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Corman v. Fabrique, Inc. , 806 S.W.2d 801 ( 1991 )


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  • 806 S.W.2d 801 (1991)

    Jack CORMAN, Petitioner,
    v.
    FABRIQUE, INC. et al., Respondents.

    No. D-0483.

    Supreme Court of Texas.

    March 27, 1991.
    Rehearing Overruled May 8, 1991.

    *802 A.E. Andres, Arlington, for petitioner.

    Thomas A. Albright, Walter L. Taylor, Austin, for respondents.

    PER CURIAM.

    This is a lawsuit by Fabrique, Inc., the assignee of lessee's interest in a lease, against the lessor, Jack Corman, for wrongful withholding of possession of the leasehold. Corman counterclaimed against Fabrique for back rent. Both Fabrique and Corman moved for partial summary judgment. Fabrique's offensive and defensive theories are based on its allegations that Corman had wrongfully interfered with Fabrique's possession of the leasehold. Corman moved for summary judgment on the grounds that the evidence showed as a matter of law that he was entitled to back rent and he did not wrongfully interfere with Fabrique's possession of the premises.

    The trial court granted partial summary judgment for Corman for back rent, and against Fabrique on its claims for damages against Corman. The trial court rendered final judgment after a hearing on attorney fees. The court of appeals reversed and remanded. 796 S.W.2d 790.

    Fabrique's principal summary judgment proof is an affidavit from Fabrique's attorney, that on one occasion Corman had threatened to sue for trespass if Fabrique entered the premises, and a letter from Corman's attorney in which he states on Corman's behalf that Corman had wrongfully withheld possession of the premises from Fabrique. The letter from Corman's attorney is some evidence which would preclude summary judgment in favor of Corman, and the court of appeals correctly remanded the case to the trial court for further proceedings. Accordingly we deny petitioner's application for writ of error. We expressly reserve the question of whether a threat of litigation by a landlord is an interference with the tenant's possession sufficient to give rise to a cause of action for damages.