Affirmed and Opinion filed November 16, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00181-CV
RYAN CONSTRUCTION SERVICES, LLC AND BUILDERS BLUEPRINT,
LLC, Appellants
V.
ROBERT HALF INTERNATIONAL, INC., Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2014-14437A
OPINION
When two companies discovered that a common employee allegedly had
stolen money, they brought suit against the employee-placement firm, alleging
negligence and Deceptive Trade Practices Act violations in connection with the
firm’s employee-background check. The trial court granted summary judgment in
favor of the employee-placement firm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Accountemps, a division of appellee/defendant Robert Half International,
Inc. specializes in placing accounting professionals with companies to work on a
temporary-to-permanent basis. Judd Ryan, owner of appellant/plaintiff Ryan
Construction Services, LLC and appellant/plaintiff Builders Blueprint, LLC
contacted Robert Half International and asked for help finding an accounting
professional to employ. Robert Half International representatives met with Ryan
to discuss the company’s services. Ryan stated that those representatives told him,
“We check our people out. You are getting the best when you work with
Accountemps.” According to Ryan, the representatives showed him a form
authorizing Robert Half International to perform background checks on candidates
for potential employment.
The Parties’ Agreement
Robert Half International recommended that Ryan Construction Services,
LLC hire Angela Eubanks. Ryan signed an agreement with Robert Half
International on behalf of Ryan Construction Services. On the date Robert Half
International contracted with Ryan Construction Services to place Eubanks, Robert
Half International sent a letter to Ryan Construction Services confirming
Eubanks’s placement under its “General Conditions of Assignment and Terms of
Payment.” Judd Ryan and Barbie Brown, on behalf of Ryan Construction
Services, signed various time sheets acknowledging receipt and acceptance of the
“General Conditions of Assignment and Terms of Payment.” The General
Conditions of Assignment included a section detailing the “Scope of Background
Inquiries.” This section describes the way Robert Half International checks
references and also states: “We have not screened for drug use, administered a
medical exam, conducted a criminal background check, or engaged in any
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verification process other than [the reference checks described above].”
Temporary Placement to Permanent Placement
Shortly after Eubanks began working at Ryan Construction Services, Ryan
asked her if she also would work for another one of his companies, Builders
Blueprint, LLC. Ryan did not disclose this employment to Robert Half
International. A few months later, Ryan Construction Services informed Robert
Half International that it wanted to convert Eubanks, who had been working as a
temporary employee, to a permanent employee. Robert Half International sent
Ryan Construction Services a letter confirming the end of Eubanks’s temporary
employment through Robert Half International and her conversion into a
permanent employee of Ryan Construction Services. The letter stated that
“Accountemps checks selected references on our candidates . . . and [t]o assist you
in determining whether or not you should conduct any additional pre-employment
background checks, we are enclosing a complimentary copy of What You Should
Know About Background Checks.” Ryan acknowledged he received the letter and
enclosure.
Robert Half International conducted a seven-year criminal history
background check on Eubanks before she became a permanent employee of Ryan
Constructions Services. That background check did not reveal any criminal history
for Eurbanks. Robert Half International did not share the results of the criminal
background check with Ryan Construction Services.
Alleged Embezzlement by Placed Employee
Ryan Construction Services and Builders Blueprint, LLC, (collectively, the
“Ryan Parties”) allege that at some point after Eubanks became a permanent
employee, she embezzled approximately $160,000. When Ryan discovered
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Eubanks had a criminal history, Ryan called Robert Half International to confront
the company about recommending an employee with a criminal history and to
report that the employee had stolen money from Ryan Construction Services. The
Robert Half International representative told Ryan that Robert Half International
had conducted a criminal background check that did not reveal any criminal
history in the seven years preceding the check. The history the Ryan Parties had
uncovered — Eubanks’s conviction for securing execution of a document by
deception — occurred thirteen years before the criminal background check.
Plaintiffs’ Claims
The Ryan Parties filed suit against Robert Half International, its bank, and
Eubanks. In their live pleading, the Ryan Parties alleged that Robert Half
International (1) engaged in negligent or grossly negligent conduct in failing to
inform them that Eubanks had a criminal conviction and (2) violated the Texas
Deceptive Trade Practices Act (DTPA) by engaging in a false, misleading and
deceptive course of conduct that led the Ryan Parties to believe Robert Half
International had run a background check on Eubanks and that she had no criminal
history, representing that Robert Half International’s agreement had the benefit of
a background check, failing to disclose that Robert Half International’s background
check included only the seven years before employment, failing to disclose that
Eubanks had a criminal history, and acting unconscionably.
