Jack Permison v. Carrie Morris & Dave Ward ( 2019 )

Opinion issued October 29, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00392-CV
———————————
JACK PERMISON, Appellants
V.
CARRIE MORRIS & DAVE WARD, Appellees
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Case No. 15-DCV-225441
MEMORANDUM OPINION
Jack Permison rented a room in a house in Fort Bend County from appellee
Carrie Morris. Although he left before his lease ended, he was later judicially
evicted. He contends that he was forced to leave the house by the actions of the
appellees: Carrie Morris and her boyfriend, Dave Ward. Permison sued them both
for: (1) breach of contract; (2) negligence; (3) interference with property rights and
constructive eviction; (4) premises liability and gross negligence; (5) failure to
refund security deposit; (6) wrongful eviction; (7) common law fraud; (8) willful
disclosure of incorrect ownership information; (9) damage to credit;
(10) retaliation; (11) exemplary damages; and (12) conspiracy.
The court granted Ward’s no-evidence motions for summary judgment and
dismissed with prejudice all the claims against him, except for negligence, which
was not submitted to the jury at trial. In his first three issues on appeal, Permison
challenges the trial court’s summary judgments as to Ward. After the close of
evidence at trial, the court granted Morris’s motions for directed verdict as to
several claims against Morris: (1) interference with property rights and
constructive eviction; (2) premises liability and gross negligence; (3) common law
fraud; and (4) damage to credit. In his fourth issue on appeal, Permison challenges
the directed verdicts.
We affirm.
Background
Carrie Morris advertised for rent a furnished private bedroom and private
bathroom “in paradise***free of drama.” Morris described the house as “beautiful”
and “resort-style,” and she advised anyone who is a “a nut case, drama queen,
2
weirdo, slob, or psycho” to stay away, stating that she wanted a “peaceful relaxing
calm beautiful place to come home to after a long day at work.”1
Permison, a helicopter pilot, responded to Morris’s advertisement. Permison
and Morris discussed their shared interest in helicopters, and Morris told Permison
that her boyfriend, Dave Ward, also was a pilot. Permison agreed to rent the room
from Morris beginning March 23, 2015 and continuing month-to-month thereafter.
The agreement was not in writing, and Permison paid Morris approximately $1200.
After Permison moved in, he became friendly with Morris and Ward.2 Several days
after he moved in, Permison informed Morris that he had found mice in the house.
According to Permison, around the same time, Morris made a sexual advance
toward him, which he rebuffed. Morris denied this entirely. The friendly text
messages between them stopped a few days later.3
1
The appellate record in this case includes transcripts of phone calls involving
Permison and either Ward or Morris as well as a copy of the text messages
exchanged between Permison and Morris. These documents were submitted as
summary-judgment evidence. The trial court did not rule on the defendants’
objections that the transcripts and text messages were not properly authenticated
and are hearsay.
2
Morris invited Permison to go fishing with her children, and Permison invited
Morris to take helicopter rides. Ward loaned Permison a car to save him the
expense of renting one, saying, “in aviation you are supposed to take care of each
other.” Permison helped Morris with a computer problem. When Permison found a
kitten, Morris helped name it and kept it overnight.
3
Morris and Permison communicated by text message and phone call because
during the time Permison stayed in Morris’s house, Morris was temporarily
staying at Ward’s house.
3
About two weeks after Permison moved in, Ward asked him to store some of
Morris’s personal property in the closet of the master bedroom he was renting.4
Permison initially agreed, but when he saw the quantity of belongings that had
been left outside the house, he refused to move them into his room. Morris later
testified that she knew the property would fit because she had previously stored it
in the second closet in Permison’s room and under the bed.
The next day, Morris asked Permison if he had put the property into the
closet, saying she did “not want it left outside.” Permison told her there was not
“enough room in that closet for all that.” Over the next several minutes, Morris
sent several acrimonious text messages, told Permison to leave her house, and said
she was evicting him. After additional, heated text messages, Morris told Permison
to sue Ward, saying, “Dave’s the owner of my house. Sue him. He holds the title.
