Texas Orders and Briefs

ACCEPTED
01-18-00392-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/10/2018 10:23 AM
CHRISTOPHER PRINE
CLERK

IN THE COURT OF APPEALS

FIRST DISTRICT OF TEXAS AT HOUSTON FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
__________________________________________
8/10/2018 10:23:53 AM

No. 01-18-00392-CV

CHRISTOPHER A. PRINE
Clerk

__________________________________________

JACK PERMISON, APPELLANT

CARRIE MORRIS AND DAVE WARD, APPELLEES

__________________________________________________________________

On appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 15-DCV-225441
Honorable Maggie Perez-Jaramillo, Presiding
_________________________________________________________________

APPELLANT’S BRIEF

Submitted by:
Robert L. Sirianni, Jr., Esq.

Brownstone, P.A.
PO BOX 2047
Winter Park, FL 32790
Phone: 407-388-1900
Fax: 407- 622-1511

robertsirianni@brownstonelaw.com
SBOT No. 24086378

Attorney for Appellant

ORAL ARGUMENT NOT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Jack Permison, Appellant

Robert L. Sirianni, Jr., Esq.
SBOT: 24086378
BROWNSTONE, P.A.
P.O. Box 2047

Winter Park, FL 32790

Telephone: (407) 388-1900
Facsimile: (407) 622-1511
Attorney for Appellant

Carrie Morris and Dave Ward, Appellees

Bart Walter Basden, Esq.
SBOT: 24025241

Jocelyn Holland
SBOT: 24059965
Johanson & Fairless LLP
1456 First Colony Boulevard
Sugar Land, TX 77479
Telephone: 281-313-5000

Facsimile: 281-340-5100
Attorney for Appellees Carrie Morris

Dave Ward, pro se
16 Kitty Hawk West
Richmond, TX 77406

Wardy1959@yahoo.com

Table of Contents

IDENTITY OF PARTIES AND COUNSEL ii

INDEX OF AUTHORITIES v

STATEMENT OF THE CASE 1

STATEMENT REGARDING ORAL ARGUMENT 3

ISSUES PRESENTED 3

STATEMENT OF FACTS 4

SUMMARY OF THE ARGUMENT 10

ARGUMENT 13

I. STANDARD OF REVIEW ON SUMMARY JUDGMENT MOTIONS 13

II. THE TRIAL COURT ERRED WHEN IT GRANTED WARD’S FIRST NO
EVIDENCE SUMMARY JUDGMENT MOTION 14

A. Basic law on no evidence summary judgment motions 14

B. Evidence showing that Ward was involved in the placing of mothballs around the Property and in Permison’s eviction and subsequent damages, either by
acting on his own or as Morris’s co-conspirator, co-owner, and/or agent 15

1. Morris admitted that Ward owned the Property 16

2. Ward admitted that he owned the Property 16

3. The Notice to Vacate Property that Morris and Ward prepared for Permison’s
eviction admitted that Ward was a landlord of the Property 19

4. The Waiver of Liability and Hold Harmless Agreement given to other
tenants of the Property was in the names of both Morris and Ward 20

5. That Ward was not a record owner of the Property is irrelevant 21

C. Permison brought forth more than a scintilla of evidence as to the causes of
action in the First Amended Original Petition 22

1. The breach of contract claim 22

2. The negligence claim 23

3. The interference with property rights and constructive eviction claims 25

4. The premise liability claim 26

5. The refund of security deposit claim 27

6. The common law fraud, bad faith, and misrepresentation claims 27

7. The damage to credit claim 29

iii

8. The exemplary damages claim 30

III. THE TRIAL COURT ERRED WHEN IT GRANTED WARD’S SECOND
NO EVIDENCE SUMMARY JUDGMENT MOTION 32

IV. THE TRIAL COURT ERRED WHEN IT GRANTED MORRIS’S MOTION
FOR DIRECTED VERDICT AS TO THE AS TO PERMISON’S CLAIMS OF
INTERFERENCE WITH PROPERTY RIGHTS AND CONSTRUCTIVE
EVICTION, PREMISES LIABILITY AND GROSS NEGLIGENCE, COMMON
LAW FRAUD, AND DAMAGE TO CREDIT 35

A. Standard of review as to motions for directed verdict 35

B. The trial court erred in granting the motion for directed verdict 35

PRAYER 42

CERTIFICATE OF SERVICE 42

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 43

INDEX OF AUTHORITIES

Cases
Clark v. Randalls Food,
317 S.W.3d 351 (Tex.App. [1st Dist.] 2010, pet. denied) 37
D.K.W. v. The Source for Publicdata.com, LP,

526 S.W.3d 619 (Tex.App. – Dallas 2017, pet. pending) 18, 23
Donaldson v. Texas Department of Aging & Disability Services,
495 S.W.3d 421 (Tex.App. – Houston [1st Dist.] 2016, pet. denied) 13, 14
El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987) 24
Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754 (Tex. 2007) (per curiam) 14
Hartford Accident & Indemnity Co. v. McCardell,

369 S.W.2d 331 (Tex. 1963) 17
JSC Neftegas-Impex v. Citibank, N.A.,
365 S.W.3d 387 (Tex.App. – Houston [1st Dist.] 2011, pet. denied) 33
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) passim
LMB, Ltd. v. Moreno, 201 S.W.3d 686 (Tex. 2006) 37
Lockett v. HB Zachry Co.,
285 S.W.3d 63 (Tex.App. – Houston [1st Dist.] 2009, no pet.) 38
Magcobar North American v. Grasso Oilfield Servs., ………………………………………….

736 S.W.2d 787 (Tex.App. – Corpus Christi 1987),
writ dism’d, 754 S.W.2d 646 (Tex. 1988) 26
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844 (Tex. 2009) 13

Martin v. New Century Mortgage Co.,
377 S.W.3d 79 (Tex.App. – Houston [1st Dist.] 2012, no pet.) 30
McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex. 1984) 26, 29
Mead v. Johnson Group, Inc., 615 S.W.2d 685 (Tex. 1981) 41
Mott v. Red’s Safe & Lock Servs., Inc.,
249 S.W.3d 90 (Tex.App. – Houston [1st Dist.] 2007, no pet.) 31
NextEra Retail of Texas, LP v. Investors Warranty of America, Inc.,
418 S.W.3d 222 (Tex.App. – Houston [1st Dist.] 2013, pet. denied) 23
O’Brien v. Daboval, 388 S.W.3d 826 (Tex.App. [1st Dist.] 2012, no pet.) 39, 40
Pelco Construction Company v. Chambers County,
495 S.W.3d 514 (Tex.App. – Houston [1st Dist.] 2016, pet. denied) 35
Perez v. Williams,

474 S.W.3d 408 (Tex.App. – Houston [1st Dist.] 2015, no pet.) 15, 20, 21, 30

Radcliffe v. Tidal Petroleum, Inc.,
521 S.W.3d 375 (Tex.App. – San Antonio 2017, pet. denied) 18, 23
Robles v. Mann,
No. 13-14-00211-CV (Tex.App. – Corpus Christi-Edinberg April 21, 2016,

no pet.) 36
Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex. 1970) 24, 27
Sullivan v. Jam-King of New York, Inc.,
No. 05-11-01546-CV (Tex.App. – Dallas July 11, 2013, pet. denied) 18, 23
Treme v. Thomas, 161 S.W.2d 124 (Tex.Civ.App. – Beaumont 1942, n.w.h.) 17

