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R. Royale v. Knightvest Management, LLC

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2019

R. ROYALE, Appellant
v.
KNIGHTVEST MANAGEMENT, LLC, FOXMOOR APARTMENTS, LLC, ABERDEEN OWNER, LLC, OWNERS K. C. KRONBACH AND DAVID MOORE, Appellees

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-03986

          Before Justices Myers, Molberg, and Carlyle

          MEMORANDUM OPINION

          KEN MOLBERG, JUSTICE

         R. Royale, appearing pro se, challenges the trial court's summary judgment in favor of Knightvest Management, LLC (Knightvest), Foxmoor Apartments, LLC, Aberdeen Owner, LLC, K.C. Kronbach, and David Moore (collectively, Appellees) on his defamation claim, and the trial court's dismissal with prejudice of his claims for intentional infliction of emotional distress (IIED), premises liability, and violations of the Texas Fair Housing Act. Royale appears to raise four issues on appeal, contending the trial court erred by (1) dismissing his claims for premises liability, IIED, and Texas Fair Housing Act violations without "carefully giving all Appellant's pleadings and evidence the proper due diligent [sic]," (2) "ignoring Appellant's two statutes [sic] for fraud claims," (3) granting summary judgment in favor of Appellees on his defamation claim when there was a genuine issue of material fact, and (4) granting Appellees' motion for summary judgment without allowing sufficient time for discovery.

         We affirm the trial court's judgment in part and reverse in part. We affirm the trial court's judgment with respect to Royale's claims for defamation and premises liability. We reverse the trial court's judgment with respect to Royale's claims for IIED and violation of the Texas Fair Housing Act, and remand those claims to the trial court for proceedings consistent with this opinion.

         BACKGROUND

         Factual Background

         We draw the following relevant facts from the allegations in Royale's petition.

         Royale's claims arise out of a confrontation he had with Taylor Smith, an off-duty police officer dressed in plainclothes serving as a "courtesy officer" providing security at the Aberdeen"Bellmar apartment complex (Aberdeen) where Royale and Smith resided. Royale alleges that Smith stopped him in the Aberdeen parking lot "without probable cause" because he is "a black male with dread locks." The petition alleges that Smith's statements that he stopped Royale after observing him pulling on the door handle of someone else's apartment and staring at a child are "false" and "ma[d]e-up." According to Royale, Smith "viciously harassed," "verbally threatened," and tried to "violently [provoke him] into a physical confrontation." After Smith identified himself as a police officer, Royale "fled to the leasing office for his safety," believing his" life [was] in peril."

         Smith followed Royale to the leasing office, where Royale "loudly complain[ed]" about the "harassment in the parking lot" to the apartment complex manager, Vicki Hibdon. During the "heated confrontation," Hibdon and Smith allegedly "intimidated" Royale and "carried on threats and badgering of [him]." These included "threats of handcuffing, arresting and kicking [Royale] off the property." Royale claims he was a victim of "illegal racial profiling" and that Smith's reasons for stopping him were a "pretext[]" for Smith's real reason, namely Royale's "appearance of being a black male." Royale claims Hibdon and Smith "abused their powers and demonstrated misconduct by attempting to put massive fear in [Royale] because he was, 'Black,' or a certain minority group that Knightvest did not want living on their properties." The petition does not allege that Royale was physically injured during his confrontations with Smith and Hibdon, or that Smith or Hibdon made physical contact with Royale.

         Royale's petition asserts claims for premises liability based upon a premises defect, IIED, defamation, and violations of the Texas Fair Housing Act. The petition states, "Knightvest Management's landlords had put a tenant, [Royale], life in peril with a police officer who was out of uniform." As a result, the "apartment owners breached its [sic] non-delegable duty to keep the premises safe for its tenants, a 'premises defect'." Royale alleges he sustained:

. . . non-economic damages due to Defendant illegally hiring an off-duty police officer secretly to pose as their courtesy officer and targeting certain people who are on the property, which created an "Intentional Infliction of Emotional Distress."[1]

         The petition alleges Royale was "defamed and emotionally harmed" as a result of Smith's deposition testimony-in a lawsuit filed by Royale in federal court arising out of these events- that he saw Royale "staring at a female child [and] pulling a door handle that wasn't assigned to him." The petition further states that Hibdon "maliciously" posted a lease termination notice on his door, "terminated [his] lease contract[, ] and denied him a lease renewal because of his race," in violation of "the Texas Fair Housing Practices sec. 301.021"; Hibdon and Smith "violated . . . the Fair Housing Act sec. 301.171, for the intimidation of a tenant, R. Royale"; and Appellees did not provide "the correct landlord's agent for service of process to avoid lawsuits by tenants," in violation of "sec. 92.003 of the Texas Fair Housing Act."[2]