He gets the money.” Permison told her, “Dave isn’t the landlord. You are. My
agreement is with you.” Morris made some vulgar personal remarks, and she
blamed Permison for her current discord with Ward. Permison told Morris that he
would leave if she refunded his money and paid for a week’s stay at a hotel.
Permison called Ward, and he explained that the property would not fit in
his room and that the living situation was not working out. He conceded that he
4
Ward described the property as “a bunch of blankets and pillows and a little single
mattress probably four or five of them.”
4
had to work out the problem with Morris, because “my agreement is with her, she
is the owner of the house not you.” Permison also suggested that Morris was upset
about something other than the property storage. Ward maintained that he was a
“third party” the room rental agreement, and he agreed that if the living situation
was not working out, Permison should move out.
Several hours after the telephone conversation and text thread, Morris went
to the house and placed mothballs in shared spaces, near Permison’s bedroom, and
outside the house. Permison and another tenant, Mike Brewster, confronted her
about the quantity of mothballs she had used and their toxicity. Permison made a
video recording of Brewster yelling profanities and demands at Morris, who
attempted to placate him. At the end of the video, another man is heard laughing,
but Permison denied that he had laughed.
After Morris left, Permison and the other tenants discarded most of the
mothballs. Permison slept in the rented room that night, and the next morning, he
sought treatment at an emergency room for difficulty breathing, vomiting, and
headache. He was diagnosed with “aching headache” and “exposure to chemical
inhalation.”5 Permison never returned to the house.
5
A nursing note in Permison’s medical record stated: “Spoke with Poison Control,
patient to stay away from mothballs and get house cleaned up. Bobby, Poison
Control, states that nausea, vomiting, diarrhea and headache are only symptoms of
mild exposure and will resolved upon staying away from them.”
5
At some point, Permison told Ward that Morris tried to kiss him, but he
rebuffed her advances. While he was in the emergency room, Permison spoke to
Ward, advising him that he would “be better off” if he were to “get rid of her.” A
few days later, Ward and Morris reconciled. Ward then told Permison that he
owned the house in which Permison had rented a room and that his name was on
the deed.6 Ward also informed Permison that he had instituted eviction proceedings
against him. Morris later testified that Ward was attempting to protect her from
harsh treatment by Permison and Brewster.
Four days after Permison left the house, Morris filed a complaint for
eviction. Ward’s name was initially listed as a landlord on the handwritten form,
but it was crossed out and initialed “CM.” The justice of the peace court rendered
judgment in favor of Morris. Permison appealed to the County Court at Law No. 3,
but he later nonsuited his appeal.
Permison later sued both Morris and Ward for (1) breach of contract;
(2) interference with property rights and constructive eviction; (3) premises
liability and gross negligence; (4) failure to refund security deposit; (5) wrongful
eviction; (6) common law fraud; (7) willful disclosure of incorrect ownership
information; (8) damage to credit; (9) retaliation; (10) exemplary damages; and
6
Permison replied, “That’s interesting because it doesn’t come up that way on
the—okay, well that creates a dilemma for me. But you are not back together with
Carrie at all?” Ward replied, “Well, she’s still at the house. That’s all irrelevant.”
6
(11) conspiracy. Permison’s claims were based on his allegations that both Morris
and Ward were the landlords and acted together, that Morris told him to leave
when he refused to store her property, and that Morris “placed a deadly amount of
mothballs” on the premises.
Permison, Morris, Brewster, and another former tenant, Brenda Jones,
testified at trial. Permison testified that he rented a room from Morris, rebuffed her
sexual advances, and refused to store her belongings in his room because they
would not fit. He also testified that Morris used an excess of mothballs that caused
him to suffer an inhalation injury, even though the mothballs were promptly
gathered and discarded. Brewster and Jones corroborated Morris’s use of
mothballs. Morris denied having made sexual advances on Permison. She testified
that she used the mothballs as pest control and, having grown up in the country,
she described this use as commonplace. She said she never read the warning on the
package.
