejia was the nephew of Rodriguez=s boss, Juan Pablo Mejia. Both Jose and Juan worked as independent contractors for Gulf Coast & Builders Supply, Inc. The premises upon which the injury occurred was controlled by Gulf Coast, but owned by KJR.
The truck Rodriguez agreed to help his roommate repair belonged to Jose. Rodriguez agreed to assist as a favor, not as part of any work assignment. The repairs were being made gratuitously, and not at the request of Gulf Coast or KJR. While Rodriguez was underneath the truck replacing parts on the axle, the jack collapsed, and the truck=s chassis pinned him to the ground. As a result, Rodriguez suffered splintered ribs and dislocated discs in his spine, as well as internal injuries.
Rodriguez filed a lawsuit against Gulf Coast and KJR, asserting negligence claims based on both negligent-activity and premises-liability theories. Gulf Coast and KJR filed a hybrid motion for summary judgment, setting forth both traditional and no-evidence grounds. Rodriguez filed a response to this motion for summary judgment. Gulf Coast and KJR thereafter filed a reply to Rodriguez=s response, and after the hearing, a brief in support of their motion. The trial court signed an order granting the motion for summary judgment without specifying the grounds.
II. Issues Presented
Rodriguez asserts the following issues on appeal:
(1) Whether Gulf Coast=s and KJR=s motion for summary judgment set forth its traditional grounds and its no-evidence grounds with sufficient clarity and specificity so as to give Rodriguez fair notice of the allegations contained therein.
(2)-(3) Whether the evidence before the court raised a genuine issue of material fact on any properly challenged element of Rodriguez=s negligence claims based on premises liability or negligent activity.
III. Standard of Review
In reviewing a traditional motion for summary judgment, we consider 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. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant must conclusively negate at least one essential element of each of the plaintiff=s claims or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Under this traditional standard, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id. When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
In contrast, when reviewing a no‑evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary‑judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no‑evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant=s favor. Dolcefino, 19 S.W.3d at 916. A no‑evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary‑judgment evidence that raises a genuine issue of material fact. Id. at 917.
A. Did the defendants= motion for summary judgment set forth Atraditional@ grounds and Ano-evidence@ grounds with sufficient clarity and specificity so as to give the plaintiff/respondent fair notice?
In his first issue, Rodriguez contends that Gulf Coast=s and KJR=s motion for summary judgment was vague and unclear, and thus did not provide him with fair notice of the grounds upon which the movants sought summary judgment. Gulf Coast and KJR contend that Rodriguez waived this issue because he failed to specially except to the motion on these grounds in the trial court. In the alternative, Gulf Coast and KJR contend that their hybrid motion for summary judgment met the specificity requirements in both Texas Rules of Civil Procedure 166a(c) and 166a(i).
As a threshold issue, we consider whether Rodriguez preserved this issue for our review. If Gulf Coast and KJR did not identify the elements challenged in their no-evidence motion, then Rodriguez did not have to raise this issue in the trial court. See, e.g., Cuyler v. Minns, 60 S.W.3d 209, 212B13 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). However, we conclude that Gulf Coast and KJR did attack the duty and breach-of-duty elements in their motion. To the extent Rodriguez asserts that the motion is vague, ambiguous, or unspecific for some other reason, for example, due to an alleged failure to satisfy the specificity requirements of Texas Rule of Civil Procedure 166a(c), Rodriguez waived these complaints by failing to specially except.
A motion for summary judgment should state the specific grounds for summary judgment. Tex. R. Civ. P. 166a(c). When a summary judgment is attacked as being vague or lacking specificity, a special exception is required. Franco v. Slavonic Mut. Fire Ins. Ass=n, 154 S.W.3d 777, 784 (Tex. App.CHouston [14th Dist.] 2004, no pet.); see also McConnell, 858 S.W.2d at 342 (stating in dictum in plurality opinion that Aan exception is required should a non‑movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous@). The excepting party must obtain a ruling on the special exception to preserve the issue for appeal. Franco, 154 S.W.3d at 784. As a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint. See Tex. R. App. P. 33.1(a); Franco, 154 S.W.3d at 784. Rodriguez did not present these issues to the trial court for ruling; therefore, we cannot consider them on appeal as grounds for reversal. See Franco, 154 S.W.3d at 784B85.
