                   IN THE SUPREME COURT OF TEXAS
                                                 ══════════
                                                   No. 14-0086
                                                 ══════════

     PHILADELPHIA INDEMNITY INSURANCE COMPANY, A/S/O MIRSAN, L.P., D/B/A
                    SIENNA RIDGE APARTMENTS, PETITIONER,

                                                           v.


                                    CARMEN A. WHITE, RESPONDENT

               ══════════════════════════════════════════
                             ON PETITION FOR REVIEW FROM THE
                    COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
               ══════════════════════════════════════════

        JUSTICE BOYD, joined by JUSTICE WILLETT, JUSTICE LEHRMANN, and JUSTICE DEVINE,
dissenting.

         The outcome of this case simply depends on which party bore the burden to prove whether

a tenant caused a fire in her apartment. The lease requires the tenant to repair all damage not caused

by the landlord’s “negligence or fault.” The tenant contends the landlord cannot enforce that

requirement because the Texas Property Code requires the landlord to repair the damage unless

the tenant caused the fire and prohibits the landlord from contractually avoiding or waiving that

duty. The Court agrees that the Property Code1 would prohibit the landlord from enforcing the


         1
           The Court actually holds that “public policy embodied in the Property Code” would preclude the landlord
from enforcing the contract. Ante at ___. Although the difference may be subtle and does not affect the outcome in
this case, I do not agree that “public policy” should govern our analysis. Because the Property Code expressly
addresses the lease provisions at issue, the issue is whether the statute—as opposed to “public policy”—renders the
lease agreement unenforceable.
         We have often explained that “parties have the right to contract as they see fit as long as their agreement does
not violate the law or public policy.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 (Tex. 2004) (emphasis
added). And we have found certain types of contracts to be void as against public policy on several occasions. See,
e.g., Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cty., 449 S.W.3d 98, 116 (Tex. 2014) (no-damages-for-
delay provision); Elbaor v. Smith, 845 S.W.2d 240, 249–50 (Tex. 1992) (Mary Carter agreements); Juliette Fowler
lease provision if the tenant had obtained a jury finding that she did not cause the fire. Ante at ___.

I do not agree that the Code puts the burden on the tenant to prove that she did not cause the fire,

and conclude instead that the landlord has the burden to prove that she did. Because the landlord

did not get a jury finding that the tenant caused the fire, I agree with the court of appeals that the

Code prohibits the landlord from enforcing the provision that requires the tenant to repair the

damage. Because the Court holds otherwise, I respectfully dissent.

                                                           I.
                                                       The Lease

         A fire that apparently started in a clothes dryer caused $83,000 in damages to Carmen

White’s apartment and others around hers. When White tried to plug in a new dryer that her parents

had given her, the cord sparked and the breaker tripped. She contacted the landlord, whose




Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 663 (Tex. 1990) (unreasonable covenant not to compete); Ethyl
Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708–09 (Tex. 1987) (contract not expressly requiring indemnification
for one’s own negligence); Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978) (insurance contract
excluding personal injury coverage); Crowell v. Hous. Auth. of Dall., 495 S.W.2d 887, 889 (Tex. 1973) (lease
provision exempting landlord from tort liability to tenants); Hooks v. Bridgewater, 229 S.W. 1114, 1118 (Tex. 1921)
(contract to sell custody of child). But in all of these cases, no statute specifically prohibited the contractual agreement,
so we found the contract unenforceable for public policy reasons.
          Certainly, “it is by now axiomatic that legislative enactments generally establish public policy.” Royston,
Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 504 (Tex. 2015). And “the Legislature may impose
reasonable restrictions on the freedom to contract consistent with public policy.” Marsh USA Inc. v. Cook, 354 S.W.3d
764, 768 (Tex. 2011). But when the Legislature statutorily imposes such a restriction on the freedom of contract, the
issue for the courts is whether the contract violates the statute, not whether it violates “public policy.” See id. at 771
(addressing whether contract meets statutory “requirement for enforceability under the Act”); see also Woolsey v.
Panhandle Ref. Co., 116 S.W.2d 675, 678 (Tex. 1938) (“[A]n agreement which violates a valid statute is illegal and
void.”).
          The Court identifies the issue here as “whether public policy embodied in the Texas Property Code precludes
enforcement of a residential-lease provision,” ante at ___, and concludes that it “cannot say the contract is
unenforceable on public-policy grounds,” ante at ___; see also ante at ___ (stating that the issue is “whether the
agreement runs afoul of public policy embodied in the Property Code”). I believe we should decide whether the
agreement violates the statute, and we need not engage in the less certain exercise of determining whether the
agreement violates public policy as reflected in the statute.

