Fabela v. Printz Prop. Mgmt.

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JOHN FABELA, Appellant v. PRINTZ PROPERTY MANAGEMENT LLC, Appellee

No. 11-21-00178-CV

Court of Appeals of Texas, Eleventh District

June 29, 2023

On Appeal from the County Court at Law No. 2 Midland County Texas Trial Court Cause No. CC21805

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

MEMORANDUM OPINION

JOHN M. BAILEY CHIEF JUSTICE

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 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, 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).

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" 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...