John Fabela v. Printz Property Management LLC ( 2023 )


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  • Opinion filed June 29, 2023
    In The
    Eleventh Court of Appeals
    __________
    No. 11-21-00178-CV
    __________
    JOHN FABELA, Appellant
    V.
    PRINTZ PROPERTY MANAGEMENT LLC, Appellee
    On Appeal from the County Court at Law No. 2
    Midland County, Texas
    Trial Court Cause No. CC21805
    MEMORANDUM OPINION
    This case involves a Residential Leasing and Management Agreement
    between John Fabela and Printz Property Management LLC (Printz). Fabela alleges
    that Printz allowed a tenant to have pets on his property, in violation of the
    Residential Leasing and Management Agreement, and that Printz also failed to
    prevent the tenant from engaging in other activities that caused damage to the
    property. The trial court granted summary judgment in favor of Printz. We affirm
    in part, and we reverse and remand in part.
    Background Facts
    In May 2016, Fabela entered into a Residential Leasing and Property
    Management Agreement with Printz. The agreement is written on a form that is
    promulgated by the Texas Association of Realtors. Pursuant to the terms of the
    agreement, Printz served as Fabela’s broker for purposes of leasing and managing a
    residential property in Midland. Victoria Printz signed the agreement on behalf of
    Printz. Fabela contends that, at the time the parties entered into the agreement, he
    informed Victoria that he did not want any pets in the home, because his family
    members had allergies to some pets. As a result, the phrase “NO PETS ALLOWED”
    was inserted in a section of the agreement entitled “Special Provisions.”
    A few days later, Tora Wilbanks, acting on behalf of Printz, entered into a
    residential lease agreement with Lesa Lea Hubbard. This agreement included a pet
    addendum, which stated that Hubbard would be allowed to keep a black shih tzu dog
    on the property.
    Fabela moved to Irvine, California, in June 2016. However, while visiting
    Midland on December 25, 2016, Fabela observed a large white dog in the back yard
    of the property. Fabela also observed that a satellite dish was attached to the roof.
    Fabela asserts that he then called Printz to complain about the presence of the dog.
    Fabela received a copy of the lease “on or about February 3, 2017,” when he
    was copied on a string of e-mails between Printz employees. Fabela contends that
    this was when he first learned that the lease included a pet addendum. Fabela sent
    an e-mail to Printz on February 1, stating that he was declaring Hubbard in default
    and indicating that he wanted to “exercise [his] Landlord’s remedies under
    2
    Paragraph 27” in the lease.1 Paragraph 27 concerns remedies, including termination,
    that are available to the landlord in the event of default. Fabela’s e-mail also stated
    that the satellite dish had been installed without Fabela’s approval and that “[t]he
    damage to the roof must be remedied as well.”
    On April 7, 2017, Belinda Duke, acting on behalf of Printz, sent an e-mail to
    Fabela inquiring about whether he would be willing to renew Hubbard’s lease, which
    was scheduled to expire on May 31. Fabela replied on the following day, expressing
    his displeasure about the pet addendum to the existing lease and emphasizing that
    “[n]o [p]ets means no pets,” particularly as it concerned dogs inside the house. He
    also stated that he needed the management company to comply with his wishes.
    Fabela also agreed to allow Hubbard to renew the lease if she would pay rent of
    $2450 per month. He reemphasized that, if Hubbard was going to move out, she
    needed to “repair the roof to the condition it was in before the satellite dish was
    installed.”
    On April 12, 2017, Duke signed an amendment on behalf of Fabela that
    extended the lease term until May 31, 2018. However, the lease extension did not
    modify the pet addendum. The same document was later signed by Hubbard.
    In January 2018, while communicating with Duke about two repair requests
    that had been made by Hubbard, Fabela asked Duke “to go follow up to make sure
    they are in compliance with the no pet policy.” It appears that, soon thereafter, Duke
    disclosed to Fabela that the pet addendum was still in effect. Several days later,
    1
    Printz maintains that the February 1 e-mail, together with several other exhibits that were attached
    to Fabela’s affidavit, were unauthenticated. This is incorrect. With the exception of Exhibit No. A-1, the
    text of which was also included in several of the other exhibits, Fabela described and referenced each of
    the exhibits in his summary judgment affidavit.
    3
    Duke sent an e-mail to Fabela apologizing for her “mistake” regarding the presence
    of a pet on the property. Fabela asserts that, prior to the January 2018 e-mail
    exchange, he had no knowledge that Hubbard’s pet had remained on the property
    after the lease was extended.
