Woods v. BW Midtown Cedar Hill, LLC

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GLORIA WOODS AND TORI WOODS, INDIVIDUALLY AND AS NEXT FRIEND OF M.W., A CHILD, Appellants v. BW MIDTOWN CEDAR HILL, L.L.C., Appellee

No. 05-21-00615-CV

Court of Appeals of Texas, Fifth District, Dallas

September 19, 2022

On Appeal from the 134th Judicial District Court Dallas County Texas Trial Court Cause No. DC-20-11275

Before Justices Myers, Pedersen, III, and Garcia

MEMORANDUM OPINION

LANA MYERS, JUSTICE

Gloria Woods and Tori Woods, individually and as next friend of M.W., a child, appeal the trial court's judgment granting BW Midtown Cedar Hill, L.L.C.'s motion for summary judgment on their claims. Appellants bring one issue on appeal contending the trial court erred by granting Midtown's motion for summary judgment.

BACKGROUND

On May 23, 2019, Gloria signed an "Apartment Lease Contract" on an apartment with Midtown. Gloria was the only resident designated on the lease. The lease ran from June 7, 2019 to June 30, 2020. Tori Gloria's daughter, and M.W., Tori's son, moved into the apartment. On November 6, 2019, Gloria sent letters to Midtown and Midtown's management company stating there were concerns about air quality in the apartment. She also stated she had purchased an air quality test kit, which she said "brought to [my] attention that there is dangerous and hazardous mold in the apartment." She did not specifically request that Midtown fix the problem. Instead she stated, "I am only requesting to be let out of my lease and requesting a full return of all monies paid for the lease . . . ." When Midtown received and opened the letter on November 11, 2019, it sent an employee to the apartment who changed the air filter on the HVAC unit. Midtown also offered to schedule an air-duct cleaning. Tori sent an e-mail to Midtown stating she declined having the air ducts cleaned and requested to be let out of the lease. On November 20, 2019, Midtown sent a letter to Gloria stating it would have the air tested if Gloria shared the result of her air testing and if those results suggested there were dangerous or contaminated particles in the apartment. Midtown denied Gloria's request to be released from the lease. Neither Gloria nor Tori made a complaint about mold or submitted work orders related to the presence of mold in the apartment after November 11, 2019. Tori moved out of the apartment on May 31, 2020. Midtown issued Gloria a rent credit for June.

Appellants filed suit against Midtown alleging causes of action for negligence, failure to repair or remedy, retaliation, and breach of contract. Midtown moved for a no-evidence and traditional summary judgment on all of appellants' causes of action. Appellants filed a response to the motion for summary judgment and attached affidavits, discovery responses, and a report from a professional air-quality testing company. Midtown objected to some of the evidence. The trial court granted Midtown's motion for summary and ordered that appellants take nothing on their claims. The court also signed a written order sustaining two of Midtown's objections to appellants' summary judgment evidence and overruling Midtown's other objections.

SUMMARY JUDGMENT

Appellants contend the trial court erred by granting Midtown's motion for summary judgment. When a party moves for both no-evidence and traditional summary judgments, we first consider the no-evidence motion. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). Any claims that survive the no-evidence review will then be reviewed under the traditional standard.

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See Tex. R. Civ. P. 166a(i); Flood v. Katz 294 S.W.3d 756, 762 (Tex. App.-Dallas 2009, pet. denied). We must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Flood, 294 S.W.3d at 762. When analyzing a no-evidence summary judgment, we consider all the evidence in the light most favorable to the nonmovant, we indulge every reasonable inference, and we resolve any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). 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, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). "More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions." Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "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." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

In a traditional summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.-Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller, 168 S.W.3d at 824.

We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Sandberg v. STMicroelectronics, Inc., 600 S.W.3d 511, 521 (Tex. App.-Dallas 2020, pet. denied). When the trial court's order granting the motion for summary judgment does not specify the grounds on which the order is based, the appealing party must negate each ground upon which the judgment could have been based. Rosetta Res. Operating Co., LP v. Martin, 645 S.W.3d 212, 226 (Tex. 2022). "A general statement that the trial court erred by granting the movant's motion for summary judgment may be sufficient to allow argument on all possible grounds that the summary judgment motion was granted, but if a party does not brief those arguments to the court of appeals, the court of appeals cannot properly reverse summary judgment on those grounds." Id. at 227 (internal punctuation omitted); see also id. at 228 (court of appeals erred by reversing summary judgment when appellant did not address each independent ground on which trial court have based its summary judgment).

Who is a Tenant

Midtown's motion for summary judgment argued it had no duty to Tori and M.W. and that Tori and M.W. had no authority to bring certain causes of action because they were not tenants. Section 1 of the lease stated, "This Lease Contract ('Lease') is between you, the resident(s) (list all people signing the Lease): Gloria Woods and us, the owner: Midtown . ." The lease did not list Tori or M.W. Section 2, directly below section 1, stated, "The apartment will be occupied only by you and (list all other occupants not signing the Lease): Above Only-and no one else. Anyone not listed here cannot stay in the apartment for more than 7 days in one week without our prior written consent, and no more than twice that many days in any one month." Gloria signed the lease; Tori and M.W. did not sign it.

Tori signed a rental application with Midtown on May 31, 2019. She testified in her affidavit that a Midtown employee told her before she moved into the apartment leased by Gloria that her "application for residence had been approved." She testified she moved into the unit with Gloria and M.W., and since that time, she had "consistently paid rent in person at the on-site management office" and that she had "received numerous packages that she had to collect from the on-site management office." She stated she was under the impression that she and M.W. were on the lease until she learned in October 2019 that she and M.W. were not on the lease. She said she spoke with the management office "about correcting that mistake," and she said she was told that she and M.W. would be added to the lease. The record contains no evidence that she ever signed the lease or that she and M.W. were listed on the lease as residents of the apartment.

Midtown argued Tori and M.W. were not tenants under the lease because they were not listed on the lease, which required that all residents be listed, and they did not sign the lease. The lease stated no lease changes (with certain inapplicable exceptions) would be permitted during the term of the lease except "by a written addendum or amendment signed by you and us." Another provision stated, "Our representatives . . . have no authority to . . . amend . . . this Lease or any part of it unless in writing, and no authority to make promises, representations, or agreements that impose security duties or other obligations on us or our representatives unless in writing."

Midtown pleaded the statute of frauds, and it argued in its motion for summary judgment that section 26.01(a) and (b)(5) of the Texas Business and Commerce Code barred oral amendment of the lease. Section 26.01(a) and (b)(5) requires that "a lease of real estate for a term longer than one year" be "(1) in writing; and (2) signed by the person to be charged with the promise or agreement." In this case the lease was for longer than one year, June 7, 2019 to June 30, 2020. Thus, the lease is subject to the statute of frauds, and "an oral modification of a written contract is enforceable under the Statute of Frauds only if the modification does not materially alter the obligations imposed by the underlying...