                                                             2
employee later installed the dryer and plugged it in. White was using the dryer when the fire

started, but no one seems to know what actually caused the fire to ignite.

       White signed a lease in which she agreed to pay for any damages that result from “any

cause not due to [the landlord’s] negligence or fault.” The jury was not asked whether the fire was

“due to [the landlord’s] negligence or fault.” Since the jury did not find the landlord negligent or

at fault, I agree with the Court that the lease’s plain language requires White to reimburse the

landlord for the damage.

       But White contends that the lease is unenforceable. Undoubtedly, the agreement is

enforceable under the common law. We “may neither rewrite the parties’ contract nor add to its

language,” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003), and we will

construe its unambiguous language “as a matter of law and enforce it as written,” In re Deepwater

Horizon, 470 S.W.3d 452, 464 (Tex. 2015). White signed a lease agreeing to pay for all damages

not caused by the landlord’s negligence or fault, and the common law would hold her to that

promise.

                                               II.
                                            The Code

       The Legislature, however, has passed statutes that limit the circumstances in which a

landlord can require a residential tenant to repair certain conditions. Specifically, the Property

Code requires a landlord to repair any condition that “materially affects the physical health or

safety of an ordinary tenant.” TEX. PROP. CODE § 92.052(a). And the Code expressly provides that

this duty “may not be waived.” Id. § 92.006(c). Here, because the fire indisputably created a

condition that affects physical health and safety, the Code requires the landlord to repair the

damage despite the lease’s language that would otherwise waive that duty.
                                                 3
         Yet the Code provides an important exception: the landlord’s unwaivable duty to repair

conditions affecting health and safety does not apply to conditions “caused by” the tenant. Id.

§ 92.052(b).2 Because this exception simply says “caused by” the tenant, as opposed to

“intentionally” or “negligently” (or otherwise) caused by the tenant, the Court concludes, and I

agree, that the exception “is not fault based.” Ante at ___. So under the Code, the landlord has an

unwaivable duty to repair any condition that affects a tenant’s physical health and safety unless

the tenant caused that condition, even if the tenant accidentally or innocently caused it. Ante at

___.

         The jury charge only asked whether White negligently caused the fire, and the jury found

that she did not. But that does not mean she did not cause the fire without negligence, and there

was no jury finding on that issue.3 The question of whether the exception for tenant-caused

conditions applies to the landlord’s otherwise unwaivable duty to repair thus depends on who had

the burden to prove that White caused the fire. If White bore the burden to prove that she did not

cause the fire, the Court correctly holds that the landlord has no duty here because White failed to

get the necessary jury finding. But if the landlord had the burden to prove that White caused the

fire, its failure to secure that jury finding renders the exception inapplicable and leaves the landlord



         2
           This exception for tenant-caused conditions does not apply if the condition results from “normal wear and
tear.” TEX. PROP. CODE § 92.052. Since no one claims that the fire damage at issue here resulted from “normal wear
and tear,” this exception to the exception is not at issue.
         3
            The Court suggests that the evidence establishes that White “overload[ed]” the dryer with materials that
contained “cooking oils,” contrary to the warnings in the dryer’s instruction manual. Ante at ___. The jury, however,
heard all this evidence and found that White did not negligently cause the fire. Perhaps, as the Court suggests, the jury
believed White non-negligently caused the fire, but it is difficult to imagine how the jury could have concluded that
White non-negligently caused the fire by overloading the dryer with items containing cooking oils contrary to the
manual’s instructions. In any event, for purposes of resolving the issue before us, it is enough to say that “no witness
was able to explain how the fire inside the dryer drum started,” ante at ___, and the jury was not asked whether White
non-negligently caused the fire.
                                                           4
with the unwaivable duty to repair despite the lease’s provision to the contrary. I disagree with the

Court’s conclusion that the Code places the burden on White to prove that she did not cause the

fire.