    In addition to his complaint about the presence of dogs on the premises, Fabela
    also contends (1) that Printz allowed “more people living in the home as [sic]
    allowed under the lease,” resulting in—among other things—more than two cars
    being parked outside of the home; (2) that a parrot “was allowed to fly loose around
    the house and chewed up the moldings around the doors and walls”; (3) that Hubbard
    broke a lock to get access to a hot tub on the premises, and had been using the hot
    tub, against Fabela’s wishes; (4) that a trampoline was in the backyard “against the
    rules”; and (5) that occupants had been smoking inside the house.
    Fabela terminated the management agreement, effective February 9, 2018.
    Two months later, Fabela and Hubbard agreed to further extend the lease, this time
    until May 31, 2019. Like the first extension that was signed by Duke, the second
    extension, which was signed by Fabela, did not alter the pet addendum. In August
    2018, Fabela issued a notice to vacate to Hubbard, and Hubbard moved out in
    response to the notice.
    Fabela filed suit against Printz on August 30, 2019, asserting causes of action
    for negligence and breach of contract. Printz filed a hybrid traditional and no-
    evidence motion for summary judgment that the trial court granted.
    Analysis
    Fabela raises seven issues on appeal, all of which relate to the summary
    judgment in favor of Printz. We review a summary judgment de novo. Travelers
    Ins. Co. v. Joachim, 
    315 S.W.3d 860
    , 862 (Tex. 2010).
    4
    A party moving for traditional summary judgment bears the burden of proving
    that there is no genuine issue of material fact and that it is entitled to judgment as a
    matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 
    508 S.W.3d 254
    , 257 (Tex. 2017). To be entitled to a traditional summary judgment, a
    defendant must conclusively negate at least one essential element of the cause of
    action being asserted or conclusively establish each element of an affirmative
    defense.   Sci. Spectrum, Inc. v. Martinez, 
    941 S.W.2d 910
    , 911 (Tex. 1997).
    Evidence is conclusive only if reasonable people could not differ in their
    conclusions. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 816 (Tex. 2005). If the
    movant initially establishes a right to summary judgment on the issues expressly
    presented in the motion, then the burden shifts to the nonmovant to present to the
    trial court any issues or evidence that would preclude summary judgment. See City
    of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678–79 (Tex. 1979).
    “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); Heirs of Del Real v. Eason, 
    374 S.W.3d 483
    , 486 (Tex. App.—Eastland 2012, no pet.). As such, we review the
    evidence in the light most favorable to the nonmovant, disregarding all contrary
    evidence and inferences. King Ranch, 118 S.W.3d at 751.
    “A no evidence point will be sustained 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 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.” Merrell Dow Pharm., Inc. v.
    Havner, 
    953 S.W.2d 706
    , 711 (Tex. 1997) (citing Robert W. Calvert, “No Evidence”
    5
    and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960)).
    Thus, “a no-evidence summary judgment is improperly granted if the respondent
    brings forth more than a scintilla of probative evidence to raise a genuine issue of
    material fact.” King Ranch, 118 S.W.3d at 751; Tex. Petroleum Land Mgmt., LLC v.
    McMillan, 
    641 S.W.3d 831
    , 840 (Tex. App.—Eastland 2022, no pet.). “Less than a
    scintilla of evidence exists when the evidence is ‘so weak as to do no more than
    create a mere surmise or suspicion’ of a fact.” King Ranch, 118 S.W.3d at 751;
    McMillan, 641 S.W.3d at 840. “More than a scintilla of evidence exists when the
    evidence ‘rises to a level that would enable reasonable and fair-minded people to
    differ in their conclusions.’” King Ranch, 118 S.W.3d at 751 (quoting Havner, 953
    S.W.2d at 711); McMillan, 641 S.W.3d at 840.
    Where, as here, the trial court does not specify the ground for its ruling, a
    summary judgment will be affirmed “if any of the grounds advanced by the motion
    are meritorious.” Bradley v. Shaffer, 
    535 S.W.3d 242
    , 247 (Tex. App.—Eastland
    2017, no pet.); see also State v. Ninety Thousand Two Hundred Thirty-Five
    Dollars & No Cents in U.S. Currency ($90,235), 
    390 S.W.3d 289
    , 292 (Tex. 2013);
    FM Props. Operating Co. v. City of Austin, 
    22 S.W.3d 868
    , 872–73 (Tex. 2000).
