La Joya Housing Authority Association v. Jesus Medina

NUMBER 13-20-00311-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

LA JOYA HOUSING
AUTHORITY ASSOCIATION, Appellant,

v.

JESUS MEDINA, Appellee.

On appeal from the County Court at Law No. 6
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Longoria

Appellant La Joya Housing Authority brings this appeal challenging the trial court’s

denial of its plea to the jurisdiction. Appellant argues that the trial court erred in denying

the plea to the jurisdiction because appellant is immune from suit on all claims brought by

appellee Jesus Medina and there was no waiver of immunity. We reverse and render.
 I. BACKGROUND

Appellee resides in an apartment owned and operated by appellant. In his original

petition, appellee alleged that in May 2017, he suffered injuries when he slipped on water

in his apartment and fell. He stated that the water had been leaking from a faulty air

conditioning unit that had been inadequately repaired by appellant. Appellee brought a

cause of action under the Texas Tort Claims Act (TTCA) for premises defect, alleging that

appellant owned the property and appellee was an invitee as a tenant. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021. Appellee’s petition further alleged that appellant knew

or reasonably should have known about the faulty air conditioning unit that caused him to

fall, owed a duty to ensure the premises did not present a danger to appellee, and

breached that duty.

Appellant answered with a general denial and asserted the affirmative defense of

governmental immunity, among others. Appellant then filed its plea to the jurisdiction,

arguing that appellee could not show waiver of immunity as to the claims against

appellant. Appellee filed a response and appellant replied. The trial court held a hearing

on appellant’s plea to the jurisdiction and ultimately denied it. This interlocutory appeal

followed. See TEX. GOV’T CODE ANN. § 51.014(a)(8).

II. PLEA TO THE JURISDICTION

A. Standard of Review

We review the trial court’s ruling on a plea to the jurisdiction under a de novo

standard of review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26

(Tex. 2004); City of Wichita Falls v. Jenkins, 307 S.W.3d 854, 857 (Tex. App.—Fort Worth

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2010, pet. denied). The plaintiff has the burden of alleging facts that affirmatively establish

the trial court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the plaintiff,

look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Miranda,

133 S.W.3d at 226. Whether undisputed evidence of jurisdictional facts establishes a trial

court’s jurisdiction is a question of law. Id.; Jenkins, 307 S.W.3d at 857.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at

227; Jenkins, 307 S.W.3d at 857. If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the

fact issue will be resolved by the factfinder. Miranda, 133 S.W.3d at 227–28; Jenkins, 307

S.W.3d at 857. But if the relevant evidence is undisputed or fails to raise a fact question

on the jurisdictional issues, the trial court rules on the plea to the jurisdiction as a matter

of law. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard generally

mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at 228; Jenkins, 307

S.W.3d at 857; see TEX. R. CIV. P. 166a(c).

B. Immunity

Under Texas law, a trial court does not have subject matter jurisdiction over a claim

where a governmental unit has been sued unless there has been consent from the

governmental unit. Miranda, 133 S.W.3d at 224. The TTCA only waives immunity for

governmental units for certain types of negligent conduct. See TEX. CIV. PRAC. & REM.

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CODE ANN. § 101.021. The Texas Civil Practice and Remedies Code only waives

immunity for the following types of conduct:

(1) property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting
within his scope of employment if:

(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor driven
equipment; and

(B) the employee would be personally liable to the claimant
according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.

Id.

Here, appellant is a governmental unit that generally enjoys immunity from

suit. See TEX. LOC. GOV’T CODE ANN. § 392.006. Accordingly, it was appellee’s

burden to plead facts which, taken as true, would invoke the trial court’s

jurisdiction. See Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 58 (Tex. App.—

Houston [14th Dist.] 2005, no pet.), disapproved of on other grounds by Rusk State

Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012).

C. Premise Defect

The TTCA permits suit against governmental units for personal injuries caused by,

among other things, the condition of real property, “if the governmental unit would, were

it a private person, be liable to the claimant according to Texas law.” See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021(1)–(2) (Vernon 2005), § 101.022; Perez v. City of Dallas,

180 S.W.3d 906, 910 (Tex. App.—Dallas 2005, no pet.); Lamar Univ. v. Doe, 971 S.W.2d

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191, 195 (Tex. App.—Beaumont 1998, no pet.). The TTCA also provides that when the

condition of real property giving rise to the waiver of immunity is a premises defect,

generally a governmental unit owes to the claimant only the duty that a private person

owes to a licensee on private property. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a).

