Irma K. Ortega v. Ernest Dixon Murrah, D/B/A Murrah Properties

Concurring opinion issued November 17, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00651-CV
———————————
IRMA K. ORTEGA, Appellant
V.
ERNEST DIXON MURRAH D/B/A MURRAH PROPERTIES, Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2013-17308

CONCURRING OPINION

This is an important case in the underdeveloped and evolving area of law

regarding the duties of landlords to tenants. Because I disagree with the majority’s

analysis of the law, and, in particular, with its analysis of the duties of the landlord
to the tenant under the terms of the Lease and of Subchapter B, section 92.052 of the

Property Code, I respectfully concur in the judgment only.

In this premises defect claim brought by a tenant—appellant, Irma K.

Ortega—against her landlord—appellee, Ernest Dixon Murrah d/b/a Murrah

Properties—the trial court granted summary judgment in favor of Murrah, rendering

a take-nothing judgment against Ortega. In six issues, Ortega argues that the trial

court erred in granting summary judgment to Murrah because Murrah owed Ortega

a duty to repair the sink and his failure to repair proximately caused her injury.

I agree with the majority that, under the facts of this case and the applicable

law, Murrah had no duty to repair the sink in Ortega’s rented residence and no legal

responsibility for her injuries. However, I also believe that he would have had such

a duty under both the Lease and Chapter 92, Subchapter B of the Property Code had

Ortega given him the required written notice. Therefore, I concur in the judgment

only.

Background

Ortega sued her landlord, Murrah, for injuries she sustained when she slipped

on a wet floor in the home that she leased from Murrah. 1 She alleged that “[t]he

drainpipe under the kitchen sink of the residence would come loose allowing water

1
The home that Ortega leased was described in the lease as a “single family
dwelling.”

2
to leak on the floor in the kitchen and dining room areas.” She asserted that she had

informed Murrah of the condition, and he had promised to fix it but had failed to do

so. Ortega alleged that on January 6, 2012,

[Ortega] needed to use the sink . . . and attempted to keep the pipe in
place by putting an object under it to keep it in place. This did not work
and water leaked. [Ortega] began mopping up the water and slipped and
fell on the wet floor. [She] was not fully recovered from the injuries she
sustained in this incident when on May 9, 2012, the knee of the same
leg that [she] broke when she fell in January, buckled causing her to
fall.

She asserted that Murrah’s negligent conduct in failing to repair the sink created an

unreasonably dangerous condition on the property, that Murrah knew or should have

known of the danger, and that he failed to exercise ordinary care by failing to make

the condition reasonably safe. Ortega asserted that she was an invitee at the time.

She sought $1 million in damages for her bodily injuries, medical care, and physical

pain and mental anguish. Ortega subsequently amended her petition to allege that

Murrah “had a duty to make repairs, arising from his undertaking to do so, and

pursuant to [section] 92.052 of the Property Code.”

Murrah generally denied Ortega’s allegations and asserted that “the incident

[at] issue was caused, in whole or in part, by the contributory negligence and

comparative fault” of Ortega. He also moved for traditional summary judgment,

asserting that (1) “a lessor such as [Murrah] generally has no duty to tenants for

dangerous conditions on rented property (except in circumstances which are

3
inapplicable to this situation)”; (2) the Lease did not obligate Murrah to make repairs

unless Ortega notified him in writing of the need for repairs, and no such notice was

provided; and (3) “because Ms. Ortega was aware of the water on the floor and had

already mopped up the water . . . no act or omission of [Murrah’s] . . . [was] the legal

proximate cause of [Ortega’s] slip and fall.”

The summary judgment evidence showed that, in July 2011, Ortega entered

into a residential real estate lease with Murrah (the Lease). The Lease obligated

Ortega, as the tenant, to “[k]eep all plumbing fixtures in the Premises as clean as its

condition permits,” “[u]se all electrical, plumbing sanitary, heating, ventilating, air-

conditioning and other facilities and appliances, in the Premises in a reasonable

manner,” and “[n]ot deliberately or negligently destroy, deface, damage, impair or

remove a part of the Premises, or knowingly permit any other person to do so.” The

Lease further provided that Ortega was responsible for paying for repairs, including

plumbing repairs, “resulting from abuse, neglect, and/or ignorance.”

In addition, the Lease contained a provision regarding the “Present and

Continuing Habitability” of the premises. It stated in relevant part, that “[Ortega]

had inspected the Premises and fixtures . . . and acknowledges that the Premises are

in a reasonable and acceptable condition of habitability for their intended use.” The

parties agreed that “[i]f the condition changes so that, in [her] opinion, the

habitability and rental value of the Premises are adversely affected, [she] shall

4
promptly provide reasonable notice to [Murrah].” The Lease also contained a

provision requiring written notices that stated, “Notices under this Lease shall not

be deemed valid unless given or served in writing and forwarded by mail, postage

prepaid, addressed as follows,” namely, to Murrah at the same address to which the

rent was paid and to the Ortegas at their rented residence.

