                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                              NO. 09-15-00491-CV
                          ____________________

                   JESSIE CHARLES HORTON, Appellant

                                       V.

                        WALDEN MARINA, Appellee

________________________________________________________________________

                   On Appeal from the 284th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-07-07359-CV
________________________________________________________________________

                         MEMORANDUM OPINION

      Jessie Charles Horton (Horton or Appellant) appeals summary judgment

granted in favor of Walden Marina (Appellee).1 In three issues, Horton argues that

the trial court erred in (1) striking Horton’s affidavit because it was competent

summary judgment evidence; (2) granting summary judgment on Horton’s premises



      1
       The trial court granted two separate summary judgments in favor of Walden
Marina that collectively disposed of all claims and issues.
                                        1
liability claim because a genuine issue of material fact exists as to each challenged

element; and (3) granting summary judgment for the defendant on Horton’s breach

of implied warranty of suitability claim because the claim was timely filed, the “as

is” provision in the contract does not waive the warranty, and the evidence raises a

genuine issue of material fact as to each challenged element. We affirm.

                                  Background Facts

      Horton filed suit against Walden Marina on July 12, 2013. According to

Plaintiff’s First Amended Petition, Horton rented a boat slip from Walden Marina.

The petition alleged that, as Horton stepped off the dock at Walden Marina onto his

boat on or about September 5, 2011, “a wooden board supporting his weight

completely broke[]off, causing [Plaintiff] to fall, severely and permanently injuring

himself as he grabbed a mooring with his right hand, tearing and shearing internal

portions of his shoulder joint and related tissue.”2 Horton sued Walden Marina for



      2
         According to the appellate record, Walden Marina’s premises include
concrete walkways used by the public and tenants to access each boat slip. A tenant
accesses his or her boat by stepping off each slip’s separate wooden deck area and
on which there is a locked storage box, and the tenant has exclusive control and
access to the locked storage box. Other wood-decked areas for public use exist, such
as “C dock deck[,]” but the other areas are different from the separate slip deck areas
used for accessing tenants’ boats. The appellate record includes two Slip Rental
Agreements between Horton as tenant and Walden Marina as landlord for the rental
of boat slip C-11: (1) an initial lease expiring after one year on June 30, 2011; and
(2) a second lease agreement identical to the initial lease agreement, except that the
                                          2
premises liability, negligence, and violations of the Texas Deceptive Trade Practices

Act (DTPA), and also sought actual damages in the amount of $915,000, statutory

damages under the DTPA, pre-judgment and post-judgment interest, attorney’s fees,

and court costs. The petition asserted that Walden Marina, as owner and operator,

was responsible for maintaining the wooden dock area and owed a duty to protect

and safeguard Horton, an invitee, from unreasonably dangerous conditions on the

premises or to warn of their existence.

      Walden Marina filed traditional and no-evidence motions for summary

judgment as to the premises liability and negligence claims and as to Horton’s

requests for damages for past lost wages and future loss of earning capacity. Horton

filed a response to the motions and attached exhibits as summary judgment evidence,

including an affidavit of Horton. In his affidavit attached to his response to Walden

Marina’s motion for summary judgment, Horton attested to the following:

      My name is JESSIE CHARLES HORTON, I am over the age of
      EIGHTEEN (18) years, I have personal knowledge of the facts stated
      herein and I am the PLAINTIFF in this lawsuit.

      The wooden deck area which collapsed was always maintained by
      Walden Marina. Whenever I would call the Property Management, to
      report rotted wooden boards, Walden Marina would send out someone
      to replace the boards a short time after my call.


second lease agreement was a month-to-month lease from July 2011 to July 2012
with payments due monthly under the lease agreement.
                                          3
Walden Marina filed a reply to Horton’s response, along with a motion to strike

Horton’s affidavit.

      On July 24, 2015, Horton filed a Fourth Amended Petition. The Fourth

Amended Petition included the earlier pleaded premises liability and negligence

claims, but did not include a claim for violations of the DTPA. Horton also included

a claim for breach of the implied warranty of suitability arising out of the lease

agreement for the boat slip. The petition sought actual damages in the amount of

$3,400,000, damages for breach of warranty in the amount of $72,500, pre-judgment

and post-judgment interest, attorney’s fees, and court costs.

      On August 14, 2015, the trial court granted Walden Marina’s motion to strike

Horton’s affidavit. The same day, the trial court signed an order granting Walden

Marina’s “Traditional and No-Evidence Motions for Summary Judgment as to the

premises liability and negligence claims and request for damages for past lost wages

and future loss of earning capacity alleged in Plaintiff’s First Amended Original

Petition[,]” and dismissing those claims with prejudice.