Statutes
Tex. Property Code §13.001 21

Tex. Property Code §24.005 19

Rules
Tex. R. App. P. 9.4 43

Tex. R. Civ. P. 166a(i) 14
Tex. R. Civ. P. 510.10 28
Tex. R. Evid. 801(e)(2)(A) 17
Tex. R. Evid. 803(24) 17

TO THE HONORABLE JUSTICES OF SAID COURT:

Jack Permison, Appellant (“Permison”), submits this Brief in support of his appeal of the trial court’s March 30, 2017, Order Granting Appellee Dave Ward’s No Evidence Summary Judgment Motion, of the trial court’s May 17, 2017, order granting Ward’s Second No Evidence Motion for Summary Judgment in this matter, and of the trial court’s Final Judgment filed October 26, 2017.
STATEMENT OF THE CASE

On August 6, 2015, Permison filed his Original Petition in which he sought judgment against the Defendants-Appellees Carrie Morris (“Morris”) and Dave Ward (“Ward”) on numerous cause of action related to Permison’s rental of a room from the Appellees in 2015. CR 18-27. On June 27, 2016, Permison filed a Supplemental Original Petition. CR 213-214. On January 25, 2017, Permison filed a First Amended Original Petition. CR 421-430. On March 3, 2017, Permison filed a Second Amended Original Petition. CR 760-769. On March 15, 2017, Permison filed a Third Amended Original Petition. CR 982-993.

On February 27, 2017, Ward filed a No Evidence Motion for Summary Judgment relating to Permison’s First Amended Original Petition, which stated claims against both Morris and Ward for breach of contract; negligence; interference with Plaintiff’s property rights and constructive eviction; premise liability; refund of security deposit; common law fraud, bad faith and

misrepresentations; damage to credit; and exemplary damages; and a claim of retaliation against Morris. CR 421-430, 505-548. On March 20, 2017, after a hearing, 2 RR 1-28, the trial court filed an Order granting Ward’s motion and ordering that Permison’s claims against Ward be dismissed with prejudice. CR 1017-1018.

On April 24, 2017, Ward filed a Second No Evidence Motion for Summary Judgment relating to Permison’s Third Amended Original Petition, which added a claim for conspiracy against both Morris and Ward. CR 982-992, 1041-1095. On May 17, 2017, the trial court granted Ward’s Second No Evidence Motion. CR 1385.

The trial court conducted a jury trial on Permison’s claims in the Third Amended Original Petition against Morris on August 15-18, 2017. 1 RR 2-4. The Third Amended Original Petition stated claims for breach of contract; interference with Plaintiff’s property rights and constructive eviction; premises liability and gross negligence; failure to refund security deposit; wrongful eviction; common law fraud; willful disclosure of incorrect ownership information; damage to credit; retaliation; exemplary damages; and conspiracy. CR 982-992.

After the close of the evidence, Morris moved for a directed verdict on all counts of the Third Amended Original Petition. 5 RR 119-141. The trial court granted the motion as to the causes of action for interference with Plaintiff’s

property rights and constructive eviction, id. at 137, premises liability and gross negligence, id. at 137, common law fraud, id. at 138, and damage to credit, id. at 136, 138. The trial court denied the motion as to the remaining counts. Id. at 137-

138. However, before the case went to the jury, Permison abandoned his claims for wrongful eviction, id. at 144, and conspiracy, id. at 133.

On August 18, 2017, the jury issued its verdict. CR 1488-1497. On October 26, 2017, the trial court filed its Final Judgment (signed December 8, 2017) that

incorporated the jury’s verdict. CR 1585-1589. On February 19, 2018, the trial court clerk gave notice of the signing of the Final Judgment. CR 1592. On May 16, 2018, Permison filed his Notice of Appeal. CR 1614-1615.

STATEMENT REGARDING ORAL ARGUMENT The Appellant does not request oral argument.

ISSUES PRESENTED

1. Whether the trial court erred in granting Ward’s first no evidence summary judgment motion.

2. Whether the trial court erred in granting Ward’s second no evidence

summary judgment motion.

3. Whether Ward acted on his own or as Morris’s co-conspirator, co-

owner, and/or agent to cause Permison’s damages.

4. Whether the trial court erred in granting Morris’s motion for directed

verdict as to the causes of action for interference with Plaintiff’s property rights

and constructive eviction; premises liability and gross negligence; common law

fraud; and damage to credit in the Third Amended Original Petition.

STATEMENT OF FACTS1

During March 2015, Permison had discussions with Morris regarding a room

that she had advertised for rent in her house at 6911 Oak Lane, Richmond, TX

(hereinafter the “Property”). Affidavit of Jack Permison, ¶¶2-3. CR 794-795. On

March 23, 2015, he contacted Morris and informed her that he would like to rent a

room at the Property for the agreed amount, $700 per month plus a $300 deposit.

Permison and Morris then entered into an agreement for him to rent a room in the

Property, and Permison gave Morris a check for the deposit as well as the rent for

the month and nine days on or about March 23, 2015. Id. at ¶4, CR 795; 3 RR 37-

40.

On April 5, 2015, Ward asked Permison if Ward could store some of

Morris’s blankets and pillows in the closet of the room that Permison was renting,

1 The citations to the Court Record relate to the facts presented in the summary judgment proceedings. The citations to the Reporter’s Record relate to the evidence presented at trial (which relate to the appeal of the directed verdict motion and which was generally consistent with the affidavits of Permison and the other two witnesses, Michael Brewster and Brenda Jones, that were presented in the summary judgment proceedings).

and Permison agreed. Roughly half an hour after this request, Ward called Permison and said that he had placed the items outside of the door to Permison’s room and asked if Permison would move them into the closet. However, when Permison looked outside his door, he realized that the items were too large to fit in the available closet space. Not knowing what to do, he spoke with his house mates, and it was suggested to leave the items where they were. Id. at ¶9, CR 795-796; 3 RR 47-50.

On April 6, 2015, he received a text from Morris asking, “Did u put that stuff under your bed and in the closet? I do not want it left outside.” Id. at ¶10, CR 796; Exhibit A-4 to Permison Affidavit, CR 823 (printout of text messages); see also Permison Affidavit, ¶6, CR 796 (Exhibit A-4 was a true and correct copy of the text messages). Permison texted Morris back advising that he had not done that because the items in question were too large to fit in the space available. Id.; 3 RR 51-53.

Fifteen minutes later, Permison received the following three texts from Carrie Morris: “The deal I gave u, I have never given anyone, Forget the rides. I need to rent out the room for full price plus full deposit. Thank u I did not get a pet deposit either We gave u a vehicle for Free for a week. U cannot move that stuff in

the room U need to get out of my house. Thank u.”2 Id. at ¶11, CR 797; 3 RR 51-

53.

Permison responded by text, “Let me make sure I got this straight. Are you

evicting me?” Morris replied, “Yes, I hope that is straight enough for you.”

