                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00321-CV


              JOHN KIRBY & ALL OTHER OCCUPANTS, APPELLANTS

                                            V.

                INDEPENDENT FUTURES HOUSING, LLC, APPELLEE

                     On Appeal from the County Court at Law Number 1
                                   Randall County, Texas
             Trial Court No. 73941-L1, Honorable James W. Anderson, Presiding

                                    March 11, 2020

                            MEMORANDUM OPINION
                    Before QUINN, C.J., and PIRTLE and PARKER, JJ.


      Appellant John Kirby challenges the trial court’s summary judgment in favor of

appellee, Independent Futures Housing, LLC (“IFH”), in its forcible detainer action against

him. We affirm the judgment.


                                       Background


      IFH provides housing for individuals with disabilities. In 2012, IFH leased property

in Amarillo from W. Real Estate, Ltd., with an authorization to sublease the premises. IFH
subleased the property to Kirby under a sublease agreement on March 1, 2017. Under

the agreement, the sublease would expire by its own terms on February 28, 2018.


        In the summer of 2017, Kirby reported to Adult Protective Services and the police

that Dorothy Valdez, an employee of IFH, was exploiting him by using his money without

his permission. On December 28, 2017, Valdez was indicted by a Randall County grand

jury for exploitation of a disabled individual. Three days later, on December 31, 2017,

IFH served Kirby with a notice that the sublease would not be renewed upon its expiration

in February, and advised Kirby to vacate the premises in a timely manner.1


        When the sublease expired on February 28, 2018, Kirby had not vacated the

premises. On March 29, 2018, IFH hand-delivered a letter demanding that Kirby vacate

immediately and advising him that, if he failed to do so within three days, IFH would file

an eviction suit. Kirby did not vacate the premises within three days. IFH subsequently

filed suit in the Justice of the Peace Court, Precinct Four, in Randall County.


        In his answer to the lawsuit, Kirby raised the affirmative defense of retaliation,

alleging that his sublease was wrongfully terminated in retaliation for his exercise of rights

as a victim of a crime. See TEX. PROP. CODE ANN. § 92.331 (West 2014) (the “Anti-

Retaliation statute,” prohibiting retaliation by a landlord). After a jury found in Kirby’s

favor, IFH appealed the judgment to Randall County Court at Law No. 1 for a trial de

novo. IFH then moved for summary judgment on the ground that Kirby had not engaged

in conduct protected under the Anti-Retaliation statute, such that Kirby’s sole defense to




        1 The termination letter incorrectly indicated that the sublease expired on February 28, 2017. IFH
sent a correction letter on January 15, 2018, stating the actual termination date of February 28, 2018.

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the eviction failed as a matter of law. The trial court granted IFH’s motion and Kirby

brought this appeal.


                                        Standard of Review


        We review a traditional summary judgment de novo. Cantey Hanger, LLP v. Byrd,

467 S.W.3d 477, 481 (Tex. 2015). A traditional summary judgment motion is properly

granted when the movant establishes there are no genuine issues of material fact and it

is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Cantey Hanger, 467

S.W.3d at 481. “When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Cantey Hanger, 467 S.W.3d at 481 (quoting Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). When, as here, a movant

establishes its right to summary judgment as a matter of law on its claims, the burden

shifts to the nonmovant to present evidence raising a genuine issue of material fact

regarding its affirmative defense.2 See KPMG Peat Marwick v. Harrison County Housing

Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999); Brownlee v. Brownlee, 665 S.W.2d 111,

112 (Tex. 1984).


                                      Discussion and Analysis


        Chapter 92 of the Texas Property Code prohibits retaliation by a landlord against

a tenant and provides that retaliation is an absolute defense in a suit for eviction. TEX.




        2 In its motion for summary judgment, IFH advanced arguments regarding Kirby’s status as a tenant
at sufferance and IFH’s compliance with notice requirements. However, those issues were not challenged
by Kirby, leaving Kirby’s affirmative defense as the only claim in dispute.

