Dolgencorp of Texas Inc v. Vision Bank, N.A.
Filing
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT re DENYING 49 Reply to Response to Motion filed by Vision Bank, N.A., GRANTING 46 Amended MOTION to Continue to Respond to Defendant's Motion for Summary Judgment filed by Dolgencorp of Texas Inc, GRANTING 25 MOTION for Summary Judgment and Brief in Support filed by Vision Bank, N.A.. Signed by Magistrate Judge Don D. Bush on 8/3/16. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DOLGENCORP OF TEXAS, INC.,
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Plaintiff,
v.
VISION BANK, N.A.,
Defendant.
CIVIL ACTION NO. 4:14-cv-00376
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Now before the Court is Defendant Vision Bank N.A.’s (“Defendant”) Motion for
Summary Judgment (Dkt. 25) filed on January 29, 2016. The following responses and related
motions are also pending before the court:
1. Plaintiff Dolgencorp of Texas, Inc.’s (“Plaintiff”) response in opposition to
Defendant’s motion for summary judgment (Dkt. 38) filed February 19, 2016;
2. Defendant’s reply to Plaintiff’s response (Dkt. 42) filed on February 25, 2016.
3. Plaintiff’s amended motion to continue to respond to Defendant’s motion for
summary judgment (Dkt. 46) filed March 15, 2016;
4. Defendant’s response in opposition to Plaintiff’s amended motion to continue to
respond (Dkt. 48) filed on March 18, 2016;
5. Plaintiff’s supplemental response to Defendant’s motion for summary judgment (Dkt.
47) filed March 15, 2016;
6. Defendant’s reply to Plaintiff’s supplemental response to the motion for summary
judgment (Dkt. 49).
1
As set forth below, Plaintiff’s amended motion to continue (Dkt. 46) is GRANTED,
Defendant’s motion to strike (Dkt. 49) is DENIED, and Defendant’s motion for summary
judgment (Dkt. 25) is GRANTED.1
PROCEDURAL AND FACTUAL BACKGROUND
This suit arises from the collapse or partial collapse of two buildings in the Bonham,
Texas town square on May 2, 2013. See Dkt. 25 at 1. Defendant owned one of the buildings that
suffered a collapse but not the other. Id. Defendant’s building is located at 109 E. 5th Street in
Bonham, Texas and is also known as the Kuecklehahn Building. See Dkt. 25-1 at 4. Plaintiff
operates a Dollar General store in a building adjacent to the west side of Defendant’s building.
Id. The other collapsed building is adjacent to the east side of Defendant’s building. Id. The
owner of the other building is not a party to this suit. Based on the photographs included in
Defendant’s motion, it appears that Defendant’s building suffered a partial collapse while the
other building appears to have suffered a total collapse. See Dkt. 25 at 1-2. Plaintiff alleges that
Defendant’s negligence proximately caused the collapse of its building and that due to the
collapse of Plaintiff’s building, it was forced to close its Dollar General store from May 3, 2013
until June 4, 2013, causing damages to merchandise and loss of revenue. See Dkt. 2 at 2.
Plaintiff filed its Original Petition in the 336th Judicial District Court of Fannin County,
Texas, on or about April 11, 2014. See Dkt. 2. Defendant filed a notice of removal on June 11,
2014 on the basis of diversity jurisdiction (Dkt. 1). No amended complaint having being filed,
Plaintiff’s original state court petition (Dkt. 2) is the live complaint in this matter. Defendant
filed its motion for summary judgment on January 29, 2016. Pursuant to the Local Rules, the
1
The Court notes that Defendant’s brief in support of its motion (see Dkt. 42) expresses objections to certain
of Plaintiff’s exhibits, which were offered as evidence. However, in ruling on Defendant’s motion for summary
judgment, the Court does not rely upon any of this contested material beyond identifying Plaintiff’s general legal
positions. Defendant’s objections are, therefore, moot.
2
due date for Plaintiff’s response was February 16, 2016. Plaintiff’s response (Dkt. 38) was filed
on February 19, 2016, three days after the deadline.
