Texas Department of Transportation v. Jose Luis Perches, Sr. and Alma Delia Perches, Individually and on Behalf of the Estate of Jose Luis Perches, Jr.

NUMBER 13-09-00177-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSEPH ANTHONY RIVAS, Appellant,

v.

MPII, INC. D/B/A MISSION PARK
FUNERAL CHAPELS SOUTH, Appellee.

On appeal from the 57th District Court
of Bexar County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Rodriguez
This is an appeal from a final summary judgment granted in favor of appellee MPII,

Inc. d/b/a Mission Park Funeral Chapels South (Mission Park) and against appellant

Joseph Anthony Rivas. The sole issue is whether the trial court erred in granting Mission

Park's motion for summary judgment. We reverse and remand.
 I. BACKGROUND1

It is undisputed that this is a premises liability case. The suit arose when Rivas,

while acting as a pallbearer at a burial service on Mission Park's premises, fell into a hole

at the grave site. Rivas filed suit, and Mission Park subsequently filed motions for

traditional and no-evidence summary judgment. See TEX. R. CIV. P. 166a(c), (i). The

basis for its traditional motion was that Mission Park negated, as a matter of law, the first

element of Rivas's cause of action—that Mission Park had knowledge of the

complained-of condition on its premises. The basis for its no-evidence motion was that

Rivas had no evidence that Mission Park had knowledge of an unreasonably dangerous

condition. After hearing argument on the motions, the trial court granted Mission Park

summary judgment without stating the grounds. This appeal followed.2

II. STANDARD OF REVIEW

The standard of review for the granting of a motion for summary judgment is

determined by whether the motion was brought on no-evidence or traditional grounds.

See TEX. R. CIV. P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771

(Tex. App.BCorpus Christi 2003, no pet.) (op. on reh'g). A no-evidence summary

judgment is equivalent to a pretrial directed verdict, and this Court applies the same legal

sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Ortega, 97 S.W.3d at 772; Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex.

1
All issues of law presented by this case are well settled, and the parties are familiar with the facts.
Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise
the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
2
The case is before this Court on transfer from the Fourth Court of Appeals in San Antonio
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon
2005).

2
App.–San Antonio 1998, writ denied). Such a summary judgment motion should be

granted if there is no evidence of at least one essential element of the plaintiff's claim.

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The burden of

producing evidence is entirely on the non-movant; the movant has no burden to attach

any evidence to the motion, and if the non-movant produces evidence to raise a genuine

issue of material fact, summary judgment is improper. TEX. R. CIV. P. 166a(i).

All that is required of the non-movant is to produce a scintilla of probative evidence

to raise a genuine issue of material fact on the challenged element. Forbes, Inc. v.

Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); Ortega, 97 S.W.3d at 772.

"Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more

than create a mere surmise or suspicion of a fact.'" Ortega, 97 S.W.3d at 772 (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at

172. Conversely, more than a scintilla of evidence exists when reasonable and

fair-minded individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172;

Ortega, 97 S.W.3d at 772 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.

1994)). In determining whether the non-movant has produced more than a scintilla of

evidence, we review the evidence in the light most favorable to the non-movant, crediting

such evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168

S.W.3d 802, 825, 827 (Tex. 2005) (noting that review of a "no-evidence" motion for

summary judgment is effectively restricted to the evidence contrary to the motion);

Ortega, 97 S.W.3d at 772.

We review the trial court's granting of a traditional motion for summary judgment

3
de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.).

When reviewing a traditional summary judgment, we must determine whether the movant

met his burden to establish that no genuine issue of material fact exists and that the

movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof in

a traditional motion for summary judgment, and all doubts about the existence of a

genuine issue of material fact are resolved against the movant. See Sw. Elec. Power

Co., 73 S.W.3d at 215. 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.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

We will affirm a traditional summary judgment only if the record establishes that the

movant conclusively proved its defense as a matter of law or if the movant negated at

least one essential element of the plaintiff's cause of action. IHS Cedars Treatment Ctr.

of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Am. Tobacco Co. v.

Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin Auth., 589 S.W.2d at 678.

A matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at 816.

When, as in the present case, an order granting summary judgment does not state

the specific grounds on which summary judgment was granted, a court will uphold it on

any ground presented in the motion. Cincinnati Life Ins. Co. v. Cates, 947 S.W.2d 608,

610 (Tex. 1997). Moreover, when a party moves for summary judgment under both rules

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166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we will first review the trial

court's judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). If the appellant fails to produce more than a scintilla of

evidence under that burden, then there is no need to analyze whether appellee's

summary judgment proof satisfies the rule 166a(c) burden. Id.