      Walden Marina subsequently filed its Traditional and No-Evidence Motions

for Final Summary Judgment as to Horton’s remaining claim for the breach of

implied warranty of suitability. Walden Marina argued that the breach of implied

warranty claim is barred by the applicable statute of limitations, Horton waived all

                                          4
warranties by executing the “as is” boat slip lease, the implied warranty of suitability

does not apply to a non-commercial lease or areas outside of the leased space, and

Horton failed to offer legally sufficient evidence to raise a fact issue as to the

elements of the claim. On November 10, 2015, the trial court signed an order

granting the summary judgment, dismissing the breach of implied warranty of

suitability claim with prejudice, and stating that “[t]his judgment finally disposes of

all parties and all claims in this matter[.]”

                                  Standard of Review

      A trial court’s rulings on objections to summary judgment evidence are

reviewed under an abuse of discretion standard. See United Blood Servs. v. Longoria,

938 S.W.2d 29, 30-31 (Tex. 1997). To obtain a reversal, an appellant must not only

show that the trial court’s substantive ruling was erroneous, but that the ruling was

harmful error, i.e., it was calculated to cause and probably did cause the rendition of

an improper judgment. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.

1995); see also Tex. R. App. P. 44.1(a)(1).

      We review a trial court’s summary judgment de novo. See Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant for

traditional summary judgment must establish that (1) there is no genuine issue of

material fact and (2) that the movant is entitled to judgment as a matter of law. Tex.

                                            5
R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644

(Tex. 1995). If the moving party produces evidence that it is entitled to summary

judgment, the burden shifts to the non-movant to present evidence that raises a

material fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In

determining whether there is a disputed material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference

must be indulged in favor of the non-movant and any doubts resolved in its favor.

Id. at 549.

      In reviewing a no-evidence motion for summary judgment, we view the

evidence in the light most favorable to the non-movant. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 601 (Tex. 2004). The non-movant, here the plaintiff, must produce

summary judgment evidence raising a genuine issue of material fact to defeat the

summary judgment. See Tex. R. Civ. P. 166a(i). “A genuine issue of material fact

exists if more than a scintilla of evidence establishing the existence of the challenged

element is produced.” Ford Motor Co., 135 S.W.3d at 600. “When the evidence

offered to prove a vital fact is so weak as to do no more than create a mere surmise

or suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

                                           6
      In this case, the trial court granted Walden Marina’s summary judgments

without specifying the grounds. We will affirm the trial court’s judgments if any of

the grounds advanced by Walden Marina in its summary judgment motions are

meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000).

                 Summary Judgment on Premises Liability Claim

      In his second issue, Horton contends that the trial court erred in granting

summary judgment on Horton’s premises liability claim because a genuine issue of

material fact exists as to each challenged element. “In a premises liability case, the

duty owed to the plaintiff depends on the status of the plaintiff at the time of the

incident.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004). A lessor

generally has no duty to tenants or invitees for dangerous conditions on the leased

premises. Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex.

1992) (citing Restatement (Second) of Torts § 356 (1965)). “This general rule stems

from the notion that a lessor relinquishes possession or occupancy of the premises

to the lessee.” Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285

(Tex. 1996). The Texas Supreme Court has recognized several exceptions to this

rule. See id. For example, a lessor who makes repairs may be liable for injuries

resulting from the lessor’s negligence in making the repairs. Id. (citing Flynn v. Pan

                                          7
Am. Hotel Co., 183 S.W.2d 446, 448 (Tex. 1944)); see also Restatement (Second)

of Torts § 357 (1965). A lessor who conceals defects on the leased premises of which

the lessor is aware may also be liable. Endsley, 926 S.W.2d at 285 (citing Morton v.

Burton-Lingo Co., 150 S.W.2d 239, 241 (Tex. 1941)); see also Restatement

(Second) of Torts § 358 (1965). Under some circumstances a lessee can be an invitee

and a lessor may be liable for injuries caused by a defect on a portion of the premises

that remains under the lessor’s control. See Shell Oil Co. v. Khan, 138 S.W.3d 288,

296 (Tex. 2004) (quoting Restatement (Second) of Property § 17.3 cmt. a (1977))

(recognizing landlord liability to a tenant for a common area the landlord controls);

Endsley, 926 S.W.2d at 285 (citing Parker v. Highland Park, Inc., 565 S.W.2d 512,

514-15 (Tex. 1978)); see also Restatement (Second) of Torts §§ 360, 361 (1965).