Summary Judgment
Robert Half International filed a lengthy summary-judgment motion that
contained both traditional and no-evidence grounds. The Ryan Parties responded.
The trial court granted Robert Half International’s summary-judgment motion.
Robert Half International then moved to sever the Ryan Parties’ claims against
Robert Half International from the claims the Ryan Parties asserted against the
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Ryan Parties’ bank and Eubanks. The trial court granted the motion to sever the
claims. Although the severance order contains language in which the trial court
stated that the order would not be final until the parties submitted a new proposed
judgment in the severed case, because the order granted severance and the trial
court already had signed an order granting summary judgment on the claims in the
severed case, the trial court’s severance order finally resolved all claims among all
parties in the severed case.
Appeal
The Ryan Parties now appeal the trial court’s granting of summary judgment
in favor of Robert Half International. They challenge the merits of the summary
judgment as well as the trial court’s evidentiary rulings on the summary-judgment
proof.
STANDARD OF REVIEW
In a traditional motion for summary judgment, 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. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out summary-judgment
evidence raising 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, 206–
08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
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reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary
judgment does not specify the grounds upon which the trial court relied, we must
affirm the 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). Because the trial court did not specify a basis for its ruling
on the summary-judgment motion, to prevail on appeal, the Ryan Parties must
show that each of the independent grounds asserted in the summary-judgment
motion is insufficient to support the trial court’s ruling. See Comm’n Mgmt., LLC
v. Cutten Dev., L.P., No. 14-14-00854-CV, 2016 WL 3554704, at *3 (Tex. App.—
Houston [14th Dist.] Jun. 28, 2016, pet. denied) (mem. op.).
ANALYSIS
The Ryan Parties raise four issues on appeal. Under the first three issues,
they challenge the summary judgment.1 In their fourth issue, the Ryan Parties
assert the trial court erred in sustaining hearsay objections to two summary-
judgment exhibits. We presume for the sake of argument that the trial court erred
in excluding the summary-judgment exhibits and we consider them for the
purposes of our analysis.
A. Negligence Claims
In their live pleading, the Ryan Parties asserted negligence claims based on
Robert Half International’s (1) failing to conduct a criminal background check on
Eubanks, (2) conducting a criminal background check on Eubanks that only went
back seven years, (3) failing to inform the Ryan Parties that Eubanks had a
1
In their appellate brief, the Ryan Parties assert that only Ryan Construction Services is
challenging the trial court’s granting of summary judgment on the Ryan Parties’ DTPA claims.
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criminal conviction, and (4) failing to inform the Ryan Parties that its criminal
background check on Eubanks went back only seven years.
In its no-evidence summary-judgment motion, Robert Half International
asserted as a summary-judgment ground that the Ryan Parties had no evidence
Robert Half International had a legal duty to conduct any criminal background
check on Eubanks. On appeal, Robert Half International did not brief any
arguments attacking the trial court’s granting of summary judgment based on its
claims that Robert Half International (1) negligently failed to inform the Ryan
Parties that Eubanks had a criminal conviction and (2) negligently failed to inform
the Ryan Parties that its criminal background check on Eubanks went back only
seven years. To the extent the Ryan Parties seek to attack the summary judgment
as to those two claims, the Ryan Parties have waived that argument due to
inadequate briefing. See Tex. R. App. P. 38.1; San Saba Energy, L.P. v. Crawford,
171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Duty
To establish negligence, a party must show a duty, a breach of that duty, and
damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d
793, 794 (Tex. 2006). Whether a duty exists is a threshold inquiry. Id. A party
who has no duty cannot be liable for negligence. Id. The existence of a duty is a
question of law determined based on the facts surrounding the occurrence.
Pagayon v. Exxon Mobil Corp., 2017 WL 2705530, at *3 (Tex. Jun. 23, 2017).
When a duty has not been recognized in particular circumstances, the question is
whether one should be recognized. Id. In determining whether to impose a duty of
care, courts consider related social, economic, and political questions and their
application to the facts. Id. Courts weigh the risk, foreseeability, and likelihood of
injury against the social utility of the actor’s conduct, the magnitude of the burden
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of guarding against the injury, and the consequences of placing the burden on the
defendant. Id. Courts also consider whether one party generally would have
superior knowledge of the risk or a right to control the actor who caused the harm.
Id. Some of these factors may turn on facts that cannot be determined as a matter
of law and instead must be resolved by the factfinder, but such cases are unusual.