III. APPLICABLE LAW

In order to establish a premises liability claim, a plaintiff must prove the following

four elements: (1) the owner or occupier had actual or constructive knowledge of a

condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the

owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4)

the owner or occupier's failure to use such care proximately caused the plaintiff's injury.

Wal-Mart Stores v. Reece, 81 S.W.3d at 812, 814 (Tex. 2002); CMH Homes, Inc. v.

Daenen, 15 S.W.3d 97, 99 (Tex. 2000). The challenged element in this case is the first

element— knowledge.

Rivas does not dispute that there is no evidence that Mission Park had actual

knowledge, i.e., that Mission Park created or knew of the condition on the premises.

Instead, Rivas relies on constructive knowledge, which requires proof that Mission Park

had a reasonable opportunity to discover the defect. Reece, 81 S.W.3d at 813; CMH

Homes, Inc., 15 S.W.3d at 101-02 ("Daenen would be entitled to recover if he presented

evidence that CMH actually knew that the platform and step unit had become unstable or

if a reasonable inspection would have revealed that the unit was no longer safe."); Corbin

v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983) ("The occupier is considered to

have constructive knowledge of any premises defects or other dangerous conditions that

5
a reasonably careful inspection would reveal.").

As the supreme court explained in Wal-Mart Stores, Inc. v. Spates, the question of

constructive knowledge "requires analyzing the combination of proximity, conspicuity,

and longevity." 186 S.W.3d 566, 567-68 (Tex. 2006) (per curiam) (citing Reese, 81

S.W.3d at 816). "If the dangerous condition is conspicuous as, for example, a large

puddle of dark liquid on a light floor would likely be, then an employee's proximity to the

condition might shorten the time in which a jury could find that the premises owner should

reasonably have discovered it." Id. "Similarly, if an employee was in close proximity to

a less conspicuous hazard for a continuous and significant period of time, that too could

affect the jury's consideration of whether the premises owner should have become aware

of the dangerous condition." Id. In addition, ―[w]ithout some temporal evidence, there is

no basis upon which the fact[-]finder can reasonably assess the opportunity the premises

owner had to discover the dangerous condition." Reese, 81 S.W.3d at 816. Moreover,

"when circumstantial evidence is relied upon to prove constructive notice[, as in this

case,] the evidence must establish that it is more likely than not that the dangerous

condition existed long enough to give the proprietor a reasonable opportunity to discover

the condition." Wal-mart Stores, Inc. v. Gonzalez, 968 S.W.2d 936, 936 (Tex. 1998).

"[M]eager circumstantial evidence from which equally plausible but opposite inferences

may be drawn is speculative and thus legally insufficient to support a finding." Id.

IV. DISCUSSION

A. NO-EVIDENCE SUMMARY JUDGMENT MOTION

By his sole issue on appeal, Rivas asserts, in response to the no-evidence

summary judgment, that he produced more than a scintilla of probative evidence to raise

6
a genuine issue of material fact regarding Mission Park's constructive knowledge of the

hole into which he fell. See Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772. He

argues that reasonable minds could conclude that a reasonably careful inspection would

have revealed the hole, and because the hole was left in such an area, reasonable minds

could further conclude Mission Park failed to conduct a reasonably careful inspection of

the premises in question. Rivas bases his argument on evidence which he contends

establishes the following: (1) the size and location of the hole should have led to its

discovery; (2) Mission Park employees should have discovered the hole during the

construction of the grave; or (3) Mission Park employees should have discovered the hole

while laying Astroturf over the grave site. See Keetch v. The Kroger Co., 845 S.W.2d

262, 264-66 (Tex. 1992) (explaining that the fact that the premises owner creates a

condition may support an inference of knowledge, but alone is insufficient to prove

knowledge as a matter of law; an inference of knowledge cannot be made as a matter of

law unless knowledge is uncontroverted; and given such an inference, it is up to the

fact-finder to determine whether the owner or occupier knew or should have known of the

condition). In response, Mission Park contends that these assertions are logical only if

the hole existed for a significant period prior to the burial service and that Rivas offered no

evidence to show that this was the case. Therefore, Mission Park asserts that Rivas has

offered less than a scintilla of evidence to establish constructive knowledge, and the trial

court properly granted its no-evidence motion for summary judgment.