                                               III.
                                           The Burden

        Attempting to avoid her contractual obligation, White contends that the agreement violates

the Property Code and thus is invalid and unenforceable. The Court asserts that “White carries the

burden of pleading and proving the contract’s invalidity as an affirmative defense.” Ante at ___. I

agree, but the issue here is not whether the contract violated the landlord’s unwaivable duty, but

whether the tenant-caused exception to that unwaivable duty applies.

        The last time we addressed this statute, we agreed that the Code places the burden on the

landlord to prove that the tenant-caused exception to the unwaivable duty applies. See Churchill

Forge, Inc. v. Brown, 61 S.W.3d 368, 372 (Tex. 2001) (“Without showing that the damage was

caused by the tenant, the landlord would otherwise have a duty to bear the cost of repair . . . .”).

The Court dismisses today what was clear-cut to it then, saying, “Language we employed in

Churchill Forge assumes the opposite but burden of proof was not at issue in that case.” Ante at

___ n.10. I see no reason, however, why our reading of the statute should be different today. Dicta

is not wrong just because it is dicta. As a simple matter of statutory construction, I believe the

Court got it right in Churchill Forge and gets it wrong today.

A.      Burden on the party who relies on the finding
        The Court contends that its construction “properly places the burden of proof on the party

claiming the existence of a duty.” Ante at ___. More specifically, the Court concludes that the

tenant must bear the burden of proving the contract’s “invalidity” because that proof establishes

                                                 5
an affirmative defense to the landlord’s contract claim. Ante at ___. I agree that the tenant bears

the burden of proving the contract’s invalidity as an affirmative defense, but the tenant meets that

burden under the statute by proving that the landlord has an unwaivable duty to repair. TEX. PROP.

CODE §§ 92.052(a), .006(c). Specifically, to avoid her contractual agreement to the contrary, White

had to prove that (1) she properly gave the landlord notice of the condition, (2) she was not

delinquent in rent payments when she gave the notice, and (3) the condition materially affects the

physical health or safety of an ordinary tenant. Id. § 92.052(a).

       If the tenant proves those facts, the landlord must repair the condition unless the tenant

caused the condition. Id. § 92.052(a), (b). Section 92.052(a) describes all the facts that establish

the landlord’s duty, and section 92.052(b) applies only if an additional fact exists: the tenant (or

her family, guest, or another lawful occupant) caused the condition. Id. § 92.052(b). Because the

exception applies only when evidence proves “additional facts” beyond those that trigger the

unwaivable duty, the exception is an affirmative defense to the landlord’s unwaivable duty. See

Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 157 (Tex. 2015) (explaining that an affirmative

defense or avoidance is a defense that “require[s] proof of . . . additional fact[s] to establish its

applicability”).

       In this case, the tenant relies on the statutory unwaivable duty and the landlord relies on

the tenant-caused exception to avoid the unwaivable duty. The fact that the tenant caused the

condition is not an affirmative defense to the landlord’s contract claim; because it is an “additional

fact” that defeats the affirmative defense, it is an exception that provides a counter-defense to the

tenant’s affirmative defense. “[T]he burden of proving a statutory exception rests on the party

seeking the benefit from the exception,” not on the party seeking to avoid that benefit. Better Bus.


                                                  6
Bureau of Metro. Dall., Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309 (Tex. App.—Dallas 2013, pet.

denied) (quoting City of Houston v. Jones, 679 S.W.2d 557, 559 (Tex. App.—Houston [14th Dist.]