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PROP. CODE ANN. §§ 92.331, 92.335 (West 2014).3 As is pertinent here, section 92.331

prohibits a landlord from filing an eviction proceeding because of, and within six months

of, a tenant’s good faith exercise against a landlord of a right or remedy granted to the

tenant under law. § 92.331.


        In this appeal, Kirby raises two issues. First, he argues that the trial court erred in

granting summary judgment because a genuine issue of fact exists as to whether Kirby’s

report of exploitation prompted his eviction by IFH. Second, he asserts that the trial court

erroneously interpreted the definition of “landlord” under the Property Code.


Issue 1: Anti-Retaliation Statute


        There are two prongs to the defense provided under section 92.331: (1) protected

conduct by the tenant and (2) a retaliatory act by the landlord. See § 92.331. Both prongs

must be established for a defendant to be entitled to a retaliation defense. It was Kirby’s

burden to come forward with summary judgment evidence sufficient to raise a fact issue

on each challenged prong of the defense to avoid summary judgment.


        Kirby’s first issue contends that summary judgment was improper because there

is a “fact question as to whether there was retaliation by IFH.” IFH moved for summary

judgment on the basis that Kirby could not rely on the Anti-Retaliation statute for his

defense because he did not engage in any of the statutorily-protected activities described

by subsection 92.331(a) within the six-month period preceding the termination of his

sublease. That is, IFH only challenged the first prong of Kirby’s defense in its motion for



        3    Further references to provisions of the Texas Property Code will be by reference to “section __”
or “§ __.”

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summary judgment, but Kirby’s first issue on appeal focuses on the second prong of the

retaliation defense, i.e., whether IFH committed a retaliatory act. However, we note that

Kirby also argues that “the two prongs co-exist to trigger the defense of retaliation” and

that there is a genuine issue of material fact as to whether he exercised his rights and

remedies by making reports of exploitation. Therefore, we will liberally construe Kirby’s

first issue to challenge the summary judgment on his retaliation defense. See TEX. R.

APP. P. 38.9; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (“[I]t is our

practice to construe liberally points of error in order to obtain a just, fair[,] and equitable

adjudication of the rights of the litigants.”).


       In his response to IFH’s motion for summary judgment, Kirby claimed that he

engaged in protected conduct as described in subsection (a)(1) of section 92.331, which

reads: “A landlord may not retaliate against a tenant by taking an action described by

Subsection (b) because the tenant: (1) in good faith exercises or attempts to exercise

against a landlord a right or remedy granted to the tenant by lease, municipal ordinance,

or federal or state statute . . . .” § 92.331(a)(1). Specifically, Kirby alleged:


       Dorothy Valdez was an agent of [IFH] when she committed the crimes for
       which she has been indicted. She was an agent of [IFH] when [Kirby]
       contacted and cooperated with law enforcement regarding her crimes.
       [Kirby’s] report to and cooperation with law enforcement are his rights,
       guaranteed by the Texas Constitution and Texas Criminal Procedure.


Thus, the issue is whether Kirby’s report regarding Valdez’s conduct to Adult Protective

Services and law enforcement is action protected under the Anti-Retaliation statute.


       As set forth in the statute, a tenant’s rights or remedies must be “exercise[d]

against a landlord” to come within the scope of protection provided by the Anti-Retaliation


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rule. Id. (emphasis added); see also Wilson v. Westdale Asset Mgmt., LP, No. 02-16-

00232-CV, 2017 Tex. App. LEXIS 3277, at *5-7 (Tex. App.—Fort Worth Apr. 13, 2017,

no pet.) (mem. op.) (per curiam) (directed verdict proper where tenant failed to present

evidence showing that company tenant sued for retaliation was tenant’s landlord). Here,

Kirby only reported Valdez, in her individual name, to Adult Protective Services and law

enforcement. The record contains no indication that he made a complaint or took action

regarding conduct by IFH. Nonetheless, Kirby alleges that there is a fact question as to

whether his report to authorities against Valdez is a report or exercise of his rights against

his landlord, IFH. We disagree.