    Negligence
    In his first issue, Fabela complains that the trial court erred in determining that
    there is no evidence to support his claims for negligence. “The elements of a
    negligence cause of action are a duty, a breach of that duty, and damages proximately
    caused by the breach of duty.” Doe v. Boys Clubs of Greater Dallas, Inc., 
    907 S.W.2d 472
    , 477 (Tex. 1995). Among other things, Printz’s no-evidence summary
    judgment on Fabela’s negligence cause of action asserted that there was no evidence
    of duty. Specifically, Printz asserted that its duties to Fabela, if any, arise solely as
    a result of the contract and that it therefore has no tort-based duties.
    6
    In Texas, claims must be brought on a contract if liability arises solely from
    the contract. In re Weekley Homes, L.P., 
    180 S.W.3d 127
    , 132 (Tex. 2005) (orig.
    proceeding). Thus, where the injury at issue is only the economic loss to the subject
    of a contract, the action sounds in contract alone. Sharyland Water Supply Corp. v.
    City of Alton, 
    354 S.W.3d 407
    , 417 (Tex. 2011); 1/2 Price Checks Cashed v. United
    Auto. Ins. Co., 
    344 S.W.3d 378
    , 387 (Tex. 2011); Sw. Bell Tel. Co. v. DeLanney,
    
    809 S.W.2d 493
    , 495 (Tex. 1991) (quoting Jim Walter Homes, Inc. v. Reed, 
    711 S.W.2d 617
    , 618 (Tex. 1986)); SCS Builders, Inc. v. Searcy, 
    390 S.W.3d 534
    , 540
    (Tex. App.—Eastland 2012, no pet.) (discussing Sharyland). In Jim Walter Homes,
    for example, the Reeds sued a mobile home manufacturer for failing to construct
    their home in a good and workmanlike fashion. 711 S.W.2d at 617. The Texas
    Supreme Court held that, because the Reeds claimed “that the house they were
    promised and paid for was not the house they received,” such claim could only be
    characterized as a breach of contract. 711 S.W.2d at 618. Likewise, in DeLanney,
    a telephone company was sued for negligently failing to publish a Yellow Pages
    advertisement. 809 S.W.2d at 493. The Texas Supreme Court determined that,
    because the duty to publish the advertisement “arose solely from the contract,” and
    because the claimed damages “were only for the economic loss caused by Bell’s
    failure to perform,” the claim arose solely from the contract. 809 S.W.2d at 495.
    In this case, Fabela alleged that Printz failed to prevent Hubbard from
    damaging the property at issue. Printz’s duties, if any, to take such actions arose
    solely from the contract, and must be determined based on the terms of the
    agreement. Likewise, Fabela seeks to recover damages from Printz for the resulting
    condition of the home. Such losses are directly connected to Printz’s failure to
    perform its alleged contractual duties. We hold that, under these circumstances,
    Fabela’s claims arise solely out of the contract.
    7
    We also conclude that Fabela’s claims for negligence are barred by the statute
    of limitations.   Suits for negligence are governed by the two-year statute of
    limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2017); Hunt Oil
    Co. v. Live Oak Energy, Inc., 
    313 S.W.3d 384
    , 387 (Tex. App.—Dallas 2009, pet.
    denied). As such, Fabela was required to bring his negligence claims “not later than
    two years after the day the cause of action accrue[d].”          CIV. PRAC. & REM.
    § 16.003(a).
    A cause of action generally accrues, and the statute of limitations begins to
    run, when facts come into existence that authorize a claimant to seek a judicial
    remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 
    962 S.W.2d 507
    ,
    514 (Tex. 1998). In the context of negligence cases, the legal injury rule normally
    applies. Under the legal injury rule, accrual occurs when “a wrongful act causes a
    legal injury, even if the fact of injury is not discovered until later, and even if all
    resulting damages have not yet occurred.” Sw. Energy Prod. Co. v. Berry–Helfand,
    
    491 S.W.3d 699
    , 721 (Tex. 2016); see also Schlumberger Tech. Corp. v. Pasko, 
    544 S.W.3d 830
    , 834 (Tex. 2018) (quoting Berry-Hefland, 491 S.W.3d at 721). Absent
    some exception, such as the discovery rule, injuries that arise or develop after the
    legal injury are still deemed to have accrued on the same date as the legal injury that
    caused them. Pasko, 544 S.W.3d at 834.
    In this case, Fabela has pleaded that the discovery rule is applicable to his
    claims. The discovery rule delays accrual until the plaintiff “knew or in the exercise
    of reasonable diligence should have known of the wrongful act and resulting injury.”
    Id. at 834 (quoting S.V. v. R.V., 
    933 S.W.2d 1
    , 4 (Tex. 1996)). Under the discovery
    rule, the limitations period begins to run as soon as the plaintiff discovers or should
    discover any harm, however slight, resulting from the negligence of the defendant.
