Tina Cooper v. HMH Lifestyles, L.P. D/B/A Historymaker Homes

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00284-CV
___________________________

TINA COOPER, Appellant

V.

HMH LIFESTYLES, L.P. D/B/A HISTORYMAKER HOMES, Appellee

On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-330959-21

Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION

Appellant Tina Cooper appeals from the trial court’s summary judgment for

Appellee HMH Lifestyles, L.P. d/b/a Historymaker Homes (Historymaker), on her

premises liability claim. Cooper sued after her foot fell through an allegedly unlocked

lid of a water meter can on property that Historymaker allegedly controlled. In five

issues, she argues that the trial court should not have granted summary judgment

because (1) even though the can was on a public right-of-way, Historymaker

controlled the area on which the can was located; (2) she was not a trespasser; (3) she

produced sufficient evidence to raise a fact issue on whether Historymaker actually

knew of the dangerous condition; (4) the condition was not open and obvious; and

(5) Historymaker had not made the condition reasonably safe. Because we hold that

the trial court did not err by granting summary judgment, we will affirm.

Background

Cooper fell in December 2020 when visiting her daughter, Libby Bryant.

Cooper parked on the street in front of the property next to Bryant’s, and the water

meter can lid (can lid) she stepped on was located in the parkway1 fronting that lot.

The water meter and can had been installed in 2018, when the lot being developed

was owned by HMH Auburndale Development, Inc. (Auburndale), but by the time of

1
The parties have disputed whether the can is located on property owned or
controlled by Historymaker or whether the can is in a parkway located within the City
of Melissa’s right-of-way and controlled by the City. For purposes of this opinion, we
refer to the can as being located in the parkway.

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Cooper’s accident, the lot had been conveyed to Historymaker for further

development. Historymaker did not begin constructing a residence on the lot until

approximately four months after Cooper’s accident.

Cooper originally sued Historymaker and Auburndale. See Cooper v. HMH

Lifestyles, L.P., No. 02-24-00046-CV, 2024 WL 4455846, at *1, *6 (Tex. App.—Fort

Worth Oct. 10, 2024, no pet.) (mem. op.). Both defendants moved for traditional

summary judgment, and the trial court granted their motion. In a previous appeal, we

affirmed the judgment for Auburndale but reversed for Historymaker because it had

not established its traditional summary judgment grounds. See id.

On remand, Historymaker filed a combined no-evidence and traditional

summary judgment motion. Among other grounds, it asserted as a no-evidence

ground that there was no evidence that it had actual knowledge of the condition

before Cooper’s accident and as traditional grounds that its evidence established that

the condition was open and obvious and that Historymaker did not own or control

the area with the can lid because it was in the public right-of-way.

Cooper filed a response to which she attached the unsworn declaration of her

daughter, Bryant; her own declaration; photographs, which she had taken after the

accident, that showed open can lids on what she said were other Historymaker

properties in the area; and the deposition testimony of Jeff Owen, corporate

representative of the plumbing company that had installed the water meter can.

3
The trial court granted summary judgment for Historymaker and rendered

judgment ordering that Cooper take nothing. Cooper now appeals.

Standard of Review

With a traditional summary judgment motion, a defendant that conclusively

negates at least one essential element of a plaintiff’s cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,

508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).2 With a no-evidence summary

judgment motion, the party without the burden of proof may, without presenting

evidence, move for summary judgment on the ground that no evidence supports an

essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The

motion must specifically state the elements for which no evidence exists. Id.; Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the

motion unless the nonmovant produces summary-judgment evidence that raises a

genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997 cmt.; B.C. v. Steak N

Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020).

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

2
We cite the version of Rule 166a in effect at the time of the trial court
proceedings. See Tex. Sup. Ct. Order, Misc. Dkt. No. 26-9012 (Feb. 27, 2026)
(approving amendments to Tex. R. Civ. P. 166a).

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could, and disregarding evidence contrary to the nonmovant unless reasonable jurors

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,

848 (Tex. 2009); Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572, 582 (Tex. 2006)). We indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).

Discussion

We begin with Cooper’s fourth issue, as it is dispositive. Under that issue, she

argues that she presented sufficient summary judgment evidence to raise a fact issue

on the open and obvious nature of the condition.

I. Premises liability elements

Cooper pled that she was a licensee on the parkway at the time of her injury,

and for purposes of most of its summary judgment grounds, Historymaker conceded

that status.3 For purposes of this opinion, we apply the premises liability law

applicable to licensees.

