Opinion issued November 17, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00651-CV
                           ———————————
                        IRMA K. ORTEGA, Appellant
                                       V.
  ERNEST DIXON MURRAH D/B/A MURRAH PROPERTIES, Appellee


                   On Appeal from the 234th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-17308


                         MEMORANDUM OPINION

      In this personal injury action, appellant, Irma K. Ortega, appeals the trial

court’s summary judgment in favor of appellee, Ernest Dixon Murrah, d/b/a

Murrah Properties, who leased residential property to Ortega. Ortega broke her leg
after she slipped on water that had leaked from a broken pipe under the rental

property’s kitchen sink. In six issues, Ortega argues that the trial court erred in

granting summary judgment because Murrah owed Ortega a duty to repair the sink

and his failure to repair was the cause of her injury. We affirm.

                                    Background

      The summary-judgment evidence shows that in July 2011, Ortega entered

into a residential lease with Murrah, who gave her a telephone number and told her

to call if anything needed repair. Three months later, Ortega noticed water leaking

from the plumbing under the kitchen sink. Ortega’s husband called the phone

number Murrah gave them to report the problem. Ortega adduced evidence that

her husband called numerous times during October, November, and December, but

no one came to fix the plumbing. Ortega admitted that she never submitted her

request for repairs to Murrah in writing.

      In January 2012, while Ortega soaked dishes in the sink, the plumbing

underneath the sink gave way, and water flooded onto the floor. Ortega mopped

up the water but knew that the floor was still damp. She then left the room to

attend to her baby in a different room. When she returned to the kitchen, Ortega

slipped and fell on the damp floor, breaking her leg.

      Ortega sued Murrah for negligence and premises liability. Murrah moved

for summary judgment, arguing that he owed Ortega no duty to repair and,



                                            2
alternatively, that his failure to repair was not the cause of Ortega’s injury. Ortega

argued in response that Murrah had a duty to repair the kitchen sink because (1) he

agreed to make repairs in the written lease, (2) he undertook a duty to make repairs

in a subsequent oral agreement, and (2) Texas Property Code section 92.052

imposed such a duty upon him. See TEX. PROP. CODE § 92.052. The trial court

granted summary judgment in Murrah’s favor, and Ortega appealed.

                                     Discussion

A.    Summary Judgment Standard

      “We review a trial court’s summary judgment de novo.” Travelers Ins. Co.

v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). “We review the evidence presented

in the motion and response in the light most favorable to the party against whom

the summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009).

      When reviewing a summary judgment, we must (1) take as true all evidence

favorable to the nonmovant and (2) indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. Id. In a traditional summary-judgment

motion, the movant has the burden to show that no genuine issue of material fact

exists and that the trial court should grant judgment as a matter of law. TEX. R.



                                          3
CIV. P. 166a(a), (c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988

S.W.2d 746, 748 (Tex. 1999). If the movant meets its summary-judgment burden,

the burden shifts to the nonmovant, who bears the burden to raise a genuine issue

of material fact precluding summary judgment. Lujan v. Navistar Fin. Corp., 433

S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet).

B.     Applicable Law

       In either a negligence or premises-liability case, the plaintiff must establish a

duty owed to the plaintiff, breach of the duty, and damages proximately caused by

the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010);

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

Whether a duty exists is a question of law for the court. Del Lago Partners, 307

S.W.3d at 767. In premises-liability cases, the scope of the duty turns on the

plaintiff’s status. Id.

       A lessor generally has no duty to tenants or their invitees for dangerous

conditions on the leased properties. Johnson Cty. Sheriff’s Posse, Inc. v. Endsley,

926 S.W.2d 284, 285 (Tex. 1996); see Brownsville Navigation Dist. v. Izaguirre,

829 S.W.2d 159, 160 (Tex. 1992) (noting general rule is that lessor of land is not

liable to lessee or to others on land for physical harm caused by any dangerous

condition existing when lessee took possession); Morton v. Burton-Lingo Co., 150

S.W.2d 239, 240–41 (Tex. 1941) (where there is no agreement by landlord to



                                           4
repair premises and he is not guilty of any fraud or concealment, tenant takes risk

of his safety and the landlord is not liable to him or any person entering under his

title or by his invitation for injury caused by reason of their unsafe condition); see

also Palermo v. Bolivar Yacht Basin, Inc., 84 S.W.3d 746, 748 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). This rule stems from the notion that a lessor

relinquishes possession of the premises to the lessee. Endsley, 926 S.W.2d at 285.