Id. Courts must evaluate the factual scenario in the context of similarly situated
actors because the question is whether the law should impose a duty on a particular
class of actors. Id.
In their summary-judgment response and on appeal, the Ryan Parties argue
that (1) Robert Half International represented that it had run a background check
on its candidates, (2) if Robert Half International had run a background check, that
check would have revealed Eubanks’s criminal history, and (3) even if Robert Half
International had no duty to run a criminal background check, once the placement
firm “undertook to run a criminal background check, then it had a duty to do it in a
non-negligent manner.”
The Ryan Parties do not assert that Texas recognizes a negligence duty in
this scenario or that courts should impose a negligence duty in this context. The
Ryan Parties’ statements that Robert Half International represented it had run a
background check and the Ryan Parties’ arguments that the background check
would have revealed criminal history do not address whether Texas courts have
imposed or should impose a negligence duty in this context. The only other
argument the Ryan Parties have raised in response to Robert Half International’s
summary-judgment ground is that once the placement firm undertook to run a
criminal background check, then it had a duty to do it in a non-negligent manner.
Thus, on appeal the Ryan Parties cannot seek to reverse the trial court’s summary
judgment based on any other argument that Robert Half International had a duty of
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care. See Lopez v. Exxon Mobil Development Co., No. 14-16-00826-CV, 2017 WL
4018359, at *13 (Tex. App.—Houston [14th Dist.] Sept. 12, 2017, no pet. h.).
Assumption-of-Duty Argument
The Ryan Parties argue that once Robert Half International undertook to run
a criminal background check, it had a duty to do it in a non-negligent manner. A
duty to use reasonable care may arise when one undertakes to provide services to
another, either gratuitously or for compensation. Torrington Co. v. Stutzman, 46
S.W.3d 829, 837 (Tex. 2000). Except for a single conclusory statement, the Ryan
Parties did not brief that Robert Half International had a duty based on its
voluntary actions. The sole case the Ryan Parties cite, Otis Engineering Corp. v.
Clark, is not on point and the Ryan Parties do not explain how the case supports
their position. See 668 S.W.2d 307, 309 (Tex. 1984). Nor do the Ryan Parties
address how Robert Half International’s undertaking created a duty. The Ryan
Parties have waived this point by failing to provide adequate briefing. See Tex. R.
App. P. 38.1; San Saba Energy, L.P., 171 S.W.3d at 337.
Even if the Ryan Parties had briefed this issue sufficiently, and even if we
were to conclude Robert Half International voluntarily assumed a duty, the duty
would be limited to the scope of Robert Half International’s undertaking. See
Holman v. KRJ Mgmt., Inc., No. 14-03-00017-CV, 2004 WL 502934, at *4 (Tex.
App.—Houston [14th Dist.] Mar. 16, 2004, no pet.) (mem. op.). The summary-
judgment evidence showed that, at most, Robert Half International’s undertaking
was to conduct a limited criminal background check. The summary-judgment
record contains no evidence that Robert Half International assumed a duty to
conduct a background check that went beyond the limited background check it
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conducted for its own purposes. 2 See id.
Because we conclude the Ryan Parties’ arguments attacking Robert Half
International’s summary-judgment ground that the Ryan Parties had no evidence
Robert Half International had a duty to conduct any criminal background check
lack merit, we overrule the Ryan Parties’ challenge to the trial court’s summary
judgment on the negligence claims.
B. Deceptive Trade Practices Act Claims
The Ryan Parties assert Robert Half International violated the DTPA
because Robert Half International:
engaged in misleading and deceptive conduct that led the Ryan Parties to
believe Robert Half International had run a background check on
Eubanks and she had no criminal history;
represented that Robert Half International’s service had the benefit of a
background check;
failed to disclose that Robert Half International’s background check
looked at only the seven-year period preceding the check;
failed to disclose that Eubanks had a criminal history; and
acted unconscionably.
The Ryan Parties allege the following evidence supports their allegations:
A Robert Half International employee told Ryan Construction Services
that Robert Half International screens its applicants and runs background
checks on them. The firm’s representative made these statements before
placing Eubanks with Ryan Construction Services on a temporary basis.
A magazine article discussing Robert Half International states that the
firm screens candidates/potential employees and runs background checks
on them.
2
Because we conclude the Ryan Parties have not successfully attacked Robert Half
International’s summary-judgment ground that it did not have a legal duty to conduct a
background check, we need not determine whether Robert Half International had a negligence
duty to conduct a criminal background check.
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Robert Half International gave Ryan a form signed by Eubanks
authorizing Robert Half International to run a criminal background
check.