A landowner owes a duty to “use ordinary care either to warn a licensee of, or

to make reasonably safe, a dangerous condition of which the owner is aware and the

licensee is not.” Union Pac. R.R. v. Prado, 685 S.W.3d 848, 861 (Tex. 2024) (quoting

Sampson v. Univ. of Tex. at Aus., 500 S.W.3d 380, 385 (Tex. 2016)). Thus, to prove a

There is no contention by either party that Cooper was an invitee, but
3

Historymaker alternatively asserted that Cooper was a trespasser.

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premises liability claim as a licensee, a plaintiff must prove among other grounds that

(1) a condition on the premises posed an unreasonable risk of harm; (2) the defendant

had actual knowledge of the danger and the plaintiff did not; and (3) the defendant

failed to make the condition reasonably safe or adequately warn the plaintiff of the

condition. Sampson, 500 S.W.3d at 391. However, when the danger is open and

obvious, a landowner has no duty to warn of the danger or make the premises safe.

Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021); Harvey v.

Seale, 362 S.W.2d 310, 312 (Tex. 1962).

A danger is considered “open and obvious” when the evidence conclusively

shows that a visitor “would have knowledge and full appreciation of the nature and

extent of danger, such that knowledge and appreciation of the danger are considered

as proved as a matter of law.” Valdez, 622 S.W.3d at 788 (citation and internal

quotation marks omitted); Harvey, 362 S.W.2d at 312. “Whether a danger is open and

obvious is a question of law.” Valdez, 622 S.W.3d at 788. We look not to what “the

plaintiff subjectively or actually knew but what a reasonably prudent person would

have known under similar circumstances.” Id. We must consider the totality of the

particular circumstances that the plaintiff faced. Id. at 788–89.

II. Application

Both Historymaker and Cooper relied on excerpts from Owen’s deposition in

which he described a loose can lid as a noticeable condition. Historymaker relied on

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the part of his deposition in which he stated that the condition would be seen by

anyone walking in the area:

Q. So anybody standing around over here would, if they’re -- if
they’re here they would obviously see it, and then know that this is a
problem that needs to get fixed; right?

A. If they see it, it’s obvious that it’s an issue.

Q. Well, let me ask you this. You’re saying it’s obvious meaning
that if you’re walking in this area you’re going to see it; right?

A. I believe so, yes.

Q. Okay. So if anyone’s walking in this area, then they should see
that this is dangerous; right?

A. Yes. [Emphases added.]

Historymaker also cited Bryant’s unsworn declaration, which had been attached

to Cooper’s response to Historymaker’s prior summary judgment motion. 4 In that

declaration, Bryant stated that the can lid on her property, which was next door to the

area where Cooper fell, had been left open during the entire construction project even

though “[t]he water meter can is located right next to where the construction workers

walk, so there is no way that they could have not noticed. The [Historymaker] workers

ignored it being open.” She further stated that the can lid was also open on the

4
This declaration does not appear in the clerk’s record in this appeal. However,
it was on file with the trial court, see Tex. R. Civ P. 166a(c), and it was included in the
clerk’s record in the previous appeal in this case, see In re C.B., No. 02-25-00026-CV,
2025 WL 728233, at *2 n.6 (Tex. App.—Fort Worth Mar. 6, 2025, orig. proceeding
[mand. denied]) (mem. op.) (noting that appellate court may take judicial notice of
record in prior related appeal).

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property next door from the time it was installed until the date of her mother’s

accident, and during that time, Historymaker “workers would come and go right next

to the water meter can, but they would not bother to close it.”

In her response, Cooper argued in essence that the condition was hidden

enough that she could not have been expected to notice it but was at the same time

obvious to any Historymaker contractor or employee walking in the area. In support,

she produced a longer excerpt from Owen’s deposition, which included the

questioning immediately preceding the part relied on by Historymaker. The additional

excerpt from Owen’s deposition does not negate his testimony that the condition was

noticeable.