      Texas courts do recognize exceptions to this general no-duty rule. For

example, a lessor who agrees to repair the leased property owes a duty to exercise

ordinary care in making the repair. Id.; Blancett v. Lagniappe Ventures, Inc., 177

S.W.3d 584, 590 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A lessor may

also be liable if he concealed defects on the leased premises or an injury is caused

by a defect on a portion of the premises that remained under the lessor’s control.

Id.

C.    No Duty to Repair

      Ortega does not contend that Murrah concealed a defect or that he retained

control of the premises after she moved in. Rather, Ortega argues that Murrah may

be held liable to her because (1) he voluntarily undertook a duty to repair the sink

in the written terms of the lease or orally or (2) Section 92 of the Texas Property

Code created such a duty. We address each of these arguments in turn.




                                          5
      1.     The lease did not create a duty to repair

      Ortega argues that the written lease contains an agreement by Murrah to

make repairs. Specifically, she contends that the lease mentions various items that

the tenant must repair, and a “reasonable tenant would infer from this that the

things not listed are the responsibility of the landlord.”

      When interpreting a contract, we must ascertain and give effect to the

contracting parties’ intent. Perry Homes v. Cull, 258 S.W.3d 580, 606 (Tex.

2008). We focus on the language used in the contract because it is the best

indication of the parties’ intent. Id. We must examine the entire contract in an

effort to harmonize and effectuate all of its provisions so that none are rendered

meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc. 207 S.W.3d 342,

345 (Tex. 2006). We may not rewrite the contract or add to its language under the

guise of interpretation. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162

(Tex. 2003). Rather, we must enforce the contract as written. Lopez v. Munoz,

Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000).

      Paragraph 8 of the lease, entitled “Maintenance by Tenant,” makes Ortega,

not Murrah, responsible for various types of maintenance, including yard

maintenance and cleaning and servicing of the stove and refrigerator. It obligates

Ortega to, among other things:

             a.     Comply with all obligations primarily imposed
                    upon tenants by applicable provisions of building

                                           6
                   and housing codes that materially affect health and
                   safety.

            b.     Keep the premises as clean as the condition of the
                   Premises permits.

            c.     Dispose of all ashes, rubbish, garbage, and waste
                   in a clean and safe manner.

            d.     Keep all plumbing fixtures in the Premises as clean
                   as its condition permits.

            e.     Use all electrical, plumbing, sanitary, heating,
                   ventilating, air-conditioning and other facilities
                   and appliances, in the Premises in a reasonable
                   manner.

            f.     Not deliberately or negligently destroy, deface,
                   damage, impair or remove a part of the Premises,
                   or knowingly permit any other person to do so.
            ...

            h.     Maintain yard (including cutting, trimming, and
                   watering grass, shrubs, and plants) at least as well
                   as neighbors with nearby premises.

            i.     Maintain refrigerator and stove in proper manner.
                   This includes keeping them clean and serviced.
                   (Landlord furnishes the stove and refrigerator in
                   this property).

Paragraph 25 likewise gives rise to a duty of Ortega to pay for certain repairs.

Entitled “Repairs,” it provides that Ortega will “promptly pay for all plumbing,

electrical, air conditioner, appliance and other type repairs, resulting from abuse,

neglect, and/or ignorance.” The plain language of these provisions cannot be read

to impose upon Murrah a duty to repair or maintain plumbing. Perry Homes, 258

                                         7
S.W.3d at 606 (language used in contract is best indication of parties’ intent); see

Morton, 150 S.W.2d at 241 (statement in lease to effect that repairs on property

shall be at expense of lessee does not give rise to duty to repair by lessor).

      Ortega nevertheless contends that, by setting forth various items for which

she is responsible, the lease suggests or at least permits an inference that other

items are Murrah’s responsibility. But the Texas Supreme Court has long held that

we must enforce contracts as they are written and not rewrite a contract to add to

its language under the guise of interpretation. Schaefer, 124 S.W.3d at 162 (citing

Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex. 1965)). Accordingly,

we conclude that the terms of the lease did not impose upon Murrah a duty to

repair the kitchen sink or plumbing.1 See Flynn v. Pan Am. Hotel Co., 143 Tex.

219, 223 (Tex. 1944) (“The general rule with respect to the duty of the lessor or

landlord to make repairs, when the suit is by the tenant or the tenant’s servant or

others entering under the tenant’s title, is that the landlord is under no obligation to

make repairs in the absence of an agreement to the contrary.”).