    Childs v. Haussecker, 
    974 S.W.2d 31
    , 41 (Tex. 1998).
    8
    The summary judgment record demonstrates that Fabela first became aware
    that a dog was at the premises on December 25, 2016, when he drove by the house.
    He further became aware that Hubbard’s lease included the dog addendum, and that
    a dog was likely present inside the house, in February 2017. At this point, Fabela
    knew that the condition of the house was being affected by the presence of pets.
    Additionally, Fabela claims that the roof to the house was damaged when Hubbard
    installed a satellite dish. Fabela also became aware on December 25, 2016, that a
    satellite dish had been installed, and he made requests that such damage be repaired
    in communications to Printz on February 1 and April 8, 2017. Accordingly, the
    summary judgment record conclusively establishes that Fabela could have and did,
    in fact, discover that the property had been damaged more than two years before he
    filed suit against Printz.
    Because Fabela’s claims sound in contract alone, and because his negligence
    cause of action is, in any event, barred by the statute of limitations, the trial court
    did not err in granting summary judgment on his cause of action for negligence.
    Accordingly, we overrule Fabela’s first and third issues.
    Breach of Contract
    In his second issue, Fabela complains that the trial court erred in ruling that
    there was no evidence to support his claim for breach of contract. A claim for breach
    of contract includes 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 to the plaintiff as a result of the defendant’s
    breach. Caprock Inv. Corp. v. Montgomery, 
    321 S.W.3d 91
    , 99 (Tex. App.—
    Eastland 2010, pet. denied).     The no-evidence portion of Printz’s motion for
    summary judgment challenged the evidentiary support for the elements of
    performance and breach.
    9
    With respect to the element of performance, Fabela offered an unsworn
    declaration stating that he did everything that was required of him under the
    agreement, “including but not limited to arranging for any repairs on the property
    and paying [Printz] for its services under the agreement.” See TEX. CIV. PRAC. &
    REM. CODE ANN. § 132.001 (West 2019). In its brief, Printz does not point to
    anything in the record to indicate that Fabela failed to perform under the agreement.
    As such, the element of performance is adequately supported by the record.
    We also conclude that there is evidence of a breach, although the nature of the
    breach is limited. The parties entered into a lease management agreement that
    specifically allowed Printz to negotiate and execute leases on behalf of Fabela,
    including the negotiation of amendments, extensions, and renewals. In so doing,
    Fabela appointed Printz to act as an agent on his behalf. See Dipprey v. Double
    Diamond, Inc., 
    637 S.W.3d 784
    , 804 (Tex. App.—Eastland 2021, no pet.).
    However, the parties also inserted the words “NO PETS ALLOWED” in the Special
    Provisions section of the Residential Leasing and Management Agreement form.
    We construe this provision as a limitation of Printz’s authority to enter into and
    negotiate leases, as well as amendments and extensions to such leases. Printz does
    not argue that the lease is ambiguous in this regard. See Nat’l Union Fire Ins. Co.
    of Pittsburgh, PA v. CBI Indus., Inc., 
    907 S.W.2d 517
    , 520 (Tex. 1995) (“[I]f a
    written contract is so worded that it can be given a definite or certain legal meaning,
    then it is not ambiguous.”). Fabela presented summary judgment evidence showing
    that when Printz signed, and later extended, a lease on behalf of Fabela that allowed
    Hubbard to keep a shih tzu on the premises, Printz breached the agreement.
    Fabela’s claims for breach of contract, however, are not limited to the
    presence of a single shih tzu. As shown above, Fabela also argues that Printz
    breached the agreement by failing to prevent the following: (1) the installation of a
    10
    satellite dish; (2) the presence of at least one other dog; (3) the presence of a parrot;
    (4) smoking inside the home; (5) a broken lock and subsequent use of a hot tub;
    (6) the use of a trampoline; and (7) the presence of additional occupants and parked
    vehicles. Fabela did not meet his burden of presenting summary judgment evidence
    to create a genuine issue of material fact as to a breach of contract with respect to
    these complaints. While the contract limits Printz’s authority to allow pets on the
    premises, it does not indicate that Printz is responsible for monitoring the property
    for tenant misconduct and/or ensuring that the premises are not damaged by the
    tenant. To the contrary, as set forth below, the agreement explicitly states that Printz
    is not responsible or liable for loss or damage to real or personal property and that
    Printz “is not responsible . . . for . . . damages to [Fabela] caused by a tenant’s breach
    of the lease.”