At the time the Lease was signed and the Ortegas moved in, the sink was

working properly and the residence was in a habitable condition. Murrah gave the

Ortegas his business card with a telephone number on it and told them to call if

anything needed repair. Ortega testified in her deposition that she first noticed a leak

under the sink in October 2011, and her husband called and spoke to Murrah’s wife

to explain that there was “some dampness” under the sink. Murrah’s wife stated that

she would send Murrah to repair the sink, but that never happened. The leak

worsened, and Ortega’s husband again called and spoke to Murrah’s wife regarding

the leak. Ortega stated that “[a]fter a while, I just got a cup and I put it underneath

the pipe [to] hold it in place” and that when nobody came to fix the sink, she “kind

of got used to just using a little bit of water at the time and washing the dishes.”

Ortega testified that her husband called and spoke to Murrah’s wife on at least

one other occasion, and she stated that she told Murrah’s daughter about the broken

pipe. Ortega asked Murrah’s daughter to tell Murrah about the broken pipe, and

Murrah’s daughter informed Ortega that when her own air conditioner broke, she

5
had to hire a repairman and pay for the repairs herself. Ortega also adduced phone

records showing numerous phone calls to Murrah’s number between October 2011

and January 2012. Ortega testified that she continued using the sink despite the leak.

On January 6, 2012, the pipe, which Ortega had propped up to try to keep it

in place while she was washing dishes, came loose while she was using the sink,

flooding the kitchen. Ortega mopped up the water, but the floor was still wet. She

then left the room to attend to her baby in a different room. When she walked back

into the kitchen, she slipped and fell on the wet floor, breaking her leg.

Ortega later reinjured her leg. She testified at her deposition that,

approximately four months after her initial fall, she again fell while in the home she

rented from Murrah. She testified that her injured left leg “gave out,” causing her to

lose her balance and fall. She stated that she would not have fallen if not for her

previous injury and that the injuries from her second fall delayed her healing.

Murrah claimed he had not gotten notice of the condition, despite the phone

records showing the telephone calls made to the number he had given Ortega to

report the need for repairs.

The trial court granted summary judgment in Murrah’s favor without stating

the grounds on which it relied and without making any findings of fact or

conclusions of law. Ortega appealed.

6
 Summary Judgment Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). When a summary judgment order does not specify

the grounds on which it was granted, we will affirm the judgment if any one of the

theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 157 (Tex. 2004).

Traditional summary judgment is proper only when the movant establishes

that there is no genuine issue of material fact and that he is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In reviewing a traditional summary

judgment, we must indulge every reasonable inference in favor of the nonmovant,

take all evidence favorable to the nonmovant as true, and resolve any doubts in favor

of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

When a defendant moves for traditional summary judgment, he must either:

(1) disprove at least one essential element of the plaintiff’s cause of action, or

(2) plead and conclusively establish each essential element of his affirmative

defense, thereby defeating the plaintiff’s cause of action. See Little v. Tex. Dep't of

Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004); Cathey v. Booth, 900 S.W.2d

339, 341 (Tex. 1995) (per curiam); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,

197 (Tex. 1995).

7
 A matter is conclusively established if reasonable people could not differ as

to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005); Cleveland v. Taylor, 397 S.W.3d 683, 697 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied). If the movant meets his burden, the

burden then shifts to the nonmovant to raise a genuine issue of material fact

precluding summary judgment. See Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating that summary judgment evidence

raises fact issue if reasonable and fair-minded jurors could differ in their conclusions

in light of all evidence presented); Centeq Realty, Inc., 899 S.W.2d at 197. To

determine if the nonmovant raised a fact issue, we review the evidence in the light

most favorable to the nonmovant, crediting favorable evidence if reasonable jurors

could and disregarding contrary evidence unless reasonable jurors could not.

Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland,

397 S.W.3d at 697. We indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997));

Cleveland, 397 S.W.3d at 697.

Landlord’s Duties to Tenant

Ortega sued Murrah for negligence and premises liability, and Murrah moved

for summary judgment, arguing that he owed Ortega no duty to repair and that, even

8
if he did, his failure to make repairs did not cause Ortega’s injury. The majority

concludes that Ortega could not establish a duty on the part of Murrah under

premises defect law, and it concentrates on Ortega’s other issues. Slip Op. at 5–6.

As framed by the majority, these are “that Murrah had a duty to repair the kitchen

sink because (1) he agreed to make repairs in the written lease, (2) he undertook a

duty to make repairs in a subsequent oral agreement, and (3) Texas Property Code

section 92.052 imposed such a duty upon Murrah.” Slip Op. at 3.

I agree that Murrah had no duty to Ortega under premises defect law. But I

disagree with the majority’s analysis of both the Lease and section 92.052 and

specifically with its conclusions (1) that “[t]he lease did not create a duty to repair,”

slip op. at 6, and (2) that “Property Code Section 92.052 does not create a duty to

repair,” slip op. at 12. I believe that both the Lease and section 92.052 impose a duty

to repair under specified conditions but that the conditions for imposition of the duty

to repair were not met in this case. I further believe that these issues are dispositive.

Therefore, I consider Ortega’s argument that Murrah undertook a duty to make

repairs in a subsequent oral agreement to be irrelevant and immaterial.

A. Landlord’s Duty to Tenant Under Premises Defect Law

In her first issue on appeal, Ortega argues that the trial court erred in granting

Murrah summary judgment on her claims under premises defect law. Ortega

asserted in her petition that Murrah’s negligent conduct in failing to repair the sink

9
created an unreasonably dangerous condition on the property, that Murrah knew or

should have known of the danger, that he failed to exercise ordinary care by failing

to make the condition reasonably safe, and that his negligence in failing to repair the

sink proximately caused her injuries when she slipped in the water on the floor

spilled from the broken pipe and broke her leg. Thus, Ortega pled a cause of action

against Murrah for negligence under a premises defect liability theory.

