Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCV-225441
consists of Justices Kelly, Hightower, and Countiss.
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)
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
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."
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. 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.
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. 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.
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
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
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.
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." Permison never returned to the
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. 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.
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
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
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.
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.
appeal, Permison challenges the pretrial summary judgments in
favor of Ward and the directed verdicts in favor of
Summary judgment standards of review
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))).
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).
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 ...