Rodriguez relies on Cuyler v. Minns, 60 S.W.3d 209, 213 (Tex. App.CHouston [14th Dist.] 2001, pet. denied), and McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.), to support his contention that his failure to object did not waive review of any error on appeal. In Cuyler, this court followed Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3B4 (Tex. App.CSan Antonio 2000, pet. denied), in which the Fourth Court of Appeals held that if a no‑evidence motion for summary judgment is not specific in challenging a particular element, the motion is insufficient as a matter of law and may be challenged for the first time on appeal. The San Antonio court reached this conclusion by analogizing to McConnell, a case in which the movant=s motion for summary judgment merely stated that Athere are no genuine issues as to any material facts and that these Defendants are entitled to a judgment dismissing Plaintiff's amended complaint as a matter of law.@ See id. at 3B4; see also McConnell, 858 S.W.2d at 339. The actual grounds for summary judgment were contained in a brief to which the motion referred and which was served on all parties contemporaneously with the motion. Id. The Texas Supreme Court decided that Rule 166a requires the grounds to be presented in the motion itself: AEven if the non‑movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law.@ McConnell, 858 S.W.2d at 342 (plurality op.).
Cuyler and McConnell do not hold that a party need not file special exceptions to assert that a motion for summary judgment is vague and unspecific. In fact, McConnell states that special exceptions are necessary to assert this argument. See McConnell, 858 S.W.2d at 342B43. Gulf Coast and KJR did assert no-evidence grounds attacking the duty and breach-of-duty elements, and to the extent Rodriguez asserts that the motion is vague, ambiguous, or unspecific for some other reason, Rodriguez waived these complaints by failing to specially except. Accordingly, we overrule Rodriguez=s first issue.
B. Is there a genuine issue of material fact on any properly challenged element of the plaintiff=s negligence claims?
In his second and third issues, Rodriguez contends that he raised a genuine issue of a material fact as to the essential elements of his premises-liability and negligent-activity theories of negligence. Because liability in this case is premised on both theories, we first must determine whether this case is a premises-liability or a negligent-activity case. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Wal‑Mart v. Bazan, 966 S.W.2d 745, 746 (Tex. App.CSan Antonio 1998, no pet.).
Recovering under a negligent-activity theory requires the plaintiff to have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746. Conversely, a premises-liability theory rests on the notion that the premises itself is unsafe. Bazan, 966 S.W.2d at 746. Rodriguez contends that Gulf Coast and KJR allowed a condition of which they had actual and/or constructive knowledge and which presented an unreasonable risk of harm to exist on the premises. In his petition, Rodriguez asserts that the following were unreasonably dangerous conditions: (1) allowing an unsupervised workplace; (2) use of unsafe equipment; and (3) use of an unsafe and unregulated open lot for major repair of vehicles. In their no-evidence motion for summary judgment, Gulf Coast and KJR contended that there is no evidence that a dangerous condition existed on the premises. We agree.
In response to a no-evidence ground for summary judgment, Rodriguez had the burden to point out evidence rasing a genuine issue of fact as to the challenged elements. See San Saba Engergy, L.P. v. Crawford, 171 S.W.3d 323, 330 (Tex. App.CHouston [14th Dist.] 2005, no pet.). In his summary-judgment response, Rodriguez failed to bring forth any evidence to show that a dangerous condition existed on the premises. Pointing only to the deposition transcript of Kenneth Rosenberger, Rodriguez asserts that the defendants knowingly allowed people to enter their premises and work on the property. Rodriguez=s interpretation of Rosenberger=s deposition testimony is inaccurate. In regard to this topic, Rosenberger testified as follows:
! Although it was not forbidden for the independent contractors to make repairs on the lot, it was not a usual or customary practice for them to do so.
! The inbound and outbound trucks of the independent contractors may park on the lot to avoid parking on the street.
! Although there was no patrol around the lot to keep unauthorized persons out, there were signs around the lot that said Aprivate property.@
! Maintenance and repair of trucks would be done on the lot in the event of an emergency, but any other repairs would be done at the shop from which the truck was being leased.
! While all of the independent contractor had access to this lot, they were not authorized to bring other third-parties onto the lot, such as their parents, siblings, or even roommates.