To prevail on her premises defect claim, Ortega had to establish the existence

of a legal duty owed by Murrah to her, a breach of that duty, and damages

proximately resulting from the breach. See W. Invs., Inc. v. Urena, 162 S.W.3d 547,

550 (Tex. 2005); West v. SMG, 318 S.W.3d 430, 437 (Tex. App.––Houston [1st

Dist.] 2010, no pet.). To be entitled to summary judgment on this claim, Murrah had

to disprove at least one essential element of Ortega’s premises defect cause of action.

See Little, 148 S.W.3d at 381. Murrah moved for summary judgment on both the

duty and the causation element of this cause of action. Because, like the majority, I

would hold that Murrah had no duty to Ortega on a premises defect theory, I would

not reach the issue of causation.

Ortega alleged in her petition that she was Murrah’s invitee. Under premises

defect law, an invitee must prove that the landowner had (1) “actual or constructive

knowledge of some condition on the premises” that (2) “posed an unreasonable risk

of harm”; (3) the controller of the premises failed to “exercise reasonable care to

10
reduce or eliminate the risk”; and (4) this failure proximately caused her injuries.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). However, the

pleadings and the summary judgment evidence in this case demonstrate that Ortega

was Murrah’s tenant, not his invitee. Texas law has treated the relationship between

a landlord and his tenant as distinct from the duty owed by the owner or occupier of

land to invitees.

Historically, under the common law a landlord had no duty to repair leased

premises or to keep them safe. See Philadelphia Indem. Ins. Co. v. White, 490

S.W.3d 468, 478 (Tex. 2016); Garza-Vale v. Kwiecien, 796 S.W.2d 500, 502 (Tex.

App.—San Antonio 1990, writ denied). And the Texas courts have continued to hold

that, generally, a lessor has no duty to tenants or their invitees for dangerous

conditions on the leased premises. Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926

S.W.2d 284, 285 (Tex. 1996); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584,

590 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “This rule stems from the notion

that a lessor relinquishes possession of the premises to the lessee.” Blancett, 177

S.W.3d at 590 (citing Endsley, 926 S.W.2d at 285, Palermo v. Bolivar Yacht Basin,

Inc., 84 S.W.3d 746, 748 (Tex. App.—Houston [1st Dist.] 2002, no pet.), and

RESTATEMENT (SECOND) OF TORTS § 356 cmt. a (1965)).

However, as the majority points out, Texas courts have recognized several

common-law exceptions to this general rule and may impose liability on a lessor for

11
injuries caused by (1) a defect that the lessor was aware of and concealed; (2) a

defect on a portion of the premises that remained under the lessor’s control; or (3) the

lessor’s negligence in making repairs. See Blancett, 177 S.W.3d at 590.

In Blancett, this Court discussed the negligent undertaking of repairs as an

exception to the general rule that a lessor has no duty to his tenant for a dangerous

condition on the leased premises. See id. We held, “[A] lessor who makes repairs

may be liable for injuries resulting from the lessor’s negligence in making those

repairs. If the landlord agrees to repair tenant-controlled areas, the landlord must use

ordinary care in making the repairs.” Id. (citing Endsley, 926 S.W.2d at 285, and

Montelongo v. Goodall, 788 S.W.2d 717, 719 (Tex. App.—Austin 1990, no writ)).

We further stated that allegations that a lessor was negligent in making repairs is “a

separate claim based, not on a dangerous condition known to or discoverable by a

landowner but, instead, a claim based on a lessor’s negligence in making repairs.”

Id. at 591 (emphasis added).

Here, Murrah, as property owner, had no duty to Ortega, as his tenant, for

dangerous conditions on the leased premises. There was no allegation that he was

aware of and concealed a dangerous condition on the premises or that he controlled

the premises. Therefore, he could be liable to Ortega only if had a duty to make

repairs that arose under the terms of the Lease or under section 92.052 or otherwise,

undertook to make those repairs, and breached his duty of ordinary care by making

12
the repairs negligently. Therefore, I, like the majority, would overrule Ortega’s first

issue insofar as it pleads a premises defect theory of liability and I would turn to her

remaining issues.

B. Landlord’s Undertaking to Make Repairs In the Written Lease or in
an Oral Amendment to the Lease

In addition to arguing her premises defect claim in her first issue on appeal,

Ortega contends that Murrah voluntarily undertook to repair the sink either under

the terms of the written lease or orally. She argues that “the written lease contained

specific items that the tenant must repair”; that “[a] reasonable tenant would infer

from this that the things not listed are the responsibility of the landlord”; and that

“[t]his impression is reinforced by the tenant being given the card with the phone

number at the same time the tenant signs the lease.” She cites Blancett and other

cases addressing negligent undertakings to support the proposition that “[a] landlord

who undertakes to provide repairs on leased premises must use care to repair

conditions of which it has notice.”

1. Landlord’s Duty to Repair Under the Terms of the Written Lease

Like the majority, I would first review the Lease to determine whether it

imposed on Murrah a duty to make repairs to a leaking sink on the leased premises.