After the close of evidence, the trial court granted directed verdict in favor
of Morris on Permison’s claims of (1) interference with property rights and
constructive eviction; (2) premises liability and gross negligence; (3) common law
fraud; and (4) damage to credit. The jury found in favor of Permison on his
retaliation claim, and it awarded damages of $1,269.03. The trial court rendered
7
judgment on the verdict in favor of Permison for $1,269.03 for retaliation and
$5,000 in attorney’s fees.
Analysis
On appeal, Permison challenges the pretrial summary judgments in favor of
Ward and the directed verdicts in favor of Morris.7
I. Summary judgment standards of review
“A no-evidence summary judgment is essentially a pretrial directed verdict,
and we apply the same legal sufficiency standard in reviewing a no-evidence
summary judgment as we apply in reviewing a directed verdict.” King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). “After an adequate time for
discovery,” a party may seek summary judgment “on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). A
no-evidence summary judgment motion “must state the elements as to which there
is no evidence.” Id. The burden then shifts to the nonmovant to “produce[]
summary judgment evidence raising a genuine issue of material fact.” Id. Once the
movant specifies the elements on which there is no evidence, the burden shifts to
7
The jury found that Permison and Morris had an agreement for the lease of a room
for $700 per month, but it found that Morris did not breach the agreement. The
jury found that Morris retaliated against Permison, and it assessed damages of
$1269.03 and attorneys’ fees of $5,000. The jury also found that Morris did not
fail to return Permison’s security deposit in bad faith. No issue regarding
Permison’s claims against Ward was submitted to the jury.
8
the nonmovant to raise a fact issue on the challenged elements. Id. If the
nonmovant fails to produce evidence that raises a genuine issue of material fact,
the trial court must grant the motion in favor of the movant. A no-evidence
summary judgment will be sustained on appeal “when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered by the nonmovant to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital
fact.” King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–
63 (1960))).
“Summary judgment evidence may be filed late, but only with leave of
court.” Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). “Except
on leave of court,” the nonmovant’s summary judgment evidence must be filed and
served at least seven days before the summary judgment hearing. TEX. R. CIV.
P. 166a(c). “[T]he court has discretion to accept late-filed evidence, but it is not
obliged to do so.” Barnett v. Veritas DGC Land Inc., No. 14-05-01074-CV, 2006
WL 2827379, at *5 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, pet. denied)
9
(mem. op.) (court did not abuse its discretion by refusing to consider evidence
attached to motion for reconsideration).
“A trial court may accept summary judgment evidence filed late, even after
summary judgment, as long as the court affirmatively indicates in the record that it
accepted or considered the evidence.” Mathis v. RKL Design/Build, 189 S.W.3d
839, 842–43 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Stephens v.
Dolcefino, 126 S.W.3d 120, 133–34 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied). “Leave to late-file summary-judgment evidence may be reflected in a
separate order, a recital in the summary judgment, or an oral ruling contained in
the reporter’s record.” Lesikar v. Moon, No. 14-16-00299-CV, 2017 WL 4930851,
at *11 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017, no pet.) (mem. op.).
In his brief, Ward contends that the trial court should have disregarded the
evidence filed in response to the first no evidence motion for summary judgment,
because it was filed four hours late. See TEX. R. CIV. P. 166a(c). Permison’s
response included a motion for leave to file a late response, which explained that
his attorney experienced “technical difficulties” with electronic filing due to the
size of the file. He asked that he be permitted to file his response four hours late.
In its order granting the first summary judgment motion in favor of Ward,
the trial court stated that it had considered the response. We reject Ward’s
contention that we must ignore Permison’s summary judgment evidence and
10
conclude that it was considered by the trial court. See Adi v. Rapid Bail Bonding
Co., No. 01-08-00290-CV, 2010 WL 547474, at *3 n.6 (Tex. App.—Houston [1st
Dist.] Feb. 18, 2010, no pet.) (mem. op.).