This limitation of duty under § 101.022 does not apply if the claimant pays for the use of

the premises. Id.; see also Hous. Auth. of City of Beaumont v. Landrio, 269 S.W.3d 735,

746 (Tex. App.—Beaumont 2008, pet. denied), as corrected (Dec. 1, 2008).

Appellee paid for the use of the apartments. The duty owed here is defined by the

relationship of the parties as lessor and lessee, as it would be if the government unit were

“a private person.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); Davies, 158

S.W.3d at 59. Generally, with certain exceptions, a lessor’s liability for conditions on

leased premises ends with transfer of possession and control to the tenant. See Davies,

158 S.W.3d at 59. However, if the lessor has contracted to keep the leased property in

repair, the lessor may be liable to the tenant, and possibly others on the property with the

tenant’s consent, for the failure to exercise reasonable care to complete the repair. See

Shell Oil Co. v. Khan, 138 S.W.3d 288, 297 (Tex. 2004); Harvey v. Seale, 362 S.W.2d

310, 312 (Tex. 1962); RESTATEMENT (SECOND) OF PROPERTY: LANDLORD & TENANT § 17.5

(1977). Comment c to Restatement § 17.5 explains:

The landlord’s duty under the rule stated in this section is not merely
contractual, although it is founded upon a contract. It is a tort duty. It extends
to persons on the leased property with the consent of the tenant, with whom
the landlord has made no contract.

Id., cmt. c. This “tort duty arises from the lessor’s ability to make repairs and his control

over them[.]” Harvey, 362 S.W.2d at 312; see also RESTATEMENT (SECOND) OF TORTS §

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357 (1965); Landrio, 269 S.W.3d 746–47.

Generally, a landlord (lessor) owes no duty to a tenant (lessee) or a tenant’s

invitees for dangerous conditions on leased property. Shell Oil, 138 S.W.3d at 296. “This

general rule stems from the notion that a lessor relinquishes possession or occupancy of

the premises to the lessee.” Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d

284, 285 (Tex. 1996). There are several exceptions to this general rule, including an

exception for injuries caused by defects on the premises that remain under

the lessor’s control. Id. “The relevant inquiry is whether the defendant assumed sufficient

control over the part of the premises that presented the alleged danger so that the

defendant had the responsibility to remedy it.” County of Cameron v. Brown, 80 S.W.3d

549, 556 (Tex. 2002). “Control can be proven by either a contractual agreement expressly

assigning the right of control or an actual exercise of control.” Cohen v. Landry’s Inc., 442

S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also Dow

Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002).

In his original petition appellee alleged that appellant “had a duty to maintain the

floors inside the apartment in a condition that would not pose an unreasonable [risk] of

harm, including the area where [appellee] was injured.” In appellee’s response to

appellant’s plea to the jurisdiction, he contends that a fact issue exists “as to the

responsibility for maintaining the air conditioning unit as it relates to safe, habitable use

of the premises by [appellee].” A lessor who retains control over a portion of the leased

premises is charged with the duty of ordinary care in maintaining the portion retained so

as not to harm the tenant. Parker v. Highland Park, Inc., 565 S.W.2d 512, 515 (Tex. 1978);

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Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 303 (Tex. 1963). However, a lessor’s

contractual right to enter the premises to make repairs and alterations is not a reservation

of control over a part of the premises. Shell Oil, 138 S.W.3d at 295–97; De Leon v. Creely,

972 S.W.2d 808 812–13 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.).

In one sentence in his response to appellant’s plea to the jurisdiction, appellee

stated: “Evidence of the control by [appellant] of the premises is established via the work

orders and contract to the lease the premises.” Appellee provided previous work orders

for repairs of the air conditioning unit in the apartment that were done by appellant,

arguing the work orders established control; however, appellee did not provide any

provision in the lease agreement, and we find none, that would confer such responsibility

on appellant. It has previously been established that the right to enter and make repairs

does not give control over the inside of appellee’s apartment to appellant. See Davies,

158 S.W.3d at 60. Accordingly, because we find that appellant did not have control over

the premises, appellant cannot be held liable in a premises defect claim.

We sustain appellant’s sole issue.

III. CONCLUSION

We conclude that the trial court erred in denying appellant’s plea to the jurisdiction

as to appellee’s premises defect claim. Therefore, we reverse the trial court’s order and

render judgment granting the plea to the jurisdiction as to appellee’s premises defect

claim.

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 NORA L. LONGORIA
Justice

Delivered and filed on the
7th day of October, 2021.

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