On the same date, Plaintiff filed an
unopposed motion to continue the trial date set for March 1, 2016 (Dkt. 39). That motion was
subsequently granted (see Dkt. 41) and a pretrial conference was set for May 3, 2016.2 See id.
On February 22, 2016, Plaintiff filed a motion for continuance to respond to defendant’s
motion for summary judgment (Dkt. 40), pursuant to Rule 56(d)(2).3 Plaintiff avers that (at that
time) it had not been able to obtain the affidavit of the structural engineer retained by the City of
Bonham (the “City”) to assess the building collapse. See Dkt. 40 at 1-2. On March 5, 2016, this
Court issued an order granting Plaintiff until March 10, 2016 to file a supplemental response and
allowing Defendant to file a supplemental reply in accordance with the deadlines set forth in the
local rules (Dkt. 45). Plaintiff did not file its supplemental response by March 10, 2016 as
ordered. Instead, Plaintiff filed an amended motion to continue on March 15, 2016 stating that it
still had been unable to obtain the structural engineer’s affidavit. See Dkt. 46.
Defendant seeks summary judgment of Plaintiff’s claims, arguing that there is no
evidence of any of the elements of negligence that Plaintiff must prove. In addition, although
Plaintiff has not asserted a premises liability cause of action, Defendant also preemptively argues
that Plaintiff is unable to show that Defendant was liable based on its duty as a property owner.
See Dkt. 25. Defendant has also filed a reply in opposition to both the amended motion for
continuance (Dkt. 48) and the supplemental response (Dkt. 49) and asks the Court to deny
Plaintiff’s amended motion for continuance (Dkt. 46) and to strike both the original response
2
The May 3, 2016 pretrial conference was ultimately cancelled pending the Court’s consideration of
Defendant’s summary judgment motion.
3
Rule 56(d)(2) provides that if a nonmovant cannot respond to the motion for summary judgment because it
cannot present facts to justify its opposition, the nonmovant should request that the court allow time for the
nonmovant to obtain affidavits or declarations or to conduct discovery. See FED. R. CIV. P. 56(d)(2).
3
(Dkt. 38) and the supplemental response (Dkt. 47), as well as any exhibits attached thereto as
evidence.
The Court notes that Plaintiff has twice failed to meet its deadlines for responding to
Defendant’s motion for summary judgment. Plaintiff’s first untimely response was filed without
explanation for the tardiness and without requesting leave of court to continue its deadline to
respond.
Then, when permission was granted to file a supplemental response, Plaintiff also
missed that deadline, filing a motion to continue five days after the expiration of the deadline. In
ruling on defendant’s motion for summary judgment, the Court will consider Plaintiff’s late-filed
response and supplemental response as well as the evidence attached thereto.
However,
Plaintiff’s counsel is cautioned that compliance with court-imposed deadlines is expected and
continued failures to comply with deadlines may result in sanctions.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when, viewing the evidence and all justifiable
inferences in the light most favorable to the non-moving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); Hunt v. Cromartie, 526 U.S. 541, 549, 119 S. Ct. 1545, 143 L. Ed.2d 731 (1999). The
appropriate inquiry is “whether the evidence presents a sufficient disagreement to require
Submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).
The party moving for summary judgment has the initial burden to prove there are no
genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d
984, 991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The
moving party, however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point
out the absence of evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76
F.3d 651, 655 (5th Cir. 1996).
In response, the nonmovant’s motion “may not rest upon mere allegations contained in
the pleadings, but must set forth and support by summary judgment evidence specific facts
showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57, 106 S. Ct. at 2513-14).
Once the moving party makes a properly supported motion for summary judgment, the
nonmoving party must look beyond the pleadings and designate specific facts in the record to
show that there is a genuine issue for trial. Stults, 76 F.3d at 655. The citations to evidence must
be specific, as the district court is not required to “scour the record” to determine whether the
evidence raises a genuine issue of material fact.
E.D. Tex. Local R. CV-56(d).
Neither
“conclusory allegations” nor “unsubstantiated assertions” will satisfy the nonmovant’s burden.
Stults, 76 F.3d at 655.