Summary judgment evidence may consist of affidavits, the opposing party’s
discovery responses, pleadings, admissions, stipulations, and authenticated or
certified public records. See TEX. R. CIV. P. 166a(c). “A summary judgment may
be based on uncontroverted testimonial evidence of an interested witness, or of an
expert witness as to subject matter concerning which the trier of fact must be
guided solely by the opinion testimony of experts, if the evidence is clear, positive
and direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.” Id. “Sworn or certified copies of all papers
or parts thereof referred to in an affidavit shall be attached thereto or served
therewith.” TEX. R. CIV. P. 166a(f). “Copies of documents attached to a properly
prepared affidavit indicating the copies are ‘true and correct’ are sworn copies.”
Coastal Cement Sand Inc. v. First Interstate Credit All., Inc., 956 S.W.2d 562, 567
(Tex. App.—Houston [14th Dist.] 1997, pet. denied). But a statement that an
unsworn document attached to an affidavit is a “true and correct copy” is not an
affirmative indication that the facts contained in the unsworn document are
themselves true and correct. See id.
11
Unsworn witness statements are not competent summary judgment evidence.
See Kolb v. Scarbrough, No. 01-14-00671-CV, 2015 WL 1408780, at *4 (Tex.
App.—Houston [1st Dist.] Mar. 26, 2015, no pet.) (citing Judge David Hittner &
Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 46
Hous. L. Rev. 1379, 1470 (2010) (evidence such as “unsworn witness statements,
expert’s reports, or unauthenticated documents” are not “proper summary
judgment evidence and cannot defeat a no-evidence summary judgment
motion.”)); Coastal Cement Sand, 956 S.W.2d at 567. Incompetent summary
judgment evidence cannot create a genuine question of material fact, and therefore
it will not defeat a motion for summary judgment. See Elizondo v. Krist, 415
S.W.3d 259, 264 (Tex. 2013) (conclusory statements); HighMount Expl. & Prod.
LLC v. Harrison Interests, Ltd., 503 S.W.3d 557, 568 (Tex. App.—Houston [14th
Dist.] 2016, no pet.); McKeehan v. McKeehan, 355 S.W.3d 282, 296 (Tex. App.—
Austin 2011, pet. denied).
II. Ward’s no-evidence motions for summary judgment were properly
granted.
Permison’s first three issues challenge the trial court’s rulings dismissing his
claims against Ward. He argues that the trial court erred by granting Ward’s first
and second motions for summary judgment, and, in his third issue, he argues that
Ward acted either on his own or with Morris—as coconspirator, co-owner, or
agent—to cause his damages. Ward’s first no evidence motion for summary
12
judgment challenged the claims made in the second amended petition: breach of
contract, negligence, constructive eviction, wrongful eviction, premises liability,
failure to refund security deposit, common law fraud, damage to credit, and
exemplary damages. The trial court granted the motion and dismissed the
challenged claims and Permison’s conspiracy claim. When the error of dismissing
the unchallenged conspiracy claim was raised, the trial court signed an amended
nunc pro tunc order clarifying that the conspiracy claim had not been dismissed.
Ward then challenged the conspiracy claim in his second no evidence motion for
summary judgment.
A. Ward’s first no evidence motion for summary judgment
In response to Ward’s first no evidence motion for summary judgment,
Permison provided his affidavit, photographs of mothballs that had been cleaned
up from the house, a transcript of text messages exchanged between him and
Morris, and transcripts of phone conversations he had with Morris and with Ward.
In his affidavit, he averred that the transcripts of text messages and recorded phone
calls were true and correct copies. But he did not aver that the statements in those
documents were true and correct.
Permison’s claims against Ward depended on a finding that Ward was his
landlord, the owner of the house, or that he engaged in a conspiracy with Morris.
13
1. Permison provided no evidence that he had a contract with Ward,
that Morris was Ward’s agent, or that he owned the house.