    Printz maintains, and we agree, that each of the activities described above
    would have constituted a breach of Hubbard’s obligations under the lease. Among
    other things, the lease prohibits Hubbard from (1) keeping any other pets on the
    property, (2), changing, adding, or rekeying any locks, (3) making holes in the
    woodwork, (4) installing satellite receivers, (5) keeping or permitting any items that
    cause liability or that affect insurance premiums, and (6) permitting persons other
    than her two children from residing on the property. The lease also indicates that
    neither Hubbard nor any other guest, family member, or occupant, was permitted to
    smoke on the property. Accordingly, while some summary judgment evidence
    showed that Printz breached the contract, that evidence showed that the breach was
    limited to Printz’s failure to contractually prohibit the presence of a shih tzu on the
    property. On that basis, Fabela’s second issue is sustained in part and overruled in
    part.
    11
    The “Liability and Indemnification” Clauses
    In his fourth issue, Fabela argues that the trial court erred in granting summary
    judgment based on section 16 of the contract, which is labeled “Liability and
    Indemnification.” Section 16 reads as follows:
    16. LIABILITY AND INDEMNIFICATION:
    A. [Printz] is not responsible or liable in any manner for personal
    injury to any person or for loss or damage to any person’s real or
    personal property resulting from any act or omission not caused
    by [Printz’s] negligence, including but not limited to injuries or
    damages caused by:
    (1) other brokers, their associates, inspectors, appraisers, and
    contractors who are authorized to access the Property;
    (2) acts of third parties (for example, vandalism, theft, or other
    criminal acts);
    (3) freezing or leaking water pipes;
    (4) failure to properly water the foundation of the Property;
    (5) a dangerous condition or environmental condition on the
    Property; or
    (6) the Property’s non-compliance with any law or ordinance.
    B. [Printz] is not responsible or liable in any manner for:
    (1) any late fees or other charges [Fabela] incurs to any creditor
    caused by late or insufficient payments by any tenant in the
    Property; or
    (2) damages to [Fabela] caused by a tenant’s breach of a lease.
    C. [Fabela] agrees to protect, defend, indemnify, and hold [Printz]
    harmless from any damage, costs, attorney’s fees, and expenses
    that:
    (1) are caused by [Fabela], negligently or otherwise;
    (2) arise from [Fabela’s] failure to disclose any material or
    relevant information about the Property;
    (3) are caused by [Fabela] giving incorrect information to any
    person; or
    12
    (4) are related to the management of the Property and are not
    caused by [Printz], negligently or otherwise.
    D. [Fabela] is responsible and liable for all contracts and obligations
    related to the Property (for example, maintenance, service, repair
    and utility agreements) entered into before or during this
    agreement by [Fabela] or by [Printz] under [Printz’s] authority
    under this agreement. [Fabela] agrees to hold [Printz] harmless
    from all claims related to any such contracts.
    Both parties describe various provisions in this section as “limitations of liability.”
    We believe this characterization is incorrect. “Limitation of liability” normally
    refers to a clause that sets an upper limit to the amount that is recoverable under a
    contract. See Arthur’s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 
    997 S.W.2d 803
    ,
    810 (Tex. App.—Dallas 1999, no pet.). Instead, we believe that the language that
    Printz relies on in section 16 should be characterized as a series of disclaimers of
    liability. Regardless of the distinction, we address the issue based on the substance
    of the arguments made by the parties. See Horton v. Stovall, 
    591 S.W.3d 567
    , 567–
    68 (Tex. 2019) (“Rather than disposing of appeals based on harmless procedural
    defects, ‘appellate courts should reach the merits of an appeal whenever reasonably
    possible.’”) (quoting Perry v. Cohen, 
    272 S.W.3d 585
    , 587 (Tex. 2008)).
    When interpreting an agreement, our primary concern is to ascertain and give
    effect to the intent of the parties as expressed in the contract. In re Serv. Corp. Int’l,
    
    355 S.W.3d 655
    , 661 (Tex. 2011); Seagull Energy E & P, Inc. v. Eland Energy, Inc.,
    
    207 S.W.3d 342
    , 345 (Tex. 2006) (citations omitted). We therefore must examine
    and consider the entire writing in an effort to harmonize and give effect to all its
    provisions, so that none are rendered meaningless. In re Serv. Corp., 355 S.W.3d at
    661. “If the language lends itself to a clear and definite legal meaning, the contract
    13
    is not ambiguous and will be construed as a matter of law.” Great Am. Ins. Co. v.
    Primo, 
    512 S.W.3d 890
    , 893 (Tex. 2017).