EVIDENCE PRESENTED
In support of its motion, Defendant offers the following summary judgment evidence:
1) Exhibit A: Affidavit of Steven C. Bagwell, President and Chief Lending Officer for
Vision Bank, N.A.; and
2) Exhibit B: Excerpts from oral deposition testimony of Bill Jay Shipp, Jr., City
Manager of Bonham, provided on July 2, 2015.
See Dkts. 25-1-25.2.
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Plaintiff has offered the following summary judgment evidence in opposition to
Defendant’s motion for summary judgment:
1) Plaintiff’s original state court petition;
2) Excerpts from oral deposition testimony of Bill Jay Shipp, Jr., City Manager of
Bonham, provided on July 2, 2015;
3) Letter to City of Bonham from AG&E Associates, PLLC, Consulting Structural
Engineers; and
4) Affidavit of Cody Bain, structural engineer for AG&E Associates, PLLC.4
See Dkts. 38-1-38-3; 47-4.
ANALYSIS
Defendant asserts that it is entitled to summary judgment on Plaintiff’s negligence claim
because there is no evidence of any of the elements that Plaintiff must prove. Plaintiff’s original
petition sets forth a claim for general negligence. However, Plaintiff’s response to Defendant’s
motion appears to re-characterize its lawsuit as an action for nuisance caused by negligence. See
Dkt. 38 at 3-5.
In either case, Plaintiff must prove the elements of negligence. In Texas, the
elements of negligence “are the existence of a legal duty, a breach of that duty, and damages
proximately caused by the breach.” Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008); IHS
Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Plaintiff asserts that Defendant had a duty to maintain its building in a manner such that it did not
cause interference with Plaintiff’s use and operation of its Dollar General store; that Defendant
breached its duty to Plaintiff by failing to maintain its building in a manner that would have
prevented it from causing interference with Plaintiff’s use and operation of its Dollar General
store; and that as a direct result of the collapse, Plaintiff has suffered damages. See Dkt. 38 at 56.
4
The Affidavit of Cody Bain was provided as an exhibit to Plaintiff’s supplemental response (Dkt. 47).
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According to Defendant, Plaintiff has “mis-pled its [negligence] cause of action” and any
potential duty arises from a premises liability cause of action rather than from negligent activity.
See Dkt. 25 at 5-6. Defendant argues that Plaintiff is unable to prove the elements of either
negligence or premises liability. See Dkt. 25 at 8. Unlike a negligent activity claim, “a premises
defect claim is based on the property itself being unsafe.” State v. Shumake, 199 S.W.3d 279,
284 (Tex. 2006).
The essential elements of a premises liability claim are:
1) actual or
constructive knowledge of some condition on the premises; (2) the condition posed an
unreasonable risk of harm; (3) the defendant did not exercise reasonable care to reduce or
eliminate the unreasonable risk of harm; and (4) the defendant’s failure to use reasonable care to
reduce or eliminate the unreasonable risk of harm proximately caused Plaintiff’s damages. LMB,
Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
A negligence claim and a premises liability claim both include as an essential element
establishment that the plaintiff's injuries were proximately caused by a breach of duty owed by
the defendant to the plaintiff. The components of the “proximate cause” element of negligence
and premises liability causes of action are “cause in fact and foreseeability.” Doe v. Boys Club
of Greater Dallas, Inc., 907 S.W.2d 472, 477-78 (Tex. 1995). “The test for cause in fact is
whether the negligent act or omission was a substantial factor in bringing about injury, without
which the harm would not have occurred.” Id. (internal quotation marks omitted). “Cause in
fact is not shown if the defendant's negligence did no more than furnish a condition which made
the injury possible.” Id. The alleged negligence must be “the proximate and not the remote,
cause of resulting injuries ....” Id. (internal quotation marks omitted). Cause is not established if
the conduct of the defendant is “too attenuated from the resulting injuries to the plaintiff to be a
substantial factor in bringing about the harm.” IHS Cedars Treatment Ctr. of DeSoto v. Mason,
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143 S.W.3d 794, 799 (Tex.2004). Furthermore, “[a] person or company is not responsible for a
consequence which is merely possible, according to occasional experience, but a person or
company is responsible for a consequence which is probable, according to ordinary and usual
experience. To impose responsibility for negligence, it must have been foreseeable that this
event or some similar event would result as a natural and probable consequence.” Baylor Med.
Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 75 (Tex. App.–Texarkana 1992, writ denied); see
also Tex. Home Mgt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002) (“Before imposing a duty of
care, however, the risk of harm must be foreseeable.”); Doe, 907 S.W.2d at 477-78
(“Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an
extraordinary sequence of events whereby the defendant's conduct brings about the injury.”).
Plaintiff has failed to provide evidence to support the necessary elements of a negligence
theory or a premises liability theory. The evidence shows that the collapse involved Defendant’s
building and the building to its east. Plaintiff’s building, which is to the west of Defendant’s
building, appears to have suffered little or no damage. See Dkt. 47-2 at 3, Deposition of Bill
Shipp [Shipp Depo.]. See id. at 3. According to the testimony of Bill Shipp, the Bonham City
Manager, “any damage to the Dollar General store was relatively minor.” Id.
“[T]here may
have been bricks that fell on the roof … [but] there was no major damage to Dollar General
interior or exterior.” Id. At some point on the evening of the collapse, Oncor, the utility
company, was notified and made a decision to disconnect electrical service and to remove the
meters. See Shipp Depo, Dkt. 25-2 at 5-7. The evidentiary record is unclear as to whether the
City or Oncor made the decision to disconnect electrical service and to remove the meters or as
to the reasons for the disconnection, but the disruption in electrical service apparently extended
to Plaintiff’s Dollar General store. See id. Then, based on an opinion the City received from
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AG&E, a structural engineering consulting firm, (the “AG&E Report”) that the remaining
portion of the collapsed building should be “safely demolished or stabilized,” Mr. Shipp, as City
Manager, determined that “it was necessary to close down the Dollar General while this
remaining structure was demolished.” See Dkt. 38-2 at 3.
Plaintiff argues that Defendant breached its duty to Plaintiff by failing to adequately
maintain its building. See Dkt. 38 at 5. Plaintiff’s position is that Defendant should have
consulted a professional engineer purely as a preventive measure based on the age of the
building. Id. at 6. Defendant counters that it acted reasonably and responsibly in its care and
maintenance of the building, that an employee of Defendant personally inspected the building
when Defendant assumed ownership via foreclosure in mid-2011, that Defendant had the
building professionally appraised, and then began marketing the building through a professional
realtor. See Dkt. 25 at 7-8. During this time, Defendant asserts that no defects or problems were
noted or brought to its attention. See id. According to Defendant, the building was in good
condition, and there was nothing to indicate that the building was at risk or in danger. See id. at
8. Defendant offers as evidence the Affidavit of Steven C. Bagwell, its President and Chief
Lending Officer along with copies of business records kept in the regular course of business
attached thereto. See Dkt. 25-2.
The evidence shows that on or about February 9, 2009 Defendant issued a loan, secured
by a mortgage on the building, to Mark Ragon. See Dkt. 25-1 at 47. Although Defendant
provides no documentation regarding the foreclosure proceedings, several documents in the
record establish that Defendant was the owner of the building at least as early as September
2011. For example, a Property Search report indicates that the building was transferred from
Mark Ragon to Vision Bank, N.A. by Substitute Trustee Deed on September 15, 2011. See Dkt.
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25-1 at 14. An independent appraisal of the building was conducted on August 24, 2011 for the
purpose of estimating the “as is” market value of the property. See Dkt. 25-1 at 31. According
to the appraisal report, the Defendant’s building was built in 1875 and renovated in the 1990s.
See id. The building, a two-story commercial building being used as a retail/office building, is
also zoned “Heritage District” by the City of Bonham. See id. at 33-34. The appraisal report
opines that the building is of “average” construction, that it “adequately” functions as a
freestanding retail/office building, and that it was in “average” condition. See id. at 35. On
October 6, 2011, Defendant entered into a brokerage agreement with Virginia Cook Realtors to
sell the building. See Dkt. 25-1 at 16-24. The listing price was $99,500.00. See id. at 17. In
paragraph 12.B.(2) of the brokerage agreement, the Seller (Defendant) represents that it is not
aware of any material defects in the building. See id. at 21. The record indicates that Virginia
Cook Realtors conducted an agent tour, as well as a number of showings of the building. See id.
at 11, 29.