To prevail on a claim for breach of contract, the plaintiff must establish the
following elements: (1) the existence of a valid contract; (2) performance or
tendered performance by the plaintiff; (3) breach of the contract by the defendant;
and (4) damages sustained by the plaintiff because of the breach. See USAA Tex.
Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018); S. Elec. Servs.,
Inc. v. City of Houston, 355 S.W.3d 319, 323–24 (Tex. App.—Houston [1st Dist.]
2011, pet. denied). The elements of a valid contract are (1) an offer; (2) an
acceptance; (3) a meeting of the minds; (4) mutual consent to the terms; and, in the
case of a written contract, (5) execution and delivery of the contract with the intent
that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d
631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “Mutual assent,
concerning material, essential terms, is a prerequisite to formation of a binding,
enforceable contract.” Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526,
530 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing T.O. Stanley Boot Co. v.
Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).
“The necessary elements of written and oral contracts are the same and must
be present for a contract to be binding.” Peine v. Elite Airfreight, Inc., No. 01-14-
00860-CV, 2016 WL 4253836, at *3 (Tex. App.—Houston [1st Dist.] Aug. 11,
2016, no pet.) (mem. op.); see Wal–Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555
14
(Tex. App.–Houston [14th Dist.] 2002, no pet.). “In determining the existence of
an oral contract, courts look to the communications between the parties and to the
acts and circumstances surrounding those communications.” Peine, 2016 WL
4253836, at *3.
In his motion for summary judgment, Ward argued that there was no
evidence of breach of contract, because there was no evidence that he and
Permison ever entered into an agreement and because he was not the record owner
of the house. In response, Permison relied on text messages from Morris sent
approximately two weeks after he moved into the house in which she stated that
Ward owned the house, transcribed phone calls he had with Ward, and a posted
notice to vacate that identified Ward as a landlord. Permison also asserted that
Morris was Ward’s agent.
Permison’s evidence does not demonstrate that he had a contract with Ward.
The text messages, phone calls, and the posted notice do not show that Ward
owned the house or entered into an agreement with Permison. These attachments to
Permison’s affidavit are essentially unsworn statements of a witness, and therefore
not competent summary judgment evidence. See Kolb, 2015 WL 1408780, at *4.
They are insufficient to create a genuine question of material fact regarding
whether Ward owned the house or had an agreement with Permison. See Coastal
Cement Sand, 956 S.W.2d at 567.
15
Permison argues that the statements made by Ward were judicial admissions.
We disagree. Judicial admissions must be made in the course of a judicial
proceeding, and the conversations and text message exchanges that Permison relies
on were not made in the course of a judicial proceeding. See Cohen v. Tour
Partners, Ltd., No. 01-15-00705-CV, 2017 WL 1528776, at *5 (Tex. App.—
Houston [1st Dist.] Apr. 27, 2017, no pet.) (mem. op.); H2O Sols., Ltd. v. PM
Realty Grp., LP, 438 S.W.3d 606, 617 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
None of Permison’s proffered summary judgment evidence supports an
inference of any offer made by Ward or acceptance by Permison, nor does it
demonstrate a meeting of the minds or mutual assent to the terms of a contract
except between Permison and Morris. See Prime Prods., 97 S.W.3d at 636.
Permison argues that Morris was acting as Ward’s agent. But an “agent’s
authority to act on behalf of a principal depends on some communication by the
principal either to the agent (actual or express authority) or to the third party
(apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex.
2007); see also Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex. App.—
Houston [1st Dist.] 1984, writ ref’d n.r.e.). Nothing in the summary judgment
evidence indicates that Ward communicated to Morris or to Permison that Morris
was acting as his agent. We conclude that the trial court properly granted summary
16
judgment as to breach of contract. Damage to credit is not an independent tort in
Texas, rather it is an element of breach of contract damages. See Gabriel v.
Associated Credit Union of Texas, No. 14-12-00349-CV, 2013 WL 865577, at *4
n.8 (Tex. App.—Houston [14th Dist.] Mar. 7, 2013, pet. denied) (mem. op.) (citing
Mead v. Johnson Grp. Inc., 615 S.W.3d 685, 688 (Tex. 1981)). Accordingly, the
trial court did not err by dismissing Permison’s claim for damage to credit.
