From Judge to Justice: Jeff Brown delivers his first appellate opinion

Former 55th District Court Judge Jeffrey Brown was appointed by Governor Rick Perry to the Fouteenth Court of Appeals court seat vacated by Justice Harvey Hudson just in time to run as incumbent in 2008 general election.

Writing for the three-judge panel, Justice Jeff Brown affirms judgment for Defendant in a memo opinion. Single-issue appeal was from a garden-variety premises liability suit filed in county court at law: Ronald Grayson v. Joseph Anselmo, Individually and D/B/A Joe's Barber Shop, No. (Tex.App.- Houston, Mar. 13, 2008)(Opinion by Justice Brown ) (premises liability suit, slip and fall cases)
Full style: Ronald Grayson v. Joseph Anselmo, Individually and D/B/A Joe's Barber Shop
Appeal from County Civil Court at Law No 1 of Harris County
Trial court judge: R. Jack Cagle
Attorneys: Scott C. Lannie and Sarah Stryker Flournoy

M E M O R A N D U M O P I N I O N

Ronald Grayson appeals a take-nothing judgment in favor of Joseph Anselmo d/b/a Joe's Barber Shop. Grayson alleged that a premises defect caused him to fall on Anselmo's property and sustain a personal injury. In a single issue, Grayson contends that the evidence was factually insufficient to support the judgment. We affirm.

I

In October 2004, Joe Anselmo opened a barbershop in a mobile home in Crosby. Before opening, Anselmo and his son built a wooden ramp to the door of the barbershop. On November 4 or 5, 2004, Ronald Grayson visited the barbershop to discuss selling some tractor tires to Anselmo. As he was leaving the shop, Grayson received a call on his cell phone and stepped outside onto the ramp.

The remaining facts are disputed. Grayson testified that as he took the call he leaned on the ramp's wooden railing. The railing separated from its support post and he fell to the ground, injuring his shoulder. Grayson also testified that immediately after his fall, Anselmo repaired the railing by re-attaching it to the support post. Grayson introduced one photograph showing that a single board attached the rail to the post.

Anselmo tells a different story. He remembered Grayson visiting the barbershop and taking a call outside on the ramp, but testified that the railing did not break and Grayson did not fall. Anselmo further testified that not one but two boards supported the railingCone in front of the support post and one behind. Both he and Grayson submitted pictures of the railing showing two boards supporting the railing. Nevertheless, Grayson insists that when he leaned on the rail, only one board supported it. He contends Anselmo added the second board sometime after his fall.

Grayson sued Anselmo alleging that he was injured when he fell from the ramp. Grayson alleges Anselmo controlled the premises and knew or should have known of an unreasonably dangerous condition that proximately caused Grayson's injuries. After a bench trial, the trial court found Grayson did not meet the burden of proof on his premises-liability claim and ordered that he take nothing.

II

In a single issue, Grayson argues the trial court erred in rendering a take-nothing judgment. As sub-issues, Grayson argues (1) the evidence conclusively established that Anselmo gave false testimony, (2) the great weight and preponderance of the evidence established the essential elements of Grayson's premises-liability claim, (3) there was no evidence of contributory negligence that could otherwise support a take-nothing judgment, and (4) the uncontroverted evidence established that the incident proximately caused Grayson's injuries.

A

Although Grayson cites in his brief the standards of review for both legal and factual sufficiency of the evidence, he asks only that this court remand to the trial court for a new trial. Grayson does not ask this court to render judgment in his favor. Therefore, we will only address whether the evidence was factually sufficient to support the trial court's findings. See Alstan Corp. v. Board of Admin., 713 S.W.2d 130, 132 (Tex. App.CAustin 1986, writ ref'd n.r.e.) (stating that factual-sufficiency points require remand for new trial as opposed to legal-sufficiency points, which require reversal and rendition of judgment).

The trial court did not issue any findings of fact or conclusions of law. Therefore, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Parties may challenge the legal and factual sufficiency of these implied factual findings. Id. When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co ., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App. Houston [14th Dist.] 2001, pet. denied). We may not substitute our judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

B

Grayson initially argues that the trial court erred in entering a take-nothing judgment because Anselmo gave false testimony under oath. The record reflects the parties sharply disagreed on whether the railing at the barbershop broke, whether Grayson fell from the ramp, and whether he was injured as a result of a fall. The parties also dispute whether Grayson was an invitee or a licensee on the property. Because the trial court filed no findings of fact and conclusions of law, we presume it found any disputed fact in favor of its judgment. See American Realty Trust, Inc. v. JDN Real EstateBMcKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.-Dallas 2002, pet. denied).

However, for purposes of reviewing whether Anselmo breached a duty to Grayson, we will assume that a fall from the ramp proximately caused Grayson's injuries. We will also assume Grayson's status as an invitee.