Here, the Lease obligated Ortega, as the tenant, to “[k]eep all plumbing

fixtures in the Premises as clean as its condition permits,” “[u]se all electrical,

plumbing sanitary, heating, ventilating, air-conditioning and other facilities and

13
appliances, in the Premises in a reasonable manner,” and “[n]ot deliberately or

negligently destroy, deface, damage, impair or remove a part of the Premises, or

knowingly permit any other person to do so.” It provided that Ortega was responsible

for paying for repairs, including plumbing repairs, “resulting from abuse, neglect,

and/or ignorance.” The majority recognizes these provisions of the Lease.

However, the Lease also contained a provision regarding the “Present and

Continuing Habitability” of the premises, which the majority ignores. That

provision stated, in relevant part, “[Ortega] ha[s] inspected the Premises and fixtures

. . . and acknowledges that the Premises are in a reasonable and acceptable condition

of habitability for their intended use.” It also provided, “If the condition changes so

that, in [Ortega’s] opinion, the habitability and rental value of the Premises are

adversely affected, [she] shall promptly provide reasonable notice to [Murrah].”

And, finally, the Lease contained a provision requiring written notices to Murrah at

the same address to which the rent was paid and to the Ortegas at their rented

residence.

The majority holds that the Lease did not contain a provision requiring Murrah

to make repairs and that therefore he had no duty to do so. See Slip Op. at 8–9 (“[W[e

conclude that the terms of the lease did not impose upon Murrah a duty to repair the

kitchen sink or plumbing.”). I would hold that Murrah did have a duty under the

terms of the “Present and Continued Habitability” provision in the written Lease to

14
make repairs to the leased premises upon Ortega’s “promptly provid[ing] reasonable

notice to [him]” that the condition of the premises had changed “so that, in [Ortega’s]

opinion, the habitability and rental value of the Premises [were] adversely affected.”

The Lease also expressly required that written notices of such changed

conditions be sent to Murrah at the address to which the rent was paid. Here, the

unrefuted evidence shows that no such written notice was given. Therefore, I would

hold that Murrah had no duty under the Lease to repair the broken sink, not because

the Lease contained no such requirement but because the conditions necessary for

that duty to attach under the habitability clause were not satisfied. I would also hold

that oral notice was not enough to satisfy the notice terms of the Lease.

2. Landlord’s Oral Modification of the Lease

Ortega also argues, however, that Murrah orally varied the terms of the Lease

by giving her his business card and telling her to call him if he needed repairs.

Murrah denies that that act orally modified the Lease.

The written Lease contained a merger clause, which provided:

Entire Agreement/Amendment. This Lease Agreement contains the entire
agreement of the parties and there are no other promises or conditions in any
other agreement whether oral or written. This Lease may be modified or
amended in writing, if the writing is signed by the party obligated under the
amendment.

If a written instrument is so worded that it can be given a definite or certain

legal meaning, the contract may be construed as a matter of law. Coker v. Coker,

15
650 S.W.2d 391 (Tex. 1983); Tellepsen Builders L.P. v. Kendall/Heaton Assocs.,

Inc., 325 S.W.3d 692, 696 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). An

unambiguous contract will be enforced as written, and parol evidence will not be

admitted to give the contract a different meaning. David J. Sacks, P.C. v. Haden,

266 S.W.3d 447, 450 (Tex. 2008); Tellepsen Builders, 323 S.W. 3d at 696.

Here, there is no ambiguity in the merger clause in the written Lease executed

by the parties. Therefore, I would hold that the Lease must be enforced as written.

See Haden, 266 S.W.3d at 450. In my view, Ortega’s argument that Murrah varied

the terms of the Lease orally is without merit. I would overrule Ortega’s first issue.

It remains to be determined, however, whether Murrah had a statutory duty to

repair the broken sink under chapter 92, Subchapter B, section 92.052 of the Property

Code.

C. Landlord’s Duty to Make Repairs Under Chapter 92, Subchapter B of
the Texas Property Code

In her second issue, Ortega contends that Property Code section 92.052

“places a duty on a residential landlord, with notice, to repair any condition that

‘affects the health and safety’ of a tenant.” She argues that, under section 92.052,

Murrah owed her a duty to repair the broken sink and that his failure to do so

proximately caused her injuries. The history of Subchapter B is instructive.

16
 1. Brief History of Legal Duties in Landlord-Tenant Relationship

In a recent case, the Texas Supreme Court discussed the historical context of

Property Code section 92.052 and the related provisions in Chapter 92, Subchapter

B of the Code. White, 490 S.W.3d at 478–79. The supreme court observed that “[a]s

part of a historically agrarian society, the relationship between a landlord and tenant

was, at its most basic level, a tenant’s promise to pay in exchange for the bare right

to possess the property.” Id. at 478 (citing Kamarath v. Bennett, 568 S.W.2d 658,

660 (Tex. 1978), superseded by statute, Act of May 28, 1979, 66th Leg., R.S. ch.

780, §§ 1–18, 1979 Tex. Gen. Laws 1978, as recognized in Daitch v. Mid-Am.

Apartment Comtys., Inc., 250 S.W.3d 191, 195 (Tex. App.—Dallas 2008, no pet.)).