2. Permison’s other claims fail because they all depend on findings
that Ward was the landlord and owner of the house.
Several of Permison’s other claims also fail because there is no evidence that
Ward was Permison’s landlord or the owner of the house. These include
constructive eviction and interference with property rights,8 wrongful eviction,9
8
Constructive eviction requires conduct by the landlord that “materially interferes
with the tenant’s beneficial use of the premises.” Richardson v. SV Almeda I Ltd.
P’ship, No. 01-11-01004-CV, 2013 WL 4680392, at *7 (Tex. App.—Houston [1st
Dist.] Aug. 29, 2013, no pet.) (mem. op.) (stating elements of cause of action for
constructive eviction); see Pinter v. Asafi Law Firm, No. 01-12-00048-CV, 2012
WL 5458426, at *4 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem.
op.) (“A cause of action for tortious interference with the peaceful use and
enjoyment of property is a claim for intentional interference with property
rights.”).
9
“To establish a claim for wrongful eviction, a plaintiff must show that (1) she had
an unexpired rental contract with the landlord; (2) she occupied the premises;
(3) the landlord evicted her; and (4) she suffered damages attributable to the
eviction.” Green v. Fed. Nat’l Mortgage Ass’n, No. 01-18-00258-CV, 2019 WL
1716347, at *3 (Tex. App.—Houston [1st Dist.] Apr. 18, 2019, pet. filed) (mem.
op.); see Hill v. Wells Asset Mgmt., Inc., No. 05-15-00096-CV, 2016 WL
4039256, at *2 (Tex. App.—Dallas July 26, 2016, no pet.) (mem. op.); Mckenzie
v. Carte, 385 S.W.2d 520, 528 (Tex. Civ. App.––Corpus Christi 1964, writ ref’d
n.r.e.).
17
premises liability,10 failure to refund the security deposit,11 willful disclosure of
incorrect ownership information,12 and retaliation.13 Because Permison did not
raise a genuine question of material fact as to whether Ward was Permison’s
landlord or the owner of the house, we hold that the trial court properly granted
summary judgment as to constructive eviction and interference with property
rights, wrongful eviction, premises liability, failure to refund the security deposit,
willful disclosure of incorrect ownership information, and retaliation.
“The elements of common law fraud are: (1) a material representation that
was false when made; (2) when the representation was made, the speaker knew it
10
When an invitee sues a premises owner, he must prove: (1) the property owner had
actual or constructive knowledge of the condition causing the injury; (2) the
condition posed an unreasonable risk of harm; (3) the property owner failed to
take reasonable care to reduce or eliminate the risk; and (4) the property owner’s
failure to use reasonable care to reduce or eliminate the risk was the proximate
cause of his injuries. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014);
Kyles v. S. Loop 2626, LLC, No. 01-17-00355-CV, 2018 WL 3581014, at *3 (Tex.
App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.).
11
“A landlord who in bad faith retains a security deposit in violation of this
subchapter is liable for an amount equal to the sum of $100, three times the
portion of the deposit wrongfully withheld, and the tenant’s reasonable attorney’s
fees in a suit to recover the deposit.” TEX. PROP. CODE § 92.109(a).
12
“A landlord acts in bad faith and is liable according to this subchapter if the
landlord gives” incorrect information about the property’s ownership or
management as required by the Property Code. TEX. PROP. CODE §§ 92.204,
92.205(a).
13
The Property Code prohibits a landlord from taking certain actions because a
tenant has exercised certain legal rights. See TEX. PROP. CODE § 92.331.
18
was false or made it recklessly as a positive assertion without any knowledge of its
truth; (3) the speaker made the representation with the intent that the other party
should act upon it; (4) the party actually and justifiably relied on the
representation; and (5) thereby suffered injury.” DiBello v. Charlie Thomas Ford,
Ltd., 288 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing
Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).