      To succeed on a premises liability claim, an invitee must prove the following

elements: (1) actual or constructive knowledge of a condition on the premises by the

owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3)

that the owner or occupier did not exercise reasonable care to reduce or eliminate

the risk; and (4) that the owner or occupier’s failure to use such care proximately

caused the plaintiff’s injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.

2000). “Actual knowledge requires knowledge that the dangerous condition existed

at the time of the accident, as opposed to constructive knowledge which can be

                                          8
established by facts or inferences that a dangerous condition could develop over

time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008). For actual

knowledge, courts generally consider whether the premises owner had received

reports of prior injuries or reports of the potential danger presented by the condition.

Univ. of Tex-Pan Am. v. Aguilar, 251 S.W.3d 511, 514 (Tex. 2008). Constructive

knowledge, however, can be established by facts or inferences that a dangerous

condition could develop over time. Stewart, 249 S.W.3d at 415.

      Walden Marina argued in its summary judgment motions and on appeal that,

as to Horton’s premises liability and negligence claims, Horton produced no

evidence that Walden Marina, as lessor of the boat slip, controlled any portion of

slip C-11 including the deck Horton rented and where his injuries allegedly occurred.

Walden Marina also argued that the negligent repair and concealed defect exceptions

do not apply because there is no evidence that Walden Marina ever undertook a

repair of the C-11 decking prior to Horton’s alleged injury, and there is no evidence

that any of Walden Marina’s personnel knew there was a defect on the decking

where Horton fell. According to Walden Marina, Horton presented no evidence that

Walden Marina had actual or constructive knowledge of a defective condition on the

decking where Horton fell.




                                           9
      In his response to Walden Marina’s motions for summary judgment, Horton

argued that a genuine issue of material fact exists as to the element of control because

the decking where he was injured was a common area, the lease agreement did not

cover the decking area where he was injured, Walden Marina replaced wooden

decking after another person fell less than a year before Horton’s fall, Walden

Marina replaced the boards where Horton fell after his fall, and Walden Marina had

employees whose duties included keeping the marina premises clean and safe. On

appeal, Horton argues he was a tenant of the boat slip but an invitee “on the dock

itself and the summary judgment evidence raises, at a minimum, a genuine issue of

material fact on Walden Marina’s control of the dock where Horton was injured.”

Horton maintains on appeal that the lease agreement was only for the “boat stall”

and not for any portion of the deck area, the decking where he was injured was not

covered by the lease agreement, and the terms of the lease agreement explicitly

provided that Horton did not have control of the dock area.

      Walden Marina attached summary judgment evidence to its motion for

summary judgment, including excerpts from Horton’s November 8, 2012

deposition:

      Q.    . . . When you first rented your slip in July of 2011, was there
      already a deck?

      A.      Yes, ma’am.
                                          10
      Q.     Decking in the slip? Do you have any knowledge on who
      installed the deck?

      A.     No idea.

      Walden Marina also attached Horton’s October 22, 2013 deposition

testimony, when he testified to the following:

      Q.    You testified in your previous deposition that the deck – the
      wooden deck, that that was already installed when you purchased your
      boat and began renting the boat slip. Is that correct?

      A.     That is correct.

      Q.    And that was back in 2010? That was your testimony, it was
      about July, in the summer of 2010.

      A.     Yes, ma’am, around that time.

      Q.    And that the -- that you were aware at that time that you were
      renting the boat slip on an as is basis. Is that correct?

      A.     I was renting it as a boat slip. I never knew it was as is.

      Q.     That was your testimony, that you knew it was as is.

      A.     Okay. Well, I -- yes, ma’am.

      Q.     So are you stating now that you did not know it was as is?

      A.     I knew it was as is. I just know that they provide maintenance on
      the structures.

      Q.     How did you know they provide maintenance on the structures?

      A.     I witnessed them doing it.

                                          11
Q.     What did you witness?

A.    Building the decking and removing decking. Not my particular
decking.

Q.     What decking?

A.     It was next to my boat slip that they removed.

Q.     The large patio --

A.     Yes.

Q.     -- area?

A.     Uh-huh.

....

Q.    That large patio area, is that an area that all of the tenants of the
marina can use?

A.     Yes, ma’am. It was public.

Q.     Any other maintenance on the structures?

A.     I have seen them replace some of the cement tiles and electrical
lines.

Q.    And the cement tiles, are you referring to the cement tiles in the
dock?

A.    Yes, on the floating portion of the dock. And they also built a
new walkway out there when they moved it when the water went down.
They built a new decking walkway.

Q.     Is that walkway for use by everybody?

                                    12
A.     Yes, ma’am.

Q.     And the dock, that concrete dock, that is the dock that everybody
uses to walk to their individual boat slips, correct?