The court stated that, historically, “no warranty of habitability was implied upon

leasing of the premises,” and, absent specific lease language to the contrary, “a

landlord had no obligation during the term of the lease to maintain or repair the

premises,” and it was the tenant’s duty to make ordinary repairs. Id. The supreme

court recognized, however, that, although “the landlord-tenant relationship had

historically centered on possession, over time tenants became increasingly

concerned with the condition and habitability of the rented premises.” Id. at 479.

Accordingly, the supreme court “abrogated Texas common law by finding an

implied warranty of habitability in Kamarath v. Bennett.” Id.

17
 In Kamarath, the Texas Supreme Court assessed the “factors to be considered

in the appraisal of the legal principles to be applied to the present-day relationship

of landlord and tenant as applied to residential leases.” These included the “public

welfare” interest in requiring dwellings offered for rental to be “in a safe condition

and fit for human habitation”; the landlord’s superior knowledge of “the conditions

of the premises he leases to the tenant,” his knowledge of “[h]ousing code

requirements and violations thereof”; his “better position to know of latent

defects . . . which might go unnoticed by the tenant who rarely has the sufficient

knowledge or experience to discover defects in wiring, plumbing or structural

failures”; the appropriateness “that the landlord who will retain ownership of the

premises and permanent improvements should bear the cost of repairs to make the

premises safe and suitable for human habitation”; and the “much better bargaining

position” of the landlord, who could take advantage of the tenant, resulting “in the

rental of poor housing and violation of public policies.” Id. at 660–61.

Because of these considerations, the supreme court opined that “in a rental of

a dwelling unit, whether for a specified time or at will, there is an implied warranty

of habitability by the landlord that the apartment is habitable and fit for living.” Id.

at 661. It explained, “This means that at the inception of the rental lease there are no

latent defects in the facilities that are vital to the use of the premises for residential

purposes and that these essential facilities will remain in a condition which makes

18
the property livable.” Id. It also held that the tenant’s obligation to pay rent was

dependent on the landlord’s performance under his warranty of habitability. Id.

Shortly after Kamarath was decided, however, the Texas Legislature “enacted

superseding legislation . . . that ‘abrogat[ed] the implied warranty and creat[ed] a

limited landlord duty to repair.” White, 490 S.W.3d at 478–79 (quoting Daitch, 250

S.W.3d at 195). Specifically, the legislature enacted Property Code Chapter 92,

Subchapter B, to set out the landlord’s duty to repair and the tenant’s remedies. See

TEX. PROP. CODE ANN. § 92.061 (West 2014) (providing that “[t]he duties of a

landlord and the remedies of a tenant under this subchapter are in lieu of existing

common law and other statutory law warranties and duties of landlords for

maintenance, repair, security, habitability, and nonretaliation, and remedies of

tenants for a violation of those warranties and duties”); Churchill Forge, Inc. v.

Brown, 61 S.W.3d 368, 376 (Tex. 2001) (“Subchapter B sets out specific minimum

standards of habitability, procedures for enforcing those standards, and remedies for

a landlord’s failure to meet those standards [and] is concerned with the habitability

of a particular premises, and it contains both a procedural and a substantive

component.”) (internal citations omitted). As discussed in White, the legislature also

restricted the freedom landlords and tenants have to shift certain repair obligations

set out in Subchapter B by providing that a landlord’s duties and tenant’s remedies

19
under that chapter cannot be waived except under limited circumstances. See TEX.

PROP. CODE ANN. § 92.006(c) (West Supp. 2016); White, 490 S.W.3d at 479–87.

I believe this case should be decided against its full historical background.

That is, it should be decided not only against the terms of the Lease—here, terms

that include a “Present and Continuing Habitability” provision and a written notices

provision—but also against the background of Kamarath’s recognition of an implied

warranty of habitability, as an exception to the no-duty rule and the Legislature’s

abrogation of that warranty and its replacement with the statutory duties of a landlord

to a tenant set out in Chapter 92, Subchapter B of the Property Code. Thus, I would

decide the issue of whether Murrah had a duty to repair in this case according to

whether Ortega satisfied the conditions for attachment of the landlord’s duty to

repair under Chapter 92 and under the “Present and Continuing Habitability” and

written notice provisions in the Lease.

2. Landlord’s Statutory Duty to Repair and Tenant’s Remedies Under
Subchapter B of the Property Code

A landlord’s statutory duty to repair is set out in Property Code section 92.052,

which provides:

(a) A landlord shall make a diligent effort to repair or remedy a
condition if:

(1) the tenant specifies the condition in a notice to the person to
whom or to the place where rent is normally paid;

20
 (2) the tenant is not delinquent in the payment of rent at the time
notice is given; and

(3) the condition:

(A) materially affects the physical health or safety of an
ordinary tenant; or

(B) arises from the landlord’s failure to provide and maintain
in good operating condition a device to supply hot water of a
minimum temperature of 120 degrees Fahrenheit.

(b) Unless the condition was caused by normal wear and tear, the
landlord does not have a duty during the lease term or a renewal or
extension to repair or remedy a condition caused by:

(1) the tenant;

(2) a lawful occupant in the tenant’s dwelling;

(3) a member of the tenant’s family; or

(4) a guest or invitee of the tenant.

....

(d) The tenant’s notice under Subsection (a) must be in writing only if
the tenant’s lease is in writing and requires written notice.

TEX. PROP. CODE ANN. § 92.052(a)–(d) (West 2014) (emphasis added).

