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Permison v. Morris

Court of Appeals of Texas, First District

October 29, 2019

JACK PERMISON, Appellants
v.
CARRIE MORRIS & DAVE WARD, Appellees

          On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 15-DCV-225441

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          Peter Kelly Justice.

         Jack Permison rented a room in a house in Fort Bend County from appellee Carrie Morris. Although he left before his lease ended, he was later judicially evicted. He contends that he was forced to leave the house by the actions of the appellees: Carrie Morris and her boyfriend, Dave Ward. Permison sued them both for: (1) breach of contract; (2) negligence; (3) interference with property rights and constructive eviction; (4) premises liability and gross negligence; (5) failure to refund security deposit; (6) wrongful eviction; (7) common law fraud; (8) willful disclosure of incorrect ownership information; (9) damage to credit; (10) retaliation; (11) exemplary damages; and (12) conspiracy.

         The court granted Ward's no-evidence motions for summary judgment and dismissed with prejudice all the claims against him, except for negligence, which was not submitted to the jury at trial. In his first three issues on appeal, Permison challenges the trial court's summary judgments as to Ward. After the close of evidence at trial, the court granted Morris's motions for directed verdict as to several claims against Morris: (1) interference with property rights and constructive eviction; (2) premises liability and gross negligence; (3) common law fraud; and (4) damage to credit. In his fourth issue on appeal, Permison challenges the directed verdicts.

         We affirm.

         Background

         Carrie Morris advertised for rent a furnished private bedroom and private bathroom "in paradise***free of drama." Morris described the house as "beautiful" and "resort-style," and she advised anyone who is a "a nut case, drama queen, weirdo, slob, or psycho" to stay away, stating that she wanted a "peaceful relaxing calm beautiful place to come home to after a long day at work."[1]

         Permison, a helicopter pilot, responded to Morris's advertisement. Permison and Morris discussed their shared interest in helicopters, and Morris told Permison that her boyfriend, Dave Ward, also was a pilot. Permison agreed to rent the room from Morris beginning March 23, 2015 and continuing month-to-month thereafter. The agreement was not in writing, and Permison paid Morris approximately $1200. After Permison moved in, he became friendly with Morris and Ward.[2] Several days after he moved in, Permison informed Morris that he had found mice in the house. According to Permison, around the same time, Morris made a sexual advance toward him, which he rebuffed. Morris denied this entirely. The friendly text messages between them stopped a few days later.[3]

         About two weeks after Permison moved in, Ward asked him to store some of Morris's personal property in the closet of the master bedroom he was renting.[4] Permison initially agreed, but when he saw the quantity of belongings that had been left outside the house, he refused to move them into his room. Morris later testified that she knew the property would fit because she had previously stored it in the second closet in Permison's room and under the bed.

         The next day, Morris asked Permison if he had put the property into the closet, saying she did "not want it left outside." Permison told her there was not "enough room in that closet for all that." Over the next several minutes, Morris sent several acrimonious text messages, told Permison to leave her house, and said she was evicting him. After additional, heated text messages, Morris told Permison to sue Ward, saying, "Dave's the owner of my house. Sue him. He holds the title. He gets the money." Permison told her, "Dave isn't the landlord. You are. My agreement is with you." Morris made some vulgar personal remarks, and she blamed Permison for her current discord with Ward. Permison told Morris that he would leave if she refunded his money and paid for a week's stay at a hotel.

         Permison called Ward, and he explained that the property would not fit in his room and that the living situation was not working out. He conceded that he had to work out the problem with Morris, because "my agreement is with her, she is the owner of the house not you." Permison also suggested that Morris was upset about something other than the property storage. Ward maintained that he was a "third party" the room rental agreement, and he agreed that if the living situation was not working out, Permison should move out.

         Several hours after the telephone conversation and text thread, Morris went to the house and placed mothballs in shared spaces, near Permison's bedroom, and outside the house. Permison and another tenant, Mike Brewster, confronted her about the quantity of mothballs she had used and their toxicity. Permison made a video recording of Brewster yelling profanities and demands at Morris, who attempted to placate him. At the end of the video, another man is heard laughing, but Permison denied that he had laughed.