The only evidence Plaintiff offers that even remotely supports its theory of liability
against Defendant is the AG&E Report, which opines that the “collapse of the existing building
structure was direct result of insufficient lateral bracing of the load bearing brick walls from the
floor and roof diaphragms.”
See Dkt. 38-3.
The AG&E Report states that the opinions
contained therein were “based on [] visual observations” and that no “as-built surveys or any
material testing or calculations were performed” during its investigation. See id. Thus, the
report was based purely on visual observation of the after-effects of the collapse. The Court also
notes that the report is not entirely clear in that it fails to precisely and consistently distinguish
the three buildings involved, i.e., Defendant’s building, Plaintiff’s building, and the non-party’s
building to the east of Defendant’s building. For example, the AG&E Report’s reference to
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“existing building structure” appears to jointly refer both to Defendant’s partially collapsed
building and the non-party’s totally collapsed building. See id. However, the report also
references the “partially collapsed structure above The Dollar General Store,” which appears to
refer only to Defendant’s building. See id. The AG&E Report recommends that the “partially
collapsed structure be safely demolished or stabilized prior to allowing occupants in the existing
Dollar General Store.” See id.
Notably the AG&E Report does not opine that the owner of either of the collapsed (or
partially collapsed) buildings was negligent, or that anything could have or should have been
done to prevent the collapse. See id. In fact, the report states that since the “remaining plaza
buildings seem to have all the characteristics of the building that collapsed,” they should be
“further investigated by a qualified Professional Engineer, licensed in the State of Texas to
ensure their safety.” See id. In other words, it seems that the collapse could have just as
probably occurred to any of the buildings in the plaza, including Plaintiff’s building.
Plaintiff offers no other factual or legal support for its position that since the two
buildings failed, Defendant must have done something wrong. There is nothing to show that the
building collapse, and the resulting harm suffered by Plaintiff, was probable, rather than merely
possible. See Baylor, 834 S.W.2d 69 at 75. Plaintiff also offers no evidence or legal authority to
support its position that Defendant had a duty to defensively inspect its Building for “structural
integrity” or that there was a standard of care requiring it do so. See Dkt. 38 at 5-6. As
explained above, the imposition of a duty of care requires that “the risk of harm must be
foreseeable.” Tex. Home Mgt., Inc., 89 S.W.3d at 36. Furthermore, “viewing the facts in
retrospect” and “theorizing an extraordinary sequence of events whereby the defendant's conduct
brings about the injury” fails the legal standard of foreseeability. See Doe, 907 S.W.2d at 477-
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78. Thus, Plaintiff’s reliance on what AG&E observed after the collapse is insufficient to
support Plaintiff’s theory of negligence.
Plaintiff has failed to prove by a preponderance of the evidence that Defendant breached
any duty owed to Plaintiff. Nor has it shown that anything Defendant did or failed to do, or that
any condition on Defendant’s premises, proximately caused its injury.
Thus, neither the
“foreseeability” element nor the “cause-in-fact” element of proximate cause is satisfied by any
summary judgment evidence offered by Plaintiff.
Plaintiff has also failed to show that
Defendant had actual or constructive knowledge of any unreasonable defective condition in its
building. “[T]he burden on the moving party may be discharged by ‘showing’ – that is, pointing
out ... – that there is an absence of evidence to support the nonmoving party's case.” Celotex,
477 U.S. at 325, 106 S.Ct. at 2554. Plaintiff has not satisfied its burden of proof and Defendant
is thus entitled to judgment as a matter of law.
CONCLUSION
For these reasons, Plaintiff’s amended motion to continue (Dkt. 46) is GRANTED,
Defendant’s motion to strike (Dkt. 49) is DENIED, and Defendant’s Motion for Summary
Judgment (Dkt. 25) is GRANTED.
.
IT IS THEREFORE ORDERED that Plaintiff Dolgencorp of Texas, Inc.’s claims against
Defendant Vision Bank, N.A. are DISMISSED in their entirety and Plaintiff shall take nothing
by his claims.
SO ORDERED.
SIGNED this 3rd day of August, 2016.
.
____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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