1984, no writ)).4 Here, because the landlord seeks the exception’s benefit, it bore the burden to

prove the “additional facts” necessary to trigger the exception.

         We have repeatedly and consistently understood that the burden shifts to the plaintiff to

establish an exception that provides a counter-defense to the defendant’s affirmative defense. See,

e.g., Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642–43 (Tex. 2013) (stating that burden shifted to

plaintiff to establish an exception once defendant conclusively established statute of frauds

affirmative defense); Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d

118, 124 (Tex. 2010) (“If the insurer proves that an exclusion applies, the burden shifts back to the

insured to show that an exception to the exclusion brings the claim back within coverage.”).

Nothing in the Property Code suggests an alternative burden-shifting scheme than that found in

any other context. Properly construed, the Code places the burden on the tenant to establish the

landlord’s unwaivable duty and then places the burden on the landlord to establish the tenant-

caused exception to that duty.

B.       Proof problems
         The Court also asserts that placing the burden on the landlord to prove that the tenant

caused the damage would result in “potentially insurmountable proof problems,” because the



         4
          See also Fed. Trade Comm’n v. Morton Salt Co., 334 U.S. 37, 44–45(1948) (applying “the general rule of
statutory construction that the burden of proving justification or exemption under a special exception to the
prohibitions of a statute generally rests on one who claims its benefits”); Eckman v. Centennial Sav. Bank, 784 S.W.2d
672, 674–75 (Tex. 1990) (holding that defendant has the burden to plead and prove the applicability of statutory
exception to business consumer status in DTPA claim “as an affirmative defense”); Burk Royalty Co. v. Riley, 475
S.W.2d 566, 568 (Tex. 1972) (holding that the initial burden to establish a homestead exemption is on the party
claiming the exemption).
                                                          7
tenant “controls the leased premises and is, therefore, in the best position to . . . prove that another

party is responsible for the damage.” Ante at ___. I disagree. Here, for example, the evidence

established that White acquired and used the dryer. But the landlord’s employee is the one who

actually installed it, and he did so after it sparked when White first tried to plug it in. Because

White relied on the landlord to properly install the dryer, I conclude that the difficulty the landlord

faces in proving that White caused the fire damage pales in comparison to the difficulty White

would face proving that she did not cause the damage. We have consistently recognized that, “as

a practical matter, ‘proving a negative is always difficult and frequently impossible.’” 20801, Inc.

v. Parker, 249 S.W.3d 392, 397 (Tex. 2008) (quoting State Farm Mut. Auto. Ins. Co. v. Matlock,

462 S.W.2d 277, 278 (Tex. 1970)). Absent statutory language compelling the contrary, this Court

does not require parties to disprove facts to prove their case. Cf. Eckman, 784 S.W.2d at 675

(concluding that requiring a DTPA claimant to plead and prove both that he is a consumer and that

he does not fall into an exception for business consumer “is unduly prejudicial”). Nothing in

section 92.052 obligates the tenant to prove a negative, so we should not require White to do so

either.

C.        Section 92.053(a)
          Finally, turning to the statutory text, the Court asserts that Property Code section 92.053(a)

“resolves the issue and plainly” requires its construction of section 92.052. Ante at ___. Section

92.053(a), however, places the burden on the tenant “in a judicial action to enforce a right resulting

from the landlord’s failure to repair or remedy a condition under Section 92.052.” TEX. PROP. CODE

§ 92.053(a) (emphasis added). The Court’s reliance on section 92.053 confuses the tenant’s




                                                    8
“right[s] resulting from” the landlord’s breach of its unwaivable duty with the existence of that

duty in the first place.