A.     Yes, ma’am.

Q.    And as part of the as is provision, the marina did not make any
representations or guarantees to the rental space. Is that correct?

A.     Yes, ma’am.

Q.     And the wooden decking that is at issue -- so whenever I refer to
the wooden decking in your dock, if you’ll agree with me that I’m
referring to the wooden decking that is at issue in this case where the
board broke. Can you agree with me on that?

A.     Yes.

Q.    And the wooden decking, that’s part of the boat slip that you rent,
correct?

A.     Yes, ma’am.

....

Q.     The top photograph on that page, what is that a photograph of?

A.     That is the edge of the dock and the addition, the wooden
addition.

Q.     The decking?

A.     Uh-huh.

Q.     Is -- can you see your boat in that photograph?

A.     Yes, ma’am.
                                   13
Q.     Is there anything else in the photograph?

A.     Dock box.

....

Q.     And that’s your dock box, correct?

A.     It came with the slip.

Q.     So is it yours?

A.     No, ma’am.

Q.     It is not?

A.     I don’t know whose it is. It came with the dock. I use it.

Q.     What do you use it for?

A.     To keep life vests in.

Q.     Do you keep it locked?

A.     Yes, ma’am.

Q.     Who has access to the box, the dock box?

A.     Myself and my children and my ex-wife.

Q.     So you and your family?

A.     That’s correct.

....

Q.     But it’s your testimony that you don’t know who it belongs to?

                                   14
      A.     It was on the deck whenever I got there. I assumed it came with
      it.

      Q.     When you say “assumed it came with it,” you mean you assumed
      it was part of what you were renting --

      A.     That’s correct.

      Q.     -- part of rental of the boat slip? Do you use the decking area to
      enter and exit your boat?

      A.     Yes, ma’am, I do.

      Q.     Do you ever enter or exit your boat from the fingers, the side --

      A.     No, ma’am.

      Q.     -- piers? Does anybody else use your deck?

      A.     Not to my knowledge.

Horton stated in his deposition that he controlled the decking where he allegedly fell.

We find nothing in the Slip Rental Agreement that would contradict such testimony

or create a genuine issue of material fact on the element of control.

      As to the element of actual or constructive knowledge of an unreasonably

dangerous condition, Horton argued at trial and on appeal that he produced

testimonial evidence that: (1) after Walden Marina’s Property Manager examined

the deck area after Horton fell, she considered the area an unsafe condition, (2)

Walden Marina had a previous incident of injury on decking less than a year before

Horton’s injury, (3) Walden Marina had employees whose duties included keeping
                                          15
the premises clean and safe, and (4) the latent defect could have been discovered by

reasonable diligence by Walden Marina.

      Horton alleged that the prior slip and fall incident at the marina established

prior knowledge of the defective deck. To establish his argument, Horton relied upon

the following testimony by Walden Marina’s Property Manager:

      Q.     When was the last injury you had before [Horton]’s?

      A.    The last injury before [Horton]’s would have been in January of
      2011.

      Q.     What are the facts?

      A.    . . . Jan Clark was cutting through the C dock deck and she tripped
      and fell on the deck.

      ....

      Q.     Where is her vessel located?

      A.     On C dock.

      Q.     Same one as [Horton]’s?

      A.     Yes.

      Q.     How far from [Horton]’s slip?

      A.     At the time hers was, basically, right around the corner, a few
      slips down.

According to Walden Marina’s Property Manager, “[Jan Clark] wasn’t quite sure[]”

what caused her to trip. The testimony relied on by Horton reflected that a prior fall
                                         16
occurred in a different area (C dock deck, which was used by the public and not part

of any particular slip) of the marina, but it fails to raise a genuine issue of fact that

an unreasonably dangerous condition caused Jan Clark’s trip and fall, or that Walden

Marina knew that the same unreasonably dangerous condition existed in the area of

the C-11 decking when Horton fell.

      In response to Walden Marina’s summary judgment motion, Horton also

presented the following testimony by Walden Marina’s Property Manager as

evidence that Walden Marina had knowledge of the alleged unreasonably dangerous

condition of the C-11 decking:

      Q.     To your knowledge, [the area where Horton fell] was built right.
      Is that what you said?

      A.     To my knowledge, yes.

      Q.    Knowing the facts that you know today, it was built right.
      Correct?

      A.     The facts that I know today, it was not built right.

      ....