    In the “Liability and Indemnification” section, Printz attempts to disclaim
    liability in a variety of circumstances.                    Subsection (B) disclaims Printz’s
    responsibility for tenant misconduct, whereas subsection (A) disclaims
    responsibility for misconduct by other third parties, such as contractors, brokers, and
    vandals. Subsection (A) also states that Printz is not responsible for property
    maintenance and code compliance issues. Subsection (C) indicates that Fabela will
    hold Printz harmless for damages caused by Fabela’s own misconduct. It also
    indicates that Fabela will hold Printz harmless for mismanagement of the property,
    unless such damage is caused by Printz. 2 Finally, subsection (D) disclaims Printz’s
    responsibility for Fabela’s contractual obligations. We note, however, that Printz
    does not assert that subsection (D) independently absolves them of liability for
    damages, nor does it brief how subsection (D) would preclude Fabela’s recovery.
    As a result, we restrict our analysis to subsections (A)–(C).
    Based on a review of the entire writing, and in particular, section 16, we
    conclude that the primary intent of these provisions is to indicate that, while Printz
    has undertaken certain obligations as Fabela’s broker, such obligations are limited
    in scope, and do not extend to the various eventualities and damages that are
    described therein.
    Subsection (B) expressly indicates that Printz is not contractually responsible
    for damage that results from “a tenant’s breach of a lease.” However, subsection
    (B) does not fully exonerate Printz from liability.                            While this language
    2
    In subsection (C), Fabela also agrees to defend and indemnify Printz for various claims that might
    result from Fabela’s misconduct. This language is not applicable under the facts of this case.
    14
    unambiguously alleviates Printz from liability for events that are a result of
    Hubbard’s failure to comply with the lease, some of Fabela’s damages—namely,
    those arising out of the presence of a shih tzu on the property—do not involve a
    breach of the lease.
    Similarly, while subsection (C) provides that Fabela will hold Printz harmless
    for damages that are related to the management of the property, it expressly indicates
    that it does not apply to damages that are caused by Printz. As such, because Printz’s
    breach of the “no pets allowed clause” is a cause of some of the claimed damages,
    subsection (C) does not fully apply.
    We likewise do not believe that the language in subsection (A), which
    disclaims responsibility for any “loss or damage to . . . real . . . property . . . not
    caused by [Printz’s] negligence,” is broad enough to include Printz’s liability for
    breach of the “no pets allowed” clause. While the disclaimers in section 16 may
    clarify that Printz does not undertake certain responsibilities that are not otherwise
    addressed in the agreement, they do not eliminate responsibility for contractual
    duties that it has expressly undertaken, including its duty to avoid lease obligations
    that allow pets on the property. To hold otherwise would mean that Printz could
    never be called to account in damages for breach of the “no pets allowed” clause, a
    result that strips such language of any practical meaning or effect. See In re Serv.
    Corp., 355 S.W.3d at 661.
    Our decision would be no different if we were to find that the disclaimers of
    liability in section 16 and the “no pets allowed” clause were in conflict. In
    harmonizing provisions that appear to conflict, “[a]dditions of handwritten or
    typewritten words in, and deletions from, a printed form show the parties’ particular
    intention and control over pre-printed terms.” U.S. Fire Ins. Co. v. Lynd Co., 
    399 S.W.3d 206
    , 216 (Tex. App.—San Antonio 2012, pet. denied); see also Southland
    15
    Royalty Co. v. Pan Am. Petroleum Corp., 
    378 S.W.2d 50
    , 57 (Tex. 1964);
    McMahon v. Christmann, 
    303 S.W.2d 341
    , 344 (Tex. 1957) (“One of the rules of
    construction for resolving conflicts requires that typewritten matter in a contract be
    given effect over printed matter.”); McCreary v. Bay Area Bank & Tr., 
    68 S.W.3d 727
    , 732 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d); Easy Living, Inc. v.
    Cash, 
    617 S.W.2d 781
    , 785 (Tex. App.—Fort Worth 1981, no writ). As such, in the
    event of any conflict, the “no pets allowed clause”—which the parties inserted into
    the Texas Association of Realtors standard form—would control over the language
    in section 16.
    We hold that, while the disclaimers in subsections (A), (B), and (C) are
    generally applicable to the claims and related damages asserted by Fabela, they do
    not apply to Fabela’s claim for breach of contract arising out of the presence of a
    shih tzu on the property. Issue four is sustained in part and overruled in part.