1
      We note that paragraph 9 of the lease permits Murrah to enter the premises to
      make inspections and repairs. But a duty to repair does not arise from a lessor’s
      reservation of rights for such access. See Flynn v. Pan Am. Hotel Co., 183 S.W.2d
      446, 451 (Tex. 1944) (“[T]he reservation by a lessor of a right to enter the
      premises to make such repairs and alterations as it may elect to make is not a
      reservation of control over a part of the building and an obligation on the part of
      the lessor to make repairs does not arise from the reservation of such right.”).


                                           8
      2.     No enforceable oral agreement to repair

      Ortega adduced summary-judgment evidence that Murrah gave her his

business card “when we moved in” and told her to call him “if we needed anything

repaired.” She argues that Murrah thus orally undertook to a duty to repair.

Murrah responds that any oral promise is unenforceable because the lease prohibits

oral modifications.2

      Because the lease was for a one-year term, it was not required to be in

writing. See TEX. BUS. & COM. CODE § 26.01(a)(1), (b)(5) (lease for term longer

than one year must be in writing). “[A] written contract not required by law to be

in writing, may be modified by a subsequent oral agreement even though it

provides it can be modified only by a written agreement.” Pointe West Ctr., LLC

v. It’s Alive, Inc., 476 S.W.3d 141, 151 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied) (quoting Robbins v. Warren, 782 S.W.2d 509, 512 (Tex. App.—Houston

[1st Dist.] 1989, no writ) (citing Mar–Lan Indus., Inc. v. Nelson, 635 S.W.2d 853,

855 (Tex. App.—El Paso 1982, no writ))). Accordingly, proof that a contract

provision requires modifications to be in writing does not establish as a matter of



2
      The lease provides: Entire Agreement/Amendment. This Lease Agreement
      contains the entire agreement of the parties and there are no other promises or
      conditions in any other agreement whether oral or written. This Lease may be
      modified or amended in writing, if the writing is signed by the party obligated
      under the amendment. (Emphasis added.)


                                         9
law that the parties did not modify the contract orally. See id.; Robbins, 782

S.W.2d at 512; Mar–Lan, 635 S.W.2d at 855.

      However, to be enforceable, an alleged oral contract modification must

satisfy all the essential elements of a contract. See Hathaway v. Gen. Mills, Inc.,

711 S.W.2d 227, 228 (Tex. 1986). There must be both a meeting of the minds and

new consideration to support the modification. See id. Here, Ortega argued that

she fell within an exception to the general no-duty rule because Murrah orally

agreed to make repairs. Accordingly, she bore the burden to raise a material fact

issue sufficient to defeat summary judgment. See Lujan, 433 S.W.3d at 704 (if

movant meets its summary-judgment burden, nonmovant bears burden to raise

genuine issue of material fact precluding summary judgment). But Ortega adduced

no evidence demonstrating new consideration, which was necessary to support

Murrah’s alleged oral agreement to provide repairs upon telephonic notice.

Hathaway, 711 S.W.2d at 228 (alleged oral modification requires consideration).

Accordingly, Ortega failed to adduce evidence to create a fact issue regarding the

existence of an enforceable subsequent oral agreement by Murrah to undertake

repairs with telephonic notice. See id.

      Ortega cites Blancett v. Lagniappe Ventures, 177 S.W.3d 584 (Tex. App.—

Houston [1st Dist.] 2005, no pet.), to support her assertion that Murrah owed her a

duty to repair as a result of his alleged oral agreement, but this case does not



                                          10
support her claim. Ortega correctly points out that the court of appeals reversed a

summary judgment for the tenant in Blancett. See id. at 593. However, Blancett

only added her failure to repair claim after the defendant lessor moved for

summary judgment. Id. at 592. The trial court nevertheless granted final summary

judgment for the lessor, and this Court reversed, holding that summary judgment

on the failure to repair claim was improper because it had not been addressed in the

lessor’s motion for summary judgment. See id. Thus, Blancett does not address

the merits of the plaintiff’s failure to repair claim.

      Ortega also argues that Daitch v. Mid-American Apartment Communities,

250 S.W.3d 191 (Tex. App.—Dallas 2008, no pet.), supports reversal. In that case,

the lease required the lessor to make repairs only upon written notice from the

tenant, and there was no evidence the tenant gave written notice of the need for

repair.   Id. at 195.     Daitch actually supports Murrah’s position, because it

underscores the general no-duty rule. Id. The court of appeals concluded that

although the landlord may have come within an exception to the no-duty rule by

contracting to repair in the lease, its obligation to repair was only triggered by

written notice from the tenant. Id. Because there was no evidence that the tenant

ever gave written notice of a problem with the air conditioner, there was no

evidence of a breach of duty by the landlord. Id. Daitch is thus unlike this case,




                                            11
because the lease in Daitch, unlike the lease in this case, expressly obligated the

landlord to make repairs upon written notice. Id.