Although no element of the cause of action requires a defendant to be a landlord,
Permison alleged that Ward committed fraud by filing for a wrongful eviction and
presenting “false information leading to a judgment” against him in the eviction
case. In his response to Ward’s motion for summary judgment as to common law
fraud, Permison argued that Ward had a duty to use ordinary care in maintaining
the premises and by warning of a defect because he was the landlord and an owner
of the property. He did not identify any evidence that supported his argument or
that showed he took any action in reliance on a representation made by Ward.
Because Permison failed to come forward with evidence of common law fraud, the
trial court did not err by granting summary judgment on that claim.
B. Ward’s second no evidence motion for summary judgment
In his second no evidence motion for summary judgment, Ward argued that
there was no evidence to support Permison’s conspiracy claim. The Texas
Supreme Court has defined the elements of civil conspiracy as: “(1) two or more
19
persons; (2) an object to be accomplished; (3) a meeting of minds on the object or
course of action; (4) one or more unlawful, overt acts; and (5) damages as the
proximate result.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136,
141 (Tex. 2019) (quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983)).
Civil conspiracy is not an independent tort, but a derivative tort that depends
on participation in some underlying tort for which the plaintiff seeks to hold the
defendant liable. Agar Corp., 2019 WL 1495211, at *4; Tilton v. Marshall, 925
S.W.2d 672, 681 (Tex. 1996); see Vertex Servs., LLC v. Oceanwide Houston, Inc.,
01-18-00125-CV, 2019 WL 3783115, at *10–11 (Tex. App.—Houston [1st Dist.]
Aug. 13, 2019, no pet.). Civil conspiracy therefore “survives or fails alongside” the
underlying tort. Agar Corp., 2019 WL 1495211, at *3.
Permison alleged a civil conspiracy between Ward and Morris to wrongfully
evict him. Having concluded that Permison’s wrongful eviction claim did not
survive summary judgment, we further conclude that his civil conspiracy claim
likewise fails. Id. We hold that the trial court did not err by granting Ward’s second
motion for summary judgment.
We overrule Permison’s first three issues.
20
III. Morris’s motions for directed verdict were properly granted.
At trial, the court granted Morris’s motion for a directed verdict as to
Permison’s claims for: (a) constructive eviction; (b) premises liability and gross
negligence; (c) common law fraud; and (d) damage to credit. Permison abandoned
his claim for conspiracy.
A trial court may order a directed verdict in favor of a defendant when: (1) a
plaintiff fails to present evidence raising a fact issue essential to the plaintiff’s right
of recovery; or (2) the plaintiff admits or the evidence conclusively establishes a
defense to the plaintiff’s cause of action. Prudential Ins. Co. of Am. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Internacional Realty, Inc. v. 2005 RP
W., Ltd., 449 S.W.3d 512, 548 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
When a trial court grants a directed verdict based on the evidence, we employ a
legal sufficiency standard of review on appeal. See City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005) (holding that standard of review for legal sufficiency
challenge applies to review of directed verdict); Austin Bridge & Rd., LP v. Suarez,
556 S.W.3d 363, 376 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). When a
trial court grants a directed verdict based on a question of law, we review that
ruling de novo. Id.
21
On appeal, Permison argues that the trial court erred by granting the motion
for directed verdict in favor of Morris. We look to the evidence introduced at trial
in considering this issue.