Permison had not violated the lease agreement in any way; nor had he been given

any indication by Morris that he had violated the lease. Permison believed that,

based on Morris’s texts, she was using his failure to store a large quantity of her

things in his room as a pretext to evict him. Id. at ¶12, CR 797; 3 RR 51-53; 4 RR

47-48.

Over the next hour and a half, Permison continued to receive threating text

messages from Morris that, inter alia, demanded that he contact Ward, whom she

claimed was the actual owner of the Property, and that he wanted Permison out of

the home. Id. at ¶13, CR 797; 4 RR 48-50. Morris specifically texted, “Daves the

owner of my house. Sue him. He holds the title. He gets the money.” Id. at ¶13, CR

797; see also Exhibit A-4 to Permison Affidavit, CR 821 (printout of text

message); 4 RR 50-51. Permison contacted Ward that afternoon, but Ward

2 The reference to the pet deposit related to Permison’s advising Morris that he had rescued a kitten and asking her if she wanted it. She advised that Permison could keep it at the house while he tried to find a home for it and never gave him a deadline for getting rid of it. The reference to the vehicle was to Ward’s having let Permison use his car because Permison’s car was in the repair shop. Permison

Affidavit, ¶¶6-7, CR 796; 3 RR 43-47.

informed him that he was a third party and that Permison would have to deal with Morris directly. Id. at ¶14, CR 797.

Late that day, Morris placed hundreds of mothballs throughout the area of the Property where Permison’s room was located. She placed the mothballs in various areas around the Property, including the attic, air-conditioning ducts, bathroom, and the outside of the home. Mothballs were not placed on the other side of the home that was away from Permison’s room. The tenants of the house confronted her about the excessive use of mothballs, but she left the Property. Id. at ¶16, CR 798; Affidavit of Brenda Jones, ¶9, CR 966; Affidavit of Michael Brewster, ¶5, CR 969; 3 RR 53-54; 4 RR 156 (Jones testimony); 4 RR 187-189 (Brewster testimony).

Brewster received the following text from Morris that evening when he complained to her about the mothballs: “I will remove the mothballs When the threat of rats snakes bugs and that jack is gone.” Id. at ¶16, CR 798; Affidavit of Michael Brewster, ¶6, CR 969; 4 RR 190-191 (Brewster’s testimony).

The tenants cleaned up what mothballs they could access and disposed of them. Permison Affidavit, §17, CR 798; 3 RR 55. Not knowing the health dangers associated with breathing the fumes caused by the mothballs, Permison slept in his rented room that night. The next morning, on April 7, 2015, he woke up with many problems, including labored breathing, nausea, vomiting, light headedness,

headache, and sneezing. He packed what he could into his car and left the house. He drove to Memorial Hermann Katy Hospital, where he received emergency medical attention. Id. at ¶18, CR 798; 3 RR 60-64.

During his stay in the emergency room, Ward called him and agreed that the amount of stuff that he had delivered to the house would not fit in Permison’s room. Permison advised Ward that he was vacating the Property. Ward told Permison that he was evicting Morris from his home. Id. at ¶19, CR 799.

Permison did not return to the Property after he was released from the

hospital that day because of Morris’s demands that he leave the premises, her

willingness to harass me and disregard of the law, and because of the threats to his

health if he stayed. Permison moved temporarily into a hotel and incurred

$1,812.08 in hotel bills as a result of not being able to live in the rental property.

Id. at ¶20, CR 799; see also Exhibit A-9 to Permison Affidavit, CR 909-932 (hotel

bills); 4 RR 13-15.

On or about April 9, 2015, Morris filed a Complaint for Eviction against Permison, claiming that it was her premises and that she was entitled to possession of it. Id. at ¶21, CR 799; see also Exhibit A-10 to Permison Affidavit, CR 933 (Complaint for Eviction); 7 RR 75-76 (trial exhibit). It should be noted, however, that Ward’s name was originally on the Complaint for Eviction as a plaintiff, but was crossed off. Id.

Also on that date, Ward, Morris, and two of Ward’s associates came to the Property. Ward told Brewster that he (Ward) was the owner of the Property and that, if Brewster did not vacate the Property, he would be thrown in jail. Brewster Affidavit, ¶8, CR 969; 4 RR 198-201.

On or about April 11, 2015, Ward told Permison in a telephone call that he (Ward) was the owner of the Property. Ward said that, because he was the homeowner, he was evicting Permison from his room in the Property. Id. at ¶22, CR 800; Exhibit A-5 to Permison Affidavit, CR 860-861 (transcript of phone call); see also Permison Affidavit, ¶7, CR 796 (Exhibit A-5 was a true and correct transcription of Ward’s telephone call with Permison). Ward said, “I own that house so, everybody is leaving that house at the end of the lease and I’m going to sell it and get my money back because I have got money invested and once I give her the money she’s gonna go and get her apartment.” Permison then asked if Ward was on the deed, and Ward said, “Yes.” CR 860.

Ward continued, “I just want everybody out of there, I got to get the house cleaned up, I need to get it sold.” He said, “I’m tired of all this drama and I just want to get my money back, get the house sold and Cody, everybody, I talked to everybody, everybody is in agreement, they understand when their lease is up they leave. I’m going to send my boys over and get the place cleaned and get it sold so I can get my money and hopefully get Carrie enough money to get a place to stay.”

CR 861. He said further, “I evicted you and this Mike guy,” and that “I’m doing everything the legal way.” CR 862.

On the same date, April 11, 2015, a Notice to Vacate Property was placed on the door of Permison’s room at the Property. Permison Affidavit, ¶22, CR 800; Exhibit A-11 to Permison Affidavit, CR 934 (Notice to Vacate). The Notice to Vacate lists Ward as both the landlord and the person delivering the notice.

After Permison moved out, a “Waiver of Liability and Hold Harmless Agreement” was given to other tenants in the Property, including Brewster. That document is in the names of both Morris and Ward. Permison Affidavit, ¶23, CR 800; Exhibit A-18 to Permison Affidavit, CR 962-963.

SUMMARY OF THE ARGUMENT

This is a case of a lease gone bad. Jack Permison rented a room in a house with the best of intentions, but, for no good reason, was harassed, poisoned, and wrongfully and unlawfully evicted from his room in that house by Appellees Morris and Ward.

Morris and Ward conspired to not only constructively evict him, but actually evict him through legal proceedings. They created a fraudulent reason for wanting Permison out: that he would not store a large amount of Morris’s belongings in his one room. And once Permison advised haplessly that he could not fit all of that stuff into his room, the games began.

Morris spread mothballs around the house in an obvious (and successful) attempt to sicken Permison and drive him out. And Ward was, in his own words to Permison, “involved.”

Ward told Permison on more than one occasion that he owned the Property. Ward also told one of the other tenants the same thing: that Ward owned the Property. Ward told Permison, “I own that house so, everybody is leaving that house at the end of the lease and I’m going to sell it and get my money back because I have got money invested and once I give her the money she’s gonna go and get her apartment.”

But it is not just Ward’s words that show that he was “involved,” his deeds also show that. Within days after Permison left the house, a Notice to Vacate Property was placed on the door of Permison’s room at the Property. This Notice listed Ward as both the landlord and the person delivering the notice.