Section 92.053 then places the burden on the plaintiff tenant to show that he

or she has fulfilled the conditions precedent to the landlord’s duty to repair set out

in section 92.052. It provides:

(a) Except as provided by this section, the tenant has the burden of
proof in a judicial action to enforce a right resulting from the

21
 landlord’s failure to repair or remedy a condition under Section
92.052.

(b) If the landlord does not provide a written explanation for delay in
performing a duty to repair or remedy on or before the fifth day after
receiving from the tenant a written demand for an explanation, the
landlord has the burden of proving that he made a diligent effort to
repair and that a reasonable time for repair did not elapse.

Id. § 92.053 (West 2014) (emphasis added).

Section 92.0562 governs “landlord liability and tenant remedies; notice and

time for repair. It provides, in relevant part, that after the tenant has given the

landlord the notice to repair required by section 92.052 and has provided

“subsequent written notice to repair or remedy the condition after a reasonable time

to repair or remedy” has passed, the tenant may:

(1) terminate the lease;

(2) have the condition repaired or remedied according to Section
92.0561;

(3) deduct from the tenant’s rent, without necessity of judicial action,
the cost of the repair or remedy according to Section 92.0561; and

(4) obtain judicial remedies according to Section 92.0563.

Id. § 92.056(b), (e).

Section 92.0561 specifies the tenant’s “repair and deduct remedies.” It

provides that the tenant may have the condition repaired and deduct the cost of the

2
In this opinion, I cite the version of this provision that was in effect until January 1,
2016, which governs the dispute here.

22
repair from the rent payment. Id. § 92.0561(a). It further states that “[t]he tenant’s

deduction for the cost of the repair or remedy may not exceed the amount of one

month’s rent under the lease or $500, whichever is greater,” and that such deductions

may be made “as often as necessary so long as the total repairs and deductions in

any one month do not exceed one month’s rent or $500, whichever is greater.” Id.

§ 92.0561(b)–(c) (West 2014).

Section 92.0563 sets out a tenant’s judicial remedies “for a landlord’s liability

under section 92.0563.” These include obtaining a judgment against the landlord

for a civil penalty or actual damages or an order “directing the landlord to take

reasonable action to repair or remedy the condition” or “reducing the tenant’s rent.”

Id. § 92.0563(a) (West 2014).

Section 92.061 addresses Subchapter B’s “effect on other rights”:

The duties of a landlord and the remedies of a tenant under this
subchapter are in lieu of existing common law and other statutory law
warranties and duties of landlords for maintenance, repair, security,
habitability, and nonretaliation, and remedies of tenants for a violation
of those warranties and duties. Otherwise, this subchapter does not
affect any other right of a landlord or tenant under contract, statutory
law, or common law that is consistent with the purposes of this
subchapter or any right a landlord or tenant may have to bring an
action for personal injury or property damage under the law of this
state. This subchapter does not impose obligations on a landlord or
tenant other than those expressly stated in this subchapter.

Id. § 92.061 (emphasis added).

23
 And section 92.006(c) provides that the requirements of Subchapter B cannot

be waived except in circumstances not applicable here and not argued. See TEX.

PROP. CODE ANN. § 92.006(c) (providing that landlord’s duties and tenant’s

remedies under Subchapter B cannot be waived except under limited circumstances);

White, 490 S.W.3d at 479–87.

In construing this comprehensive statutory scheme, the supreme court has

held that “a landlord’s liability and a tenant’s repair remedies are conditioned on the

existence of a duty under section 92.052.” White, 490 S.W.3d at 485 (citing TEX.

PROP. CODE ANN. §§ 92.056(a) (“A landlord’s liability under this section is subject

to Section 92.052(b) regarding conditions that are caused by a tenant. . . .”),

(e) (providing remedies to tenant to whom landlord is liable), and .0561(d)

(providing tenant repair and deduct remedies “only if . . . [t]he landlord has a duty

to repair or remedy the condition under section 92.052” and other requirements are

met)).

Section 92.052 imposes an obligation to repair only if all of its elements are

satisfied—i.e., the tenant has provided the required notice, the tenant’s rent is not

delinquent, the condition materially affects the physical health or safety of the tenant,

and the condition was not caused by the tenant. Id. at 486. Thus, the party claiming

the existence of a duty under section 92.052—here, Ortega—bears the burden of

proof under that section for establishing the cause of any premises condition if the

24
landlord’s obligation to repair the condition is disputed, as it is here. See id. As the

court observed in White, the burden is properly placed on the tenant because the

tenant is “the party who controls the leased premises and is, therefore, in the best

position to (1) avoid damage to the premises and (2) prove that another party is

responsible for the damage.” Id. It also stated that a different construction would

“place[] the landlord at a distinct disadvantage in attempting to prove the cause of

the damage to premises under the tenant’s control, creating potentially

insurmountable proof problems.” Id. Thus, it held, “Taken together, sections 92.052

and 92.053 create a presumption that damage to premises under the tenant’s control

was caused by the tenant and the tenant must prove otherwise.” Id. at 487.

One of the requirements of Subchapter B is that the tenant must provide notice

to the landlord of any condition requiring repair. Section 92.052 provides that a

landlord has a duty to repair if “the tenant specifies the condition in a notice to the

person to whom or to the place where rent is normally paid.” The notice “must be in

writing only if the tenant’s lease is in writing and requires written notice.” TEX.