A. Constructive eviction.
The elements of a cause of action for constructive eviction are (1) an
intention on the part of the landlord that the tenant shall no longer enjoy the
premises, (2) a material act by the landlord that substantially interferes with the
tenant’s intended use and enjoyment of the premises, (3) an act that permanently
deprives the tenant of the use and enjoyment of the premises, and (4) abandonment
of the premises by the tenant within a reasonable time after the commission of the
act. Richardson v. SV Almeda I Ltd. P’ship, No. 01-11-01004-CV, 2013 WL
4680392, at *7 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem.
op.). The evidence at trial was that Morris placed many mothballs in common areas
of the house and outside the house to control pests, and the tenants then removed
the mothballs when she left. The evidence also showed that mothballs sublimate
from solid to gas, temporarily emitting a noxious smell. But there was no evidence
that the placement of the mothballs permanently deprived Permison of the use and
enjoyment of the premises. Because there was no evidence of at least one element
22
of constructive eviction, we hold that the trial court did not err by granting directed
verdict in favor of Morris on this claim.14
B. Premises liability and gross negligence.
“Premises liability is a special form of negligence where the duty owed to
the plaintiff depends upon the status of the plaintiff at the time the incident
occurred.” W. Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Ordinarily, a landlord has no duty to tenants for dangerous conditions on the leased
premises. When landlord retains possession or control of a portion of the leased
premises, however, the landlord owes the tenant the same duty owed to an invitee.
See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015); Williams v.
Angelopoulous, No. 01-99-00060-CV, 2000 WL 1641127, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 2, 2000, no pet.) (mem. op.). A “landowner’s duty” is to
“make safe or warn against any concealed, unreasonably dangerous conditions of
which the landowner is, or reasonably should be, aware but the invitee is not.”
Austin, 465 S.W.3d at 203.
In this case, the dangerous condition that Permison alleged was Morris’s
excessive use of mothballs. This condition was not concealed; Permison and the
14
In his third amended petition, Permison included a subheading entitled,
“Interference with Plaintiff’s Property Rights and Constructive Eviction,” however
the substance of the pleading was a cause of action for constructive eviction.
23
other tenants were aware. We conclude, therefore, that the trial court did not err by
granting the motion for directed verdict as to premises liability.
Permison also sought damages for gross negligence. He alleged that
Morris’s use of mothballs was gross negligence. Gross negligence means “an act or
omission involving subjective awareness of an extreme degree of risk, indicating
indifference to the rights, safety, or welfare of others.” City of Waco v. Kirwan,
298 S.W.3d 618, 623 (Tex. 2009) (quoting State v. Shumake, 199 S.W.3d 279, 287
(Tex. 2006)). At trial Morris testified that she was not aware of the health risks of
using mothballs, she had never read the package, and she had previously used
mothballs for pest control, even near her asthmatic child. There was no evidence in
the record that Morris was subjectively aware of an extreme risk arising from the
use—or overuse—of mothballs. We conclude the trial court did not err by granting
a directed verdict in favor of Morris on gross negligence.
C. Common law fraud
“The elements of common law fraud are: (1) a material representation that
was false when made; (2) when the representation was made, the speaker knew it
was false or made it recklessly as a positive assertion without any knowledge of its
truth; (3) the speaker made the representation with the intent that the other party
should act upon it; (4) the party actually and justifiably relied on the
representation; and (5) thereby suffered injury.” DiBello, 288 S.W.3d at 122.
24
Permison asserts that Morris made two actionable misrepresentations:
(1) inconsistent representations about who owned and managed the house and
(2) the representation that the house would be “drama free.” As to both, there was
no proof introduced at trial that Permison suffered any injury as a result of the
inconsistent statements about who owned the house or as a result of “drama.” The
evidence showed that Permison suffered injury from the inhalation of vapors
sublimated from mothballs and then decided to leave the house. Because there was
no evidence that Permison was injured by his reliance on the alleged
misrepresentations, we conclude that the court did not err by granting a directed
verdict on common law fraud.
D. Damage to credit.
Permison alleged that the fact of the judicial eviction damaged his credit.
Damage to credit is an element of contract damages and not an independent tort in
Texas. See Gabriel, 2013 WL 865577, at *4 n.8. The trial court granted a directed
verdict on Permison’s damage to credit claim, but it submitted his cause of action
for breach of contract. The trial court found in favor of Morris on the breach of
contract claim. Thus, any possible error from the grant of the motion for directed
verdict was harmless.
25
***
Having considered each of the claims as to which the court granted a
directed verdict, we overrule Permison’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
26