    Failure to Mitigate
    In his fifth issue, Fabela complains that the trial court erred in granting
    summary judgment on Printz’s affirmative defense of failure to mitigate. Printz did
    not plead failure to mitigate in the trial court. Fabela correctly points out that this
    omission prevents Printz from securing a summary judgment on the affirmative
    defense of mitigation. See TEX. R. CIV. P. 94; Austin Hill Country Realty, Inc. v.
    Palisades Plaza, Inc., 
    948 S.W.2d 293
    , 300 (Tex. 1997) (recognizing complete
    failure to mitigate as an affirmative defense); Phillips v. Phillips, 
    820 S.W.2d 785
    ,
    789 (Tex. 1991) (“As a general rule, an affirmative defense must be pleaded or it is
    waived.”); Feazell v. Mesa Airlines, Inc., 
    917 S.W.2d 895
    , 901 (Tex. App.—Fort
    Worth 1996), writ denied, 
    938 S.W.2d 31
     (Tex. 1997) (“A defendant-movant is not
    entitled to summary judgment on an affirmative defense that is not pled in its answer
    and appears for the first time in its motion for summary judgment.”); see also Allstar
    16
    Refinishing & Collision Ctr., Inc. v. Rosas, No. 11-07-00268-CV, 
    2009 WL 481885
    ,
    at *3 (Tex. App.—Eastland Feb. 26, 2009, no pet.) (mem. op.) (“The mitigation-of-
    damages doctrine is an affirmative defense.”). On appeal, Printz does not respond
    to this issue.
    Because Printz did not plead failure to mitigate in the trial court, issue five is
    sustained.
    Ratification
    In his sixth issue, Fabela complains that the trial court erred in granting
    summary judgment for Printz on the issue of ratification. “Ratification is the
    adoption or confirmation by a person with knowledge of all material facts of a prior
    act which did not then legally bind him and which he had the right to repudiate.”
    BPX Operating Co. v. Strickhausen, 
    629 S.W.3d 189
    , 196 (Tex. 2021) (quoting
    Wise v. Pena, 
    552 S.W.2d 196
    , 199 (Tex. App.—Corpus Christi–Edinburg 1977,
    writ dism’d); Tex. Petroleum Land Mgmt., LLC v. McMillan, 
    641 S.W.3d 831
    , 844
    (Tex. App.—Eastland 2022, no pet.). It operates as an agreement, express or
    implied, to be bound by the act of another performed for him. Strickhausen, 629
    S.W.3d at 196. Ratification may occur by express act or word, or it may be inferred
    by a party’s course of conduct. Id.
    Where the facts are uncontroverted, ratification can be decided as a matter of
    law. Id. Whether a party has ratified changes to a contract is a matter of intent. Id.;
    Smith v. Estill, 
    28 S.W. 801
    , 805 (Tex. 1894) (“To constitute a ratification, it must
    appear that the acts relied upon were done with a full knowledge of all the facts, and
    with intent to adopt the unauthorized act in question.”).
    When analyzing a claim of implied ratification, a party’s subjective state of
    mind is immaterial. Strickhausen, 629 S.W.3d at 197. Rather, courts look to
    objective evidence of intent based on the party’s course of conduct under “the totality
    17
    of the circumstances.” Id. (quoting State v. One (1) 2004 Lincoln Navigator, 
    494 S.W.3d 690
    , 706 (Tex. 2016) (Devine, J., concurring)). Furthermore, to avoid undue
    interference with a party’s right to reject contract terms to which they do not agree,
    the party’s actions must be shown to “clearly evidenc[e] an intention to ratify.”
    Strickhausen, 629 S.W.3d at 197-98 (quoting Chrisman v. Electrastart of Houston,
    Inc., No. 14-02-00516-CV, 
    2003 WL 22996909
    , at *5 (Tex. App.—Houston [14th
    Dist.] Dec. 23, 2003, no pet.) (mem. op.)).
    In support of a summary judgment on its claim of ratification, Printz claims
    that Fabela approved an extension of the lease in May 2017 even though he was
    aware that (1) a dog was on the premises, and (2) the lease included a pet addendum.
    Printz claims that Fabela then kept payments and failed to object to the language of
    the new lease. Finally, Printz claims that Fabela ultimately agreed to his own
    extension of the lease (including the pet addendum) in 2018.
    In his response to the motion, Fabela offered evidence that—during the same
    week that he discovered a dog on the property—he called Printz to complain. He
    also offered evidence by which it can be inferred that he asked for the pet addendum
    to be removed on renewal. This evidence is further bolstered by Duke’s e-mail,
    which apologizes for her apparent mistake when she included the pet addendum in
    the renewal.