In the excerpt, Owen disagreed that it would be hard to see an open can lid:

“They’re—it’s pretty visible. I wouldn’t think it would be hard to see.” He was then

asked if it would be hard to see if a can lid were just “sitting on there, and it’s

unlocked,” and he responded that the lids have “an automatic lock mechanism” so

that if a lid is set in place, “it automatically locks.” That is, a lid cannot be set in place

by someone and then remain unlocked. As for a lid that was “a little bit askew,” he

said that it “would be obvious” to him, but “[m]aybe not for everybody.” With further

questioning by Cooper’s attorney, however, he went on to testify that a loose water

can lid would be noticeable to anyone who was simply walking in the area:

Q. . . . You -- so if you’re in this area -- so if someone’s working, so like
say for example the builder -- the builder[’]s employees are here, hanging

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around, looking around, they should immediately notice that this is
obviously a dangerous condition; right?

A. It is noticeable.

Q. So they should know immediately if they’re here at all, they
should know that this is dangerous; right?

A. If anybody sees it, yes.

Q. . . . Well, that’s what we’re talking about if they see it. I thought
you were saying it’s really obvious, and anyone would see this -- this
condition?

A. I think it’s obvious, yes.

Q. So anybody standing around over here would, if they’re -- if
they’re here they would obviously see it, and then know that this is a
problem that needs to get fixed; right?

A. If they see it, it’s obvious that it’s an issue.

Q. Well, let me ask you this. You’re saying it’s obvious meaning
that if you’re walking in this area you’re going to see it; right?

A. I believe so, yes.

Q. Okay. So if anyone’s walking in this area, then they should see
that this is dangerous; right?

A. Yes. [Emphases added.]

Cooper also relied on a new declaration from her daughter. In the declaration,

Bryant said that a slightly open can lid is difficult to see, but she also described it as a

condition that should have been noticed by Historymaker workers walking past.

Specifically, she stated that a lid’s being slightly open would have been hard to see

unless a person “really [takes] a close look” and that it is “not common knowledge”

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that a “slight crack or gap between the edge of the lid” “means that the lid is open and

unlocked.” She claimed that her knowing what a slightly open can lid looks like came

from her experience with the open can lid on her own property—meaning that the

open can lid on her own property must have been only slightly open. But she also

stated that there was “no way” that workers walking past the lid on her property

would not have noticed that it was open. As for the can lid next door, she stated that

Historymaker workers “would come and go right next to” it but “would not bother to

close it.” But for workers to “not bother to close” a can lid, it would have to be

noticeable that it was open.5 Indeed, Cooper relied on this declaration as evidence that

Historymaker’s employees “would have noticed [the condition] while walking back

and forth into [a] trailer on the location.”

As for the photographs of other properties in the development, Cooper said in

her response that they showed several lids that were completely removed from the

can, but others showed lids that were “just slightly off,” making it “hard to tell even in

the photographs themselves.” These photographs were taken several months after her

accident, and Cooper’s motion did not identify any particular photograph as

resembling the condition of the can lid on which she had stepped. Her declaration

also failed to identify any photograph as resembling the condition of the lid on the

She also stated that she noticed that the can lid next door was open from the
5

time of installation until her mother’s fall, but she did not say that she had gone next
door every day to “really take a close look” at the can lid.

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day of the accident—and she could not have done so because she also stated in her

declaration that she had not seen the lid and was not looking at it before she stepped

on it.

Bryant’s new declaration did point to two specific photographs and said that

the can lid in question had looked like those two photographs. But the two

photographs do not look the same. Both photographs show a lid on top of the can,

but the lid in one is raised higher than the other, leaving a bigger gap between the lid

and the can. Bryant did not identify which photograph matched the condition of the

lid on the day in question, and the photographs are insufficient to raise a fact issue.6

The summary judgment evidence was sufficient to establish that a reasonably

prudent person under similar circumstances would have known that the can lid’s

condition was open and obvious, thus negating Historymaker’s duty to warn of the

condition or make it safe. See Valdez, 622 S.W.3d at 788. Accordingly, Historymaker

was entitled to summary judgment. See Tex. R. Civ. P. 166a(c); Valdez, 622 S.W.3d at

788. We overrule Cooper’s fourth issue. Consequently, we need not address her other

issues, which address Historymaker’s other summary judgment grounds.

Cooper’s response also referenced “[a]nother witness” who had allegedly fallen
6

“in this same water meter can lid,” and she cited “Exhibit 12,” but there is no Exhibit
12 attached to her response, and none of her exhibits included testimony or a
statement from another witness.

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Conclusion

Having overruled Cooper’s dispositive fourth issue, we affirm the trial court’s

judgment.

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: March 26, 2026

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