PROP. CODE ANN. § 92.052(a)(1), (d). The tenant is entitled to the statutory remedies

after she has given the landlord the notice to repair required by section 92.052 and

has provided “subsequent written notice to repair or remedy the condition after a

reasonable time to repair or remedy.” Id. § 92.056.

25
 Thus, for Murrah to be entitled to summary judgment on the issue of a

landlord’s duty to make repairs under section 92.052, it was sufficient for him to

prove as a matter of law that Ortega did not give him the written notice required to

trigger a landlord’s statutory duty to make repairs under section 92.052. For, in that

case, she would not be able to prove all the elements of her claim against him. See

Little, 148 S.W.3d at 381 (defendant moving for traditional summary on plaintiff’s

claim must disprove at least one essential element of plaintiff’s cause of action).

Here, it is undisputed that the sink was in working order when Ortega took

possession of the home and that it first began to leak in October 2011. Ortega

presented evidence that her husband called the number furnished by Murrah and

spoke to Murrah’s wife about the leak on numerous occasions. However, it is also

undisputed that Ortega never provided written notice to Murrah regarding the defect.

In fact, Ortega did not testify in her deposition that she ever spoke to Murrah at all

regarding the broken sink, only that she spoke to Murrah’s wife and daughter.

The Lease was in writing and provided, “Notices under this Lease shall not be

deemed valid unless given or served in writing and forwarded by mail, postage

prepaid, addressed as follows,” namely, to Murrah at the same address to which the

rent was paid and to the Ortegas at their rented residence. This requirement

corresponds to section 92.052’s requirement that when a condition occurs on leased

premises that “materially affects the physical health or safety of an ordinary tenant,”

26
the tenant must “specif[y] the condition in a notice to the person to whom or to the

place where rent is normally paid.” See id. § 92.052 (a)(1), (3). Here, Ortega’s

Lease was in writing and required written notice as specified in the Lease. It is

undisputed that Ortega neither gave nor served notice on Murrah in writing at the

address to which the rent was paid. I would hold, therefore, that, under the terms of

the written Lease and section 92.052, Ortega’s verbal notice to Murrah’s wife was

insufficient to trigger Murrah’s duty to repair the sink.

Moreover, even if Ortega had given Murrah adequate written notice of the

broken sink at the address at which her rent was paid, she would still have had to

satisfy the other conditions precedent to the attachment of Murrah’s duty to repair

under section 92.052. Namely, she would have had to show that she was not

“delinquent in the payment of rent at the time notice [wa]s given” and that the

condition was of a type that would “materially affect[] the physical health or safety

of an ordinary tenant.” Id. § 92.052(a)(1), (3) (A). And she would also have had to

show that the condition was not caused by herself, “the tenant, a lawful occupant in

the tenant’s dwelling, a member of the tenant’s family, or a guest or invitee of the

tenant.” Id. § 92.052(b); see also id. § 92.053 (“Except as provided by this section,

the tenant has the burden of proof in a judicial action to enforce a right resulting

from the landlord’s failure to repair or remedy a condition under Section 92.052”).

Ortega made no showing that she satisfied the conditions precedent to the attachment

27
of Murrah’s duty to repair the broken sink. Thus, her argument that Murrah had

such a duty to repair and was negligent in the performance of that duty fails.

I would overrule Ortega’s second issue.

D. Ortega’s Subsidiary Arguments That Notice Was Sufficient and that
Murrah Waived Notice

In her third issue, Ortega argues that the trial court erred in granting summary

judgment because the Lease “says that any notice ‘under the lease’ must be in

writing” but “does not say that any notice is required to get repairs.” This argument

misses the point. The terms of both Subchapter B and the Lease require written

notice when, as here, the Lease is in writing and contains a provision requiring

written notice in order for the duty to repair to attach. See TEX. PROP. CODE ANN.

§ 92.052 (d).

In her fourth issue, Ortega argues that Murrah waived the written notice

provision in the Lease. However, a landlord’s duties and a tenant’s remedies under

Subchapter B cannot be waived except under limited circumstances not applicable

here. See TEX. PROP. CODE ANN. § 92.006(c) (West Supp. 2016); White, 490 S.W.3d

at 479–87. Here, the Lease requires written notice to invoke the landlord’s duty to

make repairs to remedy a condition affecting habitability and so does Subchapter B.

See TEX. PROP. CODE ANN. § 92.052(d). Ortega failed to comply with the written

notice requirement in both Subchapter B and the Lease. Thus, Ortega’s duty to repair

the sink never attached.

28
 In her fifth issue, Ortega asserts that Murrah waived any Lease provision

requiring written notice of defects in the Premises by providing her with his phone

number and instructing her to call if she needed any repairs; thus, he is now estopped

from arguing that written notice of defects was required by the Lease. However, as

discussed above, the requirements of Subchapter B cannot be waived except in

circumstances not applicable here and not argued. See TEX. PROP. CODE ANN.

§ 92.006(c); White, 490 S.W.3d at 479–87. The fact that Murrah provided a phone

number for Ortega to use in reporting a need for repair does not replace the notice

requirements set out in section 92.052 and 92.056 to trigger a landlord’s duty to

repair and a tenant’s rights to remedy a breach of that duty under Subchapter B.