Thus, as a result of Ward’s actions asking Permison to store those items, he was evicted. This sequence of events shows that Ward was either acting as Morris’s agent or in his own capacity when he asked Permison to store those items that A, he knew would not fit, and B, as a result of Permison being physically unable to store those items, would cause difficulties with Morris.

And, finally, after Permison moved out, Morris and Ward prepared a Waiver of Liability and Hold Harmless Agreement that they gave to other tenants of the

Property. The key aspect of that Waiver was that it was in the names of both Morris and Ward.

It said, inter alia, “ln consideration for LIVING AT [the Property], I hereby RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE CARRIE MORRIS OR DAVE WARD – their officers, servants, agents, or employees (hereinafter referred to as RELEASE’S) from any and all liability, claims, demands, action and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained by me, or to any property belonging to me, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASE’S, or otherwise, while participating in such activity, or while in, on or upon the premises where the activity is being conducted. I have not been poisoned, harassed, assaulted.”

Why would Ward feel the need to attempt to absolve himself from liability if he wasn’t the landlord or owner? The only reasonable answer to that question comes from his own words, “I was involved.”

And the statement “I have not been poisoned, harassed, assaulted,” more likely than not referred to the effect upon the tenants of Morris’s having placed the mothballs all around the Property, as well as constituted an admission by Morris and Ward that they had worked together to use mothballs to force Permison to vacate his room.

The trial court erred in granting Ward’s two motions for summary judgment. The case should be reversed and remanded so that Jack Permison can have his day in court against his landlord Ward.

The trial court similarly erred in partially granting Morris’s motion for directed verdict after the close of the evidence at trial. Morris moved a directed verdict as to all of the counts of Permison’s Third Amended Original Petition, and the trial court granted the motion as to Permison’s claims against Morris for interference with Plaintiff’s property rights and constructive eviction; premises liability and gross negligence; common law fraud; and damage to credit.

The evidence at trial was substantially the same as the evidence presented in the summary judgment motions. Based on the evidence presented at trial, the trial court should have found that Permison brought forth more than a scintilla of evidence as to those counts.

ARGUMENT

I. STANDARD OF REVIEW ON SUMMARY JUDGMENT MOTIONS

“We review de novo the trial court’s ruling on a summary judgment motion.” Donaldson v. Texas Department of Aging & Disability Services, 495 S.W.3d 421, 431 (Tex.App. – Houston [1st Dist.] 2016, pet. denied), citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

“An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). “To determine if the nonmovant has raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not.” Donaldson, supra at 432 (citations omitted). “We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. (citations omitted).

II. THE TRIAL COURT ERRED WHEN IT GRANTED WARD’S FIRST NO
EVIDENCE SUMMARY JUDGMENT MOTION

A.Basic law on no evidence summary judgment motions

“After adequate time for discovery, a party without presenting summary judgment evidence may move for 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. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(i).

“The burden then shifts to the nonmovant to produce evidence raising a fact issue on the challenged elements. The reviewing court must view the evidence in
14

the light most favorable to the nonmovant, disregarding all contrary evidence and inferences.” Perez v. Williams, 474 S.W.3d 408, 415 (Tex.App. – Houston [1st Dist.] 2015, no pet.) (citation omitted). “The trial court must grant the no-evidence summary judgment unless the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.” Id. (citations omitted). More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citation omitted).

B. Evidence showing that Ward was involved in the placing of mothballs around the Property and in Permison’s eviction and subsequent damages, either by acting on his own or as Morris’s co-conspirator, co-owner, and/or agent

Ward claimed that Morris was the sole record owner of the Property and that there was no evidence that Ward entered into a written or oral contract or agreement with Permison or that he owed Permison any duty of any kind. As such, Ward sought and received a no evidence summary judgment on Permison’s claims against Ward.

But the trial court erred in granting Ward’s motion because Permison brought forth far more than a scintilla of evidence to show that Ward contributed to cause Permison’s damages, either by acting on his own or as Morris’s co-conspirator, co-owner, and/or agent.

1. Morris admitted that Ward owned the Property

On April 6, 2015, Morris texted Permison, “Daves the owner of my house. Sue him. He holds the title. He gets the money.” Exhibit A-4 to Permison Affidavit, CR 821.

2. Ward admitted that he owned the Property

On April 7, 2015, while Permison was in the emergency room, Ward called him and told him that he was evicting Morris from his home. CR 799 (emphasis added).

On or about April 9, 2015, Ward told one of the other tenants, Michael Brewster, that he (Ward) was the owner of the Property. CR 969.

860-861. Ward said, “I own that house so, everybody is leaving that house at the end of the lease and I’m going to sell it and get my money back because I have got money invested and once I give her the money she’s gonna go and get her apartment.” Permison then asked if Ward was on the deed, and Ward said, “Yes.” CR 860.

These are Ward’s exact words. They are admissions,3 and admissions have

consequences. Treme v. Thomas, 161 S.W.2d 124, 133 (Tex.Civ.App. – Beaumont

1942, n.w.h.) (“From birth to death one must face the consequences of his

admissions against interest; it does not destroy their evidentiary weight; this is the

general rule of evidence.”).

In fact, Ward’s statements are especially relevant (and damaging) because

they are admissions against interest. An admission against interest is “any

statement made or act done by one of the parties to any action or on his behalf

which amounts to a prior acknowledgment by such party that one of the facts

relevant to the issues is not as he now claims.” Hartford Accident & Indemnity Co.

v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963) (citation omitted).4

In this litigation, Ward has been arguing that he was not the Property’s

owner or landlord, but, all during the incident, he took quite a different tack: he

said not just to Permison, but to another tenant, Brewster, who had absolutely

nothing to do this matter, that he was the owner.

3 Tex. R. Evid. 801(e)(2)(A) (“The statement is offered against an opposing party and: was made by the party in an individual or representative capacity.”).

4 See also Tex. R. Evid. 803(24)(A) (“A statement against interest is a statement that “a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace.”).

Possibly Ward might contend through counsel that this is irrelevant, that he was just shooting his mouth off, but words have consequences. That is why the trial court erred, because it failed to view those words in the light most favorable to Permison and disregarded all contrary evidence and inferences. And, in viewing those words in the light most favorable to Permison, the trial court should have found that Permison brought forth far more than a scintilla of probative evidence to raise a genuine issue of material fact on the issue of Ward’s involvement in the moth ball incident and in fact in the entire eviction process. The trial court erred by failing to find that reasonable and fair-minded people could have differed in their conclusions regarding this evidence (i.e., these words). King Ranch, supra.

The Courts of Appeals have frequently found a party’s admission constitute more than a scintilla of evidence warranting denial of a summary judgment motion. See generally D.K.W. v. The Source for Publicdata.com, LP, 526 S.W.3d 619, 631 (Tex.App. – Dallas 2017, pet. pending) (“Stringfellow’s admission alone constituted more than a scintilla of summary judgment evidence….”); Radcliffe v.

Tidal Petroleum, Inc., 521 S.W.3d 375, 385 (Tex.App. – San Antonio 2017, pet. denied) (“Tidal’s admission is more than a scintilla of evidence of trespass against an NPRI.”); Sullivan v. Jam-King of New York, Inc., No. 05-11-01546-CV (Tex.App. – Dallas July 11, 2013, pet. denied), memorandum op. at 6 (“Based on

Sullivan’s own admission, reasonable and fair-minded people could have concluded that Sullivan failed to comply with the settlement agreement.”).

