Hilburn v. Storage Trust Properties, LP

          On Appeal from the 189th District Court Harris County, Texas, Trial Court Cause No. 2015-36631

          Panel consists of Chief Justice Frost and Justices Bourliot and Poissant (Frost, C.J., concurring).

          MAJORITY OPINION

          Frances Bourliot Justice.

         This lawsuit involves the disposal of personal property from storage units without the consent of the property owner. In three issues, the property owner, George E. Hilburn, challenges the trial court's grant of final summary judgment in favor of the storage unit owner, Storage Trust Properties, LP. Concluding that the trial court erred in granting summary judgment on Hilburn's breach of contract and noncontractual claims and that there is no justiciable controversy as to Hilburn's request for declaratory judgment, we reverse and remand the trial court's judgment in part, vacate the judgment in part, and dismiss the appeal in part for want of jurisdiction.

         Background

         Hilburn leased five storage units in Webster, Texas from Storage Trust. Parts of the storage facility were subsequently flooded during a rain event in May 2015. According to Hilburn, his units took on about a foot of water that receded quickly. Hilburn paid the June rent for all five units. Two days after he paid the rent, Hilburn received a call from a Storage Trust representative regarding the flood. Hilburn was notified that some of the contents of his units had been damaged. The caller notified Hilburn that he previously should have received a letter from Storage Trust informing him of the flooding and that he needed to remove his property from the units by June 10, 2015. The letter was dated May 20, 2015, yet it stated, "We are scheduling appointments for . . . May 19, 2015. You must . . . be prepared to remove or dispose of any damaged goods." Hilburn responded that he had not received the letter and he could not remove his property by the time requested by Storage Trust, in part because of a medical emergency for his wife. According to Hilburn, he was told "not to worry."

         Approximately two weeks after he received the first call, Hilburn received a second call from another Storage Trust representative. The representative told Hilburn that the locks on his units had been cut and the contents of the units were being thrown away. When Hilburn went to the storage facility, he asked for additional time to remove his property. He left and returned four days later with a moving truck. When he returned, much of his property had been removed from the units, and some of it had been hauled away to the dump. According to Hilburn, some of his property that had been disposed of was not damaged, and some of it was damaged but salvageable.

         Hilburn filed suit, bringing claims against Storage Trust for breach of contract, conversion, waiver, estoppel, promissory estoppel, and violations of the Texas Deceptive Trade Practices Act (DTPA).^[1] Hilburn also sought a declaratory judgment that he had paid the June rent. He sought damages of $150, 000, plus attorney's fees and costs.

         Storage Trust filed a traditional motion for summary judgment challenging Hilburn's claims on the grounds that (1) Hilburn expressly agreed that in the event of an emergency, Storage Trust could remove Hilburn's locks, enter the storage units, and take action to preserve the facility; (2) Hilburn agreed to a damages cap for any loss related to claims resulting from fraud, willful injury, or willful violations of law; (3) Hilburn cannot recover attorney's fees from Storage Trust; (4) the economic loss rule bars Hilburn's conversion, waiver, estoppel, promissory estoppel, and DTPA claims; and (5) Hilburn is not entitled to a declaratory judgment on an undisputed fact. Hilburn objected to certain evidence in support of the motion as hearsay and responded in relevant part that (1) there is a fact question regarding whether the flooding event constituted an emergency authorizing Storage Trust to enter the units and dispose of Hilburn's property under the five lease agreements; (2) Hilburn did not agree to waive or limit liability resulting from Storage Trust's fraud, willful injury, or willful violations of law; (3) Hilburn is not prohibited from recovering attorney's fees as to all his claims; (4) the economic loss rule does not apply to Hilburn's noncontractual claims; and (5) Hilburn would accept a stipulation that he made the June 2015 rent payments. The trial court granted Storage Trust's motion for summary judgment and rendered final summary judgment disposing of all Hilburn's claims.

         Discussion

         In one issue, Hilburn challenges the trial court's grant of summary judgment as to each of his claims. We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id.

         The party moving for traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id. (citing Tex.R.Civ.P. 166a(c)). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Grynberg v. Grey Wolf Drilling Co., 296 S.W.3d 132, 135-36 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

         I. Fact Question on Breach of Contract

         Storage Trust moved for summary judgment on the basis that it did not breach the lease agreements. See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (listing elements of breach of contract). Storage Trust relies on the following language from the lease agreements:

In the event Occupant shall not grant access to the Premises as required or in the event of an emergency . . ., Owner [or] Owner's Agents . . . shall have the right, but not the obligation, to remove Occupant's locks and enter the Premises for the purpose of examining the premises or the contents thereof or for the purpose of making repairs or alterations to the Premises and taking such other action as may be necessary or appropriate to preserve the Premises or to comply with applicable law including any applicable local, state or federal law or regulation governing hazardous or toxic substance, material, or waste, or to enforce any of Owner's rights.

         According to Storage Trust, the flooding event constituted an emergency under the lease agreements, which allowed Storage Trust to enter the storage units and dispose of Hilburn's "hazardous property due to mold." But Storage Trust did not present any evidence that there were hazardous materials in the storage units or that there was mold.

         Storage Trust relied on the following deposition testimony from Hilburn:

[E]verything was going to get mold, and they were worried about it the last time. We're going to have mold. I said, fumigate and remedy. [S]tart . . . drying out that side. When its dried out, stick my stuff in there. I'll continue to pay rent the whole time. . . . Let me move my stuff into another unit, and I will pay you. [They said, ] No, we can't do it. Everything's got to go, everything.

         At most, this testimony creates a fact question regarding whether there would be hazardous materials-mold-in the storage units in the future. There is no evidence that Hilburn's property contained mold or showed signs of mold at the time Storage Trust entered the units. Accordingly, Storage Trust did not show it was entitled under the lease agreements to dispose of Hilburn's property. We conclude there is a fact question regarding whether Storage Trust breached the lease agreements.

         Storage Trust alternatively argued that even if it breached the lease agreements, the trial court should limit any damages to $5, 000 per storage unit under the terms of the lease agreements. Storage Trust further argued in the alternative that Hilburn is not entitled to attorney's fees for his breach of contract claim.^[2] Because the trial court granted summary judgment, ...