Opinion
No. 01-03-01206-CV
Opinion issued April 14, 2005.
On Appeal from the 61st District Court, Harris County, Texas, Trial Court Cause No. 2002-37073.
Panel consists of Justices TAFT, KEYES, and HANKS.
MEMORANDUM OPINION
Appellant Sharlotte Jackson, in her personal capacity and as next friend of Shemica Jackson, Ashley Lindsay, and Precious Simon, brought suit against appellee, FS/Camelot Sherwood d/b/a Knights Landing ("FS Camelot"), for negligence, breach of contract and lease, and breach of the covenant to repair or remedy. In three points of error, appellant contends the trial court erred in granting FS Camelot's no-evidence motion for summary judgment.
We reverse and remand.
BACKGROUND
In her original and first amended petition, appellant alleged that she, as tenant, had entered into a lease with FS Camelot as landlord. Appellant stated that she had repeatedly complained that sewage had backed up into her apartment and that leaks in the ceiling flooded her apartment. Appellant contended that FS Camelot did not provide adequate relief and did not replace the carpet in her apartment. Appellant stated that, as a result of the wet and dirty carpet, she and her children — Shemica, Ashley, and Precious — became ill and sought medical attention.
In her first amended petition, appellant set forth three causes of action. First, she argued that FS Camelot was negligent because, as a landlord, it "had a duty to exercise the degree of care that a reasonably careful person would use to avoid harm" to tenants under similar circumstances. In her second cause of action, appellant contended that she and FS Camelot signed a written lease which provided that FS Camelot would act with customary diligence to keep common areas reasonably clean; maintain fixtures, furniture, air conditioning, and hot water; substantially comply with all laws regarding safety, sanitation, and fair housing; and make all necessary repairs. Appellant contended that FS Camelot failed to act with customary diligence in curing the problems and thereby breached the lease contract. In her third cause of action, appellant asserted that FS Camelot breached the covenant to repair or remedy. Appellant contended that Texas Property Code section 95.052 requires FS Camelot to make diligent efforts to repair or remedy appellant's complaints. See TEX. PROP. CODE ANN. § 92.052 (Vernon 1995).
In its answers to appellant's first amended petition, FS Camelot denied all of appellant's allegations, demanded specific proof, and asserted a general denial pursuant to Rule 92 of the Rules of Civil Procedure. TEX. R. CIV. P. 92. With its answer to appellant's amended petition, FS Camelot filed a no-evidence motion for summary judgment. FS Camelot's motion stated an "adequate time for discovery has passed and [appellants] . . . have failed to establish any evidence of acts of negligence, or breach of lease/contract or covenant to repair or remedy." After noting the standard of review for a no-evidence summary judgment, FS Camelot then stated that it
has the burden to show there is no evidence to support one or more material elements of [appellant's] causes of action or theory of recovery. . . . The Court must grant FS Camelot's motion for Summary Judgment unless [appellant] can produce summary judgment evidence raising a genuine issue of material fact as to each element of their causes of action or theory of recovery. . . . [T]here is no evidence to support one or more elements of [appellant's] causes of action against FS Camelot.
In her response to FS Camelot's no-evidence motion for summary judgment, appellant raised two objections. First, she argued that the motion was untimely because it was filed after the date set in the trial court's docket control order for no-evidence motions for summary judgment. Second, appellant argued that FS Camelot's motion did not specifically challenge the evidence supporting the elements of her causes of action as required by Rule 166a(i) of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 166a(i). Appellant then argued that her affidavit, attached to the response, raised more than a scintilla of evidence to support appellant's causes of action. The trial court granted FS Camelot's no-evidence motion for summary judgment with prejudice.
Appellant filed a motion for new trial. In her new trial motion and at the hearing on the motion for new trial, appellant restated her two objections to FS Camelot's no-evidence motion for summary judgment. Appellant's attorney requested that the trial court rule on the objections. The trial court overruled appellant's objections and denied the motion for new trial. This appeal followed.
DISCUSSION No-Evidence Motion for Summary Judgment
In her third point of error, appellant contends that the trial court erred in overruling her objection that FS Camelot's no-evidence motion for summary judgment did not specifically challenge any of the elements of appellant's causes of action.
Rule 166a(i) states that, after an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party's claim or affirmative defense. Tex. R. Civ. P. 166a(i); Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The movant must specifically state the element or elements as to which there is no evidence. Tex. R. Civ. P. 166a(i); Callaghan v. Ranch, LTD. v. Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio 2000, pet. denied); Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n. 2 (Tex.App.-Houston [1st Dist.] 1999, no pet.). When a no-evidence motion for summary judgment does not specifically state which elements lack evidence, the motion should be treated as a motion for a traditional summary judgment. Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex.App.-Texarkana 2000, pet. denied); Weaver, 4 S.W.3d at 829 n. 2.
Here, appellant alleged three causes of action: (1) negligence; (2) breach of a contract and lease; and (3) breach of a covenant to repair or remedy as established by Texas Property Code section 92.052. The elements of a negligence cause of action are that: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached the duty; and (3) the breach proximately caused the plaintiff's injuries. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). The elements of a breach of contract are that (1) the plaintiff and defendant had a valid, enforceable contract; (2) the plaintiff performed or tendered performance of his contractual obligations; (3) the defendant breached the contract; and (4) the defendant's breach caused the plaintiff's injuries. Wright v. Christian Smith, 950 S.W.2d 411, 412 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Texas Property Code section 95.052 states
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;
(2) the tenant is not delinquent in the payment of rent at the time the notice is given; and
(3) the condition materially affects the physical health or safety of an ordinary tenant.
Tex. Prop. Code Ann. § 92.052 (Vernon 1995).
In its no-evidence motion for summary judgment, FS Camelot did not specifically challenge any of the elements stated above. Because it did not satisfy the specificity requirement of Rule 166a(i), we construe FS Camelot's motion as a traditional motion for summary judgment. Amouri, 20 S.W.3d at 168; Weaver, 4 S.W.3d at 829 n. 2.
Traditional Motion for Summary Judgment
We review a trial court's granting of a traditional summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). A defendant moving for summary judgment must either (1) conclusively negate an essential element of a plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). In deciding whether there is a disputed material fact precluding summary judgment, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548 (Tex. 1985).
FS Camelot did not attach, nor did it reference, any evidence in its summary judgment motion to establish that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Haase, 62 S.W.3d at 797. Thus, the trial court erred in granting FS Camelot's motion for summary judgment.
We sustain appellant's third point of error.
Because we are reversing the judgment of the trial court that granted FS Camelot's motion for summary judgment, we do not address appellant's second point of error, in which appellant contends that the trial court erred in ruling that she had not met her burden in a no-evidence motion for summary judgment showing that there was more than a scintilla of evidence on each disputed fact issue. Nor do we reach appellant's first point of error, in which she contends that FS Camelot's motion for summary judgment was untimely.
CONCLUSION
We reverse the judgment of the trial court and remand for further proceedings.