The Ryan Parties converted Eubanks to a permanent employee. Robert
Half International runs criminal background checks on all parties
converted to permanent employees.
In its motion for no-evidence summary judgment, Robert Half International
asserted that there is no evidence Robert Half International represented that it had
conducted a criminal background check, no evidence that it had a duty to disclose
it had not conducted a criminal background check, no evidence that Robert Half
International misrepresented the characteristics or benefits of its polices, no
evidence that Robert Half International had a duty to conduct a criminal
background check or disclose a criminal background check, and no evidence that
Robert Half International acted in an unconscionable manner.
Alleged Misrepresentation that Robert Half International Conducted a Criminal
Background Check
Section 17.46(b)(5) of the DTPA prohibits a person from making a
representation that goods or services have characteristics that they do not have.
Tex. Bus. & Com. Code Ann. § 17.46(b)(5) (West, Westlaw through 2017 R.S .).
Robert Half International moved for summary judgment on the ground that there is
no evidence the firm represented that it had performed a criminal background
check and no evidence that the firm represented that its services had benefits they
did not have.
Robert Half International attached to its motion the Ryan Parties’ responses
to discovery in which the Ryan Parties identified the factual basis of their claims as
stemming from statements a Robert Half International employee made indicating
that Robert Half International performed “background checks.” Robert Half
International attached a document outlining the “General Conditions of
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Assignment.” In the section entitled “Scope of Background Check,” the document
explains the way Robert Half International conducts reference checks and states
that Robert Half International does not conduct a criminal background check.
Barbie Brown was one of the employees of Ryan Construction Services who
worked with Ryan in contracting for Eubanks’s placement for accounting services.
On behalf of Ryan Construction Services, both Ryan and Brown signed time sheets
containing a clause in which they acknowledged and accepted the “General
Conditions of Assignment and Terms of Payment.”
According to the Ryan Parties, “‘background check’ in the modern lexicon,
means a check into one’s criminal history.” The Ryan Parties attached to their
summary-judgment motion a definition of the term “background check” that
includes looking into criminal history. On appeal, they argue there is no other
meaningful background check. The Ryan Parties contend that the “General
Conditions of Assignment” is ambiguous because although the document states
that Robert Half International does not conduct criminal background checks, the
firm actually does conduct a criminal background check before converting an
employee from a temporary position to a permanent position.
The statement the Robert Half International employee made was not false,
misleading, or deceptive. Robert Half International ran a background check on
Eubanks by asking selected questions from her references about her work
experience. The background check Robert Half International ran before placing
Eubanks with the Ryan Parties met the description of the scope of the background
check listed in the “General Conditions of Assignment.” The Robert Half
International employee did not state that Robert Half International would run a
criminal background check, so the employee did not make a misrepresentation
about any contract or service benefit or about the characteristics of Robert Half
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International’s services. See Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co.,
393 S.W.3d 379, 395 (Tex. App.—Dallas 2012, no pet.). Furthermore, Robert
Half International sent the “General Conditions of Assignment,” a document
explaining exactly what it had done and explaining that it had not run a criminal
background check. See id. Even if as a general proposition the term “background
check” could include checking criminal history, Robert Half International set forth
precisely what it meant by the term in the “General Conditions of Assignment.”
See Duke v. Caterpillar, Inc., No. 2005 WL 568071, at *4–*5 (Tex. App.—
Houston [14th Dist.] Mar. 10, 2005, no pet.) (mem. op.). Ryan Construction
Services acknowledged and accepted those conditions and, in doing so, agreed to
this meaning of “background check.”
The parties dispute whether Robert Half International provided Ryan with a
background-check authorization form, but assuming Robert Half International gave
it to Ryan, the form in and of itself was not a statement that Robert Half
International had run a criminal background check. Robert Half International’s
practice of running criminal background checks for its own purposes before
converting a placed employee from temporary to permanent status does not make
the “General Conditions of Assignment” ambiguous. The “General Conditions of
Assignment” explains that there are legal limitations on sharing the results of
criminal background checks. At the point in time Robert Half International placed
Eubanks, it had not run a criminal background check. The Ryan Parties do not
state that any evidence shows Robert Half International made any representations
at the time the Ryan Parties converted Eubanks to a permanent employee.
The Ryan Parties did not submit any evidence raising a genuine fact issue
that Robert Half International made a misrepresentation. See id. Accordingly, the
trial court did not err in granting summary judgment as to the Ryan Parties’ claims
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that Robert Half International violated the DTPA by misrepresenting that it would
conduct a criminal background check or by representing that the service included a
criminal background check when it did not.