In support of his argument, Rivas refers this Court to excerpts of his deposition

testimony and the deposition testimony of Andy Campa, Mission Park's employee of

twenty-four years and its foreman at the time of the incident, which were attached to or

7
incorporated into Rivas's response to Mission Park's motion for summary judgment.

Specifically, Rivas testified at his deposition that he "stepped on the carpet and went

straight down and it wasn't into the grave. It was down—the carpet was covering the

hole that I went into." Rivas explained that he took one step onto the Astroturf

surrounding the frame and his left foot "went down." As illustrated by a diagram drawn

by Rivas and attached as a deposition exhibit, the hole was located alongside the grave.

Rivas described the size of the hole as big "[e]nough for [his] whole leg and hip to go into

it" and testified that his leg went down, "all the way to [his] hip," right beneath his waistline.

When asked whether the hole was separate from or part of the actual grave, Rivas

testified, "I couldn't say. The carpet was covering everything."

Campa testified that his responsibilities included "making sure everything gets

done, take care of my guys, tell them what to do, what not to do, dig my graves." He also

gave a detailed explanation of Mission Park's procedures for digging graves, which

included going to the proposed grave location, laying measuring tape, marking the grave

with pins, and digging the grave with a backhoe. Campa explained that he dug the

graves one day or two days ahead of time, and after a grave is dug, he "clean[s] the area

out, make[s] sure there's no limbs, nothing—nothing's wrong around there for when the

service gets there." His final step is to "lay out boards, and then … put plywood over the

grave." Chapa also provided the following answers at his deposition:

Q. Okay. And do you typically have some carpet that you lay down or
something like that?

A. Well, yeah, when we get ready to have the service.

Q. Uh-huh. So that would be something you normally do?

8
 A. We do it in all our services.

This summary judgment evidence shows that a hole, large enough for Rivas's "leg

and hip to go into," existed alongside the grave and Rivas fell into it while providing his

services as a pallbearer; that a grave is dug one or two days in advance of the service and

the area is cleaned out to make "sure there's no limbs, nothing—nothing's wrong around

for when the service gets there"; that sometime after the grave is dug and before the

service, carpet is put into place as part of the burial service preparations; and that the

hole, in this case, was covered by Astroturf when Rivas fell into it.

To conclude Mission Park had constructive knowledge of the hole, jurors would

have to conclude that the employees should have noticed the hole, in other words, that

Mission Park had a reasonable opportunity to discover the defect. Reviewing the

evidence in the light most favorable to Rivas, crediting such evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not, see

Tamez, 206 S.W.3d at 582; City of Keller, 168 S.W.3d at 825, 827; Ortega, 97 S.W.3d at

772, this summary judgment evidence indicates that Mission Park employees were at the

grave site in question, preparing the grave a day or two before the service, and covering

the grave site with Astroturf after the grave was opened but prior to the service.

As set out earlier, the question of constructive knowledge "requires analyzing the

combination of proximity, conspicuity, and longevity." Spates, 186 S.W.3d at 567-68

(citing Reese, 81 S.W.3d at 816). In this case, a jury could reasonably find that Mission

Park's employees' proximity to the condition during the preparation of the grave and set

up of the site for the burial service within one day or, at most, two days of the burial

service support a conclusion that Mission Park should reasonably have discovered the

9
large hole into which Rivas fell. See id. Moreover, based on circumstantial evidence

that the hole, concealed by Astroturf and located right beside the grave, was big enough

for Rivas's whole leg and hip to go into, a jury could reasonably infer that it is more likely

than not that the dangerous condition existed long enough to give Mission Park a

reasonable opportunity to discover the condition. See Gonzalez, 968 S.W.2d at 936.

This evidence is more than meager circumstantial evidence. 3 See id. We cannot

3
The dissent correctly notes that we have not considered evidence regarding the possible
occurrence of a cave-in. We need not do so because the favorable evidence is more than meager
circumstantial evidence. See City of Keller, 168 S.W.3d 802, 814 (Tex. 2005) (noting that, under the
no-evidence standard of review, ―when the circumstantial evidence of a vital fact is meager, a reviewing
court must consider not just favorable but all the circumstantial evidence, and competing inferences as
well‖). Furthermore, even were we to have concluded that the circumstantial evidence was meager, we
would still not agree with the conclusion reached by the dissent, that the following deposition testimony is
consistent with an equally plausible but opposite inference that the hole resulted from a cave-in and came
into existence the moment Rivas stepped on the Astroturf:

Q: And are you certain that it was a hole that you fell into?