3. The Notice to Vacate Property that Morris and Ward prepared for Permison’s eviction admitted that Ward was a landlord of the Property

On April 11, 2015, a Notice to Vacate Property was placed on the door of Permison’s room at the Property. CR 800, 934. The Notice to Vacate listed Ward as both the landlord and the person delivering the notice. CR 934.

It is well settled that the person or entity who must give a tenant notice to vacate is the “landlord.” Tex. Property Code §24.005(a) states, inter alia, “If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.”

The Notice to Vacate could not be clearer. At the top, it listed “Carrie Morris

& Dave Ward” in the second line at the top as “Landlord.” Their names appeared again as “Landlord” as the bottom. This is yet another admission that Ward was at least the landlord, if not the owner, of the Property. This is more evidence that the trial court erred in failing to view in the light most favorable to Permison. And this is more evidence that the trial court ignored when it implicitly found that

reasonable and fair-minded people could not differed in their conclusions

regarding the evidence. King Ranch, supra.

4. The Waiver of Liability and Hold Harmless Agreement given to other tenants of the Property was in the names of both Morris and Ward

After Permison moved out, a “Waiver of Liability and Hold Harmless

Agreement” was given to other tenants in the Property, including Brewster. That

document is in the names of both Morris and Ward. CR 800, CR 962-963. In fact,

paragraph 1 of the document specifically states:

ln consideration for LIVING AT [the Property], I hereby RELEASE, WAIVE, DISCHARGE AND COVENANT NOT TO SUE CARRIE MORRIS OR DAVE WARD – their officers, servants, agents, or employees (hereinafter referred to as RELEASE’S) from any and all liability, claims, demands, action and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained by me, or to any property belonging to me, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASE’S, or otherwise, while participating in such activity, or while in, on or upon the premises where the activity is being conducted. I have not been poisoned, harassed, assaulted.

CR 962.

Regardless of the legal validity of such a document, it is clearly an

admission that Morris and Ward were working together as landlords, if not owners,

of the Property. And, viewing the evidence in the light most favorable to Permison,

the trial court should have found that the statement “I have not been poisoned,

harassed, assaulted,” more likely than not referred to the effect upon the tenants of

Morris’s having placed the mothballs all around the Property. Perez, supra. And in

further viewing the evidence in the light most favorable to Permison, the trial court should have found that that statement “I have not been poisoned, harassed, assaulted,” in the context of this alleged Hold Harmless agreement, was an admission by Morris and Ward that they had worked together to use mothballs to force Permison to vacate his room.

5. That Ward was not a record owner of the Property is irrelevant Whether Ward is a record owner of the Property is irrelevant as between the

three parties to this case. Ward admitted on numerous occasions that he owned the Property. That is significant evidence that can be used against him that he owned the Property. That Ward is not a record owner of the Property is no moment for the issues raised in this case.

Ward admitted that he owned the Property. Thus, viewing the evidence in the light most favorable to Permison, the trial court should have found that Ward was the owner. Perez, supra. If Morris had wished to transfer part or all of her interest in the Property to Ward without recording it in the Real Property Records, that was her business. Such an action is absolutely binding as Morris and Ward and does not affect Permison in any way. E.g., Tex. Property Code §13.001(b) (“The unrecorded instrument is binding on a party to the instrument, on the party’s heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument.”).

C. Permison brought forth more than a scintilla of evidence as to the causes of action in the First Amended Original Petition

The evidence presented above – Ward’s own words, written and verbal, to not just Permison, but also Michael Brewster, the Notice to Vacate, and the Hold Harmless Agreement – is the evidence that, when viewed in the light most favorable to Permison, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” King Ranch, supra. Based on that evidence, the trial court should have found that Permison brought forth more than a scintilla of evidence as to the causes of action in the First Amended Original Petition, and therefore erred in granting Ward’s motion.

1. The breach of contract claim

In this claim, Permison contended that he had a valid and enforceable lease with Morris and Ward; that Morris and Ward ensured him a livable and enjoyable use of the Property, but did not provide a safe, healthy and enjoyable environment; and that, due to their individual and joint breach of contract, he suffered economic damages. First Amended Original Petition, ¶¶14-16, CR 423.

As discussed above, Permison has clearly brought forth more than a scintilla of evidence on this issue. He has shown that the evidence has risen to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, supra.

While Permison does not contend that he had an explicit written or oral lease with Ward, see NextEra Retail of Texas, LP v. Investors Warranty of America, Inc., 418 S.W.3d 222, 226 (Tex.App. – Houston [1st Dist.] 2013, pet. denied) (citation omitted) (“Generally, a party cannot be held liable under another party’s contract without an express or implied assumption of the obligations of that contract.”), Morris’s own actions and words, and particularly Ward’s own actions and words, show that Ward expressly or impliedly assumed the obligations of that contract.

Specifically, Ward 1) admitted to Permison and Brewster that he owned the Property; 2) admitted in the Notice to Vacate that he was the landlord of the Property, and 3) sought to absolve himself of liability to the tenants in the Hold Harmless Agreement for his role in the moth ball incident. These admissions constitute more than a scintilla of evidence that warranted denial of Ward’s summary judgment motion. D.K.W., supra; Radcliffe, supra; Sullivan, supra.

These admissions further demonstrate how Ward expressly and/or impliedly assumed the obligations of Morris’s lease with Permison and thus breached the lease, 1) by acting on his own as owner and/or landlord, and/or 2) by acting as Morris’s co-conspirator, co-owner, and/or agent.

2. The negligence claim

In this claim, Permison contended that Morris and Ward individually and jointly owe and owed him a duty to act in a manner and to provide a safe and

habitable premises; and that they breached this duty through harassment, threats, and placing a deadly and hazardous chemical throughout the Property (i.e., the mothballs) with the intent to force Permison to vacate the Property after he had paid for the month in advance. First Amended Original Petition, ¶19, CR 424.

Although Ward claimed that there was no evidence that he ever owed a duty to Permison, it is well settled that Ward had a duty as an individual to exercise reasonable care to avoid a foreseeable injury to others. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). Further, as a landlord and/or owner of the Property, Ward had a duty to use ordinary care in maintaining the premises in safe condition and by giving Permison warning of any defect. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex. 1970) (“The basic duty of a landowner or occupier to his invitees is to exercise ordinary care to keep the premises in a reasonably safe condition.”) (citations omitted).

In order to recover for negligence, an injured invitee-plaintiff must “show (1) that the owner or occupier created or maintained on the premises some condition involving an unreasonable risk, of harm.” Id. Permison alleged that Ward breached these duties by allowing Morris, as his co-owner or agent to create a hazardous condition in the Property with mothballs and by not making sure that Permison was aware of the danger posed by the mothballs in the Property. And Permison showed that Ward, though his admissions and actions, has created far

more than a scintilla of evidence as to whether Ward maintained on the premises some condition involving an unreasonable risk of harm. The trial court erred by failing to view this evidence in the light most favorable to Permison.