Assuming Grayson was his invitee, Anselmo owed a duty to exercise reasonable care to protect him from dangerous conditions known or discoverable to Anselmo. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). To recover from Anselmo, Grayson must prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator, (2) the condition posed an unreasonable risk of harm, (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk, and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

The first element, actual or constructive knowledge of some condition on the premises by the owner or operator, is the key point in this case. Grayson argues that because Anselmo built the ramp, he created the condition and is charged with knowledge of its condition. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge, but the fact finder still must find that the owner or occupier knew or should have known of the condition. Id. at 265.

Liability for knowledge of a potentially harmful condition can be established by proof that (1) the owner/operator caused the harmful condition, (2) the owner/operator saw or was told of the harmful condition before the plaintiff's injury, or that (3) the harmful condition was present for so long that it should have been discovered in the exercise of reasonable care. Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 554 (Tex. 2002).

Grayson does not rely on direct evidence but argues there was factually sufficient circumstantial evidence that Anselmo had actual or constructive notice of the dangerous condition. Grayson contends that because the manner in which Anselmo constructed the ramp and railing created the dangerous condition, Anselmo therefore had constructive knowledge of it. At trial, there was conflicting evidence as to how Anselmo constructed the railing. He and his son built the ramp about one month before Grayson's visit. Anselmo testified that the railing consisted of two boards attached to support posts, with one board on the outside of the post and the other on the inside of the post. Grayson testified that only one board was attached to the post. The trial court admitted several photographs into evidence showing the railing constructed with two boards and one photograph showing the railing constructed with one board. No evidence was introduced to show that anyone else had been injured on the ramp, that the railing had ever failed or given any indication that it was not sturdy, or that anyone had pointed out that the railing was dangerously constructed.

The Texas Supreme Court has held that the inference of actual or constructive knowledge is a fact question for the trier of fact. See Keetch, 845 S.W.2d at 266; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 542 (Tex. 1976). In Keetch, the plaintiff slipped and fell crossing a slippery area on the floor created by Kroger's spraying of "Green Glo" shine on plants in its floral department. 845 S.W.2d at 263. The trial court submitted the case on a premises‑liability theory. The jury found the slippery spot constituted an unreasonable risk of harm to Keetch, but failed to find that Kroger knew or should have known of the condition. Id. at 264. The supreme court affirmed the judgment, rejecting the plaintiff's argument that Kroger's creation of the condition meant that Kroger had actual knowledge as a matter of law. Id. Although it declined to create an automatic-liability rule, the court noted: "The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge." Id. at 265.

In Coffee v. F.W. Woolworth Co., the plaintiff was injured when she fell over a low‑lying, empty platform intended to hold merchandise. 536 S.W.2d at 540. At trial, there was a dispute whether Woolworth and its employees were aware of the empty platform, but the jury found Woolworth, through its employees, had constructive knowledge of the dangerous condition. Id. The court of appeals reversed the trial court, finding that the record was devoid of any direct evidence that Woolworth had actual knowledge that the platform was empty. Coffee v. F.W. Woolworth Co., 526 S.W.2d 793, 795 (Tex. Civ. App.-Corpus Christi 1975), rev'd, 536 S.W.2d 539. The Texas Supreme Court reversed the court of appeals, reasoning thatCbecause the store's policy was to avoid letting its platforms become empty from normal‑course customer purchasesCthe jury could have reasonably inferred that the platform was empty because store personnel created the condition when changing displays; therefore, the defendants had actual notice. Coffee, 536 S.W.2d at 540B41. In discussing Coffee, the court in Keetch concluded that "[t]he fact that [the defendant] created the condition was circumstantial evidence of knowledge." Keetch, 845 S.W.2d at 266.

Coffee and Keetch stand for the proposition that a fact finder may, but need not, infer that a defendant had actual knowledge of a dangerous condition that it created. It is within the fact finder's province to decide whether the circumstances justify inferring actual knowledge against the creator of a dangerous condition. See id.; see also Coffee, 536 S.W.2d at 540-41.

Reviewing all of the evidence in a neutral light, we find the trial court's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Even if we accept Grayson's testimony as true, that only one board attached the railing to its support post, the implied finding that Anselmo did not have constructive knowledge of a dangerous condition is not against the great weight and preponderance of the evidence.

In his remaining sub-issues, Grayson alleges there was no evidence of contributory negligence and the uncontroverted evidence established that the incident proximately caused his injuries.

Because we have determined that the evidence is factually sufficient to support the trial court's finding that Anselmo did not have constructive knowledge of a dangerous condition, we need not address contributory negligence or proximate cause.

We overrule Grayson's issue and affirm the trial court's judgment.

/s/ Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed March 11, 2008.
Panel consists of Justices Yates, Guzman, and Brown.