A. [Rivas] What could it have been? I have no idea.

Q. I'm asking you, sir.

A. Oh, you're asking me. I fell into a hole. I have no idea what it was.

Q. And do you have any facts which suggest that Mission Park knew of the
existence of that hole?

A. I have no idea if they knew it or not.

Q. Do you have–

A. I would suggest no, but if caved in or the hole–how did the hole exist?

Q. If the hole caved in, as you've just said, how is that something that could
have been detected by the naked eye?

A. It couldn't have been.

Q. And so if the hole caved in, as you just suggested, how could Mission Park
have known to look for a hole that was going to cave in?

A. Unless it caved in earlier and they covered it up.

10
conclude that any equally plausible but opposite inference––for example, that this large

hole located beside the grave existed only after Mission Park completed its preparations

for the burial on the day of or the day before the service—may be drawn from the

evidence before us in this no-evidence summary judgment review. See id.

Furthermore, had it been uncovered, the large hole would have been conspicuous. And

even covered and less conspicuous, the employees were present, in close proximity, for a

continuous and significant period as they prepared the grave site for the burial service,

and this could affect the jury's consideration of whether Mission Park should have

become aware of the dangerous condition. See Spates, 186 S.W.3d at 567-68 (citing

Reese, 81 S.W.3d at 816).

Therefore, applying the summary judgment standard of reviewing the evidence in

the light most favorable to the non-movant and disregarding all evidence and inferences

to the contrary, see Tamez, 206 S.W.3d at 582, based on the facts and circumstances

presented in this case, we conclude that the evidence is more than a scintilla of probative

evidence to raise a genuine issue of material fact as to Mission Park's constructive

knowledge of the hole. See Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772.

Reasonable and fair-minded individuals could differ in their conclusions regarding

whether the hole had existed long enough for Mission Park to have discovered it or

whether it existed long enough to give Mission Park a reasonable opportunity to discover

and remedy it based on the size of the hole, its location, and the work done by Mission

Instead, this evidence supports the conclusion that Rivas's summary judgment evidence is more than
meager circumstantial evidence and that a jury could reasonably infer that it is more likely than not that the
dangerous condition existed long enough to give Mission Park a reasonable opportunity to discover the
condition. See Wal-mart Stores, Inc. v. Gonzalez, 968 S.W.2d 936, 936 (Tex. 1998).

11
Park's employees either the day of or the day before the burial service. See Forbes, 124

S.W.3d at 172; see also CMH Homes, 15 S.W.3d at 101; Reece, 81 S.W.3d at 816.

Thus, we conclude that the trial court erred in granting Mission Park's no-evidence motion

for summary judgment.

B. TRADITIONAL SUMMARY JUDGMENT MOTION4

Rivas contends that the trial court also erred in granting Mission Park's traditional

motion for summary judgment because Mission Park failed to conclusively negate the

element of knowledge as a matter of law. See Mason, 143 S.W.3d at 798. In response,

Mission Park argues that the evidence established it had no notice or knowledge of any

allegedly unreasonably dangerous condition on the premises, and, thus, it negated the

knowledge element of Rivas's premises liability claim. The evidence supporting Mission

Park's motion for summary judgment includes the deposition testimony of Rivas, Campa,

William R. Deuvall Jr., Mission Park's funeral director and embalmer since 1983, and

Michael Hoffman Jr., a ten-year Mission Park employee and, at the time of his deposition,

its general manager.

In addition to Rivas's testimony set out above, Rivas testified that he had "no idea

if [Mission Park] knew [of the existence of the hole] or not." Rivas also agreed that he did

not know what was done to inspect or maintain the area in question and did not have any

facts in his possession about what Mission Park did or did not do. Finally, Rivas testified

that there was nothing about the Astroturf which led him to think there might be a hole

under the carpet.
4
Having concluded that Rivas produced more than a scintilla of evidence under the rule 166a(i)
burden, we next analyze whether Mission Park's summary judgment proof satisfies the rule 166a(c) burden.
See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

12
 Campa testified regarding grave site preparation generally, although he did not

recall digging this particular grave. Specifically, Campa testified that he would have

opened the grave, cleaned out the area, laid out two boards on each side and one on

each end of the grave, and placed plywood over the grave "so nobody w[ould] fall in."

Campa also testified that his crews set out the tents and chairs. Campa also agreed that

if the boards and the plywood are laid out correctly, nobody will fall into a grave.

Deuvall testified that, on the day of the funeral, he was in charge of the service.

Deuvall saw the pallbearers carrying the casket but did not witness the incident itself. A

funeral attendee told him that someone had fallen. According to his testimony, Deuvall

prepared a written report stating that Rivas apparently stepped too close to the grave.