3. The interference with property rights and constructive eviction claims

In this claim, Permison contended that he was deprived of the beneficial use or enjoyment of the rented premises due to the intentional act of Morris and Ward in placing mothballs in the Property; that Morris and Ward intended these actions to force Permison to move out of the Property and to cause him physical harm; that Permison did suffer physical injury and harm from the mothballs; and that Permison was constructively evicted. First Amended Original Petition, ¶¶22-26, CR 424-425.

Once again, Permison showed that Ward, though his admissions and actions, has created far more than a scintilla of evidence as to whether Ward interfered with Permison’s property rights and constructively evicted him. The Waiver of Liability and Hold Harmless Agreement is perfect evidence of that. Viewing that document in the light most favorable to Permison, the trial court should have found that the statement “I have not been poisoned, harassed, assaulted,” more likely than not referred to the effect that placing the mothballs all around the Property would have had on the tenants of the Property, and should have found that that statement “I have not been poisoned, harassed, assaulted” was an admission by Morris and
25

Ward that they had worked together to use mothballs to force Permison to vacate

his room.5

The trial court erred by failing to view this evidence in the light most

favorable to Permison.

4. The premise liability claim

In this claim, Permison contended, inter alia, that Morris and Ward

individually and jointly knew, or should have known in the exercise of ordinary

care, that placing the mothballs on the Property posed an unreasonable risk of harm

to Permison; and that they individually and jointly were negligent in that they

created the condition, knew about the condition and created it with malice and the

intent to harm and drive away Permison. First Amended Original Petition, ¶¶31-34,

CR 426.

As previously stated, Permison has showed that Ward, though his

admissions and actions, has generated far more than a scintilla of evidence as to

whether he created a dangerous condition on the Property. Ward was a landlord

5 It should also be noted that, contrary to Ward’s contentions in his motion, ¶19, CR 509, “successful prosecution of a forcible entry and detainer suit does not bar a later action for wrongful eviction.” Magcobar North American v. Grasso Oilfield Servs., 736 S.W.2d 787, 797 (Tex.App. – Corpus Christi 1987), writ dism’d, 754 S.W.2d 646 (Tex. 1988) (citations omitted). Further, a “forcible entry and detainer action (i.e., an eviction action) is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state.” McGlothlin v. Kliebert,

672 S.W.2d 231, 233 (Tex. 1984).

and/or owner of the Property and so had a duty to use ordinary care in maintaining the premises in safe condition and by giving Permison warning of any defect. Seideneck, supra. The trial court erred by failing to view this evidence in the light most favorable to Permison.

5. The refund of security deposit claim

In this claim, Permison contended, inter alia, that Morris and Ward failed to refund his security deposit. First Amended Original Petition, ¶38, CR 427. Permison has showed that Morris and Ward worked together as landlords and/or owners of the Property. Ward had just as much of an obligation to return the security deposition as Morris did. But neither of them returned the security deposit. Permison Affidavit, ¶25, CR 800.

6. The common law fraud, bad faith, and misrepresentation claims In these claims, Permison contended, inter alia, that Morris and Ward 1)

individually and jointly filed for a wrongful eviction and presented false information leading to a judgment against Permison in the eviction case; 2) individually and jointly intentionally and knowingly lied to the court about payment of rent, the condition of the property, and about the terms and circumstances of the eviction; and 3) individually and jointly intentionally and knowingly mislead Permison as to who owned the Property and to whom Permison

was to be dealing with in regards to the lease. First Amended Original Petition, ¶41-44, CR 427-428.

Permison affirmed in his Affidavit that the allegation of the Complaint for Eviction were false. The Complaint listed the following grounds for eviction: holding over, animal on premises, bodily harm, “threatened harm to me physically,” abusive, damage to house, and $300 was owed in back rent. Permison Affidavit, ¶21, CR 799; see also Complaint for Eviction, CR 933.

Permison affirmed that, other than the cat that was on the Property temporarily with Morris’ consent, all of the grounds for eviction in the Complaint were false. His rent had been paid through the end of April; he did not owe any rent; he was not holding over past the end of the lease, he had and has never caused Morris bodily harm; he has never threatened her with physical harm; he has never been abusive to Morris; and he never caused damage to the Property. Permison Affidavit, ¶21, CR 799.

Although the Justice Court did grant the Complaint for Eviction, because an eviction appeal results in a de novo trial at the county court level, the appeal and subsequent dismissal of that appeal (see Permison Affidavit, ¶¶26-27, CR 800-801) served as a dismissal of the entire eviction action, not just Permison’s appeal. Tex. R. Civ. P. 510.10. In addition, as previously noted, an eviction case is not

exclusive, but cumulative, of any other remedy that a party may have. McGlothlin, supra.

Permison has showed through Ward’s own words and deeds that he was a landlord and/or owner of the Property. He was as responsible for this as Morris was. In Ward’s own words, he was “involved.” CR 863. The trial court erred by failing to view this evidence in the light most favorable to Permison.

7. The damage to credit claim

In this claim, Permison contended, inter alia, that Morris and Ward individually and jointly filed for a wrongful eviction and presented false information leading to a judgment, causing damage and harm to Permison’s credit. First Amended Original Petition, ¶47, CR 428.

As previously stated, Ward himself told Permison that he was “involved.” CR 863. Because Ward was a landlord and/or owner of the Property and was responsible for the notice to vacate and eviction case, Permison’s rental history is irreparably harmed in that it is a matter of public record that an eviction case was filed against him and that the justice court rendered a judgment against him, when the truth is that the eviction never should have been filed in the first place given that Permison had already moved out of the Property. The trial court erred in failing to credit Permison’s affidavit and view the evidence in the light most favorable to him.

8. The exemplary damages claim

In this claim, Permison contended, inter alia, that the conduct of Morris and Ward individually and jointly was intentional, willful, and in total disregard for Permison’s rights; that their individual and joint conduct was of the kind and character that warrants the imposition of exemplary damages in order to compel respect for the law and the rights of others, and to deter them individually and jointly and other similarly situated from similar conduct in the future. First Amended Original Petition, ¶51, CR 429.

The trial court should not have granted Ward’s motion on this point because it was defective. It said simply, “As to Plaintiff’s allegations that Defendant, Ward, is responsible for exemplary damages, there is no evidence that Ward has done anything to Permison which would remotely be considered justification for exemplary damages.” Motion, ¶24, CR 510.

This Honorable Court has held, “The party moving for no-evidence summary judgment must specifically state the elements as to which there is no evidence.” Perez, supra (citations omitted). “A no-evidence challenge that only generally challenges the sufficiency of the non-movant’s case and fails to state specific elements is fundamentally defective and insufficient to support summary judgment as a matter of law.” Martin v. New Century Mortgage Co., 377 S.W.3d 79, 85 n. 3 (Tex.App. – Houston [1st Dist.] 2012, no pet.), quoting Mott v. Red’s

Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex.App. – Houston [1st Dist.] 2007, no pet.).

Because Ward’s motion did not state the specific elements of the claim as to which there was no evidence, the trial court erred by considering it. But, given that the trial court did consider (and grant) the motion as to this count, it erred by failing to view the evidence in the light most favorable to Permison.

