GEORGE E. HILBURN, Appellant
v.
STORAGE TRUST PROPERTIES, LP, Appellee
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, ...