    We are also unconvinced that Fabela’s acceptance of rent establishes
    ratification as a matter of law, particularly considering the evidence showing that
    Printz had already bound Fabela to performance under the 2016 and 2017 leases
    before he became aware that the leases included pet addendums. Likewise, Fabela’s
    agreement to a pet addendum in the 2018 lease does not retroactively establish
    ratification of the 2016 and 2017 leases as a matter of law.
    18
    Because Fabela has raised a genuine issue of material fact concerning his
    ratification of the agreement, summary judgment is not proper, and Fabela’s sixth
    issue is sustained.
    Waiver
    In his seventh issue, Fabela complains that the trial court erred in granting
    summary judgment on the issue of waiver. Waiver is “an intentional relinquishment
    of a known right or intentional conduct inconsistent with claiming that right.”
    Chalker Energy Partners III, LLC v. Le Norman Operating LLC, 
    595 S.W.3d 668
    ,
    676 (Tex. 2020) (quoting Jernigan v. Langley, 
    111 S.W.3d 153
    , 156 (Tex. 2003)
    (per curiam)); Tex. Ass’n of Sch. Boards Risk Mgmt. Fund v. Colorado Indep. Sch.
    Dist., 
    660 S.W.3d 767
    , 773 (Tex. App.—Eastland 2023, no pet.). However, a right
    cannot be waived if the person sought to be charged with waiver says or does nothing
    inconsistent with an intent to rely on such right. Chalker, 595 S.W.3d at 677. Thus,
    to establish waiver by conduct, such conduct must be “unequivocally inconsistent
    with claiming a known right.” Id. (quoting Shields Ltd. P’ship v. Bradberry, 
    526 S.W.3d 471
    , 485 (Tex. 2017); Van Indep. Sch. Dist. v. McCarty, 
    165 S.W.3d 351
    ,
    353 (Tex. 2005)); see also Moore v. Moore, 
    568 S.W.3d 725
    , 731 (Tex. App.—
    Eastland 2019, no pet.) (“[T]he surrounding facts and circumstances must clearly
    demonstrate an intent to waive the right.”).
    In support of its affirmative defense of waiver, Printz relies on the same facts
    that support its affirmative defense of ratification. The evidence that Fabela offered
    in connection with the issue of ratification—as described above—also demonstrates
    a genuine issue of material fact as to whether Fabela acted in a manner that was
    unequivocally inconsistent with claiming his right to enforce the “no pets allowed”
    clause. As such, summary judgment on the issue of waiver was also improper, and
    Fabela’s seventh issue is sustained.
    19
    Printz’s Objections
    Printz objects to several statements that are made in affidavits that Fabela filed
    in opposition to the motion for summary judgment. Printz contends that such
    statements are conclusory. Printz did not object to these statements in the trial court.
    However, Printz maintains that objections based on conclusory evidence can still be
    made on appeal under the Texas Supreme Court’s holding in Wal-Mart Stores,
    Inc. v. Merrell, 
    313 S.W.3d 837
     (Tex. 2010). In Merrell, the supreme court held that
    conclusory expert testimony cannot be used to support a summary judgment, even
    when no objection was made to the testimony in the trial court. 
    313 S.W.3d at 839
    .
    We have reviewed the statements to which Printz now objects and have determined
    that none of those statements are germane to our holdings above. As such, it is not
    necessary to reach this issue, and we do not comment on whether the holding in
    Merrell should be extended to include sworn statements of fact that are offered in
    response to motions for summary judgment.
    This Court’s Ruling
    We hold that: (1) Fabela has failed to raise a genuine issue of material fact as
    to his cause of action for negligence; (2) Fabela’s claims for negligence are barred
    by the two-year statute of limitations; (3) Fabela has successfully raised a genuine
    issue of material fact as to his cause of action for breach of contract, but only with
    respect to the presence of the shih tzu on the property; (4) while Printz’s summary
    judgment evidence does not conclusively establish that it disclaimed liability for the
    presence of a shih tzu on the property, it conclusively disclaims liability as to
    Fabela’s remaining damages; (5) Printz has waived the issue of failure to mitigate;
    and (6) there is a genuine issue of material fact as to Printz’s affirmative defenses of
    ratification and waiver. We affirm the judgment of the trial court with respect to
    Fabela’s cause of action for negligence. However, we reverse the judgment of the
    20
    trial court with respect to Fabela’s cause of action for breach of contract, and we
    remand that claim to the trial court for further proceedings consistent with this
    opinion.
    JOHN M. BAILEY
    CHIEF JUSTICE
    June 29, 2023
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    21