Rosenberger=s testimony, does not raise a genuine issue of material fact as to: (1) allowing an unsupervised workplace; (2) use of unsafe equipment; or (3) use of an unsafe and unregulated open lot for major repair of vehicles. Therefore, even if these items could constitute a dangerous condition, the trial court properly granted summary judgment as to Rodriguez=s premises-liability theory. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (concluding that, as to a premises-liability theory, there must be some evidence that the alleged injuries were caused by an Aunsafe@ condition on the property); Gaspard v. DuPont Dow Elastomers, L.L.C., 140 S.W.3d 415, 426 (Tex. App.CBeaumont 2004, no pet.) (concluding that a negligence action brought against premises owner by independent contractor=s employee, who alleged that his injury occurred when he manually removed bale and not when the compactor jammed or when the conveyor shut down, did not involve a premises defect, but, rather, an allegedly negligent activity). Accordingly, we overrule Rodriguez=s second issue.
Having determined that this is a negligent‑activity case, we now turn to Rodriguez=s third issue, and we consider whether summary judgment was proper. As to his negligence claim, Rodriguez must prove that the defendant owed the plaintiff a legal duty, the duty was breached, and the breach proximately caused damages. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). In his AThird Amended Petition,@ Rodriguez asserted the following as to his negligence claim:
The occurrence made the basis of this suit and the resulting injuries and damages were proximately caused by the negligence of Defendants in allowing use of their property for the repair of vehicles used in their business without supervising the work or the means and methods of the work. Defendants also failed to supervise the work of independent contractors who worker [sic] on their property.
Gulf Coast and KJF asserted no-evidence summary-judgment grounds attacking the duty and breach-of-duty elements of Rodriguez=s negligence claim. Rodriguez was required to point out summary‑judgment evidence of probative force to raise a genuine issue of material fact as to these elements. See Johnson, 73 S.W.3d at 206B08.
In response to the summary-judgment motion, Rodriguez argued that Gulf Coast and KJR owed him a duty of ordinary care because Rodriguez was on the property for the purpose of working on a truck that was used to haul their merchandise. Rodriguez asserted that Gulf Coast and KJR knew that repairs were being made on the particular lot and that Rodriguez was there for an extended period of time. Rodriguez urged that, despite this alleged knowledge, they did not remove him from the property, never forbade the maintenance and repair of vehicles in the area, and did not know what was being done in this area. Therefore, Rodriguez asserted, Gulf Coast and KJR allowed him to be on the premises for the purpose of working on the truck. Rodriguez claimed his acts would have benefitted Gulf Coast and KJR. For these reasons, Rodriguez argued, Gulf Coast and KJR owed him a duty of ordinary care and they breached that duty by allowing the negligent activity that injured him.
Rodriguez asserted that Gulf Coast and KJR failed to use reasonable care to eliminate the risks of maintenance of such vehicles on their property. Rodriquez specifically alleged that Gulf Coast and KJR failed to use reasonable care in the following respects:
! They failed to put up signs around this particular lot stating that maintenance and repairs of vehicles could not be done there.
! They failed to properly supervise the activities of independent workers on their property.
! They failed to designate a particular area where independent workers could repair their vehicles under the supervision of the property owners or property managers; and
! They failed to reduce the risks associated with maintenance of vehicles on their property.
Rodriguez submitted the deposition testimony of Kenneth J. Rosenberger in an attempt to raise a genuine issue of material fact on the two challenged elements. Rodriguez specifically relies on the following excerpt:
Q: [Rodriguez=s counsel]: Okay. Was it a Bif an independent contractor hauler=s truck were to break down or need repair, was it customary or unusual for them to use this lot shown in Exhibit 5 just to have a place to park the truck and work on it?
[Defense counsel]: Objection; form.
[Rosenberger]: That=s kind of a multi-type question. I think B I=ve kind of lost you about halfway through that.
Q: [Rodriguez=s counsel]: I=ll start over. Was it usual for the independent haulers to repair or work on their trucks on this lot here shown in Exhibit 5?
A: [Rosenberger]: No, sir.
Q: [Rodriguez=s counsel]: Was it forbidden for them to do that?
A: [Rosenberger]: Well, theyB theyBanyBthey made emergency repairs like flats.
Q: [Rodriguez=s counsel]: I=m sorry?
A: [Rosenberger]: If the truck had a flat, made emergency repairs, they contacted somebody that was flatBcome fix flats.
Q: [Rodriguez=s counsel]: Right.
A: [Rosenberger]: I know ofBI know of no time where there was any major maintenance done.
Q: [Rodriguez=s counsel]: So ifBif one of the trucks of the contract haulers needed some sort of emergency repair, change of tire, that sort of thing, it was okay for them to use this lot shown in Exhibit 5?
[Defense counsel]: Objection; form.
[Rosenberger]: Well, sir, allBanytime you have a truck, the lights are not working or something, you need to repair those light bulbs or whatever, certainly you don=t want that truck going down the street not meeting safety standards.