         Claiming he was "fearful of being put into another dangerous situation that might result in him being shot or killed next time by Defendant's onsite officers" and he was "bullied off the [apartment] property," Royale and his wife abandoned their apartment at the Aberdeen and "deplete[d] their savings and incurred notes" to purchase a condominium, for which Royale now seeks reimbursement. Royale requests damages in the amount of $1, 072, 084.74, consisting of (1) economic damages for all costs related to his purchase of the condominium and for unidentified medical bills, (2) non-economic damages for IIED resulting from "Defendant illegally hiring an off-duty police officer secretly to pose as their courtesy officer" as well as "emotional harm" resulting from Smith's deposition testimony that he observed Royale staring at a female child and "pulling a door handle" of someone else's apartment, and (3) punitive damages. With respect to economic damages, the petition states:

Economic loss: [Royale's] Savings of $19, 536.57 for cash at closing for Condominium, incurred a bank loan $67, 500 (rate 4%); Appraisal fee $520 plus the condo questionnaire $235 option fee $100 earnest money $2, 000 inspection $250 equal $3, 105. Total payment amount for 30 year mortgage is $119, 371.18 which was signed and obligated by [Royale] on the loan.

(Emphasis added.) Royale requests $41, 671.19 for unspecified "medical bills" and punitive damages "not exceed[ing] more than two times the amount of economic damages plus the amount equal to noneconomic damages not to exceed $750, 000 or $200, 000, whichever is greater." The petition then shows the math for Royale's total damages claim:

Economic Loss: (above loan) $119, 371.18 Medical Bills: $41, 671.19 = $161, 042.37. [Royale] ask for judgment against Defendant for Economic Damage of $161, 042.37 x 2 = $322, 084.74 maximum Non-Economic Damages: $750, 000 = Punitive Damages: $1, 072.084.74.

         Procedural Background

         Prior to filing this lawsuit, Royale filed suit in federal court alleging violations of his civil rights and asserting a state-law claim for IIED. The United States District Court for the Northern District of Texas dismissed Royale's federal claims with prejudice and declined to exercise supplemental jurisdiction over Royale's IIED claim, dismissing it without prejudice.

         On March 27, 2018, Royale filed the underlying suit, alleging claims for IIED, defamation, premises liability, and violations of the Texas Fair Housing Act.[3] On April 19, 2018, Appellees moved to dismiss Royale's claims pursuant to Texas Rule of Civil Procedure 91a, arguing:

• Royale's claim for IIED has no basis in law or fact.
• Royale's petition does not allege facts showing any "extreme and outrageous" conduct by Smith or by Hibdon. Nor does the petition allege facts showing that Royale suffered "severe emotional distress."
• Royale's claims under the Texas Fair Housing Act fail because the allegations in his petition demonstrate Knightvest did not refuse to rent an apartment to Royale or otherwise discriminate against Royale with respect to rental terms. Rather, the allegations show that Royale lived at his Aberdeen apartment for two years prior to the alleged confrontation.
• Royale's defamation claim based on Smith's statements is barred under the judicial or quasi-judicial communications privilege.
• Royale's premises liability claim fails because he did not allege a physical injury.

         After a hearing, the trial court granted Appellees' rule 91a motion in part, dismissing with prejudice Royale's claims for premises liability, IIED, and violations of the Texas Fair Housing Act. The trial court allowed Royale's defamation claim to go forward.

         Appellees filed a traditional and no-evidence motion for summary judgment on Royale's remaining claim for defamation on July 17, 2018, arguing (1) Royale's defamation claim was barred by res judicata, and (2) Smith's testimony that he observed Royale staring at a female child was made in the course of a judicial proceeding and thus was protected by the judicial communications or quasi-judicial communications privilege. Alternatively, Appellees argued Royale failed to present any evidence that Smith's statement qualified as "defamatory" or that Smith "published" his statement to Hibdon because Smith did not tell Hibdon he observed Royale staring at a female child. Moreover, Appellees argued that staring at a female child does not implicate sexual misconduct and thus is not defamatory per se. By order dated August 9, 2018, the trial court granted Appellees' traditional and no-evidence motion for summary judgment without stating the grounds therefore.

         ANALYSIS

         Pro Se Parties

         Royale appeared pro se before the trial court and also is representing himself in this Court. "We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure." Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.-Dallas 2008, no pet.). "To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel." In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.-Dallas 2008, no pet.).