       The term “landlord,” as used in Chapter 92 of the Texas Property Code, is defined

to mean “the owner, lessor, or sublessor of a dwelling, but does not include a manager

or agent of the landlord unless the manager or agent purports to be the owner, lessor, or

sublessor in an oral or written lease.” § 92.001(2) (West 2014) (emphasis added). There

is no dispute that Valdez was not and did not purport to be the owner, lessor, or sublessor

of Kirby’s residence. Kirby alleges in his pleadings that Valdez was an agent of IFH.4

The statutory definition of landlord expressly excludes managers and agents of the

landlord. Id. As a matter of law, Valdez is not a landlord as that term is defined under

Chapter 92.




        4 Kirby alleges that Valdez was the Housing Coordinator for IFH during the term of the sublease,

which IFH denies. According to IFH, Valdez was Kirby’s Case Management Coordinator. The distinction
is immaterial to our analysis.


                                                   6
        Kirby argues, in a related issue, that the trial court erred in determining that

“landlord” does not include a manager or an agent.5 Kirby contends that applying this

limited definition of landlord renders the Anti-Retaliation statute ineffective or even non-

existent in cases where the landlord is a corporation, because corporations can only act

through their agents.


        In construing statutes, our primary objective is to give effect to the legislature’s

intent as expressed in the language of the statute. Galbraith Eng’g Consultants, Inc. v.

Pochuca, 290 S.W.3d 863, 867 (Tex. 2009). We rely on the plain meaning of the text as

expressing legislative intent unless a different meaning is supplied by legislative definition

or is apparent from the context, or the plain meaning leads to absurd results. See City of

Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). In this case, the legislature

supplied the applicable definition of the word “landlord,” and that definition clearly

excludes agents. See § 92.001(2). When a statute defines a term, Texas courts must

construe that term according to its statutory definition.                    TEX. GOV’T CODE ANN.

§ 311.011(b) (West 2013).


        Further, we disagree with Kirby’s contention that use of the legislature’s definition

yields an absurd result. Kirby suggests that corporate landlords can shield themselves

from consequences under the Anti-Retaliation statute simply by taking retaliatory action

through a manager or agent. This concern is unfounded. As a general rule, the actions

of a corporate agent on behalf of the corporation are deemed to be acts of the corporation.




        Although it made no express ruling on the definition of the word “landlord,” the trial court’s grant
        5

of summary judgment was implicitly based on the definition urged by IFH, relying on section 92.001.

                                                     7
Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995). Nothing in section 92.001 or

section 92.331 thwarts that general rule.


         The Property Code clearly defines landlord, and the trial court did not err in entering

a judgment consistent with that definition. A tenant’s exercise of rights against someone

other than the tenant’s landlord is not protected action under section 92.331(a)(1).

Therefore, we conclude that Kirby failed to raise a fact issue that his report of alleged

criminal activity by Valdez was an exercise of a right or remedy against his landlord, IFH.


         Kirby next contends that we should look first to subsection (b) to determine whether

the landlord committed a prohibited retaliatory act.           Kirby notes that the eviction

proceeding against him is “undisputedly the action of IFH as landlord” and suggests that,

if IFH’s act could be “considered as a reaction to one of the actions taken by a tenant”

under subsection (a), then the retaliation defense is triggered. Again, we disagree.


         In our view, Kirby’s proposed approach is at odds with the plain language of the

statute. Section 92.331 does not lay out the sort of “totality of the circumstances” analysis

suggested by Kirby. Rather, the statute identifies two prongs, which are separate and

independent requirements that must be satisfied before the retaliation defense applies.

Moreover, lumping the two requirements together as Kirby advocates would in this case

effectively render the “against a landlord” phrase within subsection (a) a nullity. It is a

rule of statutory construction that every word of a statute must be presumed to have been

used for a purpose. Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex.

1957).




                                                8
        Therefore, we conclude that Kirby failed to raise a genuine issue of fact on his

retaliation defense. Accordingly, we overrule Kirby’s first issue.


        Because our resolution of Kirby’s first issue supports the application of the

statutory definition of “landlord,” we need not address his second issue. TEX. R. APP. P.

47.1.


                                         Conclusion


        We affirm the judgment of the trial court.




                                                        Judy C. Parker
                                                           Justice




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