Q: [Rodriguez=s counsel]: So it was okay for them to make these kinds of repairs on this lot shown in Exhibit 5?
A:[Rosenberger]: It was B it was never said you couldn=t and never said you could. It was justB you know.
(emphasis added). Under Rule 166a(i), Rodriguez had the burden to produce summary judgment evidence raising a genuine issue of material fact on the element of breach of duty. See Dolcefino, 19 S.W.3d at 916. This deposition testimony does not establish a breach of a duty, if any, owed to Rodriguez, nor does it support Rodriguez=s contentions that Gulf Coast and KJR, or either of them, failed to use reasonable care in preventing any alleged negligent activity that may have caused Rodriguez=s injuries. Even presuming that Gulf Coast and KJR owed a duty to Rodriguez, we conclude that there is no summary-judgment evidence that they breached this duty. See Western Invest., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005) (concluding no issue of material fact existed on proximate cause after presuming that a duty was owed and a breach of that duty existed).
Rodriguez has not shown that either Gulf Coast or KJR failed to implement safety measures that caused his injuries nor has he shown that either was aware that its independent-contractor workers used the subject property (after hours) to conduct major repairs to their personal vehicles. Indeed, Rosenberger testified that it was not usual or customary for independent haulers to work on their trucks on the lot where Rodriguez was allegedly injured. In addition, there is no evidence to show that Gulf Coast allowed roommates or friends of their independent contractors access to this property. Rodriguez simply has not shown that Gulf Coast and KJR were aware that any unsafe practices were occurring on the subject property. Cf. Lee Lewis Constr., 70 S.W.3d at 784 (holding that general contractor had actually exercised control of premises when general contractor knew of dangerous condition before injury occurred and approved acts that were dangerous and unsafe); Hoeschst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998) (concluding that Aan employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may breach a duty owed to require corrective measures to be taken or to cancel the contract.@); Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 1990) (holding that Enserch=s providing of book detailing exact procedures to be followed while working on pipeline and frequent visitation and supervision of contractor=s employees by Enserch representatives created fact question about Enserch=s right to control work); Redinger v. Living, Inc., 689 S .W.2d 415, 418 (Tex. 1985) (holding general contractor liable who was present to observe danger and gave order causing plaintiff's injury). Furthermore, Rodriguez has not offered any evidence to prove that a reasonably prudent person would have implemented any of the safety procedures that Rodriguez argues should have been implemented, such as putting up signs that repairs could not be made on the property or designating a particular area where such repairs could be made, if necessary. Under the applicable standard of review, we conclude that the summary-judgment evidence does not raise a genuine fact issue as to whether Gulf Coast and KJR breached their alleged negligence duties. The trial court correctly rendered summary judgment for Gulf Coast and KJR under Rule 166a(i). See Tex. R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Accordingly, we overrule Rodriguez=s third issue.
Having overruled all of Rodriguez=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Judgment rendered and Memorandum Opinion filed December 28, 2006.
Panel consists of Justices Fowler, Edelman, and Frost.
 In Cuyler, this court relied on the reasoning in Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563 (Tex.1983), a case in which the plaintiff sued on contract and tort grounds. The defendant moved for summary judgment only on contract grounds, but the trial court erroneously granted summary judgment on both contract and tort grounds. Id. at 563. This court concluded that Chessher had waived his tort claims by failing to raise them in his response to the motion for summary judgment. Chessher, 658 S.W.2d at 564. On review, the Texas Supreme Court found that because appellee had not asked for relief from the tort claims, he had not complied with Rule 166a(c) and so was not entitled to judgment on those claims as a matter of law. Id. (emphasis added).
 We note here that Exhibit 5 is a photograph showing the property upon which Rodriguez contends that he was injured.
 Because we conclude that the trial court correctly rendered summary judgment under Rule 166a(i), it is not necessary to determine whether Gulf Coast and KJR met their burden of negating this element under Rule 166a(c). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). However, even if we were to consider this issue under the standards for traditional summary judgment, we would reach the same result. The evidence attached to the motion for summary judgment on traditional grounds (the deposition testimony of Rodriguez and the affidavit of Gulf Coast=s corporate representative) conclusively establishes that Gulf Coast and KJR did not breach a duty, if any, owed to Rodriguez. The deposition excerpts upon which Rodriguez relies do not create a genuine issue of material fact sufficient to defeat summary judgment. See Sci. Spectrum, Inc., 941 S.W.2d at 911.