Deuvall explained that he did not undertake an investigation because he heard that Rivas

was okay. He also testified that he did not recall whether there was plywood covering

the grave opening or whether any plywood or boards were removed following the service.

Deuvall stated that he did not recall being there when they lifted up the carpet and did not

recall whether there was any kind of indentation or hole next to the grave site.

Finally, Hoffman testified that he did not work the funeral and, therefore, did not

witness the incident. Hoffman stated Deuvall provided a verbal report, not the written

report referenced above. Deuvall told Hoffman that he had not witnessed the incident

but that Rivas had apparently fallen and that Deuvall approached Rivas "following the

commotion," asked him if he was okay, and was told he was fine. According to Hoffman,

Deuvall did not specify whether Rivas had fallen into the grave or had just fallen carrying

the casket and did not report that the carpet on which Rivas was walking had caved in.

13
 When asked to describe a grave site preparation, Hoffman explained that "[t]he

grave is marked, the site is checked, the site is checked again, the grave is pinned open

and prepared" meaning that the grave is measured, opened, covered with plywood, and

bordered with boards. Hoffman testified that the plywood is removed when the lowering

device is set or placed on the boards that boarder the grave. According to Hoffman,

carpeting is put down around the edge of the grave for aesthetic purposes.

Hoffman testified that he knew Rivas "did not fall into the grave" and explained that

"[y]ou would have to go out of your way to go into a grave once everything's set," and

"[i]t'd be near impossible to do, step inside of [the lowering device]." Hoffman also

testified that it is impossible to dig a grave too big because every grave site is opened

forty inches to accommodate the lowering device. In twenty years, Hoffman has never

witnessed, or even heard of, anyone dropping down when he steps on the carpet. He

agreed that Mission Park's employees should not leave an open hole in preparing a grave

site and cover it with carpet, and he did not "see any way the carpet could give way

or—into a hole. The lowering device itself is way outside the measurements of the

opening of the grave."

While this evidence sets out how a grave site is prepared and how it is unlikely that

someone would step over a lowering device and fall into a grave prepared in this manner,

it is unrelated to whether Mission Park knew or had reason to know about the alleged

grave site defect at issue in this case. Furthermore, Deuvall's report of the incident,

whether written or verbal, provides no evidence that would support a conclusion that

Mission Park had no constructive knowledge of the alleged defect. The referenced

written report acknowledged that Rivas apparently stepped too close to the grave and fell,

14
and Deuvall's verbal report to Hoffman did not specify how Rivas fell. And no further

investigation was undertaken because Rivas told Deuvall that he was okay. Finally,

although Rivas testified that he had "no idea if [Mission Park] knew [of the existence of the

hole] or not" and that there was nothing about the Astroturf which led him to think there

might be a hole under the carpet, this does not establish that Mission Park's employees

could not have, upon reasonable inspection, detected a hole earlier. The foregoing

evidence, at most, is relevant to Mission Park's actual knowledge of the hole; it is not

evidence that conclusively negates Mission Park's constructive knowledge, which is the

relevant inquiry in this case.

Therefore, taking as true all evidence favorable to Rivas and indulging every

reasonable inference and resolving all doubts in Rivas's favor, see Valence Operating

Co., 164 S.W.3d at 661, we conclude that Mission Park failed to carry its traditional

summary judgment burden of conclusively negating the knowledge element of Rivas's

premises liability claim. See Mason, 143 S.W.3d at 798; Grinnell, 951 S.W.2d at 425;

Clear Creek Basin Auth., 589 S.W.2d at 678. We cannot conclude that the evidence

established as a matter of law that Mission Park had no notice or knowledge of any

allegedly unreasonably dangerous condition on the premises, as it argues. Based on

the evidence, reasonable people could differ as to their conclusions regarding whether

Mission Park had constructive knowledge; whether it had a reasonable opportunity to

discover the defect. See City of Keller, 168 S.W.3d at 816; see also Reece, 81 S.W.3d

at 813. We thus conclude that the trial court also erred in granting Mission Park's

traditional motion for summary judgment.

Accordingly, we sustain Rivas's sole issue on appeal.

15
 IV. CONCLUSION

We reverse the trial court's order granting Mission Park's no-evidence and

traditional motions for summary judgment and remand for proceedings consistent with

this opinion.

NELDA V. RODRIGUEZ
Justice

Dissenting Memorandum Opinion by Justice Perkes.

Delivered and filed the
24th day of March, 2011.

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