Failure to Disclose Placed Employee’s Criminal History
We next examine whether the trial court erred in granting Robert Half
International’s no-evidence summary-judgment motion on the Ryan Parties’ claim
under the DTPA that Robert Half International failed to disclose Eubanks’s
criminal history and that by this failure to disclose, Robert Half International
intended to induce the Ryan Parties to enter into a transaction they would not have
entered had the information been disclosed. See Tex. Bus. & Com. Code Ann. §
17.46(b)(24) (West, Westlaw through 2017 R.S.).
To prevail on a failure-to-disclose claim under section 17.46(b)(24) of the
DTPA, the Ryan Parties must show the following elements: (1) a failure to disclose
material information concerning goods or services that was (2) known at the time
of the transaction, (3) and intended to induce the consumer into a transaction, (4)
which the consumer would not have entered had the information been disclosed.
See Red Roof Inns, Inc. v. Jolly, No. 14-10-00344-CV, 2011 WL 6288147, at *7
(Tex. App.—Houston [14th Dist.] Dec. 15, 2011, no pet.) (mem. op.).
Even construing the Ryan Parties’ brief liberally, we conclude they have not
attacked the trial court’s granting of summary judgment on their claim under the
DTPA that Robert Half International failed to disclose Eubanks’s criminal history
and that by this failure to disclose, Robert Half International intended to induce the
Ryan Parties to enter into a transaction they would not have entered had the
information been disclosed. The Ryan Parties have waived this point by failing to
provide adequate briefing. See Tex. R. App. P. 38.1; San Saba Energy, L.P., 171
S.W.3d at 337.
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Acting Unconscionably
The Ryan Parties assert that Robert Half International acted unconscionably
under section 17.50(a)(3) of the DTPA because the employee-placement firm
failed to inform the Ryan Parties that the criminal background check went back
only seven years. Robert Half International asserted that there is no evidence it
acted unconscionably.
A consumer may recover actual damages for any unconscionable action or
course of action that is a producing cause of economic damages or damages for
mental anguish. Tex. Bus. & Com. Code Ann. § 17.50(a)(3) (West, Westlaw
through 2017 R.S.). An “unconscionable action or course of action” means “an act
or practice which, to a consumer’s detriment, takes advantage of the lack of
knowledge, ability, experience, or capacity of the consumer to a grossly unfair
degree.” Id. § 17.45(5). To prove an unconscionable action, a consumer must
show that the defendant’s acts took advantage of the lack of knowledge and that
the resulting unfairness was glaringly noticeable, flagrant, complete, and
unmitigated. Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001).
The Ryan Parties did not include anything in their appellate briefing other
than the bald assertion that Robert Half International’s actions were
unconscionable. The Ryan Parties did not allege they lacked knowledge or address
whether Robert Half International took advantage of their lack of knowledge. Nor
did the Ryan Parties undertake to explain that the alleged resulting unfairness was
glaringly noticeable, flagrant, complete, or unmitigated. The Ryan Parties did not
cite any relevant cases. Nor did they cite the legal standard or explain how Robert
Half International’s actions met that standard. To the extent the Ryan Parties seek
to raise a separate argument attacking the summary judgment as to the claims
under section 17.50(a)(3), the Ryan Parties waived this argument by failing to brief
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it in accordance with the rules. See Tex. R. App. P. 38.1; San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
C. Challenges to the Trial Court’s Evidentiary Rulings
In their fourth issue the Ryan Parties assert that the trial court erred in
excluding exhibits from the summary-judgment proof. We considered the exhibits
in determining the propriety of the summary judgment. So, even if the trial court
erred in excluding these exhibits, the trial court did not err in granting summary
judgment. Thus, we deem any error in excluding the exhibits harmless. See Santos
v. I Lone Star Auto Parties, Ltd., No. 14-11-00067-CV, 2011 WL 6157031, at * 2
(Tex. App.—Houston [14th Dist.] Dec. 1, 2011, no pet.) (mem. op.). We overrule
the Ryan Parties’ fourth issue.
CONCLUSION
Because the trial court did not err in granting Robert Half International’s
summary-judgment motion as to the negligence claim or the DPTA claims, we
overrule the Ryan Parties’ first three issues. Even presuming the trial court erred in
excluding the summary-judgment evidence made the subject of the fourth issue,
the error is harmless and so affords no basis for appellate relief. Having rejected
all of the Ryan Parties’ appellate challenges, we affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Donovan and Wise.
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