Permison argued that he was entitled to exemplary damages in that the actions of Morris and Ward, individually and jointly, in constructively and wrongfully evicting Permison were grossly negligent or committed intentionally or with malice, based on the Affidavits of Permison and his co-tenant Michael Brewster. Permison Affidavit, ¶¶20-21, 799; Brewster Affidavit, ¶6, CR 969.

In summary, the trial court erred by failing to view the evidence in the light most favorable to Permison. If the trial court had viewed the evidence in the light most favorable to Permison, it would have had to find that Ward’s words and deeds constituted admissions that he a co-landlord of the Property, co-owner of the Property, and that he was generally “involved.” CR 863. By Ward’s own words and deeds, he was involved in the management of the Property and in Permison’s constructive eviction by moth ball.

Viewing the evidence in the light most favorable to Permison, the trial court erred by not finding that Ward was involved in the moth ball scheme because he

was afraid that he was going to get sued for it by a moth ball affected tenant (hence the Hold Harmless Agreement with his name on it). This case should be reversed and remanded so that Permison can have his day in court.

III. THE TRIAL COURT ERRED WHEN IT GRANTED WARD’S SECOND
NO EVIDENCE SUMMARY JUDGMENT MOTION

Ward’s second no evidence summary motion (CR 1041-1047) related to

Permison’s Third Amended Original Petition, which added a conspiracy claim against Morris and Ward. In that claim, Permison alleged that Morris and Ward “joined together and conspired to accomplish the constructive eviction and wrongful eviction of Permison. Defendants had a meeting of the minds about the constructive eviction and wrongful eviction of Permison. Carrie Morris committed at least two unlawful, overt acts in furtherance of the conspiracy, including the placement of mothballs outside of Petmison’s room and filing a wrongful eviction in justice court against Permison on false grounds after Permison had already vacated the Property. As a proximate result of the constructive eviction and wrongful eviction underlying the conspiracy, Permison suffered damages, including physical harm, economic damages, and harm to his credit and rental history.” CR 991.

Ward claimed that no evidence existed as to any of those allegations, see Motion, ¶¶21-24, CR 1045-1046, but he is wrong, and the trial court erred in accepting Ward’s contentions.
32

“The required elements of a civil conspiracy are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result.” JSC Neftegas-Impex v. Citibank, N.A., 365 S.W.3d 387, 420 (Tex.App. – Houston [1st Dist.] 2011, pet. denied) (citation omitted). The evidence described in §II.B., supra – Ward’s own words, written and verbal, to not just Permison, but also Michael Brewster, the Notice to Vacate, and the Hold Harmless Agreement – when viewed in the light most favorable to Permison, satisfies Permison’s burden of proof in opposing a no evidence summary judgment motion. King Ranch, supra.

First, there were certainly two or more people involved, Morris and Ward. Second, the object to be accomplished was Permison’s unlawful eviction. Morris’s texts show that she knew that the eviction was baseless and unlawful. When Permison contested her allegations against him (CR 821-823), she texted him back, “Sue him.” CR 821. Permison responded, “Why would I sue Dave? Morris’s response was “Ur funny.” Permison asked, “Then why did you send me a text saying ‘sue him’?,” but Morris’s response was a nonsensical “Thank u.” Then she texted, “Daves the owner of my house. Sue him. He holds the title. He gets the money. Dave ward. Call him.” CR 821.

And Ward had told Permison, “I own that house so, everybody is leaving that house at the end of the lease and I’m going to sell it and get my money back

because I have got money invested and once I give her the money she’s gonna go and get her apartment.” CR 860. Ward then concluded his statements on the subject with “I am involved.” CR 863. Viewing Morris’s texts and Ward’s own words (I own that house … I’m going to sell it and get my money back), as well as the other evidence described above, in the light most favorable to Permison, the trial court should have found that Morris and Ward were trying to bring about Permison’s unlawful eviction.

The third factor is that there was a meeting of the minds on the object or course of action. And once again, viewing those texts as well as the other evidence described in §II.B., supra – Ward’s own words to Permison and Brewster, the Notice to Vacate, and the Hold Harmless Agreement – in the light most favorably to Permison, the trial court should have found that Morris and Ward had a meeting of the minds on the goal of unlawfully evicting Permison. But if that was not enough evidence, it must be remembered that, by asking Permison to store Morris’s personal items in his room, Ward personally set off the chain of events that resulted in Permison’s eviction. Permison Affidavit, ¶9, CR 796. The trial court failed to view that fact in the light most favorably to Permison as well. If it had, it should have used that as additional evidence that created a scintilla of evidence as to the conspiracy claim.

The fourth, factor, one or more unlawful, overt acts, was easily met. The placing of the mothballs around the house and the Notice to Vacate were certainly overt acts designed to drive Permison out of the house. And, lastly, there can be no reasonable dispute but that Permison has suffered damages as a proximate result of Morris’s and Ward’s actions. Permison Affidavit, ¶¶18, 20, 28 and related exhibits. CR 798-801.

Based on this evidence, the trial court should have found that Permison brought forth more than a scintilla of evidence as to his conspiracy claim, and therefore it erred in granting Ward’s second motion.

IV. THE TRIAL COURT ERRED WHEN IT GRANTED MORRIS’S MOTION FOR DIRECTED VERDICT AS TO THE AS TO PERMISON’S CLAIMS OF INTERFERENCE WITH PROPERTY RIGHTS AND CONSTRUCTIVE EVICTION, PREMISES LIABILITY AND GROSS NEGLIGENCE, COMMON LAW FRAUD, AND DAMAGE TO CREDIT

A. Standard of review as to motions for directed verdict

A Court of Appeals reviews applies the same standard for a directed verdict as it does for a no-evidence motion for summary judgment. Pelco Construction Company v. Chambers County, 495 S.W.3d 514, 520 (Tex.App. – Houston [1st Dist.] 2016, pet. denied).
B. The trial court erred in granting the motion for directed verdict

Permison’s evidence at trial against Morris was essentially the same evidence as contained in his, Jones’s, and Brewster’s affidavits in support of his

response to Ward’s motion for summary judgment, with the exception that some of

Ward’s admissions were not admitted at trial because he was not a defendant at

trial. And, based on this evidence, the trial court should have found that Permison

brought forth more than a scintilla of evidence as to his claims against Morris for

interference with Plaintiff’s property rights and constructive eviction; premises

liability and gross negligence; common law fraud; and damage to credit.

“The elements of tortious interference with property rights are: (1) an

interference with one’s property or property rights occurred; (2) such interference

was intentional and caused damage; and (3) the interference was conducted with

neither just cause nor legal excuse.” Robles v. Mann, No. 13-14-00211-CV

(Tex.App. – Corpus Christi-Edinberg April 21, 2016, no pet.), memorandum

opinion at 16-17 (citations omitted). Permison proved that at trial without a doubt.

The moth ball incident was absolutely an intentional interference with Permison’s

right to use and enjoy his room.

Permison testified, with respect to the mothballs:

She had two bags of — at the time, I didn’t know what they were, but they ended up being mothballs, and she began to spread them throughout the house, both inside and out. She placed them in the upstairs, in the attic, in the air conditioning vents, around the outside of my room, in the laundry room, specifically only on the side of the house that Mike Brewster and I lived on in separate rooms. But we both had the rooms that were on that side of the house. There were about nine boxes, ten boxes. She had two bags of these boxes of mothballs.