      Q.     . . . . It was an unsafe condition. Correct?

      A.     After his fall, we did find an unsafe condition, yes.

We conclude that this testimony does not raise a genuine issue of fact as to Walden

Marina’s actual or constructive knowledge of any alleged defective condition of the

                                           17
C-11 decking prior to the accident. See Del Lago Partners v. Smith, 307 S.W.3d 762,

771 n.32 (Tex. 2010) (discussing duty to warn or make premises safe). Horton

presented no evidence that Walden Marina had prior knowledge of any unsafe

condition on the C-11 decking where Horton fell. The Walden Marina Property

Manager also testified that the marina did not build the C-11 decking that Horton

rented, and that “[t]o our knowledge, the area was safe.”

      Even if the trial court erred in striking Horton’s affidavit, and even if Horton

had created a fact issue on whether Walden Marina controlled the decking where

Horton fell, we conclude that Horton failed to raise a genuine issue of material fact

regarding whether Walden Marina had actual or constructive knowledge of the

alleged premises defect on the C-11 decking where he fell. The trial court did not err

in granting Walden Marina’s summary judgment as to Horton’s premises liability,

negligence, and damages claims. Issue two is overruled. We need not address issue

one. See Tex. R. App. P. 47.1.

          Summary Judgment on Implied Warranty of Suitability Claim

      In his third issue, Horton argues the trial court erred in granting summary

judgment on Horton’s breach of implied warranty of suitability claim because the

claim was timely filed, the “as is” provision in the contract does not waive the

warranty, and the evidence raises a genuine issue of material fact as to each

                                         18
challenged element. As part of Walden Marina’s Traditional and No-Evidence

Motions for Final Summary Judgment on the implied warranty of suitability claim,

Walden Marina asserted among other defenses that Horton’s claim fails as a matter

of law. Walden Marina contends that the implied warranty of suitability does not

apply to the boat slip rental because the Slip Rental Agreement was not a commercial

lease. Horton argued in his response to the motions for summary judgment that the

implied warranty of suitability applies to the Slip Rental Agreement in this case

because “[t]here is no requirement that the tenant must actually be conducting

commerce for the implied warranty of suitability to be applicable—merely that the

Agreement cover commercial rather than residential property.”

      The Texas Supreme Court first recognized the implied warranty of suitability

for intended commercial purposes in Davidow v. Inwood North Professional Group-

Phase I, 747 S.W.2d 373, 377 (Tex. 1988). The implied warranty of suitability

means “that at the inception of the lease there are no latent defects in the facilities

that are vital to the use of the premises for their intended commercial purpose and

that these essential facilities will remain in a suitable condition.” Id. A landlord may

be liable for breach of the implied warranty of suitability for intended commercial

purposes if the evidence shows that: (1) the landlord leased property to the tenant,

(2) the lease covered commercial property, (3) the leased property had a latent

                                          19
physical or structural defect at the inception of the lease, (4) the defect was in an

area that was vital to the property for its intended commercial purpose, (5) the defect

made the property unsuitable for its intended commercial purpose, and (6) the tenant

suffered injury as a result thereof. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car

Sys., Inc., 245 S.W.3d 488, 502 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)

(citing Davidow, 747 S.W.2d at 374-75, 377; Coleman v. Rotana, Inc., 778 S.W.2d

867, 871 (Tex. App.—Dallas 1989, writ denied)); see McGraw v. Brown Realty Co.,

195 S.W.3d 271, 276 (Tex. App.—Dallas 2006, no pet.).

      The Slip Rental Agreement executed by Horton expressly provides the

following:

      Commercial Action: Customer understands that the operation of the
      premises is a commercial endeavor of Marinas and therefore,
      Customer[] hereby agrees to refrain from any commercial action
      competitive with the interest of Marina on the Marina premises.
      Customer will not operate boat rentals or charter parties or any other
      commercial endeavor from the Marina.

Even assuming without deciding that the breach of implied warranty of suitability

applied to a non-commercial, personal injury premises liability claim, the “as is”

clause in the Slip Rental Agreement would bar this claim. See Gym-N-I Playgrounds,

Inc. v. Snider, 220 S.W.3d 905, 914 (Tex. 2007) (“as is” clause in the commercial

lease at issue defeated the causation element of an implied warranty of suitability

cause of action). We conclude that the trial court did not err in granting Walden
                                          20
Marina’s traditional summary judgment on Horton’s breach of implied warranty of

suitability claim. We need not address whether the breach of implied warranty claim

was barred by the applicable statute of limitations. See Tex. R. App. P. 47.1. Issue

three is overruled. We affirm the trial court’s judgments.

      AFFIRMED.


                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on September 22, 2016
Opinion Delivered September 28, 2017

Before Kreger, Horton, and Johnson, JJ.




                                          21