      In sum, Ortega’s summary-judgment evidence failed to raise a fact issue

regarding the existence of consideration, without which there can be no

enforceable subsequent oral agreement by Murrah to repair based on telephonic

notice. We therefore conclude that the alleged oral agreement did not give rise to a

duty to repair.

      3.     Property Code Section 92.052 does not create a duty to repair

      Ortega argues that section 92.052 of the Texas Property Code creates a

landlord’s duty to repair any condition that “affects the health and safety” of a

tenant. Murrah responds that the Texas Supreme Court previously has held that

Section 92.052 does not apply to personal injury actions.

      Section 92.052 requires a landlord to make a diligent effort to repair

conditions materially affecting the physical health or safety of an ordinary tenant

under certain circumstances:

      (a)    A landlord shall make a diligent effort to repair or remedy a
             condition if:

             (1)   the tenant specifies the condition in a notice to the person
                   to whom or to the place where rent is normally paid;

             ...

             (3)   the condition:



                                         12
                    (A)    materially affects the physical health
                           or safety of an ordinary tenant.
       ...

       (d)   The tenant’s notice under Subsection (a) must be in writing
             only if the tenant’s lease is in writing and requires written
             notice.

TEX. PROP. CODE § 92.052.

       In Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.

1998), the Texas Supreme Court considered whether section 92.052 applies to

personal-injury actions. It wrote:      “It thus appears that subchapter B [which

includes section 92.052] was intended to govern disputes between a landlord and a

tenant over repairs and not liability for personal injuries resulting from premises

defects actionable under the common law.” Id. at 755. In concluding that the trial

court should not have given an instruction based on section 92.052, the court held,

“While [the instruction] correctly states a landlord’s obligation to repair, it does not

apply in a personal injury case and should not have been included in the charge.”

Id.   Before Timberwalk, the Fourteenth Court of Appeals addressed a related

argument—that a tenant’s failure to comply with section 92.052 foreclosed an

otherwise valid claim for personal injury—and came to a similar conclusion. See

Moreno v. Brittany Square Assocs., 899 S.W.2d 261, 262–63 (Tex. App.—

Houston [14th Dist.] 1995, writ denied). The Moreno court held that the duties in

Subchapter B were unrelated to personal injury claims. Id. at 263. Thus, a tenant



                                          13
could maintain a personal injury claim if such a claim was otherwise available. See

id.

      Here Ortega argues that section 92.052 creates an exception to the no-duty

rule and thus creates a personal injury claim where one is not otherwise available.

Following Timberwalk and Moreno, we disagree and hold that section 92.052 does

not create an independently actionable duty to repair in the context of a personal

injury claim. See Timberwalk, 972 S.W.2d at 755; Moreno, 899 S.W.2d at 262–63.

      In sum, we conclude that Murrah established his entitlement to summary

judgment by conclusively proving that he owed Ortega no duty to repair, and that

Ortega failed to raise a fact issue regarding the existence of such a duty under the

lease, the alleged subsequent oral agreement, or Property Code section 92.052.

      We overrule Ortega’s first, second, and third issues.

D.    Waiver and estoppel

      In her fourth and fifth issues, Ortega argues that Murrah waived the right to

rely upon the lease’s written notice requirement and should be estopped from

relying upon the requirement. Specifically, Ortega asserts that by “giving tenants a

card with a phone number on it; telling them to call if they need repairs; agreeing

to perform repairs when called; and listing specific items in the lease that the

tenant must repair,” Murrah has either waived the notice provision or is equitably

estopped from enforcing it. But our holding does not turn on the lease’s notice



                                         14
provision. Rather, we have concluded that the summary-judgment evidence did

not raise a fact issue regarding whether Murrah had a duty to repair.

      We overrule Ortega’s fourth and fifth issues. 3

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Keyes, J., concurring.




3
      Because we hold that the trial court properly granted summary judgment in
      Murrah’s favor based on the absence of a duty to repair, we need not address
      Ortega’s sixth issue, in which she challenged the summary judgment to the extent
      it was based on lack of causation. See Delgado v. Jim Wells Cty., 82 S.W.3d 640,
      643 (Tex. App.—San Antonio 2002, no pet.) (where summary judgment correctly
      granted on one ground, appellate court need not address arguments attacking
      alternate grounds).

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