        Subsequent sections describe the tenant’s rights when a landlord breaches its duty to repair

a condition. Specifically, the tenant may terminate the lease; have someone repair the condition

and deduct the repair cost from future rent payments; or get a court order requiring the landlord to

repair the condition, reducing the amount of the tenant’s rent, and awarding the tenant a civil

penalty, damages, court costs, and attorney’s fees. Id. §§ 92.056(e), .0561, .0563(a). White is

seeking none of these rights. In fact, she is seeking no affirmative relief at all. She is only

attempting to avoid a contract that the landlord seeks to enforce against her. Her reliance on section

92.052 is a defense to the contract, not a source of any remedy.

        Further, even if she were trying to enforce these statutory remedies, the Property Code sets

out explicit requirements for obtaining those remedies, and section 92.053(a) places the burden of

proof for these requirements on the tenant. That is, to enforce the statutory remedies, the tenant

must first give the landlord “notice to repair or remedy the condition”; the condition must

“materially affect[] the physical health or safety of the ordinary tenant”; the tenant must give the

landlord a reasonable time to make the repairs; the tenant must give the landlord a second notice

if the landlord fails to make the repairs in a reasonable time (unless the tenant delivered the first

notice in writing by a mail service that tracks the notice); the landlord must fail to make a diligent

effort to make the repair; and the tenant must not be delinquent on rent payments when the notice

was given. Id. § 92.056(b). By placing on the tenant the “burden of proof in a judicial action to

enforce a right resulting from the landlord’s failure to repair or remedy a condition under Section

92.052,” section 92.053(a) requires the tenant to prove these conditions to obtain a judicial remedy.


                                                  9
Id. (emphasis added). But the judicial remedies presuppose the landlord’s duty, and section 92.053

does not address the burden of establishing that duty in the first place. 5 I therefore do not agree

that section 92.053 places the burden on the tenant to prove that an exception to the landlord’s

unwaivable duty does not apply.

                                                        IV.
                                                     Conclusion

         Carmen White seeks to escape her agreement to pay for any damages her landlord did not

cause. She relies on a statute that requires the landlord to repair any condition that affects physical

health and safety and prohibits the landlord from waiving that duty. I agree with the Court that

White had the burden to prove that statutory defense. But the landlord (or more accurately here,

its insurer) relies on a statutory exception that eliminates the landlord’s duty when the tenant

caused the damage. I would hold that the burden shifts to the landlord to prove that exception to

White’s statutory defense. The Court merges these two steps into one and requires White to both

prove the duty and disprove the exception. For the reasons explained, I cannot agree. The

landlord’s insurer did not meet its burden to obtain a finding that White caused the fire that created

the condition that the landlord otherwise had an unwaivable duty to repair. I would, therefore,



          5
            The Court also suggests that the later-enacted section 92.162 supports its construction. Ante at ___ n.11.
But that section, which addresses the repair or replacement of a dead bolt, doorknob lock, sliding door handle latch,
or other security device, explicitly puts the burden on the tenant to prove that she did not damage the device. TEX.
PROP. CODE § 92.162(b). Section 92.052, by contrast, contains no such explicit provision placing the burden on the
tenant to prove that she did not cause the condition that triggers the landlord’s unwaivable duty. Id. Every word and
provision excluded from a statute must be presumed to have been excluded for a purpose. Cameron v. Terrell &
Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“Only when it is necessary to give effect to the clear legislative intent
can we insert additional words or requirements into a statutory provision.” (citing Mauzy v. Legislative Redistricting
Bd., 471 S.W.2d 570, 572 (Tex. 1971))); see Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628,
635 (Tex. 2010) (“We presume the Legislature selected language in a statute with care and that every word or phrase
was used with a purpose in mind.”). Section 92.162, therefore, provides no support for the Court’s construction. To
the contrary, it shows that the Legislature knows how to place the burden on the tenant when it intends to, yet it did
not in section 92.052.
                                                          10
affirm the court of appeals’ determination that the statute places the duty to repair on the landlord

rather than on White, despite their contractual agreement to the contrary. Because the Court holds

otherwise, I respectfully dissent.



                                                      _____________________
                                                      Jeffrey S. Boyd
                                                      Justice

Opinion delivered: May 13, 2016




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