I would overrule Ortega’s third through fifth issues.3

3
In her sixth issue, Ortega argues that the trial court erred in relying on Union Pump
Co. v. Allbritton, 898 S.W.2d 773 (Tex. 1995), as cited in Murrah’s motion for
summary judgment. The record does not reflect that the trial court actually relied on
this case in making its ruling. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d
150, 157 (Tex. 2004) (holding that when summary judgment order does not specify
grounds on which it was granted, we will affirm if any one theory advanced in
motion is meritorious). Neither the trial court nor this Court is bound to consider
only the cases cited by a party; rather, we look to the issues raised and, in the context
of reviewing a summary judgment ruling, review those issues de novo. See TEX. R.
APP. P. 166a(c); Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex.
2004). I would overrule Ortega’s sixth issue.

29
 E. Ortega’s Policy Arguments That Subchapter B Provides a Remedy for
her Personal Injuries

Ortega also makes several policy arguments in her brief to support her

assertion that Murrah is liable for her injuries under Chapter 92 of the Property Code,

Subchapter B.

Ortega argues that failing to hold Murrah responsible for her injury leads to

an absurd result: “If the tenant can go through the process set out in Chapter 92,

Subchapter B, before getting injured (or killed), then the landlord is responsible, but

if the tenant gets injured or killed, the landlord suddenly has no duty. Such an absurd

result cannot be what the legislature intended.” Ortega also argues that “[a] close

look at [Property Code section 92.061], in the context of the case before this Court

shows that the legislature intended to establish a duty to repair in Section 92.052 that

would apply to personal injury claims, but without the other limitations in

Subchapter B.”

These arguments, however, misread the law. “Subchapter B sets out specific

minimum standards of habitability, procedures for enforcing those standards, and

remedies for a landlord’s failure to meet those standards.” Brown, 61 S.W.3d at 376

(“[S]ubchapter B is concerned with the habitability of a particular premises, and it

contains both a procedural and a substantive component.”) (citing TEX. PROP. CODE

ANN. §§ 92.051–.061). But Subchapter B “was not intended to limit or preclude

causes of action for personal injuries related to dangerous conditions on a leased

30
property.” See Moreno v. Brittany Square Assocs., 899 S.W.2d 261, 263 (Tex.

App.—Houston [14th Dist.] 1995, writ denied) (discussing construction of Property

Code section 92.061).

Thus, while Subchapter B provides the exclusive duties and remedies

regarding a landlord’s duty to repair or maintain the habitability of a leased premises,

the plain language of section 92.061 provides that Subchapter B “does not affect any

other right of a landlord or tenant under contract, statutory law, or common law that

is consistent with the purposes of this subchapter or any right a landlord or tenant

may have to bring an action for personal injury or property damage under the law

of this state.” See TEX. PROP. CODE ANN. § 92.061 (emphasis added). Thus, rather

than establishing a duty to repair that would apply in personal injury claims, as

Ortega argues, Subchapter B establishes repair duties without affecting the already

existing common-law duties governing personal injury claims.

Ortega’s claim that Chapter 92 provides, or should provide, a remedy for her

injuries fails because she failed to provide adequate notice of the need for repair

under the terms of Chapter 92 of the Property Code—not because Murrah “suddenly

has no duty.” Murrah’s duty to repair the premises was contingent on Ortega’s

compliance with the procedural requirements of Subchapter B. See, e.g., TEX. PROP.

CODE ANN. §§ 92.052, 92.056(b), (e); Brown, 61 S.W.3d at 376. But Ortega failed,

as a matter of law, to show that she provided the required notice to Murrah.

31
 Suppose, however, that Ortega had shown that she had satisfied all of the

conditions precedent to trigger Murrah’s duty to repair the sink, that Murrah had

undertaken to repair the sink, that the repairs had been negligently made, and that

Murrah’s negligence—his failure to use ordinary care in repairing the sink—had

created a condition that proximately caused Ortega to suffer a personal injury.

Under those circumstances, Chapter 92 would not preempt any cause of action for

damages for personal injury that Ortega might be able to plead and prove. See

Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 755 (Tex. 1998)

(concluding that “subchapter B [which includes section 92.052] was intended to

govern disputes between a landlord and a tenant over repairs and not liability for

personal injuries resulting from premises defects actionable under the common

law.”); Blancett, 177 S.W.3d at 590 (discussing negligent undertaking of repairs as

exception to general rule that lessor has no duty to tenant for dangerous condition

on leased premises and holding,“[A] lessor who makes repairs may be liable for

injuries resulting from the lessor’s negligence in making those repairs. If the landlord

agrees to repair tenant-controlled areas, the landlord must use ordinary care in

making the repairs.”); Moreno, 899 S.W.2d at 263.

Thus, the holding of this Court affirming the trial court’s summary judgment

in favor of Murrah should not be read as a holding that no landlord has a duty for

personal injury to his tenant, or even that Murrah had no duty to Ortega here, but

32
rather that Ortega’s notice was insufficient to trigger Murrah’s duty to repair the sink

under the specific facts of this case and that she made no showing that Murrah

undertook to make repairs to the sink, made the repairs negligently, and thereby

created a condition that proximately caused her injuries.

Conclusion

I concur with the majority that the trial court did not err in granting summary

judgment in favor of Murrah.

Evelyn V. Keyes,
Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Keyes, J., concurring.

33