         After Morris left, Permison and the other tenants discarded most of the mothballs. Permison slept in the rented room that night, and the next morning, he sought treatment at an emergency room for difficulty breathing, vomiting, and headache. He was diagnosed with "aching headache" and "exposure to chemical inhalation."[5] Permison never returned to the house.

         At some point, Permison told Ward that Morris tried to kiss him, but he rebuffed her advances. While he was in the emergency room, Permison spoke to Ward, advising him that he would "be better off" if he were to "get rid of her." A few days later, Ward and Morris reconciled. Ward then told Permison that he owned the house in which Permison had rented a room and that his name was on the deed.[6] Ward also informed Permison that he had instituted eviction proceedings against him. Morris later testified that Ward was attempting to protect her from harsh treatment by Permison and Brewster.

         Four days after Permison left the house, Morris filed a complaint for eviction. Ward's name was initially listed as a landlord on the handwritten form, but it was crossed out and initialed "CM." The justice of the peace court rendered judgment in favor of Morris. Permison appealed to the County Court at Law No. 3, but he later nonsuited his appeal.

         Permison later sued both Morris and Ward for (1) breach of contract; (2) interference with property rights and constructive eviction; (3) premises liability and gross negligence; (4) failure to refund security deposit; (5) wrongful eviction; (6) common law fraud; (7) willful disclosure of incorrect ownership information; (8) damage to credit; (9) retaliation; (10) exemplary damages; and (11) conspiracy. Permison's claims were based on his allegations that both Morris and Ward were the landlords and acted together, that Morris told him to leave when he refused to store her property, and that Morris "placed a deadly amount of mothballs" on the premises.

         Permison, Morris, Brewster, and another former tenant, Brenda Jones, testified at trial. Permison testified that he rented a room from Morris, rebuffed her sexual advances, and refused to store her belongings in his room because they would not fit. He also testified that Morris used an excess of mothballs that caused him to suffer an inhalation injury, even though the mothballs were promptly gathered and discarded. Brewster and Jones corroborated Morris's use of mothballs. Morris denied having made sexual advances on Permison. She testified that she used the mothballs as pest control and, having grown up in the country, she described this use as commonplace. She said she never read the warning on the package.

         After the close of evidence, the trial court granted directed verdict in favor of Morris on Permison's claims of (1) interference with property rights and constructive eviction; (2) premises liability and gross negligence; (3) common law fraud; and (4) damage to credit. The jury found in favor of Permison on his retaliation claim, and it awarded damages of $1, 269.03. The trial court rendered judgment on the verdict in favor of Permison for $1, 269.03 for retaliation and $5, 000 in attorney's fees.

         Analysis

         On appeal, Permison challenges the pretrial summary judgments in favor of Ward and the directed verdicts in favor of Morris.[7]

         I. Summary judgment standards of review

         "A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). "After an adequate time for discovery," a party may seek summary judgment "on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex.R.Civ.P. 166a(i). A no-evidence summary judgment motion "must state the elements as to which there is no evidence." Id. The burden then shifts to the nonmovant to "produce[] summary judgment evidence raising a genuine issue of material fact." Id. Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. Id. If the nonmovant fails to produce evidence that raises a genuine issue of material fact, the trial court must grant the motion in favor of the movant. A no-evidence summary judgment will be sustained on appeal "when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered by the nonmovant to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362- 63 (1960))).

         "Summary judgment evidence may be filed late, but only with leave of court." Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). "Except on leave of court," the nonmovant's summary judgment evidence must be filed and served at least seven days before the summary judgment hearing. Tex.R.Civ.P. 166a(c). "[T]he court has discretion to accept late-filed evidence, but it is not obliged to do so." Barnett v. Veritas DGC Land Inc., No. 14-05-01074-CV, 2006 WL 2827379, at *5 (Tex. App.-Houston [14th Dist.] Oct. 5, 2006, pet. Denied) (mem. op.) (court did not abuse its discretion by refusing to consider evidence attached to motion for reconsideration).

         "A trial court may accept summary judgment evidence filed late, even after summary judgment, as long as the court affirmatively indicates in the record that it accepted or considered the evidence." Mathis v. RKL Design/Build, 189 S.W.3d 839, 842-43 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Stephens v. Dolcefino, 126 S.W.3d 120, 133-34 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). "Leave to late-file summary-judgment evidence may be reflected in a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter's ...


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