         Rule 91a Motion to Dismiss

         Standard of Review and Applicable Law

         Texas Rule of Civil Procedure 91a authorizes a defendant to move for dismissal of a claim that has no basis in law or in fact. Tex.R.Civ.P. 91a.1.; see also City of Dallas v. Sanchez, 494 S.W.3d 722, 724-25 (Tex. 2016). A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn therefrom, do not entitle the plaintiff to the relief sought. Tex.R.Civ.P. 91a.1. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Id.

         A rule 91a motion to dismiss must identify each claim subject of the motion and specify the reasons each claim has no basis in law or in fact. Tex.R.Civ.P. 91a.2. The trial court may not consider any evidence in ruling on a rule 91a motion. Tex.R.Civ.P. 91a.6. Except as required to determine an award of attorney's fees under rule 91a.7, the trial court may consider only the live pleading and any appropriate attachments thereto. Id. ("the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59 [of the Texas Rules of Civil Procedure]"); AC Interests, L.P. v. Tex. Comm'n on Envt'l Quality, 543 S.W.3d 703, 706 (Tex. 2018).

         We review de novo a trial court's order granting a motion to dismiss pursuant to rule 91a. Sanchez, 494 S.W.3d at 724. In conducting our review, we construe the pleadings liberally in favor of the plaintiff. In re RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.-Dallas June 11, 2018, orig. proceeding) (mem. op.). Under the fair-notice pleading standard we apply to determine whether the petition's allegations are sufficient to allege a cause of action, we assess whether the defendant can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that may be relevant. Thomas v. 462 Thomas Family Props., L.P., 559 S.W.3d 634, 639-40 (Tex. App.-Dallas 2018, pet. denied); see also Darnell v. Rogers, No. 08-17-00067-CV, 2019 WL 2897489, at *3 (Tex. App.-El Paso July 5, 2019, no pet. h.). "Rule 91a provides a harsh remedy that should be strictly construed." In re RNDC, 2018 WL 2773262, at *1. The rule is not a substitute for special exception practice under rule 91 or summary judgment practice under rule 166a, both of which come with protective features. If a petition provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied. Id., at *1 (citing In re Odebrecht Constr., Inc., 548 S.W.3d 739, 746 (Tex. App.-Corpus Christi-Edinburg 2018, orig. proceeding) (mem. op. on rehearing)). Similarly, if nothing in the pleading itself triggers a clear legal bar to the claim, then there is a basis in law and the motion should be denied. In re RNDC, 2018 WL 2773262, at *1.

         Trial Court's Alleged Failure to Consider Royale's Pleadings and Evidence: Premises Liability, IIED, Texas Fair Housing Action Violations

         In what we construe as his first issue, Royale contends the trial court abused its discretion by dismissing with prejudice his claims for premises liability, IIED, and Texas Fair Housing Act violations. Royale argues the trial court erred because it "did not fully consider all the facts pertaining to Appellant's pleadings and evidence that supported Appellant's factual allegations in this case found in his petition and responses."

         In response, Appellees argue (1) Royale's petition fails to establish the "extreme and outrageous" conduct and the "severe emotional distress" necessary to sustain a claim for IIED; (2) Royale's claims for violations of the Texas Fair Housing Act fail because his petition fails to allege facts showing that Appellees refused to lease an apartment to Royale on the basis of race, but rather, it establishes that Appellees leased an apartment to Royale for at least two years before his confrontation with Smith and Hibdon; and (3) Royale's premises liability claim fails because his petition did not allege a physical injury.

         At the outset, we address Royale's contention that the trial court "erred and abused its discretion when not carefully giving all Appellant's . . . evidence the proper due diligent [sic] [.]" Rule 91a.6. expressly provides the "court may not consider evidence" in deciding a rule 91a motion. Whether the dismissal standard under rule 91a is satisfied depends "solely on the pleading of the cause of action." Tex.R.Civ.P. 91a.6. Therefore, the trial court was not permitted to consider evidence, other than permissible rule 59 exhibits, of which there are none.

         Premises Liability

         A defendant is liable on a premises liability claim only to the extent it owes the plaintiff a legal duty. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008). The duty owed by a landlord to its tenant is the duty owned to an invitee. Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). To prevail on his premises liability claim, Royale must prove: (1) the apartment complex had actual or constructive knowledge of an unreasonably dangerous condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the apartment complex did not exercise reasonable care to reduce or eliminate the risk; and (4) the apartment complex's ...


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