3 RR 53.

Morris put the mothballs only on Permison’s side of the house, after clear evidence that was irate at him and demanded, for no good reason, that he move out. And Brewster testified that Morris texted him that she would get rid of the mothballs when Permison moved out (i.e., when “that Jack” is gone). 4 RR 191.

This evidence showed interference, intention, damage, and utter lack of just cause or legal excuse. The trial court erred in granting the motion for directed verdict as to that count.

As to the premises liability and gross negligence claim, the elements of a premises liability cause of action are: “(1) the owner had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and (4) the owner’s failure to use such care proximately caused the plaintiff’s injuries.” Clark v. Randalls Food, 317 S.W.3d 351, 357 (Tex.App. [1st Dist.] 2010, pet. denied), citing LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

And the elements of a gross negligence claim are: “(1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and

(2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of

others.” Lockett v. HB Zachry Co., 285 S.W.3d 63, 77 (Tex.App. – Houston [1st Dist.] 2009, no pet.) (citation omitted).

Once again, Permison introduced more than sufficient evidence at trial as to these claims. Certainly Morris had actual knowledge of some condition on the premises because she put the mothballs there. Permison presented evidence that the mothballs posed an unreasonable risk of harm given that he ended up at the emergency room from mothball poisoning and the physician’s diagnosis was “chemical inhalation.” 4 RR 71; Exhibit 7, medical records, 7 RR 26, 58 (history includes complaint of mothball poisoning), 59 (diagnosis).

Clearly, Permison showed that Morris did not exercise reasonable care to reduce or eliminate the risk of harm from the mothballs as the evidence was that there were hundreds of them everywhere on his side of the house. 3 RR 53; 4 RR

188. And Permison’s medical records with a diagnosis of chemical inhalation showed that Morris’s failure to use such care proximately caused his injuries.

These facts meet the elements for a gross negligence claim as well. Morris’s spreading of the mothballs all around Permison’s side of the house undeniably

involved an extreme degree of risk in that it sent Permison to the hospital with vomiting and a terrible headache. 3 RR 62-63.

And the evidence clearly shows that Morris knew what she was doing, that she had actual, subjective awareness of the risk involved, but nevertheless

proceeded in conscious indifference to the rights, safety, or welfare of others. She had an argument with her tenant and then demanded that he vacate the property. Then, when Permison did not act as quickly as she had demanded, she came over to the house in a rage and mothballed him out of the house. And, finally, when another tenant, Brewster, said something to her about the mothballs, the texted him that she would rid of the mothballs when “that Jack” is gone. Viewing the evidence in the light most favorable to Permison, the trial court should have found that Morris knew what she was doing and that her actions constituted gross negligence.

Accordingly, Permison brought forth far more than a scintilla of evidence as to these claims, and the trial court erred by granting Morris’s motion for directed verdict.

As to common law fraud, its elements are “(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.” O’Brien v. Daboval, 388 S.W.3d 826, 840 (Tex.App. [1st Dist.] 2012, no pet.) (citation omitted).
Permison’s claim against Morris for common law fraud was as follows:

44. Defendants individually and jointly failed to disclose the proper ownership and management of the Property rented by Permison. Defendants

individually and jointly intentionally and knowingly mislead Permison as to who owned the Property and to whom Permison was to be dealing with in regards to the lease. Each Defendant pointed their fingers at the other Defendant as the owner and/or responsible party to whom Permison was to deal with regarding the Property.

45. In addition, Defendants mischaracterized the Property as “drama free” and failed to disclose significant issues related to the Property, including conflicts between Carrie Morris and David Ward, conflicts between Carrie Morris and other tenants, Carrie Morris’ romantic interest in Permison, and Defendants’ willingness to shortcut and abuse the eviction process if a problem arose.

CR 989.

Permison’s evidence as to this claim constitutes far more than a scintilla of

evidence. Permison testified at trial that the drama free situation was a selling point

for him; i.e., that is why he took the room. 3 RR 47. It was also clearly a selling

point for Morris, as her headline in her Craigslist ad for the room was “$1000

ROOM FOR RENT IN PARADJSE***FREE OF DRAMA**.” Plaintiff’s Exhibit

1, 7 RR 5. Common sense says that Morris created this headline (i.e., made this

representation) with the intent that readers (including Permison) should and would

act upon it by renting her room. E.g., O’Brien, supra. Further, the evidence shows

that Morris had to have known that the headline was false or that she made it

recklessly without any knowledge of the truth and as a positive assertion.

Nevertheless, when Permison got there, he found pre-existing drama. He

was told by other tenants that Morris and Ward regularly had arguments that

spilled over into the tenants at the home. Id.

Then, Permison testified that Morris made a pass at him in Ward’s bedroom. She suggested that they have a sexual tryst, which Permison was not at all interested in. 3 RR 48. And certainly, the whole business of Morris evicting Permison because he could not accede to her request (through Ward) to store some of her belongings in his room because he literally did not have the room must be the very definition of high drama.

Viewing the evidence in the light most favorable to Permison, there should be no real dispute but that Permison presented far more than a scintilla of evidence on his common law fraud claim.

And, as to the damage to credit claim, Permison has proven at trial that he suffered a loss of credit that was “the natural, probable, and foreseeable consequence of [Morris’s] breach of contract.” Mead v. Johnson Group, Inc., 615 S.W.2d 685, 688 (Tex. 1981). He testified that this incident harmed him in, among other ways, that he now has on his credit rating that he has been evicted. 4 RR 30. The trial court erred in granting a directed verdict on that count.

Based on the evidence presented at trial, the trial court should have found that Permison brought forth more than a scintilla of evidence as to these counts, and therefore erred in granting Morris’s motion for directed verdict as to his claims against Morris for interference with Plaintiff’s property rights and constructive

eviction; premises liability and gross negligence; common law fraud; and damage

to credit.

PRAYER

For the above reasons, the Appellant respectfully prays that, upon appellate

review, this Honorable Court reverse the trial court’s orders granting Appellee

Dave Ward’s two no evidence summary judgment motions and reverse the trial

court’s orders granting Appellee Morris’s motion for directed verdict as to his

claims against Morris for interference with Plaintiff’s property rights and

constructive eviction; premises liability and gross negligence; common law fraud;

and damage to credit.

Respectfully submitted,

/s/ Robert L. Sirianni, Jr.
Robert L. Sirianni, Jr., Esq.
SBOT No. 24086378
BROWNSTONE, P.A.
PO BOX 2047
Winter Park, Florida 32790

Telephone: (407) 388-1900
Facsimile: (407) 622-1511

Attorney for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of August, 2018 a copy of this pleading was furnished to all opposing counsel through the Court’s electronic filing system.

/s/ Robert L. Sirianni, Jr.
Robert L. Sirianni, Jr., Esq.

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

I hereby certify that this document complies with the type-volume limitations because it is computer-generated and does not exceed 15,000 words. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 9,770 words in the entire document excluding the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14-point Times New Roman.

/s/ Robert L. Sirianni, Jr.

Robert L. Sirianni, Jr., Esq.

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JACK PERMISON V. CARRIE MORRIS AND DAVE WARD appellants brief